I. Intro to Constitutional Decisionmaking A. 14th Amendment and Race Topic Notes: "we the people" is the wording under criticism here; the south thought "we" meant the people of Louisiana in Plessy, but the north construed its meaning as "the people of the United States." Article VI (supremacy Clause): Congress can pass statutes preempting or invalidating state law, provided such law is within Congress' authority delegated by the Constitution. Enforced by section 5 of the 14th Amendment. Plessy v. Ferguson (1896) Case Brief: Style (name of case): Plessy v. Ferguson (1896) Relevant Facts: Louisiana statute prohibits blacks from sitting in white- earmarked train cars. Homer Adolph Plessy's ancestry is 7/8 European, 1/8 Afro-American; he was prosecuted by the state for refusing to leave the whites only car. Plessy argues he had a right to sit in the whites only car, and Louisiana's law deprived him a property interest in his whiteness, as well as equal protection under the laws. Issue: Under federal law, may a person who is of majority Caucasian decent refuse to leave a train car earmarked for whites in 1890's Louisiana under the premise his property rights and equal protection under the 14th Amendment is undermined? Holding: No. The court held they were not the social rule makers for the day, and found nothing in the strict interpretation of the constitution which mandates that the 14th Amendment be made to satisfy anything other than the equality of the two races. Separate cars are not a violation of the amendment and the charge stands. Court's Rationale/Reasoning: The court held separate cars were not a violation of the 14th Amendment, because they did not interfere with the political agenda behind the amendment. The discretion for the legislative aspect of such a law as the one in question here involves the body which passed the law (LA legislature). This law is not unreasonable by the standard of reasonableness within the context of the community standards involved. Rule: The constitutionality of a law will be based upon, in addition to its political policy, its accordance with usages, customs, and traditions of the people involved, to the promotion of the public peace and good order. Important Dicta: Brown notes the separation of races is not a stamp of inferiority, and that legislation alone can quell the movement of segregation. His opinion puts this burden in the hands of society. Dissenting: The true meaning of the Louisiana statute is obvious: segregation. Such a statute is violative of the 14th Amendment because it denies blacks a fundamental right to "travel in the same public conveyance on a public highway," and this decision violates this personal liberty established by the amendment. If blacks may have political freedoms, how can they criminally prosecuted for exercising those same freedoms in a public place? (at the time of the decision, there were 60 million estimated whites by Harlan, and only 8 million blacks) Concurring: None. Brown v. Board of Education (1954) Case Brief: Style (name of case): Brown v. Board of Education (1954) Relevant Facts: Brown was one party of many who was denied admission to a school based solely on his race. The following cause of action was brought forth to put an end to a violation of constitutional rights. Issue: Under Constitutional law, does the denial of admission to a school of a person of color violate the 14th Amendment when the school interposes that the old rule of Plessy exists? Holding: Yes. Court's Rationale/Reasoning: The court refused to accept the fact that the term "separate but equal" exists anymore in society. Cumming did not challenge this premise, where Plessy only addressed transportation (ineffectively). Gaines, Sweatt, Sipuel, McLaurin all moved forward in respect to no longer denying blacks the right to the same rights as whites, when all things are equal. But never had the court addressed Plessy until now. Education is considered one of the most important responsibilities of the state and local governments, and thus the circumstances in which this decision must be based rest solely on the previous statement. If such a fact exists, it cannot be denied to another person based on race or religion or background. Such a denial would in essence create a permanent underclass of citizens who have not the knowledge or ability to attain knowledge which is so vital to competing in society equally. Dividing citizens up when the facilities, teaching situations and the overall situation are so inequitable flies in the face of such a premise. Rule: The field of public education shall no longer contain the premise of "separate but equal." There is therefore no more segregation. Important Dicta: Any psychological knowledge of the decision in Plessy is now supported by modern authority. Dissenting: N/A. Concurring: N/A. Bolling v. Sharpe (1954) Case Brief: Style (name of case): Bolling v. Sharpe (1954) Relevant Facts: Black children were denied admission to public school where exclusively white students attended. Issue: Under constitutional law, does the denial of black children the right to attend an all-white school violate the 5th amendment? Holding: Yes. The 5th amendment protects life, liberty and the pursuit of all happiness, not just physical, but intellectual freedoms as well. Court's Rationale/Reasoning: The court used the 5th amendment here to get around the fact the 14th amendment does not protect those citizens of Washington, D.C. Since the 5th amendment has a due process clause as well, the court found there to be equal reason to provide for protections under the decision of Brown for D.C. The key term used was "liberty," which was held by the court to be more than merely bodily freedom, it also means a freedom to learn, as well as all the other freedoms granted by the constitution, as long as they do not violate government standards. Rule: The 5th amendment protects the freedom of life, liberty and the pursuit of happiness in education, as well as all facets which the government controls and protects under its laws. Important Dicta: N/A. Dissenting: N/A. Concurring: N/A. B. Judicial Review Marbury v. Madison (1803) Case Brief: Style (name of case): Marbury v. Madison (1803) Relevant Facts: PL Marbury was appointed a justice of the peace at the very end of Adams presidential term, one day before the changing of the guard (3/4/1801), and the appointment was pushed through and confirmed by the Senate. The new administration obtained a repeal of the statute creating the courts and refused to grant Marbury's commission. Marbury sued incoming Secretary of State James Madison in the Supreme Court for a writ of Mandamus (we command - orders public official to perform a duty under the law). Marbury contends (1) the Court had the jurisdiction to rule on such a matter; (2) Madison violated federal statutory and constitutional rules by withholding the commission; and (3) the mandamus was an appropriate remedy. Issue: Under Constitutional law, is the Supreme Court the appropriate court to adjudicate whether a federal commission to serve as a justice of the peace could stand under a new political term? Under constitutional law, does the new political term's officers action of denying a previously confirmed appointment under the previous term violate any statutes or rules? Under constitutional law, is a writ of mandamus an appropriate means to compel the Court to grant a confirmation by a previous President? Holding: (1) Yes. The Constitution is the law of the land, and all other laws are subservient to it. (2) Yes. Marbury had vested a legal right in the commission for the term as justice, a right which was not revocable. (3) Yes, Mandamus was the appropriate legal remedy, for there was no other under the law for Marbury at the time of the suit, other than to go the Federal route in seeing his appointment and subsequent confirmation followed through. Court's Rationale/Reasoning: The court may enforce with mandamus because the court has been granted the power under the constitution to use its power when the right claimed is one given by a law of the United States. Otherwise, the Court has mere appellate jurisdiction. However the Constitution does not grant such a power. So the court must decide here, the means in which to govern: where the constitution may take a back seat to other law, or where the constitution holds overall precedent. Either way, the law or the constitution, must apply totally to the case at hand. In short, it would be betrayal to the very meaning of what the framers of the constitution intended. The constitution must be observed first and foremost; everything else is subservient to it. Both the legislature and executive branches support this ideal. Rule: The Secretary of State is a person whose actions fall under the scope of the Judicial Act of 1789. Mandamus is the appropriate remedy for the Court to use to enforce its authority on any courts appointed, persons holding office in the United States. Important Dicta: Aside from the decision, important info...N/A Dissenting: Justice Concurring: Justice Cooper v. Aaron (1958) Case Brief: Style (name of case): Cooper v. Aaron (1958) Relevant Facts: The state of Arkansas refused to be legally bound by the Supreme Court's decision in Brown. The Little Rock School Board had continued to implement a plan in which the segregation of students in these schools existed. Issue: Under constitutional law, were Arkansas officials bound by the Court's prior decision in Brown, or instead were they entitled to resist a Supreme Court order to desegregate schools? Holding: Yes, Arkansas officials were bound by the Brown decision, and were forced to desist from their attempts at stalling the desegregation process. Court's Rationale/Reasoning: "No state legislator of executive of judicial officer can war against the Constitution without violating his undertaking to support it." Such a judicial decision has a binding effect on the states; the court reaffirmed its opinion regarding desegregation, reiterating legislatures are not at liberty to pick and choose which judgments of the Court to follow. Judicial officers take an oath to such a thing in article VI, clause 3, to "support this Constitution." Rule: None may nullify a judicial ruling based on constitutional law. Important Dicta: Article VI of the Constitution makes it the "supreme law of the land." Dissenting: N/A. Concurring: N/A. C. Theories of Constitutional Decisonmaking 1. Originalist theory Topic Notes: The belief that the Constitution should be interpreted according to the original intent of those who composed and adopted it. Consider: (1) text of Constitution, (2) original debates and specific public representations made about the document's application to problems, and (3) the original goals and norms that were accepted by those ratifying the Constitutional provisions in question. (a) the dead hand of the past problem: could the small amount of people who adopted this body of law centuries ago have such a small sense of what could emerge from their document (b) the intent about intent problem: did the framers themselves, or the founding generation, intend that their successors be bound by their social contract? (c) the interdeterminacy problem: is it possible for judges of different political persuasions to come up with a determinate or at least probalistic answers to new interpretive issues from the text, original intent or purpose of the Constitution 2. Textualist Theory Topic Notes: (a) clause-bound textualism: what is the plain meaning of the Constitutional language? How would the reasonable person in the Framers' era have understood the language? Words as how they mean in dictionaries, and their preferred meaning items in a series are presumed to be the same kind all parts of the sentence are considered as necessary as the other provisos should be narrowly construed and ought not trump policies to which they are creating exceptions (b) holistic interpretation: read the provision in light of the whole document (c) structuralism: read the text in light of overall constitutional principles 3. Original Understanding Topic Notes: The view that the Court should strike down legislation only if it violates the original understanding of the Framers of the U.S. Constitution or an amendment 4. Purposivist Theory Topic Notes: What interpretation best carries out the Framers' original purposes? 5. Legal Process Topic Notes: These theorists suggest that legitimacy of constitutional law is enhanced when courts are acting within their core institutional competence or when legislatures are procedurally or institutionally misfiring D. Legal Process Theories of Judicial Theory Topic Notes: "legal process" theory views the rule of law from an institutionalist and procedural perspective. The rule of law is not just a law of rules, but is rather an institutional and procedural structure by which recognizable legal rules are made and changed in an orderly way. Depends on (1) judges' special special institutional competence, the things tat the judiciary as an institution does really well (2) the institutional limitations that justified Hamilton's referring to the judiciary as the "the least dangerous branch" (3) the judiciary's comparative competence and limitation -- the same issues issues viewed against the strengths and limitations of the legislative and executive branches 1. Notes on other proceduralist Theories of Judicial Review Topic Notes: Institutional Legitimacy: major policy decisions in a representative democracy should be made by elected officials and not by administrators or perhaps even more local representatives. (gov't power over groups like school boards, police, city admins, etc.) Enforcing jurisdictional and procedural rules: a key role of the Court is to enforce constitutional rules of jurisdiction Encouraging deliberation: the Court might encourage the deliberative, republican gov't instinct in the Constitution and expressly contemplated by its Framers (give the legislature the benefit of the doubt -- i.e., Bowers v. Hardwick, where GA court's anti-sodomy law was upheld) But Marbury power can also be avoided by (1) denial of cert or refusing to hear a case altogether, (2) reading a case narrowly, or (3) declining to decide on a case because petitioner lacks standing, mootness, political question [Bickel essay] E. Evolutive Theories of Judicial Review Topic Notes: This theory is based on "the living Constitution." Much of Constitutional law is unwritten and its legitimacy based on something more than process or command; emphasize the desirability of adapting the written as well as unwritten Constitution to new social, economic, political, and moral circumstances; and openly acknowledge that constitutional meaning has changed over time. 1. Republican theories - translation and constitutional synthesis Topic Notes: Starts with a conception of civic virtue, in which citizens would work for the common good of the republic, from which they would derive a form of "public happiness" or civic virtue; republicans deliberate for the common good through discussion and dialogue on all views, valuing perspective 2. Radical Feminism and Critical Race Theory Topic Notes: Critical theory of the 1970s and 1980s questioned the determinacy or objectivity of original intent, proceduralist, and republican theories of constitutional law. Advocates of this belief wanted the constitution "reconceived" from the perspective of women and people of color (a document drafted by white men bears no direct representation on society as a whole. A. Anti-subordination understanding the Constitution Topic Notes: Theory which holds that the central goal of the Reconstruction amendments was to "overturn laws and practices that unfairly subordinated social groups and to assure all persons the same protection of law that the white males have traditionally enjoyed." (dominated by a rationality goal by the Court) B. Affirmative not just negative state responsibilities Topic Notes: Critical theory which holds the Court has missed the state's strong equal protection interest in regulating hateful conduct and the 1st Amendment's interest in creating circumstances where the socially marginalized feel empowered to speak. C. Rejection of dichotemies between liberty and equality, public and private Topic Notes: Theory that holds the Court has been loathe at times to accept progressive arguments that longstanding status alignments should be changed significantly. Primary reasons the court has used is a public-private distinction (prevents courts from applying constitutional norms to social practices) and a preference for liberty over equality (prevents courts from imposing equality norms on state actors and invalidates state equalization methods). 3. Common Law and Pragmatic Theories Topic Notes: Theory that involves the interpretation of written texts, con law is said to be more like statutory interpretation than common law interpretation. BUT this is not always so. Leading pragmatic (practical), or eclectic theories of con law say several elements should be taken into consideration: (1) constitutional text (2) original intent to the best extent determinable (3) precedent and historical practice (4) original or evolved purpose of the provision (5) practicality and potential resistance (6) ethical and political norms II. Federalism - Congressional Power and State Authority A. Enumerated Fed. Power, Reserved State Authority McColloch v. Maryland (1819) Case Brief: Style (name of case): McCulloch v. Maryland (1819) Relevant Facts: The 2nd bank of the U.S. Was created in 1816 for the providing of loans to the nat'l gov't to assist in the collection of taxes. States, scared it would create another recession like the year previous, sought to tax it. MD was one of those states, and they sued the Bank Cashier of the Baltimore branch, McCulloch, when he refused to pay the tax. Issue: Under constitutional law, may the United States create a national bank (system) for the purpose of collecting taxes among others, when there is no enumerated power which specifically lists this ability? Under constitutional law, can a State tax a Federal entity when the premise that the national government is given its power by the States? Holding: Yes. The power to create a bank may not be clearly be stated within the text of the Constitution itself, but it is enumerated under the "necessary and proper clause." (explanation below) [art. 1, section 8] No. Under Article VI of the Constitution, its laws are supreme to all in the land, and control all the laws of the States, not the other way around. Court's Rationale/Reasoning: The Court first determines that the enumerated powers are just that, but in the 10th Amendment, the power of the Federal gov't is expanded just enough to allow it the ability to create things which are appropriate in the context of the nation. This is important, because if not for this ability, the country would not, as a whole, be able to help other parts of it, without going through a slow process of seeing which state wants to help which. Funds need to be shifted from one to another, funds to help one another, and taxes to help the country as a whole are all a result of this decision. The court takes a look at the term "necessary," and determines that in its context, the word should be read as is; whatever is important in sustaining the nation, within reason, is allowed. The fact this document will be used in the future should encourage the Court to allow the bank to stand as it does anyway, because a strict interpretation on the clause now could hasten more federal limits of power. If the nation is to remain strong, it has to be able to implement things which will help it, and so, the clause allows the bank, and other things. (post office example p.827) The clause is also placed among the powers of Congress for some reason. Additionally, if they are placed within those powers, they should be read to mean they enlarge Federal powers, not limit them. As far as the proposed MD tax on the Fed. bank, there is no way the Framers of the Constitution could have envisioned a system where the states themselves could dictate rule over the federal system. In such an instance, the gov't would be turned on its collective head. (p. 829) Article six of the Constitution says the laws of the document are supreme over all in the land, yes, even the States. This puts a limit on State power, not an end to them. Rule: Congress has the right to make all laws, which may have relation to the powers conferred on the government, but such only as may be "necessary and proper" for carrying them into execution. Article gives the Federal govt's laws supremacy over state laws, therefore it is not the States who may tax the Federal gov't, but the other way around. Important Dicta: Aside from the decision, important info... Dissenting: N/A. Concurring: N/A. 1. Notes on reasoning in McCulloch Topic Notes: When Congress passed the Bank through the legislature, most of the Framers who wrote the Constitution were present, thus indicating favorable intent for the "necessary and proper" clause's limits. The States were granted the ability to tax on imported goods to the point which were "absolutely necessary," meaning only if dire to the needs of the individual state. However, since the clause elaborates necessary with proper, it shows which term was helping which. Hamilton meant that the national government owed its sovereignty not to the States, but directly to "We the people." In U.S. Term Limits, Inc. v. Thornton, the Court struck down an AR amendment to its state constitution which capped a limit on House terms by any candidate already elected three times. Justice Stevens figured if the government could limit a State's ability to tax a Federal Bank, then they could also limit a state's attempt to put a limit on elected Federal officials. But Scalia, Rehnquist, Thomas and O'Connor dissented, saying the power in the constitution comes from the consent of the people of each state, not the undifferentiated people of the nation as a whole Stevens, who concurred, translated the law as one which limited a federal right of the people, which is why it should be struck down (fed right transcends that of the states) 2. Note on theories of federal and state sovereignty, advantages of federalist Topic Notes: Values or goals of federalism: (1) protecting liberty: States can effect federal gov't through its right to elect people who will reflect their opinions, and may also resist for the sake of changing the law (i.e., women who wanted abortions just went to states which allowed them to exist) (2) republicanism: a government should answer to no one other than the community of people that it governs (assures diversity of its citizenry; if they want something they will act together to get it done, sometimes seen as better on local level) (3) efficiency and diversity: federalism can serve the equal citizenship and diversity goals advanced by identity-based social movements 3. Note on Original Understanding Topic Notes: Agreement that the national government had to be more powerful after the Articles of Confederation were a complete disaster Commerce Clause (section 2) Congress's authority to enact civil rights legislation (section 3) Treaty power (section 4) B. Congressional Power under the Commerce Clause Topic Notes: Two levels of constitutional power: nat'l. And state gov't., with 3 issues arising: (1) under what circumstances can the nat'l. Gov't act? --> Constitution suggests only under one of the "enumerated powers" of which almost all are set in Art. 1 (2) How does this federal power relate to State power? --> states delegated limited power to the federal gov't. and retained (reserved) general regulatory power (local police power) over their geographic domains and the persons within them. (intergovernmental immunity doctrine: Court can regulate states) (3) In which of the ways does the Constitution limit the exercise of state power? Gibbons v. Ogden (1824) Case Brief: Style (name of case): Gibbons v. Ogden (1824) Relevant Facts: State of NY Legislature granted Livingston and Fulton exclusive license to operate steamships in its waters. Livingston and Fulton assigned Ogden the right to operate a ferry in its waters. Gibbons, a competitor, technically violated the NY license by entering its waters. Gibbons vessels were licensed as those which were "vessels in the coasting trade," pursuant to 1793 statute. Ogden obtained an injunction in NY state courts, prohibiting Gibbons from operating his vessels in NY waters. Gibbons appealed, claiming the judgment was inconsistent with the Commerce Clause. Issue: Under constitutional law, may one ferry operator interpose another's claim for sole rights to trade in NY waters when a State statute earmarked one of them with permission to use its waterways? Holding: No. "Navigation," as it is defined in the Commerce Clause of the Constitution, allows only the Federal gov't the ability to allow or condemn commerce between foreign countries and between states. Court's Rationale/Reasoning: The court decides to answer the question by the original intent method. The Court examines the word "commerce," which it deems as intercourse, not just traffic, and not just navigation, as to the buying and selling of goods. The original intent of the Framers was to have the act as one of commercial enterprise, and it has been treated as such over the years. The first sentence of the clause does not apply to just those issues of revenue, and the most obvious preference which one could give to another in commerce is navigation. The term "nor shall any vessels bound or from one state, be obliged to enter, clear, or pay duties, in another," references navigation as well. So Congress has the power to navigate, but how much power? Power is extended by the federal gov't to everything: from foreign nations to the States. Similarly, if the power is for foreign trade, and foreign trades exists between the States of the country, and if the U.S. Is made up of states, then there is a Federal power to regulate trade between states. The government's ability to sanction trade embargoes shows the power of the gov't is understood to be stronger than the states. Rule: Article One, section 9, clause 6: "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another: nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another." Important Dicta: Aside from the decision, important info... Dissenting: N/A. Concurring: N/A. United States v. Darby (1941) Case Brief: Style (name of case): U.S. v. Darby (1941) Relevant Facts: The Fair Labor Standards Act of 1938 regulated wages, hours and other conditions of employment. Darby, who manufactured lumber in GA and shipped some of it to customers in other states, was indicted for violating the Act, but the district court quashed the indictment on the ground that the statute was unconstitutional under Hammer v. Dagenhut (child labor). Issue: Under constitutional law, does Congress have the constitutional power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose wages are less than a prescribed minimum or whose weekly hours of labor at that wage are greater than a prescribed maximum? Under constitutional law, does Congress have the power to prohibit the employment of workmen in the production of goods "for interstate commerce" at other than prescribed wages and hours? Holding: Yes. If the shipments are reaching other customers in other states, then the long arm of Congress may extend to those companies and regulate their activity (under the Commerce Clause). Yes. Congress again, since the program does extend on a national plane, may regulate as such under the Commerce Clause granted to Congress. Court's Rationale/Reasoning: The power to regulate commerce is the power "to prescribe the rule by which commerce is governed." (rule of Gibbons). It extends to not only those regulations which aid, foster and protect the commerce, but to those which prohibit it as well. Just b/c there is no enumerated law which says Darby's actions do not fit within the Commerce Clause, doesn't mean there isn't regulation. If something that is made not only passes through a particular state, but to another, and so on, there is reason to expect it would be federally regulated. The only time the arm of the Act was used to cover was for things which were not in the government's best interest, like lotteries or transporting women across state lines. Now, it will cover those things which also are in the legal stream of commerce as well. As far as the labor laws go, the same rule applies. Children are making goods which go to other states, so they fall under the federal microscope. The restriction on them is permissible in federal circles, and this adopts a policy where even intrastate activities are under certain parameters, it is still federally regulated. Tobacco is one example, where it is brought into one state, but then packaged and shipped on to others. This is to maintain some semblance of order in which state companies fall under federal radar when they step over the line of being involved in interstate activity. By the way, the 10th Amendment is not touched here, b/c there were no rights which were taken away from them. Rule: The power to Congress to regulate interstate commerce extends to the regulation through legislative activities intrastate which have a substantial effect on the commerce of the exercise of the Congressional power over it. Important Dicta: Hammer v. Dagenhart is overturned, as the old principles of the Court are now restored to where they once were. Dissenting: N/A. Concurring: N/A. Wickard v. Filburn: Court held a federally mandated Act establishing quotas on wheat harvests (to drive down wheat prices) was in fact violated when a farmer exceeded his quota to provide food for his animals. Court said the Act, which on its face, is on a national scale, still holds under its power those activities which a person who is part of the agricultural chain violates the Act as well. Court held the amount was trivial, but still applied. Heart of Atlanta Motel v. United States (1964) Case Brief: Style (name of case): Heart of Atlanta Motel v. United States (1964) Relevant Facts: Heart of Atlanta Motel is a 216 room place just of Peachtree Street in the ATL. It refused to accommodate African-Americans. Conceding it fell within the statute, it sought an order invalidating Title II as applied to its business. Issue: Under constitutional law, must a motel, which falls under desegregation requirements of the Civil Rights Act of 1964, comply with the enacted federal statute or may it interpose the fact the Act itself is unconstitutional in that it is an abuse of the commerce clause of the Constitution in dealing with a hotel which is solely local in nature? Holding: Yes. Since Congress has the power to regulate commerce, and interstate travel is a part of commerce, and a motel could conceivably be a part of commerce/travel, it is under the umbrella of the commerce clause and subsequently any Act (Title II) passed by Congress. Court's Rationale/Reasoning: The originalist approach to analyzing the testimony and evidence brought forth when the Act was up for debate in Congress suggests there was indeed a pressing issue regarding segregation of blacks being a hindrance on interstate commerce and travel, which were grouped together by the Act. The Court also recognized the importance of a moral matter at the same time, but insisted this decision was in the interest of commerce. The term "intercourse" as used in Gibbons (textual) back in 1824 included the movement of persons from state to state. Since hotels, inns and the like were covered under the Act as being places where travel and commerce happened to come through on a regular basis, the motel in Atlanta was not exempt from abiding by this law. Rule: Under Title II, "any inn, hotel, motel, or other establishment which provides lodging to transient guests" affects commerce per se. Article 1, § 8, clause 3 (commerce clause): Article 1, Section 8, Clause 3 of the United States Constitution empowers the United States Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Important Dicta: Aside from the decision, important info... Dissenting: N/A. Concurring: Justice Douglas wrote the decision should not just rest solely on the commerce clause itself, b/c racism itself is a more important issue Than the shipping of goods across state and international lines, and this case should not be put in that category. United States v. Lopez (1995) Case Brief: Style (name of case): United States v. Lopez (1995) Relevant Facts: Lopez brought a gun into a school zone. Lopez was a 12th grade student, and he was arrested and charged originally under TX law with firearm possession on school premises. State charges dismissed, and replaced with Federal one, violating Gun-Free School Zones Act of 1990. At trial, Lopez challenged and lost in trial court, but won in Court of Appeals, that the authority of Congress lacked in this situation under the Commerce Clause. Issue: Under constitutional law, does a state weapons charge on school grounds have cause to be superceded by a federal charge which is the basis of a constitutional Commerce Clause? Holding: No. The firearm charge does not fit under the range of the Commerce Clause, in that its violation does not effect the regular stream of commerce. Court's Rationale/Reasoning: There are outer limits to the Commerce Clause. This case represents one of them. This charge, which stems from the commerce clause, must be either one with (1) effect the channels of interstate commerce, (2) regulation of interstate commerce or intrastate commerce if it would adversely effect interstate commerce in some way, or (3) the power to regulate those activities having a substantial relation to interstate commerce, or those activities that substantially affect interstate commerce. The third option is the only one in which this case could fit, but it does not even fit this one. It does not have anything to do with commerce, and it contains no jurisdictional element which would ensure through case-by-case inquiry, that the firearm possession in question affects interstate commerce. In an originalist take, Court reads the legislative committee sessions, which concede the act in question has nothing to do with interstate commerce of guns, or the effects of carrying a gun into a school zone. The gov't makes a nice effort with its "costs of crime" reasoning, trying to tie one isolated incident to that of a much more serious and prevalent danger which must be curbed immediately. Such thinking would expand Congress' powers too much according to the Court, to the point where it could regulate any person's activity (marriage, divorce, child custody). Gun possession does not effect interstate commerce; it would take a string of different events (like playing six degrees of constitutional separation in effect) to make this charge fit. Too much of a stretch here. Rule: Article 1, § 8, clause 3 (commerce clause): Article 1, Section 8, Clause 3 of the United States Constitution empowers the United States Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". "Costs of crime" reasoning from Wickard: one act may be taken as one part of several nationwide acts of the same kind, which could constitute federal Commerce Clause enforcement. Important Dicta: Wickard analysis in connection with this case. Dissenting: (Justice Souter): The Court should have looked at this from a rational basis standpoint: the statute deals with something which is under traditional state regulation? Or is it substantially effecting commerce. He thinks so. (Breyer, Stevens, Souter, Ginsburg): This does encompass to regulate as far as interstate activity goes. There is a significant factual connection between the regulated activity and interstate commerce, and rationally this would lead the Court to this grooup's opinion. Studies and experts show the increase in school violence, which is a national problem. Certainly, commerce, as it has been defined, would be affected by this violence. Also, when one takes not just the guns as not just an isolated incident, but as part of a trend which is also bringing down education standards and the consequent negative commercial effects, there is a substantial connection. The court also made a bad distinction between commercial and non-commercial transactions, which it shouldn't have. Finally, all the previous legislation will now be essentially swept away by this decision (Dagenhart, Darby, Atlanta Motel, Wickard) Concurring: (Justice Kennedy and O'Connor): If this were decided any other way, the lines of federal and state jurisdiction would blur significantly, the result being neither branch being able to hold the other branch answerable to the citizens. (Thomas): wants new "substantial effects" test, but keep same jurisprudence as this decision. 1. Notes on Gibbons and Ct.'s articulation of commerce clause limits Topic Notes: (1) Should the Court enforce Art. 1, section 8 limits on national power? (2) Theories for limiting Congress' Commerce Clause Power. Words defined by the Court included "commerce", "among the several states", "regulate" (3) Congress' efforts to regulate new problems under its Commerce Clause Power --> (a) impediments to an efficient national market --> (b) interstate and international contagion --> (c) national standards of safety and fairness U.S. v. EC Knight: ruled sugar "manufacture" not sugar "commerce", so no monopoly Champion v. Ames upheld constitutionality of federal Lottery Act, as lotteries were interstate "commerce" Swift & Co. v. U.S.upheld Sherman Act injunction against price-fixing by meat packers, as cows going from state-to-state was, in fact, commerce Houston, East & West TX Railway v. U.S. was was ICC directed railway to equalize its rates between Dallas and Marshall and Marshall/Shreveport lines. Court held ICC had jurisdiction over intrastate and interstate rates (interstate carriers are part of commerce) Hammer v. Dagenhut court held Congress had no Commerce Clause power to prohibit interstate transportation of goods made by child labor (children not part of the actual commerce, just made goods, which were harmless) 2. Note on Child Labor Case and Ct.'s narrow view of commerce clause Topic Notes: (1) The manufacture/commerce distinction and the court's narrow view of the commerce clause --> manufacture is for the state to regulate and commerce is for the federal side (2) possible escape hatches: current of commerce and affecting commerce --> left untouched local activity in the current of commerce & local activity affecting commerce (3) substantive features of the child labor case --> (a) anti-redistribution --> (b) disapproval of federalizing employment law --> (c) family and privacy 3. Note on the New Deal's early difficulties meeting commerce clause scrutiny Topic Notes: Court in different circumstances held the Commerce Clause was being used too broadly in FDR's attempts to restabilize the country: mandatory railroad retirement was ruled out of the realm of the clause b/c Court said it dealt with worker's rights and not commerce, minimum wage and child labor protections (again), and court packing Nat'l Labor Relations Board v. Jones& Laughlin Steel Corp. - Court upheld governmental labor regulations to a national steel company 4. Notes on Civil Rights and Federalism Topic Notes: The Court moved from a stance where segregation was a local issue and was mandated under state protection, to where discrimination applied on a national level with the passage of the Civil Rights Act of 1964. 5. Notes on the New Deal and Warren Court Dilution of Commerce Clause limiting Topic Notes: More after Heart of Atlanta re: Title II Katzenbach v. McClung (1964): under Title II, any restaurant "principally engaged in selling food for consumption on the premises" was subject to the Act "if it offers to serve interstate travelers or a substantial portion of the food which it serves has moved in interstate commerce." (if serving travelers or if food traveled to be made there, it was under the Act, and so was the restaurant) New Deal Notes Dual federalism idea here abandoned; formal distinctions as to subject matter marginalized. Congress can regulate anything that enters the stream of commerce, or even before hand under current-of-commerce theory. Congress can regulate intrastate travel by showing it has a substantial effect on interstate travel (commerce), and to show such effect, agents may search through trash cans and food bins. · Hodel v. VA surface Mining & Reclamation (1981): Court said Congress could regulate mining, or any other activity which causes air and water pollution. 6. Notes on Lopez and Commerce Clause's new teeth Topic Notes: (1) Reconciling the precedents? All the previous cases decided (Perez, McClung, Wickard) all turned on a similar part of the clause...why not now? I think b/c this time, there may have been too far a line to cross to bring guns in schools to commerce...one things effects the next, which effects the next, and so on... (2) Institutional Concerns: for drawing a bright line after this case, where would the court go in the future? (3) Justifying national regulation under the Commerce Clause: should the gov't be required to delineate its stance on every single issue which falls underneath the possibility of commerce, or federal environmental regulation C. Congressional Authority to Promote Civil Rights Topic Notes: Looking outside the commerce power: Six acts in history taken into context with these cases: (1) after adoption of the 13th but not before the 14th amendment, came the Civil Rights Act of 1866 (2) After 14th Amendment came the Civil Rights Act of 1871 (3) Voting rights act of 1965 (4) Religious Restoration Act of 1993 (5) Title VII of Civil Rights Act of 1964 (sex discrimination) (6) The Violence Against Women Act of 1991 *all these Act assisted by the passage of the reconstruction Amendments 11th amendment: Congress sometimes forbids a private individual to sue an entire State 1. The Reconstruction Amendments and Fed. Statutes Adopted Under Them Topic Notes: Read section 2 of 13th, 15th amendments and section 5 of 14th amendment: "to enforce" means: make laws, Acts, organizations, etc... " by appropriate legislation" means: whatever is deemed necessary at the time to ameliorate the situation The Civil Rights cases were based on the Civil Rights Act of 1875, which gave every U.S. citizen protection in virtually all places, within the laws of the country, on the basis of color and of race, regardless of any previous condition of servitude. Fine was $500. The Civil Rights Cases (1883) Case Brief: Style (name of case): The Civil Rights Cases (1883) Relevant Facts: Lots of discrimination amongst State citizens who were probably charged under the Act of 1875. Issue: Under constitutional law, is the discrimination of African-American freemen after the passing of the Civil Rights Act of 1875, a violation of due process under the 14th amendment? Holding: Yes (but not anymore). The discrimination of a freemen does not violate the words of the Act, "regardless of any previous condition of servitude." Court's Rationale/Reasoning: The powers were reserved to the people in the tenth amendment, and the implication of a power to legislate in this manner is based on the assumption that if the States are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon Congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such State legislation or action. This assumption is certainly unsound. The wrongful act of an individual unsupported by any such authority, is simply a private wrong, or a crime of that individual. His rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress (this is a tort action more or less). Let the states handle it. Thus an act of refusal into a public place has nothing to do with "a badge of slavery or involuntary servitude." The "discriminated party" must take care of their cause of action in a state court. It would not be feasible to make every case based on slavery a federal case. Also, some African-Americans enjoyed freedoms before this Act was passed; why are they complaining now? Rule: 14th Amendment/the clause from the Civil Rights Act of 1875, which is quoted in the issue Important Dicta: This is not a social decision, this is a political and constitutional one. Dissenting: (Justice Harlan): There is no entry into the domain of state's rights here; this Act is just a political manifestation of the prevailing notion of universal freedom. Practicing discrimination is a bade of servitude, as it is a constant reminder of what was, and what shouldn't be anymore according to the law, but still is, since the court has ruled in favor of bowing out of the conflict. Furthermore, the 5th article of the 14th amendment does not specifically reference prohibitions on states.The government does not have anything to do with social issues or social relations, but there should be no discrimination by any member of the States to freemen of the States for anything having to do with their previous history. Jones v. Alfred H. Mayer Co. (1968) Case Brief: Style (name of case): Jones v. Alfred E. Mayer Co. (1968) Relevant Facts: Jones discriminated against for wanting to buy property that a real estate developer would no sell to them. They argue section 1982 of the then Civil Rights Act of 1866 held "all citizens of the U.S. Shall have the same right, in every State and Territory, as it is enjoyed by white citizens thereof to inherit, purchase, lease, sell and hold, and convey real and personal property." Court first held that section 1982 bars all racial discrimination, including private discrimination, in the sale or rental of property. Issue: Under constitutional law, does Congress have the power to so what section 1982 purports to do when that purpose is to prohibit all racial discrimination, private and public, in the sale and rental of property? Holding: Yes. Congress is granted the constitutional power to enforce the prohibition of both private and public discrimination in the sale and rental of property. Court's Rationale/Reasoning: The Court starts with the 13th amendment, which it says clearly supports the prohibition of discrimination, after broadly interpreting the rule above. Further the original intent of the Framers of the 13th amendment, who debated on the Civil Rights Act in 1866, which is now in question, further issued statements backing the same premise the Court came up with: "we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing." From this, the Court finds the intent of the legislation in creating the amendment was to do the same thing in regards to legislation to further its cause, namely the Civil Rights Act of 1866. If there were no authority for Congress to enact such an Act, the Court says the amendment would be nothing but a worthless piece of paper. The ability for communities to segregate is just a futurist spin on slavery. "A dollar in the hands of a black man should be able to purchase the same thing as that in the hands of a white man." Rule: Congress has the power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States. ("Enabling Clause" taken from the 13th amendment) Important Dicta: N/A. Dissenting: N/A. (Harlan and White's opinion's omitted.) Concurring: N/A. (Douglas omitted) A. Notes on the Civil Rights Cases Topic Notes: (1) Relationship between the substantive and enforcement sections, between judicial and congressional power: majority narrowly construed section 1 of the 13th and 14th amendment Also, keep the enabling clause of the 13th amendment in mind for Jones v. Alfred H. Mayer Co. (2) section 5 of the 14th amendment (1883-1966): some justices wondered it were more appropriate to support Heart of Atlanta decision through section 5 than the Commerce Clause U.S. v. Guest (1966), the Court ruled that section 5 of the 14th authorized Congress to make it a crime for white supremacists to conspire to deprive African American citizens of their civil rights. Stewart liberally construed the Civil Rights Cases to say the conspirators acted in concert with officials there which satisfied the stare decisis premise. 6 other justices, led by Brennan, said that section 5 empowers Congress to enact laws to fight all conspiracies which interfere with 14th amendment rights · (3) section 2 of the 13th amendment: Other than early courts before Jones v. Alfred H. Mayer, only the peonage problem, in which poor blacks were stuck on plantations in indentured servitude to white plantation owners until they paid off their debts, no other judicial decree came down in that line of reasoning. B. Notes on Jones and 13th Amend. Power Topic Notes: (1) Court not faithful in its stare decisis policy with Jones; they continued the trend in Runyon v. McCray, where the Court held the Act could touch upon more than just real estate - private conduct. However, they didn't stray too far from what Congress's power was after Jones in Patterson v. McLean Credit Union, saying the statute did not apply to racial harassment on the job. (2) Congress may have relied on section two of the 13th Amendment in Heart of Atlanta had Jones preceded it. (3) Using section 2 of the 13th Amendment to justify congressional civil rights measures aimed against private actors is often difficult b/c of the amendment's limitation to issues related to slavery. 2. The Second Reconstruction and the Voting Rights Act Topic Notes: In 1875, Congress passed another Civil Rights Act, but Congress didn't pass any more legislation for over 80 years until 1964. Voting rights portion of reconstruction amendments (15th) largely unenforced, until Voting Rights Act of 1965 via South Carolina v. Katzenbach. But problems still remained, like in Mississippi v. United States (1965), when blacks had to either read a portion of the state constitution or to be able to interpret it, and blacks could not join the democratic party until 1954 (while the Republican party did not really exist there). Washington v. Davis: held for equal protection purposes, facially neutral laws with disparate racial impact are unconstitutional only upon a showing that they are contaminated by discrimination South Carolina v. Katzenbach (1966) upheld the constitutionality of the Act against a facial challenge, relying upon the McCulloch test for Congressional power. Held: (1) the statute's remedies were an appropriate response to the demonstrated ineffectiveness of case-by-case adjudication; (2) notwithstanding the principles of federalism, the Act could constitutionally apply only to certain regions of the country in light of the local evils found there. In the end, the old tests were thrown out to prevent further uses of discrimination. Lassiter v. Northampton County Bd. Of Elections held that literacy tests and related devices themselves were not in themselves contrary to the 15th Amendment. But in that case, the Court ruled a literacy test which might be fair on its face may be employed to perpetuate discrimination which the 15th Amendment was designed to uproot. Katzenbach v. Morgan (1966) Case Brief: Style (name of case): Katzenbach v. Morgan (1966) Relevant Facts: Section 4e of the 1965 Voting Rights Act provided that no person who had completed sixth grade in school in Puerto Rico in which the language was other than English could be denied the right to vote on account of inability to read or write English. This provision was aimed primarily at stopping NY state literacy test to prevent many of its citizens of Puerto Rican dissent from voting. Issue: Under constitutional law, may the Court use the Equal Protection Clause of the 15th Amendment too nullify NY's English literacy requirement by legislating under section 5 of the Fourteenth Amendment? Subissue: what type of legislation is appropriate to enforce the Equal Protections Clause? Holding: Yes. The court held in situations where the NY government Court's Rationale/Reasoning: Although the Court had previously determined literacy tests to not violate the Equal Protection Clause, the Court nonetheless found that the power of Congress under Section 5 of the 14th Amendment was broad enough to authorize the literacy test ban. The Court held the original drafters of the both the Necessary and Proper Clause and then latter- day framers of the 14th Amendment would find this appropriate legislation. Congress even said that 4e was supposed to be for those who were educated in American flag classrooms where the predominant language was not English. The Court seemed to see Section 5 as giving Congress the power to add to-- but not subtract from--protections that the Court finds contained in the 14th Amendment. A somewhat narrower interpretation of Morgan is that the Court will defer to findings of Congress that purport to establish that an applicable legal standard (relating, e.g., to equal protection) is met--even when deferring to those factual findings effectively overrules Supreme Court precedent. Rule: Section 5 of 14th Amendment: "Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Important Dicta: The same broad powers in this clause are the same as those expressed in the Necessary and Proper Clause. Dissenting: (Justice Harlan, Stewart) This is more or less Congress trying to stop a NY law, not the constitutional power of the Court to end behavior which pervades the limits in Voting Rights or Equal Protection. Concurring: N/A. Oregon v. Mitchell (1970): Court rejected some of the broad language of four years earlier in Morgan. The Court, in finding that Congress lacked the power to compel states to guarantee persons over the age of eighteen to vote in state elections, indicated that Section 5 of the 14th Amendment does not give Congress the power to enforce a broader interpretation of the reach of the 14th Amendment than given by the Supreme Court. Because the Court found the denial of the vote to 18 to 20 years olds not to offend the Equal Protection Clause, Congress lacked the power under Section 5 to legislatively mandate that states allow persons in that age group to vote. (The extension of the right to vote to eighteen-year olds in state elections was subsequently accomplished by the ratification of the 26th Amendment in 1971). Four dissenters (Douglas, Brennan, White, and Marshall) argued that the Court was bound, under Morgan, to accept Congress's more generous interpretations of the reach of the 14th Amendment. EQUAL PROTECTION CLAUSE - Portion of the Fourteenth Amendment to the U.S. Constitution that prohibits discrimination by state government institutions. The clause grants all people "equal protection of the laws," which means that the states must apply the law equally and cannot give preference to one person or class of persons over another. City of Rome v. United States (1980) Case Brief: Style (name of case): City of Rome (GA) v. United States (1980) Relevant Facts: The Voting Rights Act of 1965 requires covered jurisdictions to submit electoral changes made after November 1964 for preclearance either to the Department of Justice or to the federal District Court for the District of Columbia. Under the Act, preclearance is granted only if the jurisdiction proves the absence of both discriminatory intent and effect. (Rome's The city, in efforts to change the manner in which it elected city officials, persuaded the District Court that a variety of electoral changes had not been discriminatorily motivated. DOJ rejected Rome's changes not b/c of its discriminatory nature, but the process in which black officials could be elected would be discriminatory in effect. Issue: Under constitutional law, may the Court uphold Congressional legislation which blocks a city's electoral process when the process is not discriminatory on its face? Holding: Yes. The Act's ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the 15th Amendment, even if it is assumed that section one of the Amendment prohibits only intentional discrimination in voting. Court's Rationale/Reasoning: Even though the Court's Equal Protection Clause jurisprudence teaches that the Clause prohibits only purposeful discrimination, not actions with discriminatory effects, the Court found Congress to have been acting within its Section 2, 15th Amendment powers. The Court said it would defer to the judgment of Congress that because of past "ingenious defiance" of the right of black voters, it might be necessary to focus on discriminatory effects to uphold "the spirit" of the 15th Amendment. The Court found that under section 2 of the 15th Congress may prohibit practices that in and of themselves do not violate section 1 of the Amendment, so long as the prohibitions attacking racial discrimination in voting are appropriate. Rule: (15th Amendment, section 1) The right of citizens of the U.S. To vote shall not be denied or abridged by the U.S. or by any State on account of race, color, or previous condition of servitude. (15th Amendment, section 2) The Congress shall have the power to enforce this article by appropriate legislation. Important Dicta: Aside from the decision, important info... Dissenting: Justice Rehnquist, in his dissent, contended that the DOJ's action was not a valid exercise of Congress's Section 2 remedial powers. Concurring: N/A. A. Notes on Rome and Congressional Enforcement Power Topic Notes: (1)Remedial theory: Congress may make a broad, protective rule such as the one in City of Rome, where discretionary effect covers intent as well. However, the Court decides each case on its own merits. It prevents state action that runs afoul of judicially defined rights (actions tainted by discriminatory intent) by outlawing a broader category of state action (actions producing discriminatory effects) (2) Substantive theory: Congress is authorized to expand on the protections of past Amendments. (3) Institutional competence and discriminatory effects as an underenforced constitutional norm: anti-discrimination rule of the 14th and 15 Amendments is an "underenforced constitutional norm" -- a norm that the judiciary will enforce only narrowly b/c of institutional limitations. 3. The Religious Freedom Restoration Act Topic Notes: Free Exercise Clause creates constitutional doubts about gov'tl regulation tat interferes with religious freedoms, whether by statutes that discriminate on their face against religion or are rooted in discriminatory intent (subject to strict scrutiny even facially neutral regulations that inhibit religious freedom but cannot be shown to be contaminated by intentional discrimination against religion. City of Boerne v. Flores (1997) Case Brief: Style (name of case): City of Boerne v. Flores (1997) Relevant Facts: The Archbishop of SA applied for a building permit to enlarge St. Peter Catholic Church in Boerne,, TX. City authorities denied the application b/c, under a local ordinance, the church was within a historic district. Archbishop then brought suit, arguing that the permit denial violated the RFRA. The city responded that RFRA was unenforceable b/c it was unconstitutional. Issue: Under constitutional law, may a local government sanction a local authority's passage of an ordinance to ban construction on religious historical landmarks when opposition interposes the claim that the same ordinance infringes upon those rights protected by the RFRA? Holding: Yes. The RFRA is not designed to identify and counteract state laws likely to be unconstitutional b/c of their treatment of religion. In most cases, the state laws to which RFRA applied are not ones which will have been motivated by religious bigotry. Court's Rationale/Reasoning: Court ruled that Religious Freedom Restoration Act (an Act intended to restore the "compelling state interest test" for evaluating Free Exercise Clause claims that the Court discarded in its 1990 decision, Employment Division v Smith) was unconstitutional, at least as applied to state and local governments. The Court concluded that the Constitution, and in particular Section 5 of the Fourteenth Amendment, gave no power to Congress to do more than adopt remedial measures consistent with Fourteenth Amendment interpretations of the Court, and that Congress had instead tried to changed the substantive law--substituting its interpretation of the Free Exercise Clause for that of the Supreme Court. Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. Rule: Religious Freedom Restoration Act of 1993 (compelling interest test): facially neutral laws that "substantially burden a person" is "in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." (relied upon by section 5 of the 14th Amendment to impose this approach on both state and local governments). Important Dicta: If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Dissenting: N/A. Concurring: N/A. A. Notes on Boerne and Congressional Enforcement Power Topic Notes: (1) Possible objections to the Court's rejection of Congressional Power to Protect the Free exercise of religion: through appropriate legislation, the RFRA could be adopted, but the majority here overwhelmingly rejected the Statute in Boerne (2) The Court, Congress, and social movements: Legislative authority from previous generations of Courts now are being reduced in scope, maybe because of: ---> Federalism concerns: current majority considers federalism a core constitutional principle; and the Court sees itself as the one institution in our country that can effectively protect the states against congressional encroachment ---> Separation of powers concerns: judiciary really dictates what the law is (upon seeing a problem with a present day enforcement of a law) ---> Easy cases and political appearances: Lopez test is a great test for striking down Commerce Clause power- related legislation (3) Boerne as precedent: the congruence and proportionality test: define congruence and proportionality 4. Congressional Power and the 11th Amendment Topic Notes: (1) An overview of the 11th Amendment Congress, in trying to curb some Congressional authority in pursuit of Federalism values, interpreted the 11th amendment as denying Congress the authority to subject unconsenting states to suit in federal court for violations of federal statutes adopted pursuant to Congress's article I powers. Under federal common law, the U.S. Cannot be sued in the federal courts without its consent. Same thing with states in state courts applied. The question came to be under which circumstances the states might be sued in federal court. --> Chisolm v. GA (1793): Court took original jurisdiction in a lawsuit against the state of GA by an SC creditor seeking payment for goods purchased by GA during the revolution. Court held States could be sued and choose to sue in federal court (4-1 dec.); then 11th amendment changed all that --> Hans v. LA (1890): Court held that it forbids a suit against an unconsenting state not only by a citizen of a state or foreign country, but also by one of its own citizens (without consent). [Court read 11th to mean states have sovereign immunity in fed. ct.) --> Ex parte Young (1908): Court backed off and set an exception to the rule, where federal suits can be served against State officers in their official capacity implementing an unconstitutional statute, on the ground that the State is not really the DF. (Can also sue for prospective injunctive relief, but not for retrospective money damages via Edelman v. Jordan, 1974) --> Court has recognized that a State may waive the immunity & allow itself to be sued, although for the waiver to be effective the state statute or state constitutional provision must clearly specify the state's intentions to allow suits against it in fed. ct. --> Also, the U.S. may sue a state in federal court notwithstanding the 11th amendment --> 11th amendment does not bar suits against municipalities, counties or other subdivisions of a state (2) May Congress Abrogate States' 11th Amendment Immunity? 11th amendment tells us nothing about Congress's power to enact legislation that would alter or remove the jurisdictional bar --> Fitzpatrick v. Bitzer (1976), Court held section 5 of the 14th amendment authorizes Congress to abolish state 11th amendment immunity Seminole Tribe of FL v. FL (1996): Court invalidated the provision of the Indian Gaming Regulatory Act that allowed Indian tribes to sue states in federal court to enforce the statutory duty to negotiate in good faith to create Indian gaming enclaves, as it does not authorize Congress to abolish state 11th amendment immunity. It was ruled that a fundamental constitutional " 'postulate that States of the Union, still possessing attributes of sovereignty, shall be immune form suits, without their consent, save where there has been a surrender of this immunity in the plan of the [c]onvention." ' " Alden v. Maine (1999): extended the constitutional immunity to suits to enforce federal statutes against the states in their own state courts. The judgment that dismissed petitioner probation officers' Fair Labor Standards Act suit on the basis of sovereign immunity was affirmed because neither the Supremacy Clause nor the enumerated powers of Congress conferred authority to abrogate respondent State's immunity from suit in federal court and respondent did not waive its immunity. Rule: The Eleventh Amendment makes explicit reference to the states' immunity from suits commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. Although the federal constitution establishes a national government with broad, often plenary, authority over matters within its recognized competence, the founding document specifically recognizes the states as sovereign entities. A. Notes on expanding state immunity to suit Topic Notes: (1) Constitutional Theory: current Court relied on original intent of the Framers of the original Constitution as the basis for broadly construing state sovereign immunity. (2) The court's theory of strict accountability: the allocation of scarce resources among competing needs is fundamental to the political process State officials must make hard choices as to priorities -- and they are accountable to the voters for unsatisfactory choices at election time. This political accountability is sacrificed whenever the federal gov't asserts authority over the state's political process or hijacks part of the state budget for its own goals. The underlying and broad purpose of the 11th amendment was to prevent the distortions of state politics that would occur were the states suable for nonpayment of their debts. (3) Circumstances when states can be sued, notwithstanding the 11th amendment: states can be sued if they waive immunity, when PL is U.S., or if Congress has abrogated their immunity pursuant to its 14th amendment authority. B. Congress's 14th Amendment Auth. to Abrogate State 11th Amdt. after Boerne Topic Notes: FL Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999): Court invalidated that portion of the Patent Remedy Act hat subjected the states to patent infringement lawsuits. (The decision of the court below, which held that petitioner state board was not entitled to immunity from patent infringement claims, was reversed, and the matter was remanded for further proceedings. The Court held that the statute that abrogated state's immunity on infringement claims could not be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment's Due Process Clause.) Kimel v. FL Board of Regents (2000): federal age discrimination statute did not validly abrogate the States' immunity, through applying the congruence and proportionality test to Age Discrimination in Emloyment Act (statute barred the states and private employers from many kinds of age discrimination in the workplace). --> Justice O'Connor wanted to apply a "minimal rationality requirement on state discriminating on the basis of age." (judged against the backdrop f our equal protection jurisprudence, it is clear that ADEA is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." (via Boerne) Board of Trustees v. Garrett (2001): Judgment of the lower court was reversed because Congress had not identified history and pattern of unconstitutional employment discrimination against disabled by states sufficient to abrogate States' Eleventh Amendment immunity. (Court found a violation of the Equal Protection Clause in the context of disability discrimination, concluding that a city's refusal to allow the construction of a group home for the developmentally disabled was motivated by irrational animus. C. Notes on the post-Boerne Cases Topic Notes: (1) Congressional enforcement power revisited: do the cases previous suggest that Congressional authority under the Reconstruction Amendments is largely limited to promoting the civil rights of group that the Court considers worthy of the protections of heightened scrutiny under the Equal Protection Clause? (2) What is Congress to do?: Congress mentioned in Boerne and Garrett that Congress had to follow the model of the Voting Rights Act -- but back then discrimination was readily apparent everywhere; can Congress only protect those whose discrimination is readily apparent in society aside of the legislative record? Did Congress not gather enough data in Garrett? Maybe Congress should duly deliberate and conscientiously determine that the facts justify invoking its §5 power (3) Why should Congress have to do that? Or, the court and social movements revisited: Court went with what the times generally suggested; but if the Court went with everyone all the time, Congress's power would be unlimited 5. The Violence Against Women Act Topic Notes: This next case involves the intersection of Commerce Clause and §5 power. United States v. Morrison (2000) Case Brief: Style (name of case): United States v. Morrison (2000) Cause of action: The following is a cause of action against VA Tech and Morrison under VAWA, which provides a federal cause of action for the victim of a "crime of violence motivated by gender" against the perpetrator. Procedural History: N/A. Facts: Girl raped on VA Tech campus by two football players. One student charged and suspended for two semesters, but sentence suspended b/c it was thought to be too harsh. Girl brings up charges through VAWA, claiming the statute fell under the third part of the Lopez test. Issue(s): Under constitutional law, does the Commerce Clause or §5 of the 14th Amendment authorize Congress to enact the Violence Against Women Act? Court's Rationale/Reasoning: If this case would fit under any of these analyses, it would be under the third category. This is obviously which doesn't travel the channels, nor is an instrumentality. The BOP is to show there is a substantial relation between gender-based violence and commerce. The Court finds, like in Lopez, that there is a but-for likeness to the reasoning used by the Government. The States' police power, though, has always been a concern of this Court, and is no different here. If passed, the majority feels Congress could have control over any and all crime so long as they could find a way to place it under the category of substantially related to commerce, and since gender-based violence is one subset of activity, then the court could do so very easily. The court goes into section5, 14th amendment analysis, and says there has to be a line drawn between what is local and what is national. Intrastate violence is not one of the 3 categories under which the Commerce Clause is enforced. Petitioner adds there is a State justice system bias against victims of gender- based violence, but the majority feels those issues were addressed in the Civil Rights Cases, as these were state police powers which needed to be enforced as per the Constitution. The only way to enact legislation which directly affects the States, there must be a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." However, this is not directed at States, but at individuals who commit these crimes. Thus, the Court pulls the reigns back on section 5 as well as Commerce Clause power, as there is no proof that these acts are prevalent throughout the States. Rule: A congressional act must fall under one of three major areas to be considered as passing muster as enforceable under the Commerce Clause: (1) regulating the channels of interstate commerce; (2) to regulate and protect the instrumentalities of commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; or (3) the power to regulate those activities as having a substantial relation to interstate commerce. Holding: No. Gender-motivated crimes of violence, and all non-economic violent crimes for that matter, are not, in any sense of the phrase, economic activity, and will not be allowed under the Commerce Clause for its alleged aggregate effect on interstate commerce (no section 5 power here). Important Dicta: Aside from the decision, important info... Dissenting: (Justice Souter, with Stevens, Ginsburg and Breyer) This act passes the substantial effects analysis: the numbers (and there are a lot of them in the dissent), show there indeed would be a potentially large drop-off in potential consumers if this activity were not regulated by federal statute. The Court even goes so far as to compare the reasoned analysis of curbing wheat surplus in Wickard, to the potential deficit of female shoppers which would directly hurt commerce. It goes on to suggest this law would have gotten through any time from Wickard until Lopez, and now the Court has transplanted a rational basis theory with "a new criterion of review," which has no precedent to support it. It's okay to say the enumeration of powers implies that other powers are withheld. The majority's view that a certain category of powers are beyond Commerce Clause power makes no sense. This is a textual misapplication of Commerce Clause, as the Court once again is going back to the days of Wickard and making a distinction between commercial and non-commercial activity. (Breyer and Stevens) Breyer goes on to say that by an overwhelming majority (38-12), the States themselves supported Congressional legislation which supported the Act, which is an example of how Federalism works, where the States and the Federal government see a problem, and are trying to fix it through legislation. The numerical data was already shown by Souter. Congress may be barred through section 5 of the 14th amendment to only enact law which applies to the states themselves (if the majority must be unanimous), but Congress has remedial power to make a prophylactic rule like the ones in Katzenbach and Boerne in order to right a consistent wrong. Concurring: (Justice Thomas) The very notion of a "substantial effects test" under the Commerce Clause is not with the original understanding of Congress's powers and with this Court's early cases. non sequitur: 1 : an inference that does not follow from the premises; specifically : a fallacy resulting from a simple conversion of a universal affirmative proposition or from the transposition of a condition and its consequent 2 : a statement (as a response) that does not follow logically from anything previously said A. Notes on Morrison and the values of Federalism Topic Notes: -->The Court could have read Heart of Atlanta and McClung broadly to squeeze in Morrison's action under VAWA as a Commerce Clause regulation. Court goes with an economic-noneconomic line, possibly to draw a bright line (if possible) on Commerce Clause enforcement. Also state bias unfounded to majority, who find it doesn't pass muster under the congruence and proportionality test. The majority also decided that upholding the values of federalism (the limits) was more important than upholding a possibly tragic law, if rapists could indeed get away with their crime (point). Or, the fact that this law in essence provides a tort action on a federal level is not applicable as there is a state remedy already at bay (counterpoint). 6. The 1972 Extension of Title VII to the States - a brief case study Topic Notes: No legislative history, or analysis regarding States' rights were applied in upholding many cases under Title VII after it was passed in 1972. How much weight should stare decisis have in this case, or were times changing? D. Beyond Commerce Power and Civil Rights Enforcement Power Topic Notes: There are 3 sources of Congressional authority that might provide Congress a way around the limitations on the commerce power and the civil rights enforcement power that are found in Lopez, Boerne, and Morrison. 1. Taxing Power Topic Notes: Tax and Spend Clause under Art. I, section 8, clause 1: "the Congress shall have the power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States." Congress used this power to get around the decision against their previous law which was knocked down in Hammer v. Dagenhart. However, the Court has not upheld federal taxes when they were considered penalty as opposed to a duty. 2. Spending Power Topic Notes: Spending power means to induce good behavior for the "general welfare" by providing incentives, provided they are not so skewed as so they are not invoked in support of other enumerated powers of Congress, or if they infringe on the rights of the States. (the question will come up: how far can Congress use federal money to entice persons/entities (like States) to forego their constitutional protections? Consider the unconstitutional conditions doctrine, and compare to the post-Lopez federalism jurisprudence... South Dakota v. Dole (1987) Case Brief: Style (name of case): South Dakota v. Dole (1987) Relevant Facts: The following is a cause of action for declaratory judgment to interpose the U.S. Government from withholding federal road improvement funds to States which allow people under 21 to drink alcohol. SD has an age of 19 as the drinking age. Under 23 USC article 158, U.S. can withhold up to 5% of funds in such a case. Lower federal courts rejected such a claim by SD, that the incentive goes beyond reasonable limits of Congressional spending powers. Issue: Under constitutional law, may the federal government withhold a portion of federally appointed monies for roads for roads by instituting a tax or incentive to those States who raise their minimum drinking age to 21? Holding: Yes. Congress is indirectly under its spending power encouraging uniformity in the States' drinking ages, and this is only influence, not regulating. Court's Rationale/Reasoning: Spending power is related to pursuit of the "general welfare" of the United States. Spending power may be enforce by Congress if it desires to condition the States' receipt of federal funds, but it must be done in an unambiguous way, enabling the States to exercise their choice knowingly, aware of what could happen to the State if it did not comply. Also, spending power is granted if they are unrelated to "the federal interest in particular national projects or programs." Other constitutional provisions may provide an independent bar to the conditional grant of federal funds. The first such situation is justified as Congress is using its power in a way that is directly related to one of the main purposes for which highway funds are used, that being highway safety. A Presidential commission even has the numbers to prove that younger kids flock to those states where the drinking age is lower (SD though?). Thus, they justify their actions under this argument. The other point the Court hits on is the constitutional bar argument, in which SD claims since the Constitution provides no regulation of drinking age, Congress has no right to enforce it. However, the Court rebuts this argument by bringing up the fact Congress is allowed to provide a constitutional bar, provided the enforcement is not directly regulating anything, which in this case is a national drinking age. Here, there is an indirect regulation through incentives and penalties, for which Congress is allowed to do, in requiring a higher drinking age minimum. The Court has held in the past that federal funds may be withheld to state government officials if they didn't cooperate with federal plans, as the government has the power to alot its monies how it sees fit. The language in the 21st Amendment limits Congress to situations where the States would be committing unconstitutional acts. The threshold, as discussed in Steward machine, is when "pressure turns into compulsion." A conditional grant for federal road money is not compulsion to do anything illegal. Rule: Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power to "further broad policy objectives by conditioning receipt of federal monies upon compliance by the recipient with federal directives." (rule from Butler) Important Dicta: Court won't decide whether the 21st Amendment would prohibit an attempt by Congress to legislate directly a national minimum drinking age. Dissenting: (Justice O'Connor) 158 is an attempt to regulate the sale of liquor, which is outside of Congress's power to regulate commerce. She has a narrow holding regarding the Act, which she says is a misapplication of article of the 21st Amendment. Congressional spending power has a limit: it must regulate only congruent to what it is funding; the withholding of road money in comparison to a national drinking age is not congruous. The facts the majority lays out in determining that younger kids will be deterred from drinking fails to take into account they are but a small portion of highway fatalities each year, and that these younger people are not driving to begin with. The condition on federal road money is to provide safe highways for interstate travel, not to restrict the people who can travel on them (19-20 year-old drinkers). This is a social imposition which does not fall within the boundaries of Congressional spending power. A Congressional brief says the legislature has the power to spend on the general welfare, but can only legislate for delegated purposes, which is to say Congress can't tell people what to do with their state money beyond telling them what purpose the money is earmarked. Thus highway safety is not related to how the funds Congress has appropriated are expended. This is a regulation on who can drink liquor, which is not justified. If this were a Commerce Clause argument, it would still fall below accepted reason. Congress does not have the power to regulate State citizens on who can purchase liquor: this is a State power only. This is not an enumerated McCulloch power. A. Notes on Dole and Conditional Federal Spending Topic Notes: Three reasons Dole will likely not remain a viable precedent: (1) deference to Congressional intermeddling with the states is inconsistent with Morrison, Boerne, and Lopez. (2) Framers intended that Congress is only authorized to spend only for the general welfare and that this limitation is one that the Framers intended to be enforced through judicial review. (3) Conditional deployment of money might be the biggest threat to state autonomy and values of federalism. Reasons Dole will survive: (1) Stare decisis. Even if it wanted to change the law, the Court could narrowly interpret it. (2) the problem of unconstitutional conditions transcends federalism & may split the usual bloc of pro-federalism judges (3) it's not clear which standard can be adopted that will sharply limit congressional intermeddling in state affairs through conditional spending and can be predictability applied by the lower courts. 3. Power Granted to Congress Outside of Art. I - Look at the treaty power Topic Notes: Art. III empowers Congress the power to establish federal courts, 16th Amendment empowers Congress to collect taxes. Several of the amendments give Congress the authority to enforce its mandates by appropriate legislation (Reconstruction Amendment enforcement). Article II, section 2, clause 2 allows the President and the Senate to make treaties. Missouri v. Holland (1920) Case Brief: Style (name of case): Missouri v. Holland (1920) Relevant Facts: State trying to equitably enjoin Holland from enforcing a migratory bird treaty and subsequent statute. State claims statute is unconstitutional interference with the rights reserved to the States under the 10th Amendment, and that the acts of DF done and threatened under that authority invade the sovereign right of the State and contravene its will in statutes. State also alleges a financial interest in the birds within its boarders, which Government concedes. Issue: Under constitutional law, is the enforcement of the Migratory Bird Treaty Act of 1918 and subsequent statute void as an interference with the rights reserved to the States? Holding: Yes. The rights of the states are subservient to those of the nation, and the subject-matter in this treaty is such that it falls into the latter category and not the former, and thus is enforceable by treaty. Court's Rationale/Reasoning: There are other powers which the federal government has outside of those granted in the amendments. Article 2, section lays out the power to make treaties, and article VI proclaims the national laws are the supreme laws of the land. Further, if the treaty if valid, it can brought under the necessary and proper clause of article one, section eight. The rule (stated below) has been challenged in the past and defeated by the States, but these bird treaties were struck down because the subject-matter involved were birds which lived in the state in question only, thus the state were the sovereign over the object, and through the 10th amendment, not subject to Congressional treaty power. The creation of the statute, as opposed to the treaty which created the statute, is enforced by article six. The latter is enforced under the authority of the United States. Which is more powerful? This Court judges not by the text of the constitution's Framers, but under the actual textual reading in the Constitution. There are no prohibitory words in the document which limit treaty powers. The only question is whether the treaty impedes on state's rights as created by the 10th amendment. It does not. Treaties are national acts which protect all states, and within the states, not just generally protective of the nation as Missouri argues here. Birds are wild animals which belong to no one, and possession is the beginning of ownership. Additionally, the birds here are migratory birds who travel from place to place, and have no permanent place of residence, so they cannot be proclaimed to be subject-matter under the sovereign of the State in question. Rule: Treaties cannot be valid if it infringes the Constitution, and there are limits to treaty making power. One such power is that treaties cannot undermine the powers given to the States under the 10th Amendment. Important Dicta: The treaty was made between two nations, USA and Great Britain (then, the sovereign of Canada). This is not just a tenth amendment question. A. Note on the treaty power and original intent Topic Notes: Missouri v. Holland is a nationalist reading of the Treaty Clause (obligations entered into by President, with advice and consent of Senate, created Domestic Law under the supremacy clause, even if not supported by an independent article one for federal authority) There is a States' rights approach: treaty obligations are not the law of the land unless they fall into a category of powers delegated to the national gov't under Art. I. Notice the textual ambivalence of the Constitution: 10th amendment "reserves" to the states those powers which are not delegated to the United States (states' rights view), but article II seemingly creates an explicit delegation of power that article six explicitly gives the same supremacy as it gives article one statutes (nationalist view). Originalist evidence relevant here: (1) pre-1787: state power held over national power regarding treaty-making (2) Philadelphia Convention & Ratifying debates: national gov't needed to trump state law, but on a limited level (3) early interpretation and practice: article 9 of the Jay treaty overrode state power over national power, and opponents expressed their distaste and disgust of the rule E. Intergovernmental immunities and Congressional power 1. Introduction Topic Notes: The 2 levels of sovereignty in this country might impose additional limitations on the ability of each level to act, apart from the division of responsibilities for each level. (McCulloch) In addition to national taxation of the States, either directly imposed on the states or indirectly imposed, as by taxing the interest on savings bonds, national intrusions might include: (1) national regulations applicable to the states, either nondiscriminatory (regulations applicable to all, including the States) or discriminatory (commerce clause power) (2) national commandeering of state legislatures or state officers to help administer national programs (civil rights) (3) jurisdiction over the states in federal courts (read: treaty power) 2. State immunity from direct national regulation Topic Notes: National League of Cities v. Usery (1976): Congress cannot tell the states how to regulate their city and state employees through wage and hourly guidelines (via federal) statutes. Costs, policies were matters of concern, which "displace[d] the States' freedom to structure integral operations in areas of traditional governmental functions, [and] they are not within the authority granted Congress by At. 1, section 8, clause 3. Hodel balancing test (unconstitutional statutes must have all 3 things wrong with them): (1) there must be a showing that the challenged statute regulates States as States (2) the federal regulation must address matters that are indisputably 'attributes of state sovereignty.' (3) it must be apparent that the States' compliance with the federal law would directly impair their ability 'to structure integral operations in areas of traditional governmental functions.' Garcia v. San Antonio Metropolitan Transit Authority (1985) Case Brief: Style (name of case): Garcia v. SAMTA (1985) Relevant Facts: The following are facts. Issue: Under constitutional law, are workers in San Antonio's Metro-Transit Authority (SAMTA) subject to the minimum-wage and overtime requirements of the Fair Labor Standards Act (FLSA)? Holding: Yes. This Court now rejects as unsound any principle and unworkable in practice, a rule of state immunity from federal regulation that turns on judicial appraisal of whether a particular governmental function is "integral" or "traditional." Court's Rationale/Reasoning: The rule under Hodel established a sort of ala carte menu for deciding which organized labor activities can be overseen by government authority. The distinctions are just too undefined. The Court talks about a case-by-case analytical standard, but there have been problems in tax collection, for example. The Court moves on to a historical analysis of cases in order to determine constitutional validity, but rejects this as well, for the reliance on history is said to be too arbitrary. A nonhistorical standard for selecting immune governmental functions is approached by the Court, but is found to be just as unworkable as the historical basis. Trying to identify unique governmental functions, for example, has been rejected by the Court in the field of tort law in part b/c the concept of a unique governmental function is unmanageable. Another possibility the Court looks at is a necessary standard, but the set of services which fits into this category is negligible, as a traditionally regulated service could be skirted around by contracting someone private so the service does not fit the category anymore. The bottom line is none of these analyses is true to the concept of federalism. Any of these sort of above principles breeds inconsistency for those reasons. States do retain some measure of their sovereign authority, but only to the extent the Constitution has not divested them of their power. With rare exceptions, like in Article 4, section 3 of the Constitution does not specify which elements of sovereignty that Congress may not employ its delegated power to displace. The States have always had a traditional role in Federal government; Article 1, section 2 and Article 2, section 1 preserve their right in representation in the selection of the government itself. Each Senator is selected by the legislature of his own state, Article 1, section 3. This interest is protected by the Constitution which provides the government cannot make an amendment or law which undermines that authority without State approval. In the present matter, SAMTA applied to FLSA does not divest the power in the state. All this does is establish a regulated wage system that both public and private observe ordinarily. Rule: The fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the "States as States" is one of process rather than one of result. Dissenting: (Justice Powell. Burger, Rehnquist, O'Connor) The majority ignores the teaching of Marbury v. Madison. States have a major role which cannot be preempted by the Federal Government; this was identified in the tenth amendment. A. Note on intergovernmental tax immunities Topic Notes: McCulloch rule expanded by the Court to immunize indirect as well as direct state burdens on the federal gov't. Things like interest from federal bonds, wages paid federal employees, or even income derived from a federal lease are exempt from state taxation. Not only do states require taxation immunity, but the federal gov't can also not burden them indirectly, like in taxing wages of state employees, or income from lease of land to the states, or even a federal tax on a state bond. But in the New Deal Era, the Court reversed its stance on taxing state employees, saying they were part of the source where federal taxes come from and that they like everyone else, should be bourn of the responsibility. In New York v. US, 2 justices believed that any nondiscriminatory tax on a state was constitutional, even if it directly collected. Plurality of 4 justices upheld the tax before them was constitutional even though it was directly levied against the state but left open to the possibility that a tax "impairing the sovereign status of a state might be vulnerable. South Carolina v. Baker (1988): Congress removed the fed. income tax exemption for interest on state and local bonds unless they are issued in registered form, which eliminated bearer bonds, which the IRS found to directly to contribute to tax evasion. 3. State immunity from national commandeering Topic Notes: Comandeer: to take arbitrary or forcible possession of; in this circumstance, it would mean the federal government compelling a state governmental entity to adopt to some federal policy or agenda or rules. This was views as potentially threatening in National League of Cities, but in FERC v. Mississippi, the court upheld a federal law requiring state utility commissions to hold fact-finding hearings and carry out certain national energy policy tasks. New York v. United States (1992) Case Brief: Style (name of case): New York v. United States (1992) Relevant Facts: 1985 Low-Level Radioactive Waste Policy Amendments Act of 1985 instituted by Congress, to alleviate the NIMBY problem facing nuclear dumping. Only three existing compacts where regional states agreed to dump all their wastes in a particular area were approved by Congress, and through the Act, the sited states agreed to accept waste for another seven years, then the unsited states agreed to handle their own waste by 1992. There were 3 incentives: (1) sited states could gradually charge the unsited states, of which one-quarter went to the Dept. of Energy; (2) states which failed to meet the demands could be surcharged higher or even denied access to disposal facilities all together; (3) "take title" meant the states which didn't comply would wind up owning the stuff themselves. NY never joined a compact, but tried to enact legislation which would provide the dumping sites, but those counties refused. NY and the 2 counties proposed as dumping sites bring this action saying the Act violates the tenth amendment and the guaranty clause of the Constitution. Issue: Under constitutional law, does a federally mandated nuclear dumping regulation impose a duty on states which violates the tenth amendment and the guaranty clause of the Constitution when the Act provides States which do not take care of the problem by a certain time effectively own the problem themselves? Holding: No and Yes. The first 2 provisions are provided under Commerce Clause power. Regarding the third provision however, whether one views the take title provision as laying outside Congress' enumerated powers, or as infringing upon the core of state sovereignty reserved by the tenth amendment, the provision is inconsistent with the federal structure of our government established by the Constitution. Court's Rationale/Reasoning: The tenth amendment in this case directs the Court to determine whether an incident of state sovereignty is protected by a limitation on an Article I power. There's no dispute over the regulation authority of Congress over radioactive waste disposal, as it is an interstate activity. NY here contends that the way Congress has chosen to regulate waste disposal is in dispute in that the States should not be mandated by Congress to regulate their waste. This case concerns the circumstances under which Congress may use the States as implements of regulation, or rather whether Congress may direct or otherwise motivate the States to regulate in a particular field or a particular way. (broad issue), and the Court has been explicit about this distinction, as there is only allowed regulation of the citizens and not the States themselves. The rule (below) has a line of demarcation where activity becomes that of individuals and that of States. The Commerce Clause, for example, is a regulation over interstate commerce, not a regulation of the States' governmental regulations. Congress can encourage a State to act in a certain way, whether it be by incentive or not, to get a State to participate in a federal interest. South Dakota v. Dole is one example, as is "a program of cooperative federalism," where Congress may either offer the States the choice of regulating activity according to federal standards, or have state law pre-empted by federal regulation. In either case, the residents of the States retain the ultimate decision as to whether the States will comply. But when federal government compels state government to regulate, both their accountabilities are diminished. Citizens should be able to choose officials who share in their policy interests. This is contrary to policy behind electing officials. What we have here is federal regulation of a private activity within the scope of Congressional Commerce Clause power, so Congress can offer the states the choice of either cleaning up the mess themselves with the incentive of being self-sufficient or receiving incentives, or by being subject to federal regulation on the matter. The issue on the second incentive remains with Congress; if they want to leave well enough alone, States can focus their attentions on other matters. However the third incentive lies a problem, as Congress is trying to coerce States and not encourage them. The Constitution does not permit Congress to remove individual waste problems to those of the States, or for their damages either. Either way, this consists of a federal commandeering of state governments towards federal policy. Rule: The Constitution confers upon Congress the power to regulate individuals, not States. When a federal interest is sufficiently strong to cause Congress to legislate, it must do so discretely; it may not conscript state governments as its agents. Important Dicta: Questions like this involve tenth amendment and/or Article 1. This case presents nothing where Congress subjects a State to the same legislation applicable to private parties. Dissenting/Concurring: (Justice White, Blackmun and Stevens): Printz v. United States (1997) Case Brief: Style (name of case): Printz v. United States (1997) Relevant Facts: Gun Control Act of 1968 is fused with new Brady Bill, which authorizes officers to perform background checks on potential gun owners upon their application for permits and such. Usual waiting period is five days, but sometimes there must be immediate checks, all within reasonable efforts. Three CLEOs challenged the statute, claiming the congressional act compels state officers to execute federal laws and is therefore unconstitutional. Government claims States have been acting as agents for the federal branch since the beginning of this nation. Issue: Under constitutional law, does a federal statute which implements state officers to perform background checks on potential gun owners in effect result in a federal commandeering of state officials? Holding: Yes. Not only is this unprecedented as to state officers, but without States' consent, this is in effect a statute which gives the citizenry no recourse through its displeasure, if it finds any. Court's Rationale/Reasoning: The fallacy in the State argument according to the majority is that never in all the history of this nation have State enforcement agents used as agents, only judges were (state courts recording citizenship applications, to then transmit them to the Secretary of State, and register aliens seeking naturalization). The fact remains that state administrators cannot be commandeered. DF uses tax collection as an example. But the bottom line here was this was an amendment, agreed to by three-quarters of the States, and thus there was no forcing of any legislative power on them. This statute is without consent of the States, which is beyond the Article I powers given to the executive/legislative. Dissenting side gets into Hamilton's Federalism (below). Majority says it is nothing more than State officers taking an oath to uphold the laws of their states and not to obstruct the federal government. Again, if they went with dissenters' argument, the States would be subject to federal direction, without legislative mandate. Government offers a necessary and proper argument: it fails b/c it never had previously imposed on States' governments to act as Congress mandates (like in Lopez, when Commerce Clause power is forced to heavily upon the States). The U.S. Also argues CLEOs don't diminish the accountability of state or federal officers, but the citizenry still can't look to them for answers b/c they are acting as puppets of a national program. The same reasoning applies as to why the government's last argument fails: they serve an important purpose (no commandeering of state legislatures). Rule: "The Federal Government may not compel the States to enact or administer a federal regulatory program." Important Dicta: No constitutional text speaks to this issue. Dissenting: (Justices Stevens, Souter, Breyer, and Ginsburg): Nothing in the Constitution says local officers can ignore federal mandates as per Article I. There's even Constitutional proof: Hamilton in the Federalist, #27: "...by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws." The legislative did enforce through the States a tax collection, as was stated in the ratification debates. This undermines the very notion of the majority, that there was little historical proof of federal government acting through the states. If we used that theory, most of the post-New Deal Commerce Clause jurisprudence would be undermined. (Souter): Explaining Hamilton, he said the States incorporated a national oath through the Supremacy Clause, as well as the state officers' oath requirement, which incorporates the states into the national machine. The New York decision is still correct under this premise b/c the government still cannot enact a regulatory scheme through the state legislatures. A. Note on New York and Process Federalism B. Notes on Printz, Federalism, and original intent Topic Notes: Scalia's core opinion (integrity of state governments) is not taken directly from the Constitution, but teased out of several different clauses. Scalia emphasized retained state sovereignty (original intent), while Justice Stevens wrote about the supervening national sovereignty. Questions to ponder out of Printz: (1) are all the questions counterfactual (dead people anticipating all these future events)? (2) is there any reason to believe that the Framers "intended" us to be bound by their original intent or, even if so, by what level of intent (specific vs. general)? (3) even if we can "know" how Madison and Hamilton (Federalist Papers) would have answered the interpretive puzzle, there is no reliable way to attribute the views of these authors (of blatant propaganda documents) to other Framers or the state ratifying conventions? Reno v. Condon (2000): Congress struck down a South Carolina challenge to the Driver's Privacy Protection Act of 1994. The state argued federal disclosure of drivers' personal information to third parties was part of its state law already, and that by denying this right, it would be in essence, commandeering its legislature. Court said the federal statute is fine as it is and has authority under the Commerce Clause and therefore the gov't is exercising proper power. They said the gathering and dissemination of information to third parties has a substantial effect on interstate commerce. The Court argues this situation is similar to SC v. Baker (below), in that there is no national enforcement of state regulation of its citizens, just national regulation over state databases (DMV's). South Carolina legislatures do not have to make or pass any laws, just follow the one set before them, and it doesn't require state officials to assist in the enforcement of federal statutes regulating the private individuals. South Carolina vs. Baker: Court upheld a statute that prohibited States from issuing unregistered bonds b/c the law 'regulated state activities,' rather than seeking to control or influence the manner in which States regulate private parties. They said the upholding of the statute does have the effect of legislative commandeering as an "inevitable consequence," in striking down the state statute. "That a state wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect." F. National limitations upon state regulatory authority 1. Constitutional principles, policies, and history Topic Notes: Uniformity policy with state rule making embodied in the Constitution: certain policies need to be uniform throughout the country, and allowing the states to adopt varying regulations would be counterproductive Free trade policy: seeks to integrate the states into one national marketplace, "a federal free trade unit." The policy to avoid prisoners' dilemmas: there was fear that by allowing state to vary their law with one another from federal law, there could be state-to-state discrimination. Art. 1, section 10, clause 2: no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may absolutely necessary for executing its inspection laws. Clause 3 provides, states may not enter into agreements or compacts with one another without the consent of Congress. State law is preempted if (1) it is contrary to the provisions of a federal statute, (2) inconsistent with federal policy, or (3) in an area wholly occupied by federal law. But if a state attempts to exclude interstate commerce in the absence of federal legislation, the commerce clause is dormant, Congress has not made use of its power. But even in this dormant condition, according to longstanding doctrine, the Commerce Clause creates an implicit barrier to protectionist state laws. Gibbons v. Ogden (1824) [Marshall's opinon] Case Brief: Style (name of case): Gibbons v. Ogden (1824) - Marshall opinion re: dormant commerce clause Relevant Facts: See facts from previous Gibbons opinion. Issue: Under constitutional law, may the state enforce its law of dictating waterway traffic when they do not conflict with any written federal law as to the matter? Can a State regulate commerce with foreign nations and among the states, while Congress is regulating it? Holding: No. Under the dormant commerce clause, regulating waterways is a national authority, and even though it is not explicit as to how to regulate it in the Constitution, the States themselves may not violate this implicit, dormant executive power. Court's Rationale/Reasoning: The Court finds that state and federal laws are mutually exclusive, and in this sense one law may be enacted at the same time as another (taxing is an example). However, when the state law is one which impedes on the power delegated to Congress, or even under the guise of acting under Congressional power, there is a conflict of interest. It becomes at that point, an interference with a national agenda. Once legislatures attach certain privileges and exemptions to the exercise of a right over which its control is absolute, the law must imply a power to exercise the right. A coasting vessel employed in the transportation of passengers, is as much of the American marine as one employed in the transport of cargo; and no reason is perceived why such vessel should be withdrawn from the regulating power of that government, which has been thought best fitted for the purpose generally. Rule: States cannot strip national law by enacting its own, even if it acts under the guise of the Commerce Clause. Therefore the states can impose any law they wish that is reasonable, as long as it does not conflict with any federal law, explicit or implicit. A. Note on dual federalism as a limit on state power Topic Notes: (1) mutually exclusive federalism/dual federalism: whatever Congress can regulate as interstate under the C.C. Is closed to the states; whatever the states can regulate as local is closed to Congress under the C.C. (2) Concurrent regulation: Congressional and state jurisdiction overlap; each can regulate interstate commerce, but state regulation cannot violate other constitutionally prohibitions (e.g., the Imposts Clause) or interfere with federal regulation (preemption). (3) authorized concurrent regulation: the states can regulate interstate commerce in the absence of congressional negation and of any interference with the negative (i.e., anti-trade war) goals of the C.C. Cooley v. Board Wardens of the Port of Philadelphia (1851): Court adopted theory 3 when it was confronted with a federal law providing for state regulatory law of pilots, and an 1803 PA statute regulating the pilots of ships entering and leaving the port of Philadelphia. Court said regulating "pilots constitute regulation of navigation, and consequently of commerce, within the just meaning of the C.C." The court said the state law was intrinsically local in nature and not an area needing national uniformity. There has been a national/local test implemented in some cases to determine if there is just an indirect national effect with a particular state law. Have to look at what the state is actually enforcing though; if it is something which the C.C. Has in the past regulated, then it is likely a dormant C.C. Problem. But remember there are industries which are concurrently governed, make sure to watch the line between state and federal problems. 2. Modern dormant commerce clause doctrine Topic Notes: The key doctrinal precepts are: (1) that overt state discrimination against interstate commerce is presumptively invalid and can only be sustained if needed to meet an important state interest, and (2) that state policies burdening commerce will be invalidated if the burden is clearly excessive compared with the legitimate local benefits. A. discrimination against interestate commerce Topic Notes: (a) discrimination against outside competition: Court has traditionally applied strict scrutiny basis of review to statutes that impose costs or restrictions on out-of-state (or out-of-area) goods or services. This is b/c the Court generally finds the law is designed to give local businesses artificial competitive advantages over out-of-state businesses, a per se invalid purpose under the dormant C.C. (b) discrimination hoarding local resources or opportunities: states trying to prevent resources or businesses from going out-of-state are also immediately suspect under the dormant C.C. (DCC) (c) discrimination preventing outside burdens from flowing in-state. This is the trickiest category, as discussed in the next case. City of Philadelphia v. New Jersey (1978) Case Brief: Style (name of case): City of Philadelphia v. New Jersey (1978) Relevant Facts: The Supreme Court reverses two state court rejections of Philadelphia landfill operator claims that a NJ prohibition of the importation of solid or liquid waste which originated or was collected outside the territorial limits of the state was a DCC violation. Issue: Under constitutional law, is a state law regulating the transport of waste within its state boundaries under the claim of health regulation a preemption by one state government over another's citizens from conducting business there, and thus a DCC problem? Holding: Yes. States are not free from constitutional scrutiny when they restrict that movement, as the transport of waste from state-to-state is something which could be federally regulated as a means of commerce, but is not explicitly written in the constitution. Court's Rationale/Reasoning: The constitutions gives Congress the power to regulate commerce among the States, but many subjects are not explicitly stated in the document, and are thus dormant, usually because of their local character and their number and diversity. Economic isolation and protectionism has been seen by the Court in the past, while it also recognizes there may sometimes be an incidental burden on interstate commerce when the states themselves regulate a law for the general welfare of its own citizens. There are times when there are not the best intentions in this regulation, such as when a state, through its law- making, is trying to stop the flow of interstate commerce at its borders. The test is whether the statute/law is a protectionist measure or if it is a legitimate rule directed to legitimate local concerns, in which the effects on interstate commerce become incidental. The state here claims the latter part of the test, in that it is trying to protect the interests of its citizens for its own health, its pocketbooks, and its environment. Both NJ courts accepted this theory. But the Court rejects this theory. This is because the rejection of something on its face for just the above reasons given, is a discrimination of all commerce only on the basis of its origin, which is unconstitutional. "What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade." This discrimination is different from other preemptive strikes on waste collection, as the other ones dealt with the destruction of animal carcasses upon arriving within State borders, which for health reasons was seen as a legitimate concern to stop the flow of interstate regulation within a state. The Court says if it lets NJ stop interstate commerce come in for this reason, it might escalate over time to other things, and then to the point where it is totally protectionist. This cannot be tolerated. Rule: Businesses which are not explicitly regulated by the Commerce Clause may still be so implicitly if that business, industry, or law does not act within the restraints imposed by the Commerce Clause itself. This is a per se rule. Important Dicta: Aside from the decision, important info... Dissenting: (Justice Rehnquist, Burger) In relation to the animal carcasses argument, these justices do not see how the States can ban something which, if moved, could cause health problems, but cannot ban the importing of hazardous materials which once in the State create a health risk of great proportion. If the Court has previously upheld quarantine laws even though they singled out interstate commerce for special treatment. 1) Notes on City of Philadelphia & the Court's activism in policing discrimina Topic Notes: Relating the three justifications of the Commerce Clause to the previous case: (1) Economic Union and Efficiency: Court applied heightened scrutiny to any overt discrimination against interstate commerce w/o analyzing or looking at whether particular discrimination might be efficient overall. Waste is bad for the community, in that it costs more money and is not internalized in the price charged. NJ's flat prohibition was invalid b/c it was overbroad; imposing a tax on the waste might have solved the problem. (2) Political Process Defects?: one might expect that NJ law was sought by in-state industrial concerns, whose costs of waste-disposal would be increased by out-of- state competition for NJ landfill, and the law would burden the out-of-state concerns as it would increase their interests as well. But this neglects the above problem illustrated in #1. Also consider the long run costs of being constantly dumped on. (3) A commitment problem?: does the popularity of environmental regulations suggest that the states are willing to make the following counter-argument: each state is willing tolerate some inconvenience b/c of neighbor state environmental regulations, so long as those regulations are reasonably related to environmental protection and are not pretexts for economic advantage-seeking, and so long as the state can adopt its own reasonable environmental rules. 2) Note on post-Philadelphia waste cases Topic Notes: Following City of Philadelphia's stringent scrutiny, most state and local waste rules and taxes that discriminated on their face against interstate commerce have been declared unconstitutional by the Supreme Court. C&A Carbone, Inc. v. Town of Clarkstown (1994): The Court struck down a NY flow control ordinance involving a waste handling plant. The law instructed the plant was the only source for all nonhazardous waste, and was declared unconstitutional b/c of its discrimination against interstate commerce. Said the real purpose behind the ordinance was to ensure the plant was profitable, and that the city could buy it back at a nominal price. The dissent argued there was no discrimination on out-of-state principles, as it merely stated which one entity was responsible for ensuring that the job get done and all other enterprises, regardless of their location. In essence, they thought it was okay for the ordinance to have been accepted, as it was trying to ensure economic well-being of the entire community, and not restricting interstate commerce. 3) Note on interstate taxation of interstate commerce Topic Notes: To satisfy the Commerce Clause test, the tax: (1) must be applied to an activity with substantial nexus with the taxing State (2) must be fairly apportioned (3) must not discriminate against interstate commerce (4) and must be fairly related to services provided by the State (Ex: a tax falling only on out-of-state truckers would appear be unconstitutional) * the tax would also be unconstitutional if a state imposed a tax on long trucks, knowing most of it will be paid by out-of-staters, as it fails prongs 3 & 4 of the test for its discriminatory effect, despite not being so on its face (kind of like the civil rights cases) --> the brunt of a tax can be borne primarily by out-of-staters so long as there is some relationship between the tax and services or burdens on the state. 4) Note on state laws having extraterritorial effect Topic Notes: The Court struck down a NY law which told wholesale liquor dealers to file a price schedule and to also sell in NY at the lowest price the distiller charged in any other state for that month. It said economic protectionism can also consist of local merchants giving an advantage to local consumers over consumers in other states. Court said it was also unconstitutional for CT to impose a price restriction on beer company to post prices every month to insure that they did not cost more than 3 neighboring states. B. State rules burdening interstate commerce Topic Notes: The Court in So. Pacific Co. v. AZ struck down an AZ statute forbidding the operation of RR trains of more than 14 passenger or 70 freight cars. The Court said the state went too far based upon factual findings, and the rule greatly disrupted interstate train service, while not serving the best interests of safety. Since Southern Pacific, the Court has followed a fact-based balancing test (local benefits versus burden on interstate commerce), which has developed along the following lines: In determining local benefits, the Court asks whether the state had a rational basis for enacting the law. Safety measures obviously qualify, and carry a presumption of validity. The Court also evaluates the burden on interstate commerce and balances that against the local benefit. In balancing those interests, the Court asks: comparative impairment of the local and national interests: "is the burden on commerce much more substantial than the benefit to safety, or vice versa?" and also the evenhandedness of the law: "does it apply quite differently to intrastate transportation than to interstate transportation?" Kassel v. Consolidated Freightways Corp. (1981) Case Brief: Style (name of case): Kassel v. Consolidated Freightways Corp. (1981) Relevant Facts: IA statute proposes largely a ban on large double trucks on the roads. Challenged for the amount of burden it places on interstate truckers. Truckers win in all courts. Issue: Under constitutional law, does an IA statute which limits the size of trucks which travel on its roads serve a legitimate purpose when it purports to serve a safety interest as well? Holding: No. The statute, while employing good means according to legislative rhetoric, is more of a burdening discrimination on out-of-state truckers, costing them more time, manpower, and ultimately money, while not promoting intrastate safety. Court's Rationale/Reasoning: In Raymond, the Court struck down a WI state that precluded the use of 65-footers violated the jurisprudence of the Commerce Clause. This is the same such case, and will apply the same such rule. IA made a more serious effort to show a rational basis than WI, but it was no more persuasive. The evidence at trial showed the 65-footers were really no different in safety than its 55-foot counterparts. The tests they used (less time taken to be passed, backing up faster, less time to clear intersections) were all irrelevant to the safety issue, which IA alleges in passage of its statute. The last of its arguments, that they are somewhat less inclined to jackknife, is also a misnomer. The numbers (p. 1026, graph 3) show the accidents and fatalities are similar if not favorable to the longer trucks. No witness flat out testified to the effect the shorter trucks were safer. Cost-wise, the statute was heavily burdensome on businesses out of the state; Consolidated added $2M more to its costs ($12.6M overall). And saying that it would eventually keep costs down for safety is also an insufficient argument, in that the companies will need more trucks to get done what they previously could, so more shorter trucks will be on the roads, and by their numbers, could cause even more accidents than before. IA argues that the legislature should be left to its own devices in overseeing safety issues, and the Court says it usually does, except like here when the State's purpose is to burden out-of-state economic interests. The farm hauling exception and border city exception were also both designed to help the state. Farm hauling is obviously helpful to farmers, while the border exception helps discourage interstate traffic, not unlike past statuted which were ruled unconstitutional for its prejudice to the State enacting the law. Rule: In determining local benefits, the Court asks whether the state had a rational basis for enacting the law. Safety measures obviously qualify, and carry a presumption of validity. The Court also evaluates the burden on interstate commerce and balances that against the local benefit. In balancing those interests, the Court asks: comparative impairment of the local and national interests: "is the burden on commerce much more substantial than the benefit to safety, or vice versa?" and also the evenhandedness of the law: "does it apply quite differently to intrastate transportation than to interstate transportation?" Important Dicta: N/A. Dissenting: (Justices Rehnquist, Burger, Stewart) Lots of other states restrict the use of its roads in relation to vehicle length. 17 other states and D.C. as a matter of fact restrict the 65-footers. This includes PA and NJ, who are also on the trucking line from NY to the west coast. So IA is not the odd ball after all. The question was not whether or not 65 footers were safe, but whether the legislature did a good job making its decision. Concurring: (Justices Brennan & Marshall) This time the States really tried to get one by the Court, but there should be no deference paid as was in previous Courts to this issue and the State's "parochial" legislation, in which IA tried to segregate which trucks could come through its state and which ones could not. 1) Notes on Kassel & Judicial Balancing to emulate sate laws burdening interst Topic Notes: (1) Is the Court institutionally competent to balance the interests? Legislatures have a long standing of the inner-workings ot its main businesses; this would have been no exception. (2) Congress has enacted law which responds to these issues (Surface Transportation Act helped after Kassel) (3) IA's problem: building exceptions into the State law which were favorable to in- state interests. C. The Market Participant and other possible exceptions Topic Notes: The court in City of Philadelphia noted a possible loophole in the DCC...the Court expressed no opinion regarding a State's power to "restrict to state residents access to state-owned resources or to spend state funds solely on behalf of state residents and businesses." (under this the state, participating as an actor in the market, can behave in discriminatory ways not permitted when it acts in regulatory and taxing capacity) Ex: MD offers a bounty for abandoned cars, in order to speed up their removal from public spaces, but conditioned the bounty in ways that favored in-state over out-of- state processing of the cars. Court refused to apply balancing test (when the State enters the market itself as a purchaser, it can be as discriminatory as it needs to be in picking and choosing cars to buy; MD created the market and didn't enter into one already there) West Lynn Creamery, Inc. V. Healy (1994): MA imposed a nondiscriminatory tax on wholesale milk transactions and used the result to fund cash payments to the state's struggling dairy farmers. Court held that this scheme seemed more like a tariff than anything else, and rendered the program unconstitutional. Court said the tax, which was designed to effect all milk, still came back to the in-state farmers, which had the effect of making out-of-state milk products more expensive. So, nondiscriminatory taxes combined with a discriminatory subsidy negate good faith effort to abide by DCC. 1) Note - should state subsidies be exempted from dormant commerce clause regu Topic Notes: Some justices think a subsidy supported by general tax revenues ought not be subjected to DCC scrutiny. They argue the subsidies were not the original concerns of the Framers or the justices developing the early line of cases 3. Should DCC be laid to rest - alternative limitations on states Topic Notes: Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997): ME provided an exemption from ral estate taxes for charitable institutions incorporated in the state, but b/c PL was not a ME company, it could not claim the exemption, and b/c most of its campers were out-of-state, it was ineligible for a partial exemption as well. Court held: (1) camps' service was clearly in commerce, so triggered DCC jurisprudence (2) that jurisprudence is fully applicable to not-for-profit as well as profitmaking enterprises (3) and the statute's facial discrimination against interstate commerce brought with it a rule that the Commerce Clause precludes a state from mandating that its residents be given a preferred right of access, over out-of-state consumers, to natural resources located within its borders or to the products derived therefrom. Dissent said the state should be able to encourage charitable uses of state land (a) the Import-Export Clause: basically of little importance, since it was used for only international commerce (was used in dissenting opinion to lay out interpretation for evaluating discriminatory taxation under the Import-Export Clause (Art. I, section 10, clause 2) (b) the Privileges and Immunities Clause: some scholars argue this should be the main protection against state burdens on interstate commerce (under Art. IV, section 2, clause 1, it is asked what are the privileges and immunities to which the citizens of each State shall be entitled?) Corfield v. Coryell (1823): NJ statute made it unlawful for any person who was not an inhabitant of the state to gather clams, oysters, or shells from the state's waters (dismissed privileges an immunities claim, saying it would be going too far to bring that argument into play) United Bldg & Constr. Trades Cncl. of Camden Co. v. Mayor & Council of Camd Case Brief: Style (name of case): United Bldg. & Construction Trades Council of Camden County v. Mayor & Council of Camden (1984) Relevant Facts: NJ statute mandating that in municipal projects, at least 40% of the workers had to be Camden residents. Supreme Ct. Of NJ rejected union's challenge of the ordinance, concluding that the privileges and immunities clause was not violated b/c the ordinance discriminates on the basis of municipal, not state, residency. The Supreme Court reversed, holding that the clause can apply to municipal decisions and then discussed provision's precise boundaries. Issue: Under constitutional law, is a municipal ordinance which restricts a certain percentage of workers to within its city residence a violation under the DCC when PL interposes a claim that it goes against the jurisprudence of the Privileges and Immunities Clause? Holding: Yes. The right to go out and get a job in a city is one which the Privileges and Immunities Clause protects, and thus the ordinance is one which limits that right to a certain degree (40%). Court's Rationale/Reasoning: Under this ordinance, out-of-staters cannot enjoy the same privileges as Camden citizens. It is true out-of-Camden residents within the State are discriminated too, and they have the opportunity to change the law through legislation, but the fact this still is discriminatory against all out-of-state residents to some degree is a pervasive element of the P&I clause. Having the freedom to be able to go out and get a job, or hire who you want to work a job is a right which is part of the free market economy, and although the ordinance on its face may be one in which the city is trying to help its economy, cannot be helped in this manner, as the means of blocking a person's means of employment is a fundamental right which should be protected. Even if this wasn't a Commerce Clause problem (which involves a limit on states' regulatory powers), which it isn't, this is a P&I problem: rather than placing a statute completely beyond the Clause, a State's ownership of the property with which the statute is concerned is a factor -- although often the crucial factor-- to be considered in evaluating whether the statute's discrimination against noncitizens violates the Clause. This is the city's effort to bias private employer decisions in favor of its residents on construction projects funded with public monies. The discrimination does not depend whether the employees of private contractors and subcontractors and engaged in public works projects can be said to be working for the city. The opportunity to seek employment is sufficiently basic to the livelihood of the nation. Rule: Test: in application of the Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents entails a 2- step inquiry: (1) The court must decide whether the ordinance burdens one of those privileges and immunities protected by the Clause. (2) Then the court must determine whether an out-of-state resident's interest in employment on public works contracts in another State is sufficiently "fundamental" to the promotion of interstate harmony so as to "fall within the purview of the Privileges and Immunities Clause." Important Dicta: N/A. Dissenting: (Justice Blackmun) Municipal discrimination is different from in- state discrimination. Discrimination on the basis of municipal residence penalizes persons within the State's political community as well as those without. In-state residents can make this change through their legislatures This same kind of action has worked in such states as GA and CA in the past. A. Notes contrasting the DCC and the privileges & immunities clause Topic Notes: PI & DCC are parallel in one respect: they both apply to municipal and local discriminations as well as statewide ones. But, they differ as to: (1) only fundamental rights: PI only protects fundamental privileges naturally belonging to any citizens of any free gov't. (2) only "citizens (not corporations) are protected: Camden read the clause broadly to mean "nonresidents." (3) there must be overt discrimination; discriminatory effects not policed: unlike the DCC, PI only applies when there is an overt discrimination. (4) no market participation exception: As held in Camden, PI has no market participant exception such as created by case law for the DCC. (5) standard of review: more lenient than DCC's strict scrutiny but stiffer than the Pike test for evaluating discriminatory effects. (6) no congressional validation: Congress cannot validate state laws which are held to be discriminatory on PI grounds, but the State could reformulate the statute w/o discrimination 4. The Supremacy Clause and Preemption Topic Notes: Under Supremacy Clause of Art. VI, Congress can enact federal statutes that override, or "preempt" state law. 3 circumstances: (1) Congress may expressly preempt state law by so stipulating in a federal statute (2) even without an explicit preemption provision, a federal statute will preempt state laws whose operation is inconsistent with that of the federal statute. Not surprisingly, a conflict will be found "where compliance with both federal and state regulations is a physical impossibility." (ex: if compliance with a federal food labeling statute would cause food to be mislabeled under state law. (3) federal statutes "occupying the field" comprehensively will preempt state law (if fed law is so pervasive in one area, state law is rendered useless by the Court) A. Note on preemption and constitutional norms Topic Notes: Preemption is a matter of both constitutional law (the Supremacy Clause) and statutory interpretation (congressional enactments are usually necessary to trigger a preemption inquiry), a sort of quasi-constitutional law, where constitutional norms inform statutory interpretation: (1) interpretive presumptions (2) preemption and DCC analysis: (3) norms and representation reinforcement B. Note on triadic federalism - Indian tribal sovereignty Topic Notes: Sovereignty for American-Indians: (1) remains consistent with the tribes' dependent status (2) never has been ceded away by them by treaty, and (3) has never been preempted by a federal statute So when tribes exercise their retained sovereignty, it is neither a federal nor state action, and Constitutional provisions usually considered so important in restraining governmental power within the borders of the U.S. do not apply. III. Separation of Powers CH 8 Topic Notes: Congress is vested with all legislative powers (article I) Executive power (article II) Judicial power (article III) 1. Separation of powers vs. Checks and Balances: the branches are all supposed to be separate from one another and concentrate on their respective functions (vesting clause in each article), but the branches check and balance each other out (ex: Congress cannot enact statutes unless both chambers agree to the same text and it's presented to the President) (ex: Congress has substantial power over the Court's appellate jurisdiction, and can make federal courts) (ex: President nominates justices, who are approved by Congress, and removed from office if convicted by the Senate) 2. Ensuring efficacy vs. preventing tyranny: separation of powers helps prevent discrimination of individuals, and by requiring the cooperation of more than a single branch to take action, it is more likely that the action will be reasonable and just. The Framers' other policy was to promote an efficient national governance, after looking hindsight at the weak national government during the Articles of Confederation. But sometimes these two notions conflict. (ex: government agency is enacted by Congess, enforced by the executive, and adjudicated by the judicial.) 3. Political vs. judicial enforcement of separation of powers: not clear that the Court should have much of a role in deciding separation of powers disputes (ex: President limiting the power of the legislative branch, or vice versa; Court's intervention would not help very much) 4. Formalist vs. functionalist reasoning: to the extent the Court does assume an active role in separation of powers conflicts (as it decidedly has), the challenge is how to draw the lines of national responsibilities "suitably." Constitutional Formalism: The Court could "strictly" enforce the lines drawn in the Constitution's boundaries (no branch can meddle in the others'); problem: boundaries not always clear Functionalist approach: would sacrifice or soften some of the sharp constitutional lines to permit "necessary" government action, unless such action generally threatens our freedoms (goal: subserves ultimate goal of the Constitution: the general welfare) Hybrid approach: formalist/functionalist theory (enforce some boundaries, while relaxing others) 5. Horizontal (functional) vs. vertical (political) approaches: functional and formal perspectives approach separation of powers issues horizontally: which branch is vested with the power to so the certain thing at debate 6. Fixed versus evolving rules: originalist and evolutive theories of judicial review in relation to separation of powers issues A. Issues of executive aggrandizement (the imperial presidency) Topic Notes: Such Presidents as Jefferson (LA purchase), Monroe (Doctrine), Polk (Mexican-American War), Lincoln (civil War), TR (gunboat diplomacy), Wilson (League of Nations), all are examples of executive leadership taking a more aggressive stance... Also can be demonstrated by actions of trust-busting, expansive labor-management relations, domestic affairs, and business regulations of such Presidents as Cleveland, TR, Roosevelt, Taft, and Wilson. There are 3 different contexts in which the "Imperial Presidency" has raised serious constitutional concerns: (1) President's usurpation of legislative power in domestic (2) and foreign affairs (3) President's insistence that his office immunizes him from judicial process applicable to other citizens or even other federal officials 1. The general post-New Deal Framework (domestic arena) Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure case) (1952) Case Brief: Style (name of case): Youngstown Sheet and Tube Co. v. Sawyer (the Steel Seizure case) (1952) Relevant Facts: The country was at war with Korea. The war effort called for more weapons, and they were made from steel. Steel industry demanded an increase for all the extra work it was doing. In relation to some concerns from the Senate, a 3-way dispute broke out between the steel union, the companies and the Government, as the companies didn't want to spend extra monies for the increase, and the Government resisted. Union announces it was going to strike. President Truman didn't want to invoke the Taft-Hartley Act of '47, the Selective Service Act of '48, or Title II of the Defense Production Act of 1950, which all gave the executive branch extensive authority to regulate wages, settle disputes and run the shops if it had to. And that's what Truman did, as he authorized Sec. of Commerce Sawyer to take possession of the steel industry and keep the mills operating to provide goods for a national emergency. Arguments come to this Court. Issue: Under constitutional law, does the President of the United States have executive power to authorize the Secretary of Commerce to seize the nation's steel mills when he uses the war powers, executive authority vested in him in article 2 of the constitution, or any implied powers gleaned therein? Holding: No. Although the separation of powers is more blurred then definite in scope and action, the President has no such explicit or implicit authority in which to enact such action. Court's Rationale/Reasoning: Mills say this act should've been done by the legislature. The Government says they were tying to avoid a national crisis. There is no explicit statute or act (of Congress) which authorizes the President to act in such a manner. The only 2 statutes which authorize acquiring personal and real property are not met here. Not only are they unauthorized, but Congress refused to act in such a manner to begin with, in regards to Taft- Hartley's legislative history. Congress wanted to ensure a process of mediation and investigation of claims, and their issue in public reports. If the President could do this, it would have to found somewhere explicitly in the Constitution, or implicitly in some historical context or foundation. The reliance is the rule stated (below), but has nothing to do with the "war powers." It would not be faithful to the constitutional system. Nor is there any constitutional provision which grants such an action either. Article I, however, clearly spells out who has such responsibility: Congress. The President cannot order policy; he can only suggest it, to which Congress can then legislate upon it. Congress can approve any proposal for regulation, policy, settlement of disputes, wages, and working conditions. None of this is delegated to the President. This may have happened in this past, but this doesn't mean the right to limit this extension of authority is not available. A textual approach of the Constitution says the President's powers are curbed in this extension. Rule: Section 1 of Article II. The executive power shall be vested in a President of the United States of America. Section 2 of Article II of Constitution: "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Important Dicta: N/A. Dissenting: (Justices Vinson, Reed, and Minton):Many presidents have taken such action before, most notably Lincoln (Civil War, naval blockade, Emancipation Proclamation), Hayes and Cleveland (authorize use of troops to settle strikes), all w/o state or legislative authority. T.R. thought about it. Why can't this President do it too? Concurring: (Justice Frankfurter):Traditional ways give meaning to the text. FDR's actions during the Great Depression resulted in all sorts of extensions of the executive authority, but his authority was not violative, as 3 laws were already enacted by Congress when FDR enacted his policy, and 6 more were only enacted after Congress declared war, thereby falling under the "war powers." (Justice Jackson): There is no definite proof from authority on this issue; stuff has to be gleaned from previous actions. Since government is not definite, and sometimes the three areas blend in with one another, there are three general areas which executive authority work with other powers: 1. When President acts pursuant to an express or implied authorization of Congress. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority. When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3. When the President takes measures incompatible with the expressed or implied will of Congress, this is the lowest level he can extend his authority. This is a category three action. If the US's commander-in-chief argument is applied, then the executive branch could use its authority over any business/industry under the guise of the relatedness. If their inherent powers are accepted, this Court is essentially making up law. There still is a distinction between the President's paper powers and his real powers, but the Court here will not stretch to such a level where his implied powers are so great. The President is supposed to be checked. A. Note on frameworks for thinking about separation of powers issues Topic Notes: 1. Theoretical approaches to separation of powers: (A) Formalist categories: see Black's opinion (B) Constitutional functionalism: see Jackson and Frankfurter's opinion (C) Evolutive functionalism - constitutional adverse possession: see Vinson's opinion 2. The Jackson concurrence as forerunner of the vertical as well as functional approach? It's been the most influential of those penned in the Steel Seizure case. 3. Consequences of the Court's decision: The union had actually settled, but backed away from the table upon learning the Court was deliberating this upon quick certiorari; the result of which was the Union's continuing to strike, and resulted in millions of bucks in lost wages and backed up steel production big time. 2. Foreign Relations (executive agreements and war powers) Topic Notes: Court endorsed a broad scope for presidential action in the foreign arena. Policy became as followed (liberal construction): "the federal government, and its officers, were free to exercise any external powers normally exercised by sovereign states under international law, excepting those explicitly forbidden by the Constitution, strongly contrary to fundamental constitutional principles, or not "essential" to governance." United States v. Curtis-Wright Export Group (1936): Court upheld President's action against DF for selling guns to Bolivia. US had joint resolution (President and Congress) to ban arms sales to Bolivia and paraguay. Justice Sutherland said not only is national power over external affairs complete in every respect and inherent, but the President plays a unique role in foreign affairs (cannot undermine the objectives set forth in the Constitution in which the President makes treaties while conferring with the Senate on such matters, but negotiates by themselves) United States v. Belmont (1937): Court upheld and applied the "Litvinov Agreement" negotiated by FDR with USSR. This agreement assigned to the US, Russian claims against Americans who held funds of Russian companies seized after the Russian Revolution, to the point where it also preempted state law. This was similar to a treaty in that the Senate enforces it, but also in that this agreement trumped state law. A. The War Powers Resolution and its background Topic Notes: Codified at USC §§ 1541 et. Seq. (a) Congress and the President both participate in the introduction of the US Armed Forces into combat (b) Congress, as per the necessary and proper clause, can make all laws necessary and proper to carry into execution its own powers per the Constitution, and those vested in any other department or officer thereof (c) President can by themselves declare war if (1) war is declared on US, (2) specific statutory authorization, (3) national emergency (Sept. 11th) §1542: President consults with Congress in any other situation preceding introduction of forces, and until forces are not needed §1543: If there is no declaration of war, and armed forces are introduced into a situation where there is anticipated violence, the President has to notify Congress in writing within 48 hours of the implementation, and any other information should Congress want any pursuant to constitutional responsibilities. §1544: President must terminate any action in 1543 within 60 days of original implementation, unless Congress declared war, extended it, or is physically unable to meet as the result on attack. Congress also has the power to direct the President to remove armed forces if they deem so. §1547: interpretation of a joint resolution §1548: separability of provisions; if any part of a joint resolution is held to be invalid, then the whole thing is invalid et seq. (et seek) n. abbreviation for the Latin phrase et sequentes meaning "and the following." It is commonly used by lawyers to include numbered lists, pages or sections after the first number is stated, as in "the rules of the road are found in Vehicle Code Section 1204, et seq." B. Notes on the War Powers Resolution - Is it constitutional Topic Notes: Scholars are divided as to whether the President has constitutional authority to defend the US preemptively (attacking opponents before they can attack us). They compare: (1) Deliberations at the Philadelphia Convention, where the delegates were thinking in a functional, institutionalist way. They wanted the President to be able to respond quickly and not have his hands tied in those situations. (2) Deliberations at the Ratification Debates, where one representative favored Congressional war making power. (3) Practice and Precedent: Washington and Adams administrations conducted hostilities without consulting Congress, but did consult with it upon sending troops; the quasi-war with France resulted in the no consultation before sending troops; Civil War consisted of no Congressional consultation Dames & Moore v. Regan (1981): a suit by parties suing Iran were barred by a joint agreement between nations; parties were referred to a US-Iran Tribunal. Rehnquist used Jackson's concurring opinion in the Steel Seizure case to provide the framework for the reasoning of why the case would not be tried after the agreement was made. Powell dissented b/c he thought under the 5th amendment, the parties were due just compensation. 3. Executive Privileges and Immunities Topic Notes: Presidents have throughout history maintained a privilege to withhold information from Congress or to divulge it under confidential circumstances, in order to protect the national interest. More ambiguous was the President's amenability to or immunity from legal process. Executive privilege and executive immunity for misdeeds came to the Court in the next case. United States v. Nixon (1974) Case Brief: Style (name of case): United States v. Nixon (1974) Relevant Facts: See Watergate scandal. Agents of CREEP broke into Democratic National Headquarters and were caught in the act. It was slowly uncovered that President Nixon authorized the break-in, as well as several other incidents. Former White House counsel John Dean named Nixon himself in an ensuing investigation into the cover-up, and impeachment proceedings were brought against the President. As a result of a grand jury indictment against 7 defendants, most notably former Attorney General John Mitchell, the President was named as an unindicted co-conspirator and was ordered by a District Court upon subpoena, to produce certain tapes, memoranda, and other writings related to specific meetings associated with the scandal. President released transcripts to some of the tapes and then moved to quash the release of them all together on grounds of executive privilege. District Court denied motion. The Court took the case before the Court of Appeals could hear it, and then affirmed the lower court and remanded it for examination of the subpoenaed documents. Issue: Under constitutional law, may the President of the United States, upon his non-indictment but association with a conspiracy which violates federal law, invoke executive immunity to interpose a District Court order which directs him to produce certain documents and recordings of meeting associated with this conspiracy? Holding: No. When the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process law in the fair administration of justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. Court's Rationale/Reasoning: The Court has at the very best before this case interpreted the explicit immunity conferred by express provisions of the Constitution on members of Congress by the Speech and Debate Clause of the Constitution, an express power. Thus, if the Court were to construe and delineate claims under express powers, then the Court should have the authority to interpret claims with respect to powers alleged to derive from enumerated powers. President claims (1) valid need for protection of higher authority and those who advise him; and (2) separation of powers insulates the President from judicial subpoena in an ongoing criminal investigation. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the Court finds it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obligated to provide. As for separation of powers, they were not meant to stand by themselves, as there are cases in which the powers co-mingled with one another. Presidential communication is protected, however when the communication is not of a governmental nature, and there is a public interest in those communications, then the immunity granted by the Constitution does not exist. This is important to the adversarial system we have in this country. There must be a full disclosure of all of the facts, within the framework of the rules of evidence. This is essential to the carrying of justice. Both the 5th amendment (due process) and the 6th amendment (right to face adversaries is part of this carrying of justice. In applying the balance test, Presidential communications are indeed protected generally, but in the instance of a criminal case, the protection cannot remain, for it would "cut deep into the guarantee of due process law and gravely impair the basic function of the courts." Rule: Balancing test weighs the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. Important Dicta: No court has defined the scope of judicial power specifically related to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution. A. Notes on executive privileges and the Nixon tapes case Topic Notes: (1) why should this issue be resolved by the court? (it is argued that Congress should have been involved more in this process, since it is Congress who initiated the impeachment proceedings against Nixon and had reason to compel production) (2) why does the president enjoy any executive privilege? (argued that if Congress has a protection, there should be one listed for the President, but there is no such enumerated power in Article II) (3) why is executive privilege not absolute? (as 5th amendment rights are) B. Note on Congressional Subpoenas of Presidential documents Topic Notes: Back in 1983, President Reagan ordered an EPA Administrator not to testify to Congress as to the EPA's actions in enforcing Congressional statutes. The Court agreed with Congress. After the decision, the DOJ, in a memorandum argued that anything unrelated to Presidential matters did not have to be disclosed (as per the Nixon Tapes Case holding). Nixon v. Administrator of General Services (1977): The Court held that a federal order to take possession of former president Nixon's presidential papers and tape recordings and to screen them for personal and private materials was allowed. They balanced the fact that such a limited intrusion which was deemed necessary for the public would offset that the seizure of the documents might "adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decision making." Nixon v. Fitzgerald (1982): The Court, in a 5-4 vote, applied the Nixon Tapes Case balancing approach to hold former President Nixon absolutely immune from a civil damages lawsuit filed by a defense department whistleblower who was allegedly discharged by the President for what Nixon considered his disloyalty. Court said Nixon's Article II powers would be severely hampered (and any other President for that matter) if their decisions were allowed to be second-guessed by the Court in damage lawsuits against him. Clinton v. Jones (1997): The Court rejected President Clinton's claim that a President could invoke Fitzgerald immunity to claims that arose before the President took office, even though the lawsuit by Paula Jones was brought during his presidency. Justice Stevens said this was a judicial matter, not an executive matter, and the decision would not effect the President's Article II powers at all. The court's holding: "the doctrine of separation of powers does not require federal courts to stay all private actions against the President until he leaves office." C. Notes on the Presidential Immunity Cases Topic Notes: Fitzgerald: case of immunity b/c it occurred during the presidency (depriving a PL of his action all together) and brought after the presidency had ended Jones: not a case of immunity b/c it occurred before the presidency (not depriving PL of her claim) and did not effect a sitting President (at least the Court held so) The only members from judicial process assured in the Constitution is that for members of Congress in the Speech or Debate Clause, Art. I, §6. All other immunities were created by the Court, essentially as constitutional common law -- inspired by constitutional values but possibly subject to congressional override. Court has enacted qualified immunity to cabinet officers and other national executive officials, and for federal judges (immunity from private damage actions) D. Note on Congress's Impeachment Power - the case of Bill Clinton Topic Notes: Art. II, §4 specifies that the President can be removed from office for "Treason, Bribery, or other high Crimes or Misdemeanors." Few believed Clinton's sexual tastes were a high crime or misdemeanor, but the House of Representatives determined that Perjury was (he allegedly lied about the Monica Lewinsky affair). Constitutional debates went both ways as to whether perjury indeed was an offense which could result in impeachment. Bottom line, Congress exercised accountable governance in the process. B. Issues of Legislative Overreaching (The Meddlesome Congress) Topic Notes: Although the Court says it's abandoned serious effort to enforce the nondelegation doctrine (Congress cannot delegate lawmaking power w/o clear standards as to the rules to be developed), the Court has discouraged such delegation by cutting some of the strings, including the legislative veto and the vesting of enforcement discretion in congressionally controlled agents. 1. Excessive Congressional Delegations to Agencies and to the President Topic Notes: Delegation by Congress to a group of legislators who now about the problem at hand can be good for government, in that it lets people who are qualified to deal with a problem and disseminate any new information work on solutions to problems which ordinarily Congress might not be able to solve right then and there. But sometimes the delegation is done so legislators can keep their supporters happy, while avoiding the situation at the same time, which can sometimes lead to over-delegating. A. Note on the decline and fall of the nondelegation doctrine Topic Notes: Nondelegation doctrine: Congress cannot , consistent with Article I, delegate essential lawmaking powers to other groups (the executive, agencies, courts, private groups) without providing specific standards by which the implementers shall administer the delegation, or "an intelligible principle" to which the implementers must conform. Court rejected some of FDR's National Recovery Act legislation, as there were no specific guidelines for the administrators to follow ("fair competition" standard not enough). Also saw it in the Curtiss-Wright case (earlier). But a "fair and equitable standard" was held to pass constitutional muster when there was delegation of price controls during wartime to a Price Administrator. Things generally got more lax until the 1980s, when a federal court ruled that the Occupational Health and Safety Act unconstitutionally delegated authority to the Secretary of Labor ("to the extent feasible" standard for regulating toxic materials and the health and safety of workers was an excessive delegation). State legislative delegation only valid if it sufficiently identifies: (1) the persons and activities potentially subject to regulation (2) the harm sought to be prevented; and (3) the general means intended to be available to the administrator to prevent the identified harm Mistretta v. United States (1989): The Court unanimously rejected a nondelegation challenge to the Sentencing Reform Act, in which Congressmen were given specific guidelines in which to redesign the sentencing table from the criminal code, while figuring in aggravating and mitigating factors, and discounting certain other factors (race, sex) Whitman v. American Trucking Ass'ns (2001): Court reversed a District Court ruling that a Congressional statute indeed provided the EPA with enough of a limiting principle in which to promulgate air quality. ("requisite to protect the public health.") B. Note on the rise of the legislative veto Topic Notes: A legislative veto provision of a statute provides that an agency or department must inform a congressional committee of specified actions, that those actions cannot have operative legal effect for a specified period of time, and that they can be nullified by vote of a committee, or of one chamber, or of both chambers of Congress. The tendency at the state level was to create a committee to advise the legislature, and to suspend operation of agency rules until the legislature could study, and perhaps, overturn them. Immigration & Naturalization Service v. Chadha (1983) Case Brief: Style (name of case): Immigration & Naturalization Service v. Chadha (1983) Relevant Facts: Chadha and 5 other immigrants were to be granted permanent resident status upon the expiration of their visas to stay in the US by an action of the US Attorney General (executive branch via President's approval of such an action), but the House of Representatives (legislative branch), after a resolution was brought forth to "put a legislative stamp on the action" in the House of Representatives, the House, without any further discussion in the Judiciary Committee or any copies of the resolution to be made available to other House members, submitted the resolution for a vote. After the House veto, it was not submitted to either the Senate or the President, but INS Judge reopened proceedings and Chadha was ordered deported. The resolution was denied, and an immigration judge ordered Chadha and the others deported. INS agreed with Chadha that the House action was unconstitutional. The Court of Appeals, Ninth Circuit received vast support in the form of amici curiae briefs from both the Senate and the House, and the Court agreed that the House action was unconstitutional. This Court affirms. [the resolution was not treated as a legislative act as per §244(c)(2)] Issue: Under constitutional law, does the House of Representatives actions in voting to deport 6 aliens contravene the actions of the US Attorney General's previous order to allow them to stay in the country when they met the grounds for suspending of deportation? Holding: Yes. The move itself was unconstitutional, as the House, by its one house action, took a power of the executive branch (Attorney General Katzenbach) and replaced it with a legislative act, which completely changed the act itself. Court's Rationale/Reasoning: After going through a lot of originalist context as to the Framers' intent to create three branches of government, and that the three branches were there in part to check on one another to preserve the sanctity of the powers, and the people. This was a legislative act in nature. This act also, in a sense, overruled the Attorney General and mandated Chadha's deportation. Congress actually delegated the authority it subsequently took away to the executive branch, specifically the Attorney General, of the authority to allow deportable aliens to remain the US should their case fit the hardship guidelines. Since Congress delegated such authority, the delegation of powers doctrine mandates that the action must be passed through both houses of Congress and then presented to the President as per Article 1, §7 of the Constitution. Congress must abide by that delegation unless it is legislatively altered or revoked. The are only four provisions set forth in the Constitution in which only one house of Congress would have to act: initiating impeachments, Senate power to conduct impeachment trials, Senate power to confirm presidential appointments, and Senate's power to ratify treaties. This further supports the notion that what the legislature's action was indeed was not an implied power. Congress cannot get around the slowness and tediousness of government, as this is what the Framers intended. Rule: Non-delegation doctrine: mandates that the action must be passed through both houses of Congress and then presented to the President as per Article 1, §7 of the Constitution. Congress must abide by that delegation unless it is legislatively altered or revoked. Important Dicta: The intent of the Framers in writing the Constitution was to provide a government which would satisfy both the large and small states, which is why there are two houses (Great Compromise). These two houses check on one another, and the executive checks on them, and the judiciary checks on both, with Congress checking on the judiciary. Anything else is unconstitutional. Dissenting: (Justice White) The Act was merely a delegation of rulemaking and legislation of law. The legislative veto is a check upon rulemaking by administrative agencies and upon broad based policy decisions of the Executive Branch. 1) Notes on Chadha & the Court's new direction in separation of powers cases Topic Notes: (1) Different visions of the structure of the Constitution: Justices White and Powell took a functionalist approach to separation of powers similar to Jackson's concurring opinion in the Steel Seizure Case. Congress should not take over duties delegated to the executive branch. Burger's opinion took a more formal approach like Black's opinion in the Steel Seizure Case. (2) Is Chadha defensible Constitutional Law? Lots of scholars have raised doubts about Burger's analysis in this case, saying that the legislative veto is an Art. I, §7 power. (3) The scope of the Court's holding -- and what survives: The Court could have written a more narrow opinion, striking down only those legislative vetoes that interfered with adjudicatory proceedings, or that permitted a veto upon the vote of only one house, or that permitted a veto of enforcement decisions made by an executive department and not by an agency. But this opinion seems applicable to all legislative vetoes Congress has enacted. State courts have held some legislative powers, like "report and wait" or "laying over" provisions, holding off the effective date of an agency until Congress has an opportunity to review it. But other things survive Chadha: (a) hearings and informal pressure by Congressional oversight committees, and publicity generated by their concerns (b) refusal by Congress to appropriate monies to wayward agencies (choosing which rules will be carried out in effect) (c) informal pressure by appropriations subcommittees and language in their reports earmarking funds for certain projects and not others (4) Functional (public choice) and vertical (popular) problems with legislative vetoes: as costs and delays of obtaining legislation increase, public theory reasons, special interest groups will demand less of it.. Popular theory is related to an electoral aristocracy as one chamber could veto. (5) Encouraging too much delegation? Legislative vetoes might have encouraged Congress to vote broader and more abstract delegations to agencies and departments. (6) Legislative veto challenges under State Constitutions: State courts have generally invalidated state legislatures vetoes upon the same reasoning as in Chadha, and some State Supreme Courts anticipated the ruling as well. 2) Note on severability Topic Notes: If an unconstitutional provision is severable from the rest of the statute, the Court will not invalidate the statute, just the part that is unconstitutional. Since 1938, the Court has followed a strong presumption of severability and rarely refused to sever unconstitutional provisions from statutes. Clinton v. New York (1998) Case Brief: Style (name of case): Clinton v. City of New York (1998) Relevant Facts: The Line Item Veto Act gave the President the right to veto any one part of a bill which landed on his desk, as long as the President provided that his veto was for the good of the country. Cancellation meant to rescind, or in the case of a direct spending item, a veto rendered the provision as prevented from being implemented. There was also an expedited procedure if Congress were to vote down the veto. New York challenged the Act (LIVA), b/c President Clinton (1) canceled a provision in the Balanced Budget Act of 1997 that gave NY preferential treatment under the Medicaid law; as no other state would have received such treatment; and (2) President cancelled a tax provision in the Taxpayer Relief Act of 1997 that allowed owners of certain food refiners and processors to defer paying tax on the gain from the sale of their stock if they sold to eligible farmers' cooperatives. (Since very few taxpayers could take advantage of this expenditure, it was a limited tax benefit eligible for cancellation, and some ID farmers challenged this provision as well.) The federal gov't said NY inappropriately characterized taxes it had collected from Medicaid providers, and unless granted, NY stood to owe as much as $2.6B. Issue: Under constitutional law, is a President's use of a line-item veto, codified through Congressional legislation, viable as a proper law, when the President has authority to cancel items which gave a state preferential treatment, and also canceled a limited tax benefit? Holding: No. If the President wants to try and receive more power in the legislative process, he or she should seek relief through the making of a Constitutional Amendment, as per Article 5. Court's Rationale/Reasoning: The principal terms of LIVA, in regard to cancellation, are express in the defined terms of one of the sections. In essence, the President, through his actions in veto particular items on a bill, renders an enumerated power of Congress ineffective, and subsequently cancelled. Clinton has also amended a bill in his act. These powers are not defined as per Article 1, Section 7 of the Constitution (unilateral amending and repealing of statutes). In an originalist take, the Court goes into why the Constitution is silent as to these issues. What the Court decided was that the Framers meant that a bill must go through what they called "a single, finely wrought and exhaustively considered, proocedure," (quoting Chadha). Despite the government's argument that LIVA was just a creative way of reinforcing Presidential creative spending measures, the notion of having a President have the authority to eliminate and amend certain portions of bills after they went through the legislative process no longer becomes a single exhaustive process. Instead it becomes a process with multiple possibilities, two of which (eliminating and amending) are contrary to any express power in Article I or II. If the President were to be able to get more power through a LIVA-like statute, it cannot be done so through the legislature, but instead must be done through the constitutional amendment process, as expressed in Art. 5. Rule: The power to enact statutes must come from "a single, finely wrought and exhaustively considered, procedure." Important Dicta: No. Concurring/Dissenting: (Justices Scalia, O'Connor and Breyer): These justices mention that the prohibition on executive reduction of congressional dispositions is much more limited than the prohibition on executive augmentation of congressional dispositions, but they do not come from Art. I, section 7. They come from the doctrine of unconstitutional delegation of legislative authority. This doctrine states: when authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers. As far as political lawmaking is concerned, there is no difference between what Congressional authorization of a President to cancel line items, or the Congressional authority to augment to them. The latter has been done since the Founding of the Nation. Nixon said so (impounding appropriated funds was a constitutional right) back in 1973, even though he was proven wrong 2 years later. It is the terminology of the bill which this minority has a problem with: if the bill allowed the President to "decline to spend" any item of spending, it would be constitutional. But simply "cancelling" any item is technically different, but not really. Dissenting: (Justices Scalia, O'Connor and Breyer): The same three justices find a minority premise that the majority thinks the President is in effect canceling laws and amending them is unconstitutional is incorrect. Instead, the minority feels the President is merely executing a power conferred on him by Congress, by which he is allowed to render ineffective certain items on a bill. Hey, this Court even has that power, as they can decide on the Federal Rules of Civil Procedure as far as which ones are appropriate to be codified. President also has the authority through the Graham-Rudman-Hollings Act to issue a final order, which has the effect of canceling certain requests for spending. The Court goes to the Jackson test from the Steel Seizure case and determines the President in this situation, in which it determines the President is acting within his executive power. President has previously been allowed to repeal acts which were inequitable or unfair, unreasonable or anything else in the public interest. Thus, LIVA is a novel act, which neither repeals nor amends laws, and thus do not violate any separation of powers found in the Constitution. a) Notes on Clinton v. New York Topic Notes: (1) Presidents have used the impound authority to withhold funds that Congress allocated to programs in the annual appropriations process (2) Congress could respond with a Constitutional amendment to the suggested effect, or by using separate enrollment, by which Congress would divide an omnibus spending bill, formally enrolling each provision allocating funds to particular programs as a separate bill. The Congress, by its vested power, would pass the bills all together, and the President could in effect, vote them in or vote them down one by one. (3) Clinton used this power to cancel small potatoes projects, which totaled about $500M. But generally bills do not go to the President which the majority knows the President does not like. A lot of negotiating is done regarding this provisions, and that's how they usually wind up on the President's desk in a manner the President likes. 2. Congressional vs. Presidential power to control executive officials Topic Notes: Congress can also delegate with some authority by appointing an official it appoints or has some other legislative power over, and can also cut off some executive authority by making the person removable for something like "good cause." So how does this congressional control over elected officials interfere with the legislative duties of Congress or the executive duties of the President, and how does Congressional control (or as it may be Presidential lack of control) over executive officials affect the President's constituency and his incentives to act. Myers v. U.S. (1926): Court invalidated an 1876 statute preventing the President from discharging postmasters w/o Senate consent (Taft: Framers expressed that President had the authority to remove executive dept. officers w/o Senate consent) Humphrey's Executor v. U.S. (1935): Court upheld a provision in the Federal Trade Commission Act which permitted removal by the President, but only for "inefficiency, neglect of duty, or malfeasance in office." (Sutherland: this is a Legislatively mandated entity, and is not controlled by the Executive, save the fact (s)he can get rid of someone for the reasons just mentioned) Buckley v. Valeo (1976): Court held a portion of the Federal Election Campaign Act of 1971's Federal Election Committee invalid; 4 Congressional appointments to the board were ruled violative of the Appointments Clause of the Constitution, as FEC appointees were "...exercising significant authority pursuant to the laws of the US." If the FEC were an investigative arm of Congress, there would be no problem with the appointments, but this is an executive function. Bowshear v. Synar (1986) Case Brief: Style (name of case): Bowshear v. Synar (1986) Relevant Facts: The Graham-Rudman-Hollings Act provided that in the fiscal years 1986-91, the Act set a maximum deficit amount of $0. Anything more required across-the-board cuts to the budget, to be undertaken first by the Office of Management & Budget (OMB) and Congressional Budget Office (CBO), who'd calculate the necessary budget reductions and report to the Comptroller General, who then reported to the President. The President was then required under the Act to issue a sequestration order (the cancellation of funds for expenditure or obligation in order to enforce federal budget limitations set by law) mandating the spending reductions specified by the Comptroller General. The Act also called for Congressional right to fire the Comptroller General for reasons of: permanent disability, inefficiency, neglect of duty, malfeasance, felony/illegal conduct. 12 members of Congress, the Nat'l Treasury Employees Union, and a union member brought suit challenging the Act on separation of powers grounds. Lower court invalidated the law. This Court affirms. Issue: Under constitutional law, is the implementation by Congressional Act by which the Controller General is responsible in effect for electing, and then notifying the President, which cuts in the Federal budget to make on an annual basis? Holding: No. This is an executive authority, which has attempted to be usurped by the Legislative branch's passing of the Act. The President has the authority to finalize federal spending. Court's Rationale/Reasoning: To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Appellants say the Comptroller General performs independently, but this is irrelevant. The critical factor lies in the provisions of removability (listed in facts). No one can be removed by a joint resolution of Congress. Comptroller is not a Congressionally-influenced officer. It is true that Comptrollers have viewed themselves as part of the legislative branch, and the reverse is true as well. Since Congress has retained removal authority over the Comptroller General, the office may not be entrusted with executive powers. As to whether the Comptroller General has been assigned such powers in the Balanced Budget & Emergency Deficit Control Act of 1985, it is suggested by appellants that the officer's duties are essentially ministerial and mechanical to that they do not constitute an execution of the law in a meaningful sense. But how can this be when the officer's duties consist of the ultimate power to determine which budget cuts are to be made? Under this law, it is the President carrying out what the Comptroller General tells them to do. Congress cannot place the responsibility for execution of these Acts in the hands of an officer who is subject to removal by Congress; they have in effect retained control over the execution of the Act and intruded into the executive function. Rule: Art. II, Section 2: The President appoints "Officers of the U.S." with the "advice and consent of the Senate." Once the appointment has been made, the Constitution calls for the removal of officers by impeachment by the House and conviction by the Senate (treason, bribery, and other high crimes and misdemeanors). Important Dicta: N/A. Dissenting: (White): This was a proper delegation by Congress, to hand this problematic issue to an independent party who has the knowledge to understand and deal with such matters effectively. The appropriation of funds is purely Congressional. The removal provision is practically impossible. White makes a necessary and proper argument, that Congress has seen fit to delegate such authority to another person to "counteract ever-mounting deficits" is appropriate to exercise the powers granted the Federal Gov't in the Constitution. "The role of this Court should be limited to determining whether the Act so alters the balance of authority among the branches of gov't as to pose a genuine threat to the basic division between the lawmaking power and the power to execute the law." There is no such threat. Concurring: (Justices Stevens & Marshall): Doesn't agree with Congressional removal portion of opinion or the dissent (obviously). These justices espouse that the Comptroller General should, as an appointee in effect of the legislature, be allowed to make such recommendations, then have the bill as per Art. I, move through both Houses, then be presented to the President. Congress may not exercise its fundamental power to formulate national policy by delegating that power to one of its two Houses, to legislative committee, or to an individual agent of Congress (Speaker, Sergeant-at-Arms, Director of CBO). In effect, intra-Congressional delegations violate Chadha. A. Notes on Myers through Bowshear - are independent agencies constitutional Topic Notes: (1) the reasoning of Bowshear: (a) is the Comptroller an "Executive" official? Court basically said that anyone who has a hand in enforcing the laws cannot be controlled by Congress (b) does Congress "control" the Comptroller General? Court said the officer could act out her role by statutory scheme if Congress didn't "control" her; White said Congress has never removed this officer under the statute, and if so, it should be done through the provisions of the Appointments Clause. (c) what happened to Chadha? Nothing really, as this decision and Chadha corrected constitutional wrongs where the President was essentially "cut out" the President and constituency out of important public decisions. (2) the Constitutionality of Independent agencies? This opinion does not touch that issue, however now there is new argument as to what might be considered "quasi" agencies (operate under two or more branches) (3) debate over mythology: If the Court has adopted a new formalist position on separation of powers, should Nixon tapes and Iranian Hostages cases be overruled? 3. Congressional authority to create executive offices outside of the Presid Topic Notes: It is argued that the formal separation of powers should govern relationships between the three branches but not inferior bodies and agencies. The guidepost suggested should be the fairness ideas derived from separation of functions, including clear policy statements to guide and limit agency rulemaking, especially when citizen liberty is involved. The relationship between the President and agencies should be checked by checks and balances precepts. Morrison v. Olson (1988) Case Brief: Style (name of case): Morrison v. Olson (1988) Relevant Facts: The Ethics in Gov't Act of 1978 in part created the office of "Independent Counsel," which would be implemented to investigate and if appropriate prosecute certain high-ranking gov't officials for violations of federal criminal laws. After being notified of a possible offense, AG has 90 days to decide whether to apply to the Circuit Court of D.C. for the appointment, which then appoints the prosecutor and defines their jurisdiction. Indep. Counsel proceeds until she reports it is "completed" or when the Circuit Court deems it as such. DF Olson, then head of Department's Office of Legal Counsel, was accused of providing misleading testimony to a congressional subcommittee. Indep. Counsel Alexia Morrison appointed to investigate. Olson moved to quash her subpoenas on the ground the above graph was unconstitutional. Court of Appeals agreed, this Court reverses. Issue: Under constitutional law, is the Ethics in Government Act of 1978 invalidated by the Attorney General's ability to apply to the Circuit Court of D.C. for appointment of "Independent Counsel" after AG's investigation into the possibility of prosecuting certain high-ranking gov't officials is warranted? Holding: Yes. The Independent Counsel, is , in fact, an inferior officer of the executive department, and the judicial branch has not stepped on the executive toes in the implementation of this law. Court's Rationale/Reasoning: First off, there was no Appointments Clause violation. So is Morrison an inferior or principal officer, the latter of which makes the Act violative of the Appointments Clause. Morrison is was determined was inferior, as being subject to removal by Atty General for good cause, is empowered to perform only certain duties, and is otherwise to comply with policies of Justice Dep't, and has limited tenure. Congress can create some interbranch appointments of inferior officers, such as court-appointed commissioners, which had limited prosecutorial powers. It is understandable there might be some concern over the judiciary exerting too much power over the independent counsel, but since the Court of Appeals had no further say than appointing Counsel, there was no incongruity interbranch appointments. The Court does not see the Special Division's supervising of the Indep. counsel as a significant encroachment upon executive power or upon the prosecutorial discretion of the Indep. counsel, despite the fact that its supervision alone is not typical of traditional judicial powers. The duty of this Court is to construe the Statute narrowly, thus, their supervision over Indep. counsel is not to the extent that past legislation has undertaken, whereby powers from another branch are usurped; here the discretion to remove the appointee lies solely in the hands of the Atty General. Neither does the "good cause" removal provision in the statute. The functions by the appointee are executive as those under a law enforcement provision. Even though Indep. counsel exercises a great deal of discretion and judgment, this Court does not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will be the President. There is no judicial usurpation of properly executive functions either. There are no Federal hearings to remove officers, and the appointment of the Indep. counsel themselves is not an executive function, since Congress has vested that authority in the judicial. But the court cannot appoint special counsel themselves; the appointment must come from the Atty General, of the executive. Last, there is no impeding on the powers of the executive branch in any way that is impermissible. It can be argued that the Atty General and the rest of the executive has no power over the nominee: they cannot appoint them, the President's supervisory position in somewhat diminished, and does not determine counsel's jurisdiction. However, Atty General may remove for good cause and the term specified is small. Rule: Appointments clause portion at work here: "...but the Congress may by Law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Head of Departments." Important Dicta: The language of the "excepting clause" admits no limitation on interbranch appointments, but "congress has what the Court calls "as they think proper" gives it significant discretion to determine whether it is proper to vest the appointment of executive officials in the "courts of Law." Dissenting: (Justice Scalia): By application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high- level appointee of the President and the Legislative branch. If the following 2 questions are answered in the affirmative, then the present statute must be upheld on separation of powers doctrine: (1) is the conduct of a criminal prosecution (and the preceding investigation whether or not to do so) the exercise of a purely executive power? (2) does the statute deprive the President of the US of exclusive control over the exercise of that power? The majority says "yes" to both, but it fails to understand that the statute itself vests some purely executive power in a person who is not the President of the US, which makes the statute void. Scalia argues how much power taken away from the executive branch by the legislative and the judicial is enough, and contends there is a slippery slope which is being created. Also says special prosecutors are not inferior officers as they are not subordinate to the President. A. Notes on the independent counsel case Topic Notes: (formalist) Morrison Court approved a Congressional plan that deprives President of control over a core executive official. More drastic than Myers (control over postmaster) or over budget cuts (Bowsher)? (functionalist) Principle against self-aggrandizement: Congress itself cannot exercise direct control over officials "executing" the law (Myers, Buckley, Bowsher), but it can authorize someone other than the President to control them (Morrison). Majority: functionalist Dissent: formalist C. Congressional & Presidential structuring of adjudication and deployment of Topic Notes: Limits Art. III places on Congress and the President. 1. Assigning Art. III judges nonjudicial duties Topic Notes: Mistretta v. U.S. (1989): Congressional delegation to a sentencing commission as an independent branch of the judiciary. Court said here it was proper for the three branches to be working together (7 members appointed by the President, confirmed by Senate, and at least 3 had to be Fed. judges) Congress may delegate to the judiciary nonadjudicatory functions that do not trench upon the prerogatives of another branch and are appropriate to the central mission of the judiciary (FRCP, FR Evidence approvals by the Court). Sentencing is primarily a judicial function anyway. There may have been some trouble with the Fed. judges requirement on the commission, but it did not interfere with the application of its job. Other situations have rendered other members of other branches to do other jobs: John Jay, as ambassador, negotiating a treaty, or John Marshall, whose service as Secretary of State overlapped his as Chief Justice. Judges have also performed non-judicial acts: 5 of the Court's justices helped settle the Hayes-Tildon election of 1876, 7 justices who served as arbiters, Justice Jackson, who served as Chief Prosecutor at the Nuremburg Trials, etc. Bottom line: this just one of those neutral endeavors and one where judicial participation is particularly appropriate. President's power to appoint and remove for cause did not threaten judicial independence. Scalia's dissent mentioned there was essentially a whole new branch being created through this kind of cooperation, quasi-congressional if you will. A. Problem - the constitutionality of Art. II military commissions Topic Notes: Could the military commissions try Taliban soldiers captured by the U.S. In its war vs. Afghanistan, in light of the Geneva Conventions, which granted right against self- incrimination, to a presumption of innocence, right to counsel (when all these things were denied by Bush's commission) B. A note on delegation within the judicial banch Topic Notes: In 19878, Congress enacted the magistrates Act, which expanded the role of federal magistrates, assistants to federal judges appointed for limited terms by the federal courts. The Act permitted district judges to refer certain issues of law to these magistrates for initial findings of fact and legal rulings, each review being subject to de novo review by the district judge. The Court has not permitted magistrates to preside over the selection of a jury in a criminal trial, except when the DF consents. 2. Congressional attempts to alter federal judicial jurisdiction & judgments Topic Notes: Plaut v. Spendthrift Farm, Inc. (1996): Fed. DC dismissed a lawsuit with prejudice, following the Court's decision setting a SOL that PL's filing did not meet. After the ruling, Congress implemented a statute which provided for reinstatement of securities fraud lawsuits, on motion which had been commenced before the Court's decision but dismissed thereafter as time barred. DC refused to reopen the judgment on the ground that the new statute was unconstitutional. The Court affirmed. 2 types of legislation that require federal courts to exercise the judicial power that Art. III forbids: (1) when Congress tries to recommend law to courts while they are in the midst of a case (2) when Congress tries to vest review of the decisions of Art. III courts in officials of the executive branch But this Court said despite the fact there is no violation of the above two notions, there is something troubling. Congress telling courts what the law is goes against the Framers intent in creating Art. III courts, and only the courts themselves should be able to reopen judgments, thus the statute at issue was a congressional encroachment upon the judicial power. A. Note on textual arguments for & against Congressional power to restrict Fed Topic Notes: Mandatory scholars try to explain how the vesting clause can avoid the cumulative trumping of the ordain and establish and the exceptions clauses. Discretionary jurisdiction scholars try to explain how the judiciary can perform its core function if Congress can take away all its jurisdiction. Ex parte McCardle (1869) Case Brief: Style (name of case): Ex parte McCardle (1869) Relevant Facts: McCardle was a civilian being held for trial by a military commission for various violations of the Reconstruction statutes. McCardle applied for habeas corpus, relying on a 2/5/1867 statute authorizing the Court with authority. Then, Congress came in and repealed the statute, two weeks after the case was to be argued in March, 1868. Issue: Under constitutional law, does the Court have habeas corpus jurisdiction created by statute upon trying an 1868 case, after Congress has repealed that authority with a statute three weeks later? Holding: No. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867, and does not affect the jurisdiction which was previously exercised. (Congress can pass supplemental acts which expand or limit that jurisdiction.) Court's Rationale/Reasoning: Appellate jurisdiction does not come from Congress; it is rather conferred upon the Court by the Constitution. But, it is "...conferred under such exceptions as Congress shall make." Take for example the setting up of the federal courts and the Court itself back in 1789; this is also an example of what kind of exception this Court abides under: the positive exception. This means any granting of power was just that and not a sequestrating of it. But the case-at-bar offers an express repeal of a Congressional grant. This Court does not wish to peer into the minds of the legislature and can only examine its power under the Constitution. And under such an act by the legislature, Congress has essentially rendered it unable to proceed in any cause at all. It renders the Court as a tier of fact and that is all -- not what the Framers had in mind. This Court cannot proceed to pronounce judgment in this case, for it no longer has jurisdiction of the appeal; the Court can only grant as much power as they already have. Rule: "When an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed." Felker v. Turpin (1996): The Court upheld a portion of the Antiterrorism and Effective Death Penalty Act of 1996, which placed new limitations on petitioners for habeas corpus. Under the Act, stricter limits on subsequent habeas corpus petitions were placed: they could only be heard if a special appellate panel grants a motion for leave to file the petition, and that the special panel's decision is not appealable or subject to writ of cert to the Court. In being upheld, Court said it still had the power to hear the cases on an original writ on a petition directly to the Court, rather than as a petition seeking review of a lower court order. Limitations on second and later writs are not an unconstitutional suspension of the writ. 1) Notes on McCardle & Congress' authority to restrict the Court's jurisdictio Topic Notes: Broad holding: the Exceptions Clause empower Congress to limit the Court's jurisdiction over cases of a certain type, even if they raise constitutional issues. Political check on Congress' ability to restrict the Court's appellate jurisdiction. If the Court cannot review lower court decisions in, for example, school desegregation cases, the results will be unpredictable, as some state and federal courts might order massive busing, to which the Court would not be available to check lower court excesses. But even if Congress can strip lower federal courts as well as the Supreme Court of jurisdiction, the Supremacy Clause of Art. VI seems to assure that state courts would remain as a forum for federal constitutional cases. If Congress allows the Court to take jurisdiction over a class of cases to assure uniformity, it may not tell the Court how it has to decide the cases. 2) Note on Congress' power to restrict the jurisdiction of inferior federal co Topic Notes: As mandated in Martin v. Hunter's Lessee, if Congress is to use its Article II power to create federal courts, it has to create enough of them so Art. III could work as well, giving the Court enough appellate jurisdiction to hear the cases it cannot under its extremely limited original jurisdiction. 3) Concluding note on theories of separation of powers Topic Notes: (1) Original meaning: big comeback in this area, and it may remain dominant in this area. The Constitution's text is relatively specific and often easy to apply, the Framers focused on and discussed separation of powers issues in some detail, and their thinking was remarkably prescient. Originalist theories such as those in Clinton, Plaut, Bowsher, Chadha, are seen as good law, but the leading functionalist decisions, like Morrison, Independent Counsel case, are seen as bad decisions. (2) Representation-Reinforcement: this shows that the only real reasons why the Court went to far in some cases as to tell certain branches what to so is that they were essentially trying to come to the rescue and undo a potentially unfair procedural occasion when one branch is trying to aggrandize power for itself at the expense of other branches. (3) Individual rights theory: separation of powers was a way in which to protect individual liberties, deviating from the norm that os many other theories ignore individual rights as a factor in their analysis. "ordered liberty" should be the key factor in separation of powers analysis (Framers' expectations that there should be evenhanded treatment by the gov't) --> does the governmental action at issue pose a threat to the impartial, non-arbitrary administration of the law that principles of due process require? IV. Limits on the Judicial Power Topic Notes: The Court has evolved an elaborate set of doctrines to police the boundaries between the federal judiciary itself and other organs of the gov't. Art. III establishes and rather vaguely defines the authority of the federal judiciary. There are 3 kinds of limitations on federal courts' power to hear certain controversies, which have been teased out of Art. III. (1) the Court has held that the "judicial power" granted in Art. III does not permit courts to adjudicate lawsuits raising essentially "political questions" that are best left to resolution by the legislative branch (Art. I) and executive branch (Art. II). (2) Art. III, section 2's limitation of federal jurisdiction to "cases" or "controversies" has been read to establish other limits on the jusiciability of certain types of lawsuits: primarily those where the PL does not have a sufficient stake in the outcome. (3) the remedial power granted federal courts in Art. III might authorize the provision of only those kinds of relief that parties have traditionally received in the Anglo-American system. A. The Political Question Doctrine Topic Notes: Political Question Doctrine posits that some constitutional issues are not justiciable, b/c the issue is committed to the political branches of gov't (Congress, President). If those two branches had legal discretion, the Court would not interfere (espoused in Marbury v. Madison). Modern terminology: the issue is political and not legal, or that there are "no judicially cognizable standards" by which a court could resolve the dispute. Constitutional basis for PQD is separation of powers (Art. III's specific reservation of "judicial power" to the Court and inferior federal courts) Luther v. Borden (1849): RI was in a condition amounting to a civil war, soldiers were given certain police powers under martial law. Issue: whether the soldiers had committed a trespass when breaking into a private home. Resolution: was the original colonial charter still in place, or whether the insurgents had successfully achieved the adoption of a new constitution and ousted the old gov't, which would revoke any power to establish martial law. Court thought that a court was not well equipped to consider this problem, and said that under the Guaranty Clause, Congress has the authority to decide this question, and its resolution should not be subject to any second-guessing by any other branch. This was important, for after the Civil War, Congress was given authority to decide whether or not States established lawful gov'ts. Giles v. Harris (1903): Case involved a claim that Montgomery, AL unlawfully refused more than 5K qualified African-American voters. Justice Holmes said the Circuit Court did in fact have authority/jurisdiction to decide this question, but ruled that this court properly declined to issue an injunction to remedy the wrongs (only national process could truly ensure this happening in the right fashion) Colgrove v. Green (1946): Court said it would not enter a political question regarding some IL citizens asking for a re-drawing of voting districts which had grown too large. Gomillion v. Lightfoot (1960): Court entered the political fray this time, allowing an NAACP challenge to an AL statute which altered the city limits of Tuskegee, effecting taking all African-American out of the political picture. Court ignored Giles in its decision, forcing a reconsideration of Colgrove. Baker v. Carr (1962) Case Brief: Style (name of case): Baker v. Carr (1962) Relevant Facts: The TN legislature refused to reapportion itself, and the state's demographics had changed since then. PL's, who lived in urban and suburban legislative districts that had many more voters than rural districts, claimed that their votes were diluted in violation of the Equal Protection Clause. They sought an injunction prohibiting elections under the current scheme, with the remedy of reapportionment or at-large elections as possible solutions. District Court denied relief, holding the question a political question under Colgrove. This Court Issue: Under constitutional law, is a challenge to the reapportionment of the TN legislature a political question barred by the Court as a limit on its judicial power to decide, or is it merely an equal protection question, well within the rights conferred to it under the Constitution? Holding: A challenge to the reapportionment is not a political question, but one of constitutionality as it relates to the state's carrying out of rules in the Constitution. Court's Rationale/Reasoning: Just b/c a suit seeks protection of a political right does not mean that it presents a political question. Nonjusticiability of a political question is primarily a function of the separation of powers. This is done on a case-by-case basis. Foreign relations: precedent says all foreign relations questions are political questions, but this is not true. It has been said that if there has been no conclusive governmental action then a court can construe a treaty and may find it provides the answer. Dates of duration of hostilities: when there needs to be definable clarification for a decision, the political question barrier falls away. Validity of enactments: with political questions, come the need to clarify policy, determine initial policy, to settle what is judicially discoverable and manageable standards to answering it. Unless one of these issues is undeniably tied into the case-at-bar, then there should be no dismissal for nonjusticiability on the ground of a political question's presence. It's argued that this is a case which has not yet been considered: those which involve the Guaranty Clause and the guaranty of a republican form of gov't, which involves a political question. Justice Brennan established the contours of the PQD in Baker v. Carr: (6 potential factors) Prominent on the surface of any case held to involve a political question is found: (1) a textually demonstrable commitment of the issue to a coordinate political department; (2) or a lack of judicially discoverable and manageable standards for resolving it; (3) or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; (4) or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; (5) or an unusual need for unquestioning adherence to a political decision already made; (6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. In Luther, the Court found they should not intervene, b/c it could render chaos by invalidating previous statutory law, no state court had recognized the issue before them, this was a State question to which the federal courts had to follow unless there was a constitutional provision to the contrary, and no constitutional provision had been invoked except the Guaranty Clause, which the Court said it was not empowered to intervene. In Luther, other branches needed to get involved to answer and enforce this question, but here there is no multi-branch involvement. The Court refused to use Guaranty Clause to settle state questions, but challenges to congressional action on the ground of inconsistency with that clause present no justiciable question. Thus, there is no political question under the doctrine of nonjusticiability: no question is decided, nor to be decided by another branch of the government. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the 14th Amendment to determine if, on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action. Rule: When a question is enmeshed with any of the other two branches of the government, it is seen as a political question and is the Court will not answer it, without more clarification from the other branches. Important Dicta: N/A. Dissenting: (Justices Frankfurter & Harlan): Certain types of cases do not lend themselves to judicial standards and judicial remedies: (1) cases concerning war or foreign affairs. (2) matters concerning the structure and organization of the political institutions of the States. (3) cases involving Black disenfranchisement. (4) Court has refused to exercise its jurisdiction to pass on "abstract questions of political power, of sovereignty, or gov't." Requires standing (must claim infringement of an interest particular and personal to themselves, as opposed to the general framework of the gov't) (5) the influence of these converging consideration: the caution not to undertake decision where standards meet for judicial judgment are lacking, the reluctance to interfere with matters of state gov't in the absence of an unquestionable and effectively enforceable mandate, the unwillingness to make courts arbiters of the broad issues of political organization historically committed to other institutions and for whose adjustment the judicial process is ill-adapted are all not enforceable through the courts. All 5 elements are here. Political Question: An issue, even a Constitutional one, which the Court feels is best resolved by one of the other branches of government may denied judicial review under the Political Question Doctrine. These issues are generally political in nature, and the court feels that the political system of accountability is the best mechanism to resolve the issues, as opposed to a mandate from the courts. Often, these issues are either given wholly to another branch of government in the Constitution, or there is a lack of judicially manageable standards for resolving it, or for a number of other reasons. See Baker v. Carr, 396 U.S. 186, 217 (1962). These principals have been applied in such areas as the republican form of government clause in Article IV, §4, foreign relations, and Congress' control of its own internal processes. 1. Note on the Political Question Doctrine since Carr Topic Notes: The mode of analysis in Baker reconfigured the political question doctrine (PQD). Consider other contexts in which federal courts have considered the applicability of the post-Baker PQD: (1) exclusion of members of Congress: House of Representatives refused to seat Rep. Adam Clayton Powell for wrongfully diverting House funds. The debate came down to whether the House or the Court should take care of this issue; Chief Justice Warren held the case justiciable, as the Courts were founded for just such cases in controversy. (2) adjudicating expropriations by foreign countries: Court has held that foreign expropriations of the property of U.S. citizens are nonjusticiable "acts of state." Congress reacted with the Sabatino Amendment to the Foreign Assistance Act of 1964, which directs courts to adjudicate claims that foreign state expropriations violate international law, unless the President stepped in and officially said that the adjudication would inhibit the executive's conduct of foreign policy. (3) the constitutionality of the Vietnam War: the Court ducked out on the legality of the war itself, denying certiorari on a couple cases, but the Federal Courts got involved quite a bit. Orlando v. Laird (2d Circuit) court held the legality of the war was not justiciable PQ under Baker, b/c it was possible to discern judicially manageable standards. But the same court refused to adjudicate a claim that Congress' repeal of the Gulf of Tonkin Resolution removed the congressional authorization found sufficient (and justiciable) in Orlando. (4) treaty termination: per curiam Court without opinion in Goldwater v. Carter reversed a lower court decision that held the President had the authority to terminate a Senate- approved treaty w/o Congressional approval. Held: treaty termination is a a PQ b/c even though the Constitution mentioned how the Senate ratified treaties, there was no mention as to who could terminate them, and different termination procedures may be appropriate for different treaties. (5) reapportionment and gerrymandering: Baker decision has apparently allowed these issues to be argued on in courts. (6) commentators' views: Court has to decide when to use its "political capital" in getting involved in political issues (school desegregation, gerrymandering which is race-biased) (Walter) Nixon v. United States (1993) Case Brief: Style (name of case): (Walter) Nixon v. United States (1993) Relevant Facts: Nixon, Chief Justice, U.S. District Ct. Mississippi, was convicted by a jury of two counts of making false statement before a federal grand jury and sentenced to prison. The Senate initiated a committee in line with Rule XI, and the Senate heard testimony, queried each of the parties, and voted by over two-thirds to convict, thereby removing Nixon of his judicial seat. Petitioner argues the word "try" imposes that the Senate trial must be as a judicial trial. Respondent argues there is no identifiable limit on the word, and therefore is not a political question. Issue: Under constitutional law, is Senate Rule XI, which allows a committee to hear evidence in a judicial impeachment trial to the full Senate, which then reports its findings to the whole Senate for a two-thirds vote constitutional? Holding: Yes. It is not a claim the Court can address; it is a PQ. Court's Rationale/Reasoning: The Court examined Art. I, section 3, clause 6 to determine the scope of authority conferred upon the Senate in impeachment proceedings. It focused on 2 terms, "sole" and "try." Sole in the context of the Constitution, means the Senate has the only authority on this matter. Try in the context of the document is given much broader deference by the Court. Try means, of some things presented, "to examine," "to investigate." In the context of the first sentence of the clause, "try" is very broad as to the standard of review in such a case. All there is, is the 2/3 vote requirement, and Chief Justice presides when the President is on trial. "Sole" is interesting as well. The word is used only one other time in the document, that in mentioning the House's sole power of impeachment. Since nothing else in the text lends itself to another meaning, the Court takes from the document that sole means all power in impeachment hearings go to the Senate. Additionally, neither party offers a scintilla of argument as to judicial review precedent in relation to the word "sole" in clause 6. In an originalist take, the Court reasons that the Framers likely wanted Senate power over impeachments for the following reasons: (1) the Senate was the most fit depositary of this trust, (2) the Framers didn't know if the members of the Court had the "onions" to take care of business should they have to, (3) if they had to do the original trial, they might also have to hear the criminal portion in addition to the impeachment proceeding. The second focus the Court took is that judicial review on a judicial official by the Court might not be consistent with the checks and balances held so essential to the government. There are 2 checks on Congress: (1) House accuses, Senate tries impeachments; (2) two-thirds super majority vote. Additionally, this policy of judiciary judicial review could affect other branches' officers. Last, this is comparable to Powell, b/c of the qualifications argument. The House in Powell was in charge of the qualifications of its own members, which is why the Court bowed out of the debate. The same situation exists here, which is why the Court will bow of the argument when Art. 1, section 3, clause 6 lays out the game plan. Rule: Excerpt from Art. I, section 3, cl. 6: "The Senate shall have sole Power to try all Impeachments." Important Dicta: N/A. Concurring: (Justices White & Blackmun): Questions the Court's bowing out the argument on the basis of the meaning of the word "sole." If the Court gets involved in situations where the legislature is involved in other situations, this is inconsistent. Article I confers "all legislative powers" to Congress. Does this mean there is no review of any of its legislation? Framers didn't want to lay all the power in one branch, which is why they separated it up between the three branches. A. A note on Political Questions & the Guarantee Clause Topic Notes: Since Luther v. Borden, the Court has refused to recognize claims that the Guaranty Clause provides individual rights enforceable in court. When individual rights are recognized that have "republican form of government" overtones, the Court transforms the claim so that it is based upon some other constitutional provision, like the Equal Protection Clause in Baker v. Carr. Even if the Guarantee Clause provides no justiciable individual rights, however, it could conceivably be the source of structural protections. If Congress enacts a statute regulating core state functions or coercing the states to perform like the federal gov't wants it to, there is a violation of its "guarantee" that the state gov't be in republican form. Baker and other cases are often understood to preclude justiciability of all claims, whether individual or structural, raised under the Guarantee Clause. But in NY v. United States, Justice O'Connor might have invited these arguments back into discussion. B. A note on political questions & belated amendments Topic Notes: There were really 12 Amendments to the Bill of Rights, not 10 as originally passed (one was for an extension to the House for every 50,000 people, but this was thought of as outrageous). The second, which prevented members of Congress from giving themselves a raise during the current session, was also originally rejected. But 38 states ratified it by 1978, so it became the 27th Amendment. And, in 1992, both houses of Congress adopted it as a joint resolution. B. Cases or Controversies Topic Notes: Courts are limited to hearing cases in which the PL has some more definite personal connection with the alleged violation of law. It used to be easier to determine (Marbury), but today the actions of the branches of the gov't aren't always easy to see the specific legal right which one is being deprived of by the government. The judiciary has the right to hear "cases" and "controversies," the second term restricts things to those adversarial in nature. Some of this is based on the fact that judges are qualified, as part of their job, to hear civil controversies, but have no special expertise in considering abstract policy questions. This is best noted by early questions posed to the Court by the other 3 branches of the gov't, both of which were denied legal advice, as the Court thought better than to decree something off the cuff which could be seen as an interpretation of a political question, which could then become a problem on down the road. Standing: 1: the status of being qualified to assert or enforce legal rights or duties in a judicial forum because one has a sufficient and protectable interest in the outcome of a justiciable controversy and usually has suffered or is threatened with actual injury 2: a principle requiring that a party have standing in order to justify the exercise of the court's remedial powers --> according to the doctrines associated with standing, a PL must have "a personal stake in the outcome of a controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." --> a case isn't ripe if the PL doesn't have a personal stake, and its moot if the PL no longer has a personal stake --> the Court requires that for a person to have standing, the PL in a case or controversy be someone who has only suffered an "injury in fact," an actual injury to her interests, and who is within the "zone of interests" meant to be protected by constitutional or statutory provisions. Injury in fact has 3 parts*: (1) whether PL has suffered actual injury (can be aesthetic, economic or environmental injuries as well) (2) whether PL's injury is the result of DF's conduct (prove causal link from injury to harm) (3) whether PL's injury can be redressed by the judicial relief she requests (court to protect perceived wrong) (*if any of the 3 elements are lacking, there is no standing) ripeness: a doctrine prohibiting federal courts from exercising jurisdiction over a case until an actual controversy is presented involving a threat of injury that is real and immediate (seeks to keep courts from exercising too much Article III power too early, or "premature adjudication") --> under traditional doctrine, "determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function" mootness: a doctrine in judicial procedure: a court will not hear or decide a moot case unless it includes an issue that is not considered moot because it involves the public interest or constitutional questions and is likely to be repeated and otherwise evade review or resolution (action rendered no longer timely and too abstract) --> federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them. --> any number of things might moot a case: PL no longer objects to DF's conduct; DF agrees to conform to PL's demands; or the passage of time renders the court unable to grant PL the remedy she seeks Raines v. Byrd (1997): The Court denied legislators who voted against the Line Item Veto Act the right to sue the Federal gov't for lack of standing, as they didn't even suffer an injury, let alone the other two requirements; distinguished from Coleman v. Miller, a case in which the Court granted standing to state legislators who sued after the bill went into effect, as their votes at that point were completely nullified Legal Issue(s): Whether each of the Appellees, plaintiffs initially, has standing to sue? Is the claimed injury personal, particularized, concrete, and otherwise judicially cognizable? Court's Holding: No, the appellees lack standing to sue. Law or Rule(s): Article III U.S. Constitution, the asserted injury was the consequence of the defendant's actions, or that prospective relief will remove the injury. Case or controversy requirement. Is the claimed injury personal, particularized, concrete, and otherwise judicially cognizable? Lujan v. Defenders of Wildlife (1992) Case Brief: Style (name of case): Lujan v. Defenders of Wildlife (1992) Relevant Facts: APE's were granted summary judgment by the lower court for their claim that the Endangered Species Act of 1973 was not applicable to anywhere else but in the U.S. territorial boundaries or on the high seas. Plaintiff's Argument: An injury in fact is an injury whether a procedural injury or an actual physical injury, Article III does not make a distinction. Defendant's Argument: Public interest violations are non concrete injuries, and public interest injuries cannot be conveyed to third party interveners. Issue: Under constitutional doctrine of standing, is a federal act promoting the safety of endangered species actionable for its lack of geographic scope when the party suing on a jus tertii premise? Holding: No. APE's do not have standing, as there is no actual injury to the party suing, so the other 2 prongs of the standing analysis are not even considered. Court's Rationale/Reasoning: APE's needed to show an injury, that the injury caused their harm, and that there is no other judicial relief. The original claim of being injured in not being able to see animals anymore is not an injury in fact. APE's did have some other creative ideas, such as being a third party suing for the environment. Just as unconvincing is the ecosystem nexus argument, in which any person who uses any part of a contiguous ecosystem adversely affected by a funded activity has standing even if located a far distance away. Nor is the "animal nexus" theory, in which anyone with an interest in animals has standing. The court finds these novel, but unconvincing. As to redressability, the agencies funding the projects were not part of the case, and the Secretary of the Interior was not a party either, and since the agencies were not parties, no relief could be entered against them. Lower court found that PL's/APE's suffered a procedural injury (procedural right). This is fictional, as the lower court had no right to think that Congress would think that any party to "an abstract, self-contained, noninstrumental "right" to have the executive observe required by law." Rule: Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects. Deprivation of the right to view animals is not enough. Important Dicta: N/A. Dissenting/Concurring: (Justices Kennedy & Souter): The Court should be more aware of unusual claims and defenses with the passing of time. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2 Case Brief: Style (name of case): Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000) Relevant Facts: PL's file a citizen suit against DF under Clean Water Act, charging DF with numerous mercury limits in its water permit. Group members lived near water and filed affidavits to that effect. DF: PL lacked standing b/c PL organizations failed to show that any of their group members had sustained or faced any injury in fact. District court originally held for PL's and fined DF's over $400K in damages. Issue: Under constitutional law, does an environmental group, with some of its members living in the affected area, have standing to sue as a group the DF environmental services group? Holding: Yes. Civil penalties sought by FOE carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress FOE's injuries by abating current violations and preventing future ones. Court's Rationale/Reasoning: The court looked to PL's claim to see if it had merit as to standing, and to the sworn affidavits. They show genuine injury to the PL as they document injury in fact. This Court in the past has held that environmental PL's adequately allege injury in fact when they aver that they use the affected area and are persons "for whom the aesthetic and recreational values of the area will be lessened" by the challenged activity. As to redressability, citizen PL's, unlike DF's claim, are entitled to seek civil penalties; like DF's argument, PL must establish each individual ground for seeking damages. Here, seeking penalties under the Clean Water Act would serve as a deterrent and possibly could promote immediate compliance by DF. Civil penalties can also fit the definition of redress; they can stop the adverse party from acting in its previous manner, and provide redress citizens who are hurt or threatened to that effect. Rule: Relevant showing for purposes of Article III standing is not injury to the environment, but injury to the person. Important Dicta: N/A Dissenting: (Justices Scalia & Thomas): They thought the affidavits were vague as to injury in fact; then the majority marries private wrong with public remedy that violates traditional federal standing. The dissenters also suggest that mootness requirements are now lessened (turned things into a mere pleading requirement). redressability: the likelihood that the requested relief will address the alleged injury. 1. Notes on Defenders of Wildlife & Standing to enforce statutes Topic Notes: The bottom line with environmental standing cases is the party seeking relief must have a real injury for which to sue upon. The Court has held that indeed the "trees [do not] have standing." But if groups get create, and come up with something that shows a solid causal link, their case might be justiciabile. It's hard for PL's to show they are effected by every single procedural violation they challenge, and it's also hard for such PL's to show that the right procedures will help them. Federal Elections Commission v. Akins (1998): Court held PL's had standing to challenge whether or not the American Israel Public Affairs Committee was a political committee under the federal election laws and therefore was or was not covered by various disclosure requirements. Injury in fact was PL's inability to obtain information from Commission; gov't said the injury wasn't specific enough, in that it involved more of the general voter spirit, but the Court denied. 2. Notes on Laidlaw and Standing Topic Notes: Things to think about: (1) is the harm the direct impact of the DF's action on the PL, or the indirect harm on the PL's relationship with the environment? Things re: environmental standing cases might have a blurry bright line (2) connection between redress and case or controversy requirement: if different parties are testifying at different parts of a trial, whose injuries would the Court be trying to redress? CHAPTER 3 V. The Constitution & Racial Discrimination Topic Notes: Consider three sets of race issues: (1) Race & the Equal Protection Clause: it does not mention racial discrimination, but its history and context establish that it was intended to target discrimination against Afro- Americans. (ex: Strauder v. WVA, 1879, state's exclusion of Afro-American male jurors was violative of EPC). The Court also has used it to protect against other races (Yick Wo v. United States, discrimination against Chinese). A couple cases also begin the current doctrine on racism. Hirabayashi upheld the arrest of a man who violated a CA statute that any person of Japanese ancestry needed to remain in their homes from 8PM-6AM daily; Korematsu v. United States upheld a person of Japanese ancestry's criminal conviction for not relocating from the west coast. These cases began strict scrutiny of race discrimination cases. (2) Why race? What is race?: equal protection law proceeds w/o any reflection on why it is focusing on certain categories, like race. (3) The legacy of Brown: the case today is still subject to plenty of criticism, and the struggle for constructing what Brown means has focused on what the antidiscrimination principle means. Civil rights movement lawyers and their allies focused on the anti-subordination feature of equality and the affirmative responsibilities of the state. Others thought of it as a second reconstruction. Libertarians focused on the rationality feature of equality and the negative responsibilities of the state. A. Racial Classifications after Brown 1. Facial racial classifications that disadvantage minorities or evidence raci Topic Notes: All statutes overtly classify people on the basis of one or more criteria. In considering modern equal protection doctrine concerning racial discrimination, it is first necessary to distinguish statutes that on their face classify on the basis of national race or origin (Brown, Korematsu, Yick Wo) and those that are facially neutral concerning race or national origin (unlawful to assist a country at war, ballot statutes requiring races of candidates be placed on them). Loving v. Virginia (1967) Case Brief: Style (name of case): Loving v. Virginia (1967) Relevant Facts: PL's are an interracial couple who were prosecuted on the basis of a VA statute which prohibited such marriages, punishable by fine and or jail time. State Supreme Court upheld the lower court's sentence of one year suspended with suspension on the premise the couple never returned to VA. This Court reverses. Issue: Under constitutional law, is a state statute that prosecutes parties who are interracially married violate the Equal Protection Clause when the statute is argued to be equally discriminatory? Holding: No. The framers of the Constitution did not intend for a statute which discriminates, even if equally, against race; such a statute is considered a violation of the EPC. Court's Rationale/Reasoning: The Court said the law involved in the case- at-bar is basically a furthering of white supremacy. The State says the Framers' intent in such a law was if there is a discriminatory effect, that it apply equally to parties. They continue to add that if EPC does not outlaw mixed marriage statutes b/c of their reliance on racial classification, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages.. The Court rejects these arguments. When a statute is not race-based, the Court will ask if there is a rational basis for the statute; it may defer to the states, but if there is no rational basis it is rendered void. The State contends the Framers of the Constitution or the Framers of the 14th Amendment didn't intend to make mixed marriage statutes unconstitutional. But the Court says the clear intent of the 14th was to eliminate all official state sources of violative racial discrimination in the States (originalist argument). VA's statute is discriminatory on its face, as it discriminates against generally accepted conduct if engaged in by members of different races. After applying strict scrutiny to the statute, the Court tried to figure out if they were necessary to the carrying out of a state objective, independent of the racial discrimination which it was object of the 14th Amendment to eliminate. However, there is no independent issue aside from racial discrimination which justifies this classification. The fact that the statute involves white interracial marriages is proof of the supremacist intent of the States framers. The Court consistently denied the constitutionality of such statutes. Bottom line is that the statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the 14th Amendment. The freedom to marry has long been recognized as an essential right that the Court will enforce. Rule: The clear and central purpose of the 14th Amendment was to eliminate all official state sources of invidious racial discrimination in the States. The EPC demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny." and, if they are to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the 14th Amendment to eliminate. Important Dicta: N/A. A. Notes on Loving & Gov't actions classifying by race Topic Notes: 1. Different avenues to attack to attack the VA statutes: 3 hurdles in defending the laws in Loving (a) if statutes embodied racial discrimination, Brown v. Board would be subject to them to close judicial scrutiny; (b) even if not racially discriminatory, state acknowledge they were violative of equal protection if no rational basis could be discerned for the distinctions among person found in them; (c) by burdening the liberty to marry, the statutes potentially violated the Due Process clause. 2. Defining & invalidating racial discrimination: VA tried to distinguish itself from racial discrimination cases b/c races weren't being discriminated, but the Court used Equal Protection as the central meaning of the case. 3. Colorblindness vs. Prejudice: Court reversed a state court ruling that changed its position on a custody award after the mother married a black man, saying that even though there would be more outside pressures exerted on all parties involved, the state's reasoning (based on a statute) was not appropriate for changing its custody ruling. 4. Racial classification & harmed groups: the rationality (use of race to subordinate or stigmatize people of color) features of the Equal Protection clause pressed in the same directions in the same direction as VMI, which struck down a gender-based exclusion at a military academy. 5. Current formulation of the "strict scrutiny" standard: a means/ends inquiry: despite not always using the same phraseology, the variations are not legally sufficient. 6. Rational basis review: a party has to try and make an argument that its law/rule/statute/ordinance has a genuine means and an end. 7. Judicial restraint and the right to marry: think about this later in the chapter in relation to Due Process. 8. The complexities of history: Justice Warren, as he did in Brown, said that the intentions of the Framers was unclear, too much so in fact to be set aside in Loving. 9. Implementing Brown - Federal antidiscrimination legislation: Court hasn't even been the branch which has interpreted Brown the broadest -- Congress has. 2. Facially neutral classfications (discrim. intent and effect) Yick Wo v. Hopkins (1886) Case Brief: Style (name of case): Yick Wo v. Hopkins (1886) Relevant Facts: PL imprisoned for operating a laundry in a wood building, which is against a SF statute that required all laundries to be enclosed in a brick building. 320 laundries in SF total; 310 in wood buildings. Issue: Under constitutional law, does the imprisonment of a Chinese citizen based on the violation of a laundry statute violate the Equal Protection clause of the Constitution when the same laundry had been operated the same way in the same building for the last 22 years? Holding: Yes. PL was within a particular class which, although was not being discriminated on its face through the statute, was part of a class which was subject to the discrimination by the administrative officials, thus invalidating the statute. Court's Rationale/Reasoning: If the statute were on its face discriminatory, the Court would've applied strict scrutiny. But it wasn't, so it looked to rational basis. Here, the means of the statute was to prevent fire code violations, but the Court looked to the imprisonment of PL and the 200 Chinese Americans who stood subject to the same treatment, and how no other race was under this particular class, and reasoned that the statute was designed more to clean SF of Chinese laundries, than actual fire code violations. Hence, the statute was invalid. Rule: Equal Protection Clause of the 14th. Washington v. Davis (1976) Case Brief: Style (name of case): Washington v. Davis (1976) Relevant Facts: African-American applicants to the D.C. Police Dep't allege a written test is discriminatory in nature. They bring suit alleging a violation of civil rights laws and on the EPC of the Constitution, since at the time there was no Title VII. Issue: Under constitutional law, does an employment examination which is said to discriminate not on its face but in its inherent results, violate the Equal Protection Clause? Holding: No. The Court decided not to address this issue without Congressional legislation to this effect. Court's Rationale/Reasoning: Central purpose of the EPC is the prevention of official conduct discriminating on the basis of race. Thus far, the Court had not addressed a situation where the result is racially disproportionate, instead of discriminatory on its face. The test the Court has generally gone by is to see if there is an intentional state action. Here, the evidence is inconclusive. As long as the ends served the means, a statute could pass muster. The test itself requires that applicants acquire a certain verbal score, which is not unconstitutional. Other evidence of the department showed a move to recruit more black officers as well as the changing proportion of races in the force. The court has used a "disproportionate impact test" to see whether or not a facially neutral statute or law is discriminates, but this occurs when there is compelling justification. Repealing a test b/c of a disproportionate result without compelling justification could effect many other things. Rule: A test that cannot be proven to be discriminatory on its face is not unconstitutional, unless Congress rules otherwise. Important Dicta: N/A. Dissenting: Justices Brennan, Marshall dissented on the statutory issue, but did not address the Court's constitutional holding. Concurring: (Justice Stevens): The line between discriminatory purpose and discriminatory impact is not nearly as bright. The disproportionateness of an act should be the analysis as to the extent of a statute's discriminatory intent. A. Notes on Yick Wo and discriminatory intent Topic Notes: The Court never even inquired as to legislative intent, as they knew the law to be discriminatory by its effect, and not its intent. They could see the ends behind the means, as it did in Gomillion v. Lightfoot, Fletcher v. Peck. In Palmer v. Thomspon, Justice Black writing for the majority, said that a lower court ruling invalidating Jackson, MS 's closing down of 5 public pools in the area b/c the court mandated that all be integrated was wrong. He added that there was substantial proof for Jackson's argument that the Afro-American pool could not be run safely, which was the reason it was closed down. State motivation in its beliefs for instituting a race policy is not enough (lower court needed more reasons). Hawkins v. Shaw held that disproportionate municipal acts for whites (and none for blacks) by the city DF showed a prima facie case of discrimination. Three models of discriminatory intent & effect: (1) results are what matter (Yick Wo and Gomillion) (2) the indignity and irrationality of intentional racism: a showing of discriminatory purpose by itself should trigger strict scrutiny, as long as the action in question also results in some tangible harm to the minority community. To reach this conclusion, the concerns about investigating the discriminatory intent raised in Palmer would have to be deemed insubstantial. Under this approach. Palmer seems wrong. This approach assumes that the primary harm that the Equal Protection Clause is designed to prevent is a dignitary or psychological one. (3) disproportionate harm resulting from improper motives: such a strong statistical discriminatory effect that discriminatory intent was easier to see. B. Notes on Davis & proving discrim. intent Topic Notes: Court were unwilling to open up another arena of equal protection litigation requiring courts to monitor local policies. Court was also concerned with some federalist problems which could result if such a state decision was overturned by the Federal gov't in this case. After Washington v. Davis, the Court set as its precedent the need for showing both discriminatory purpose and discriminatory effect. Second prong compels proof of discriminatory impact; the intent portion is murkier: historical circumstances, sequence of events leading up to the statute in question, awareness of consequences can all be used as factors. Rules…… 3. Concluding thoughts about statutes with discrim. effects Topic Notes: Statutes that on their face take race into account are subject to strict scrutiny, even if they equally disadvantage whites and blacks, at least so long as the use of race can be traced to hostility toward a racial minority or the view that the minority is inferior. Facially neutral statutes are subject to strict scrutiny only if Davis discriminatory intent can be shown; otherwise, they are subject to rational basis review. To prove a Davis claim, the decisionmaker must act at least in part b/c of a desire to harm a protected minority; foreseeable harmful effects upon a protected minority are not unconstitutional so long as the decision was made in spite of, and not because of them. B. State action doctrine as a limit on jud. power to address rac. discrim. 1. State encouragement of or entanglement with Private actors Moose Lodge No. 107 v Irvis (1972) Case Brief: Style (name of case): Moose Lodge No. 107 v. Irvis (1972) Relevant Facts: Irvis, a African-American guest of a Caucasian member of the Moose Lodge was refused food and beverage service within the local Harrisburg, PA chapter. Each Moose Lodge is bound by the constitution and by-laws of the Supreme Lodge, which mandates membership to male white Caucasians. It is not publicly funded, and the building is privately owned. The Pennsylvania liquor board issued the lodge a private club license to sell liquor on its premises. PL sought injunctive relief barring revocation of license, DF. Ct. bench trial granted temporary injunction, Moose appealed; This Court Reversed. PL's argument: Licensing of the Moose Lodge to serve liquor by the State of Penn. amounts to such State involvement with the club to make its discriminatory practices forbidden by the 14th. Defendant's Argument: The Moose Lodge is a private club located in a privately owned building situated on privately owned land. Issue: Under constitutional law, does the refusal to sell alcoholic beverages to Irvis by the Moose Lodge which was acting under a license issued by the State, constitute a state action and forbidden by the 14th ? Holding: No. The lodge is a private club and the State is not acting outside its constitutional limits. Court's Rationale/Reasoning: There is no symbiotic [complex, or multiple] relationship between Moose and the State. The lodge is a private club in a privately owned building on private land. The State plays no part in establishing or enforcing the membership or guest policies. The State regulation of private clubs by the Liquor Control Board does not foster or encourage racial discrimination. The State is not a partner or joint venturer in the club's enterprise. State action may emanate from administrative agencies as well as from legislation or judicial action, but the record before us is not clear and the PL has not persuaded the court that has occurred. Rule: the discrimination is private, the State must have significantly involved itself with the discrimination in order for the discriminatory action to become unconstitutional. Important Dicta: N/A. Dissenting: (Justices Marshall, Brennan): There are no available liquor licenses left in Harrisburg, as such the State is putting the weight of it liquor license, behind racial discrimination. Liquor licenses are a primary persuasive regulatory scheme under which that State supervises the operation of the business involved. That involvement is state action. The regulation of liquor licenses intertwines the State with the operation of Lodge bar significantly. A. Notes on Moose Lodge Topic Notes: Note two arguments for finding state action in Moose Lodge: (1) the quota on liquor licenses means that the discrimination of Moose Lodge, although done in a narrowly defined private context, has potentially broad external racially discriminatory effects. (2) under the 21st Amendment, the states have nearly plenary authority to regulate liquor 2. Toward a synthesis in State Action case law Edmonson v. Leesville Concrete Co. (1991) Case Brief: Style (name of case): Edmonson v. Leesville Concrete Co. (1991) Relevant Facts: Peremptory challenges by DF counsel at trial were questioned by PL, who asked the judge to get a racially neutral reason for the challenges to remove two black jurors of the three challenges in a civil trial. Judge denied, and this suit ensues. Issue: Under constitutional law, is the Batson standard for questioning peremptory challenges in voi dire a violation when the civil trial court judge denies a motion by counsel for opposing counsel to articulate a reason for its peremptory challenge? Holding: Yes. Batson challenges are extended to civil cases in addition to criminal cases. Court's Rationale/Reasoning: The Court takes a look at where the governmental sphere ends and the private sphere begins in implementing race discrimination practices to the States. Application of the Lugar standard satisfied the first prong. Peremptory challenges are federally mandated, even when applied in state court (federal statute). As to the second prong, the Court, in determining whether a particular action of course of conduct is governmental in character, it is relevant to examine the following: (a) the extent to which the actor relies on governmental assistance and benefits, (b) whether the actor is performing a traditional governmental function, and (c) whether the injury caused is aggravated in a unique way by the incidents of government authority. The Court finds that the challenges by the DF in the trial court was pursuant to a course of state action. There is state action when private parties make extensive use of state procedures with the overt, significant assistance of state officials; this is true here. Congress has established qualifications and procedure for juries, and the states are regulated to follow this. Of course, jury procedure is traditional governmental function, as illustrated by the 7th Amendment, as well as all the civil procedure out there. As to the injury, the Court finds that permitting a denial of scrutiny by opposing counsel to a peremptory challenge, that the Federal system would be severely harmed as well. Race discrimination in the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of a democratic gov't from becoming a reality. (as to third party, the Court said the opposing counsel could assert the rights of the excluded jurors by evoking a the Batson challenge) Rule: Lugar standard for challenging a State's procedure in court: (1) did the claimed constitutional deprivation result from the exercise of a right or privilege having its source in state authority? And (2) could the private party charged with the deprivation be described in all fairness as a state actor? Important Dicta: This is a case of first impression. 3. State action under state constitutions Topic Notes: State action doctrine has been followed in many state courts when interpreting their state constitutions. Some state courts have applied a functional approach, balancing one party's interest in a constitutional activity against the other party's interest in noninterference. C. The Affirmative Action Controversy 1. Affirmative action and the equal protection clause 1978-88 Topic Notes: Regents of the Univ. of CA-Davis v. Bakke (1978): Court held the school's program of holding 16 of its 100 spots for minority students unconstitutional when a white student who was rejected sued on the basis that he had better paper credentials than the minority students. Justice Powell advocated for strict scrutiny application whether or not whites were the minority here, as there was discrimination regardless. Powell's analysis included (a) a constitutionally permissible substantial purpose, and (b) the use of a racial classification as necessary to the accomplishment. Other four in majority (the Brennan four) thought that strict scrutiny was inappropriate, as there was no basis for defining an inferior race at the school. They went with intermediate scrutiny. Fullilove v. Klutznick (1980): Court upheld a federal challenge to a 1977 statute providing federal funds to state and local gov't building projects that required that, absent an administrative waiver, at least 10% of the money had to be spent procuring services or goods from minority business enterprises, which were defined as businesses owned or controlled by "citizens of the US who are black, Spanish-speaking, Asian, Indians, Eskimos or Aleuts. Using intermediate scrutiny, the Court upheld the statute. Concurring opinions of White, Powell and Burger, applied stricter scrutiny. Wygant v. Jackson Board of Education (1986): Court struck down a collective bargaining agreement between a public school board and a teacher's union that provided layoffs be made on a seniority basis, except that there wouldn't be a greater percentage of those minorities fired than those that were hired. 2. The triumph of skepticism, consistency and congruence in the Court 1989-95 Adarand Constructors, Inc. v. Pena (1995) Case Brief: Style (name of case): Adarand Constructors, Inc. v. Pena (1995) Relevant Facts: PL sues b/c it submitted the low bid on a subcontracting job for a governmental highway project, but the subcontracting job was awarded to a minority company, b/c the general contractor (Mountain Gravel) would receive additional compensation for the hiring of small business controlled by "socially and economically disadvantaged persons." Issue: Under constitutional law, does the choosing of one minority subcontractor over another non-minority subcontractor violate the equal protection clause of the 5th Amendment when the gov't promises compensation for companies who award job to minority-based businesses? Holding: All racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny (such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests). Court's Rationale/Reasoning: Standard of review is not based on which party is discriminated, but on the basis of discrimination at all; and all racial classifications under the EPC are under strict scrutiny; and a fifth Amendment area of classifications encompasses the same analysis as 14th Amendment cases. But now the Court uses intermediate scrutiny if they are neutral on its face. Strict scrutiny in such cases is used to determine permissible and impermissible governmental use of race. Good intentions alone are not enough to sustain a supposedly benign racial classification. Although this is not the actual predicate of this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race. This does not help the race issue move forward, but pervades it from doing so. Congress must actually give a reason for implementing such a spending act. Rule: All governmental action based on race -- a group classification long recognized as "in most circumstances irrelevant and therefore prohibited," should be subject to detailed judicial inquiry (scrutiny) to ensure that the personal right to equal protection of the laws has not been infringed. Strict scrutiny is not to be the death of every law, just those whose end does not justify its means: there must be a compelling interest to be within constitutional constraints. Important Dicta: This is a case of first impression, as the Court never had to decide what standard of review the 5th Amendment requires for such action taken by the Federal gov't. Dissenting: (Justices Stevens, Ginsburg): People understand the difference between good and bad laws in terms of discriminatory intent. This is not a bad law: the gov't is trying to make right on past and current discriminations by benefiting minority-owned businesses who choose to hire them. Such consistency, as stated in the dissent, does not help laws such as these, as strict scrutiny to all statutes, even if benign in nature, stand to fall by the waistside. Concurring: (Justice Scalia): Gov't can never take a compelling interest in discriminating on the basis of race in order to make up for past discrimination; this is not akin to the EPC. (Thomas):These programs undermine the moral basis of equal protection. Grutter v. Bollinger (2003) Case Brief: Style (name of case): Grutter v. Bollinger (President of the University)(2003) Relevant Facts: In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was denied admission. The Law School admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student body." The District Court concluded that the Law School's stated interest in achieving diversity in the student body was not a compelling one and enjoined its use of race in the admissions process. In reversing, the Court of Appeals held that Justice Powell's opinion in Regents of the University of California v. Bakke, constituted a binding precedent establishing diversity as a compelling governmental interest sufficient under strict scrutiny review to justify the use of racial preferences in admissions. The appellate court also rejected the district court's finding that the Law School's "critical mass" was the functional equivalent of a quota. Issue: Under constitutional law, does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the 14th Amendment or Title VI of the Civil Rights Act of 1964? Holding: No. The Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Court's Rationale/Reasoning: . The Court reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race. Justice O'Connor wrote, "in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm nonminority applicants." The court noted that sometime in the future, perhaps twenty-five years hence, racial affirmative action would no longer be necessary in order to promote diversity. It said that while affirmative action was appropriate today, it should not become a permanent policy and that eventually a colorblind policy should be implemented. The opinion read, "Race-conscious admissions policies must be limited in time. The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Rule: Public universities and institutes of higher education across the nation are now allowed to use race as a plus in determining whether a student should be admitted. While race may not be the only factor, the court has specifically allowed any state board of admissions to take race into consideration along with other individualized factors in reviewing a student's application. Important Dicta: This is a case of first impression. Dissenting: (Justices Rehnquist, Scalia, Kennedy, Thomas): The majority offers no reason how the university could say it uses such factors to reach "critical mass," as far as its racial determination in its classes, but never explains how the other majority races do not receive the same consideration as Blacks. The Court has previously called representation based on the percentage of the applicant pool "patently unconstitutional." Why the about face? Concurring: (Justices Ginsburg, Breyer): Agreed that affirmative action must have a logical stopping point but expressed their concern, that in light of ongoing discrimination and social inequality, the Court's 25-year sunset on affirmative action might be optimistic. A. Notes on Adarand Topic Notes: Croson provided that all state and local discrimination were held to strict scrutiny, but Justice O'Connor said that affirmative action classifications are not per se unconstitutional. There is no EPC applicable to the federal gov't in the Constitution, so there is no textual support for O'Connor's congruence theory. 3. Facially neutral classifications and majority-minority electoral districtin Shaw v. Reno (1993) Case Brief: Style (name of case): Shaw v. Reno (1993) Relevant Facts: The following is a civil rights apportionment case. The U.S. Attorney General rejected a North Carolina congressional reapportionment plan because the plan created only one black-majority district. North Carolina submitted a second plan creating two black-majority districts. One of these districts was, in parts, no wider than the interstate road along which it stretched. Five North Carolina residents challenged the constitutionality of this unusually shaped district, alleging that its only purpose was to secure the election of additional black representatives. After a three- judge District Court ruled that they failed to state a constitutional claim, the residents appealed and the Supreme Court granted certiorari. Issue: Under constitutional law, did the North Carolina residents' claim, that the State created a racially gerrymandered district, raise a valid constitutional issue under the Fourteenth Amendment's Equal Protection Clause? Holding: Yes. The Court held that although North Carolina's reapportionment plan was racially neutral on its face, the resulting district shape was bizarre enough to suggest that it constituted an effort to separate voters into different districts based on race. A PL challenging a reapportionment statute under the EPC may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification. Court's Rationale/Reasoning: The unusual district, while perhaps created by noble intentions, seemed to exceed what was reasonably necessary to avoid racial imbalances. After concluding that the residents' claim did give rise to an equal protection challenge, the Court remanded - adding that in the absence of contradictory evidence, the District Court would have to decide whether or not some compelling governmental interest justified North Carolina's plan. Strict scrutiny applied and revealed that this redistricting amounted more to stigmatizing individuals rather than showing respect to them. All this will stand to do is create racial hostility in NC. When something can be explained in no other way than race, the situation demands strict scrutiny and eventual repeal of whatever action has been taken. Rule: Race conscious decisionmaking is impermissible in all circumstances. The central purpose of the EPC is to prevent States from purposefully discriminating between individuals on the basis of race. Important Dicta: N/A. Dissenting: (Justices White, Blackmun, and Stevens): A strange shape is not a reason alone for canceling a redistricting plan. The burden should not be on the party defending the racial impetus of its decision. This Court should look simply to proof of discriminatory purpose and effect. This stands to hinder states who want to represent their minority populations better. (Stevens): There is no independent constitutional requirement of compactness or contiguity, and the Court does not suggest otherwise. Additionally, the EPC is violated when the State creates uncouth district boundaries for the sole purpose of making it more difficult for members in a majority group to win election. (Souter): This redistricting does not effect voters' rights; if this were creating less of a political say for Blacks and other minorities, it would be, but this stands to create more power. It is too much of a blanket statement to say that all weird districting. A. Notes on Shaw and the districting conundrum Topic Notes: Fortunately, a series of Supreme Court opinions has been decided in the years following Shaw that, although they have not completely explored how Shaw will be applied in every instance, have explained it further. On the basis of these opinions, the currently applicable standards appear to be: It is permissible to be aware of race in the districting process and to consider issues of race. Race, however, may not be the predominant factor in the redistricting process to the subordination of traditional districting principles. Districts are not necessarily unconstitutional because they have odd shapes; however, a bizarre shape may be evidence that strongly suggests that race was the predominant factor driving the districting decision. If race was the predominant consideration in the districting decision, the districts are subject to strict scrutiny analysis and the governmental body must demonstrate that they are a narrowly tailored means of addressing a compelling governmental interest. Compliance with Section 2 of the Voting Rights Act is a compelling governmental interest. The Court has been willing to assume that compliance with Section 5 of the Voting Rights Act is a compelling governmental interest, but it has never been required to decide the issue. Districts drawn to comply with Sections 2 or 5 must be narrowly tailored. That means, among other things, that they use race no more than is necessary. Compliance with Section 5 does not mean doing whatever the Department of Justice requires in order for it to preclear a districting plan. Essentially, the Supreme Court found that DOJ had required jurisdictions to do more than the law permitted. In those instances, a governmental body could not rely on the necessity of complying with DOJ's Section 5 preclearance requirements as a justification for a race-based decision. · VI. Sex & Gender Discrimination & other equal protection concerns Topic Notes: Today, EPC is read with its broad plain meaning to apply to any state classification. "rational basis" is an easy test for a statute to pass race-based classifications trigger "strict scrutiny" sex-based classification get "intermediate scrutiny" (any such analysis go as follows:) EPC based on §1, Amendment14: no law shall abridge the privileges or immunities of the citizens by depriving them of life, liberty, and property without due process of law. Bottom line is, that states cannot treat similarly situated people differently based on any tangible or intangible trait. Initially, the Court struck down the first attempts to maintain State consistency in the treatment of its citizens in the Civil Rights Cases and in Plessy, where the Court held (1) that individual actions were left to the States, and (2) that separate but equal was the best policy. However, this changed over time, and Brown changed the way States could govern its citizens. The US changed from a "separate but equal" to an integrated society, even though some States tried harder to stay fast to their archaic beliefs. See th th Cooper v. Aaron. Eventually, the 14 was read through the 5 to give the EPC full effect federally. See Bolling v. Sharpe. The premise of the EPC is to make sure states do not discriminate, and this is done by looking at the specific laws which are created and determining whether or not first if there is State action, which is a prerequisite for any Equal Protection problem. Moose Lodge v. Irvis. After this is determined, it is important to note who is being discriminated and how they are being discriminated as well as what they are being discriminated against. The discrimination may be on the law's face, or the law may be facially neutral with a discriminatory effect. If the former, the law explicitly states who the law is designed to discriminate against. See Korematsu, Hirabayashi, Brown. The latter must however show a discriminatory intent and effect for it to receive any scrutiny from the Court. See Washington v. Davis, Yick Wo v. Hopkins. Once the discriminatory intent and effect of the law has been determined, it is then important to determine what type of scrutiny the Court will apply. The Court does this by either identifying a class which it has already identified through precedent, or must assess if a particular class is a "suspect class," as noted by the famous footnote four of Carolene Products, which delineated a set of factors to determine whether the class is one which should receive stricter scrutiny or not; the more qualities the classification fulfills, the stricter the scrutiny the law would receive from the Court. Such factors include: insular (separated as in a ghetto in society), politically powerless (past or current lack of political power), discrete (easily identifiable on glance), immutable (a characteristic which is not changeable), socially prejudiced (as in slavery, servitude or stereotypes among society) and historic treatment (see socially prejudiced). If the class identified through the above factors as a suspect class, or one which has been decided in precedent as a suspect class (race, alienage if by States, national origin), any law which discriminates against it shall receive strict scrutiny in deciding whether it will pass constitutional muster. As such, the law itself is put through a rigid test, to see whether the law is narrowly tailored enough to fit a compelling governmental need. Compelling means any State interest which is good for the general welfare (health, safety, morals) of its citizenry. The law will further be looked at to see if it is over inclusive (too many people brought under the umbrella of one law than is necessary), or under inclusive (the law leaves out too many people which the law should include but does not). See Adarand, Croson, Saenz, Grutter. The state has the burden of proof to demonstrate if there is a compelling need, and most of the time, the laws fail as per se invalid. If some of the footnote four traits are identified but not all of them, the class may be considered "quasi-suspect," which drops any analysis of a law associated with discrimination towards that class under intermediate scrutiny. For example, a woman is discrete, because she can be identified on first glance, but is not insular, b/c women are scattered throughout society. As such, any law made with a quasi-suspect class in mind must be made to cater to an important government need. See VMI, Frontiero, Rostker, Craig v. Boren. An important need is similar to those above which are listed as compelling, however, as they are noted here as important, because a lot of times (as in the cases just identified) those reasons are just not good enough. If few or none of the footnote four traits are identified, then the class is considered a very general class (such as people) and a law associated with it is given rational basis scrutiny. Under such a review, all the law must do is provide some rational relation between the reasoning for the law and the discrimination the law imposes. See Railway Express. The challenger must provide some proof that the law itself is discriminatory enough to warrant a higher scrutiny, but as in Railway, most of these laws pass constitutional muster. If however, a challenger can show that behind the rational basis review is a state showing of "pure animus," or prejudice towards a specific class, then the law is reviewed with rational basis, but the discriminatory effect is held to a much higher scrutiny by the Court, traditionally called by scholars as "bite" or "with teeth." As such, a law which facially valid but discriminates against a specific class for no other reason than fear or stereotypes or hatred may be held invalid. See Lawrence, City of Cleburne, Romer v. Evans. In addition, the recent trend to correct past historical discriminations or stereotypes or to help another class along in a specific manner is called "affirmative action." These types of acts may not be performed as a quota, or as trying to get in a particular number of a certain race within a larger number to fit a designated fraction. Bakke, Adarand, Croson. However, these affirmative action acts can use the discriminating factor as a "plus," or as a positive factor instead of a negative factor (quota) in evaluating qualifications. Grutter. The scrutiny is determined by which type of class is being discriminated (discrimination can run both ways as a matter of law; negatively against a class, and positively for a class), then applying the scrutiny. A. Minimal Equal Protection Scrutiny (Rational Basis Test) Topic Notes: A sensible way to begin thinking about equal protection as a generalized requirement is to consider whether, as a federal protection as a generalized requirement is to consider whether, as a federal constitutional matter, a state must treat all similarly situated people similarly. (for purposes of driving an automobile, blind & sighted people are not similarly situated, but blue and brown-eyed people are) --> this consists of underinclusion, overinclusion Railway Express Agency, Inc. v. New York (1949) Case Brief: Style (name of case): Railway Express Agency, Inc.v. New York (1949) Relevant Facts: NY passes a law preventing businesses from advertising on their vehicles. PL runs a nationwide courier business, which advertises on its trucks (mostly unconnected with its business). Convicted in the magistrate's court and fined, sustained in Court of Special Sessions and Court of Appeals. This Court Issue: Under constitutional law, does a NY ban on general advertising on business vehicles discriminate businesses from operating in the livelihood expected under the 5th and 14th amendments? Holding: No. The ends justify the means, as preventing distractions to drivers in the city was served by the purpose of this law. Court's Rationale/Reasoning: Means of the law was to prevent distractions to drivers. The law passed was meant to ban only unrelated advertising on businesses' vehicles, not all advertising, so it is not discriminatory. PL contends the law discriminates not only on the basis of advertisements on trucks, but also to trucks in general. The Court finds this unconvincing. The Court is unwilling to question the municipality's judgment in passing such a law; it would be stepping on their toes in effect, to tell them how to run their government. The Court cannot see exactly how effective such a law would be as an outside party when it is the municipality which knows its city the best. If the city describes the law as one which prevents distractions to other drivers in order to avoid accidents, this Court trusts their judgment. It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered. The fact that the city doesn't deal with billboard ads or building ads is immaterial, as long as the judgment of NYC is legitimate. Rule: Rational basis scrutiny: ends must justify the means. The classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. Important Dicta: N/A. Concurring: (Justice Jackson): Burden rests heavily upon anyone who wants the Court to use the due process clause to strike down laws/ordinances. But using the EPC does not offend the people as much. Cities, states, and the Federal Gov't must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. The Framers knew this. The city's means is not to regulate all advertising, or all ads on vehicles: this is only meant to cease certain ads unrelated to businesses on those businesses' vehicles. There is no problem here; it's not arbitrary. The city could even go so far as to limit the size, shape and coloring if they wished, as long as the ends justified the means. 1. Notes on Railway & the rational basis standard Topic Notes: Some rational basics: any equal protection standard evaluating whether there is a rational basis for a classification must somehow identify a goal for the statute and decide whether the means chosen in the statute to effectuate the goal are rational (weaker scrutiny) theories of economic legislation & judicial review: Railway is a lenient (minimalist) application of the rational-basis test, upholding an ordinance that was highly underinclusive and entailed lines drawn to avoid hurting powerful interests. --> Court thought legislatures would deliberate in the public interest and courts were not the party to second-guess --> some saw it as a political compromise --> the law might have been made to help local citizens equal protection scrutiny: an underenforced constitutional norm?: the Court usually finds a way to uphold the economic regulation in question, sometimes for federalism reasons, sometimes to avoid redundancy in local/state legislation FCC v. Beach Communications, Inc. (1993): Court upheld a federal statute requiring cable t.v. systems to be franchised by local gov't authorities, but exempting facilities serving "only subscribers in one or more multiple unit dwellings under common ownership, control, or management." Court found no constitutional infirmity in the distinction between common and separate ownership or management, in part b/c in the common-ownership setting the cost of regulation might outweigh the benefits to consumers (b/c the system was more likely to be small, or b/c consumers could more easily negotiate w/the single property owner or manager). 2. Note on Court's application of heightened scrutiny to non-race classificati Topic Notes: 1. Alienage: federal authority over foreign relations and immigration has included nearly plenary power over "aliens." Accordingly, federal regulation of noncitizens is ordinarily subject at most to the most lenient rationality review when challenged on equal protection grounds. 2. Illegitimacy: intermediate scrutiny 3. Age: Court has been unwilling to apply any form of heightened scrutiny to this class, although it has upheld mandatory retirement laws for state and federal employees United States Dep't of Agriculture v. Moreno (1973): Court invalidated amended portion of Food Stamp Act of 1964, which limited participants to those who were not living with another person not related to them. B. Sex and Gender-based discrimination 1. Women outside the Constitution - the traditional jurisprudence of differenc Topic Notes: Bradwell v. Illinois (1873): Court upheld lower courts' decision to deny bar admission to PL. Said P&I clause didn't apply to those who sought admission to the bar. Concurring opinion said women were subservient to men in general. Minor v. Happersett (1874): Court ruled that the right to vote was not among the P&I of US citizenship, and the States weren't violating anything when they discriminated as such. Due process & equal protection issues at stake 2. The jurisprudence of equal treatment & heightened scrutiny of sex-based dis Topic Notes: Women were divided on EPC issues: some were okay with traditional distinctions but supported protective legislation; others rejected those ideals and insisted on the autonomy of women and their complete equality with men. Frontiero v. Richardson (1973) Case Brief: Style (name of case): Frontiero v. Richardson (1973) Relevant Facts: A federal statute did not permit to have military servicewomen claim their husbands as dependents, b/c men were the traditional breadwinners; the lower court said women should have to prove dependency instead of presuming it. Issue: Under constitutional law, is a statute that discriminates against servicewomen as being able to hold the title "breadwinner," allowable when the gov't forces women to prove such a standard instead of presuming it? Holding: Yes. Under strict judicial scrutiny, the statute is constitutionally invalid. Any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands dissimilar treatment for men and women who are similarly situated, and therefore involves the arbitrariness forbidden by the Constitution. Court's Rationale/Reasoning: Applying strict scrutiny, the Court said the means of such discrimination is arbitrary in nature. History showed that women were caged, more than idolized, as a result of this discrimination. This discrimination has carried over in responsibilities such as jury duty, voting, conveying property, etc. Congress has noted this discrimination in passing Title VII, the Equal Rights Amendment, and the Equal Pay Act. So Congress is behind this decision as well. In order for the gov't to satisfy the demands of strict scrutiny, it must show that it's actually cheaper to grant increased benefits with respect to all male members, than it is to determine which make members in fact are entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. But most of the wives of men here would not qualify for benefits. Rule: Classification based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subject to strict scrutiny. Important Dicta: N/A. Concurring: (Justices Powell, Burger, and Blackmun): Does not agree that all classifications based upon sex are inherently suspect. Thinks the ERA, once passed, will provide the framework to apply strict scrutiny. United States v. Virginia (1996) Case Brief: Style (name of case): United States v. Virginia (1996) Relevant Facts: After the US sued Virginia under the theory of Hogan, that VMI's men's only status was violative of the EPC. When it won, VA was forced to establish the VWIL at a women's school, to provide some of the same benefits for women only. Although the lower courts held this not to be violative of the EPC, the Court reversed. Issue: Under constitutional law, does a program established for females to mirror the same discriminatory policy by a similar state school for men violate the EPC when the Court mandated that the state do something to remedy its discriminatory situation? Holding: Yes. VA has fallen short of establishing the exceedingly persuasive justification that must be the solid base for any gender-defined classification. Court's Rationale/Reasoning: Although some classifications against sex can be used to compensate, promote stability, or to advance development of talent, but not to perpetuate the legal, social, and economic inferiority of women. VA 1st justification, that diversity of educational benefits was a benign goal, but not one of the actual state purposes that motivated the policy. But such a goal came too late in the game, after the Court already demanded the State fix its problem. VA 2nd justification, that it preserved the adversative method of education, was rejected. The Court found that although women might develop differently, the goal of VMI, to develop citizen soldiers (using their own mission study committee's words against the school) was a goal that should cover women as well. As for the remedial plan, the VWIL, the Court held that its precedent said that the plan did not remedy the discrimination the Court previously found to exist. Justice Ginsburg found the program was qualitatively different and quantitatively inferior to the male version at VMI. Tangible differences included fewer courses, less qualified faculty members, and lower admission standards. Intangible differences included the loss of the adversative method and the bonding it seems to achieve. VA sought to defend this by contending women wanted a more supportive and less adversative situation. Ginsburg didn't buy it. Programs that are justified by saying "that's what women want," is not compelling, especially when the men's program is not founded "b/c that's what men want." Bottom line: VA has now shown substantial equality in the separate educational opportunities the State supports at VWIL and VMI. Rule: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is "exceedingly persuasive." The burden against strict scrutiny for the State is to show "at least that the challenged classification serves "important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Justification must be genuine, and not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." A State's remedial decree must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage "in the position they would have occupied in the absence of discrimination. Important Dicta: N/A. Dissenting: (Justice Scalia): VA should be allowed to change with the times: if this means establishing a women's military-type school, then so be it. The 1st Amendment allows for such change, but the majority does not use this as its policy. Instead, it refuses to recognize that men and women have different educational needs. Craig v. Boren (1976) Case Brief: Style (name of case): Craig v. Boren (1976) Relevant Facts: An OK statute prohibited beer sales to males under 21, and to women 18. But males 18-20 could drink, provided they did not buy. An 18- 20 male sued for injunctive relief and lost. This Court reverses. Issue: Under constitutional law, is a statute that prohibits men from sale of alcohol until age 21 but only to women until age 18 violative of the EPC of the Constitution? Holding: Yes. The statute does not closely relate itself to those objectives established under Reed. Court's Rationale/Reasoning: Under the Reed standard, all sex discrimination is subject to strict scrutiny. The gov't used traffic safety as its objective underlying the statute. Although this is an important reason, relating that to one gender is not congruent; it is difficult to show how it closely served the purpose. The lower court applied rational basis scrutiny. Statistical evidence is accurate but unpersuasive. The percentages are negligible in terms of such a disparity which would condone enacting such a law. The beer in relation to the statute fails to distinguish itself from regular alcohol. The surveys themselves also do not distinguish between the male and female deaths in relation to beer consumption. Rule: To pass strict scrutiny, classifications of gender must serve important gov't objectives and must be substantially related to the achievement of those objectives. Important Dicta: N/A. Dissenting: (Justice Rehnquist): Males are not particularly disadvantaged by this law. EPC does not mention the substantially related test which the majority considered. Objectives cannot be determined by the Court. This is the job of a legislature: to understand the nature of its own business. Concurring: (Justice Stevens): Would rather decide the constitutionality of laws based on the legislature's reason for motivating it to pass the law originally. A statute with the intent to limit DUI-related deaths is compelling, but not when it limits those who are covered under the law (males 18-20). The law also disparately treats males as compared to females. A. Note on the Court's sex-discrimination cases 1973-76 Topic Notes: Court managed after Frontiero to avoid deciding a level of scrutiny to apply in sex discrimination cases. Generally, the Court struck down sex-based classifications which reflected what the Court considered gender stereotypes. B. Notes on the Court's middle tier scrutiny Topic Notes: Craig established the "middle tier" scrutiny: for semi-suspect classification California v. Webster (1977): Court disagreed with petitioner, who brought forth a challenge that a provision in the Social Security Act allowed more low-earning years for average monthly wage to be figured. Court said that the legislative history was responsive to women's needs. J.E.B. V. Alabama ex rel T.B. (1994): Court declared a process of striking male jurors from a paternity suit unconstitutional. Discrimination in the jury selection process, causes harm to the litigants, community and individual jurors who are wrongfully excluded. Mississippi University for Women v. Hogan (1982): Court ruled exclusion of men from MUW was unconstitutional under the EPC when a male nurse tried to get into the PL's group. The group was not enhancing the political process, thus it was benign in nature and a male crashing the party would not be injurious. C. Note on current state of the Court's sex discrimination jurisprudence Topic Notes: However the Justices verbally articulate the test for review of laws deploying a sex- based classification, they generally strike down laws that deny women opportunities that men have or deny that men opportunities opportunities that women have when the state was motivated by archaic stereotypes. But this categorization does not capture 3 others kinds of cases: (1) where a sex-based law is plausibly tied to the "inherent differences" between men and women that were brought about in the VMI opinion (2) where a sex-based law has been adopted under circumstances where the Court for institutional reasons "defers" to other branches of gov't (3) or where advantages neither nor men systematically. Deference to traditional gender classifications based upon "real differences" 2 lines of thought: the principle of equal treatment and the exception for "real differences" (VMI) Michael M. v. Superior Court of Sonoma County (1981): a statute made men alone criminally liable for statutory rape. The Court held that the statute was reasoned properly in that it was designed to prevent illegitimate pregnancy, an important state interest. The Court added that the statute, if made facially neutral, would not really benefit women, b/c it was unlikely any women would report that they participated in statutory rape (resulting in prosecution). D. Note on the gendered treatment of rape Topic Notes: Parham v. Hughes (1979): GA law that allowed only the mother of a child born out of wedlock to sue for the wrongful death of a child was upheld, citing that only men can unilaterally make the illegitimacy right by declaring their paternity. The law, in essence, discriminated not against fathers, but only those illegitimate fathers. Used rational basis for coming to such a conclusion. Rostker v. Goldberg (1981): President empowered through legislation to have every male alien registered for the selected service to facilitate conscription if need be. The Court held that the law was constitutional against the discrimination of women. Using rational basis instead of strict scrutiny as deference to the nation's knowledge in military affairs, the Court found that any guarantee of due process or certainty in the law would be advances by any further refinement in the applicable tests as suggested by the gov't. As to related purpose, Congress had testimony from committee reports, which said that men and women were not similarly situated for purposes of conscription or registering. Nguyen v. INS (2001): Court rejected a challenge to a federal statute that accorded American citizenship automatically, upon birth, to a child born out of wedlock in a foreign country to an American mother, but denied citizenship to such a child whose only American parent was her father, unless the child were legally legitimated or paternity were established in a court of law or by paternal oath before the child's 18th birthday. Court held that biological parent relationship was served best by such a law. Mother gives birth, she is the one registered on the record; fathers don't even have to be there at birth -- and the documentation requirement in the statute gives men more than ample room to make up for any biological deficiencies there might be. 1) Note on Rostker, Nguyen, & judicial deference to certain nat'l & leg. polic Topic Notes: In Rostker, it was not clear why women had to be excluded for registration to meet the needs of military preparedness. In Nguyen, it was not clear why Congress should not have imposed a real relationship test on all children with one American parent, whatever the parent's sex. Maybe the Court deferred to the other agencies' vested powers and expertise in deciding such issues before it (PQD issues) E. Note on the military's exclusion of women from combat roles Topic Notes: The VMI decision suggests that the military's need for strong soldiers is not a valid reason for having a sex-based exclusion, b/c he military could (and does) exclude people who do not meet minimal strength requirements. Now, the main argument is that women hiding in foxholes would be a distraction to cohesion amongst the unit. Notwithstanding, Congress repealed the statutory exclusion and vested the Defense Department with discretion to assign women to any military assignment. This has benefitted women. 3. Classifications that have a disparate impact upon women Topic Notes: Geduldig v. Aiello (1974): "not . . . every legislative classification concerning pregnancy is a sex based classification." But that case construed a constitutional provision governing state action, which is far different than determining the scope of a statute aimed at rectifying harms inflicted by private actors. (insurance policy which did not pay out to pregnancy-related disability claims was not held to be unconstitutional under the EPC) Personnel Administrator of Massachusetts v. Feeney (1979): A Massachusetts law gave hiring preference to honorably discharged veterans applying for state civil service positions. Feeney, a woman who scored high on certain competitive civil service examinations, was ranked below male veterans who had lower scores. The Court held that the law was enacted to serve "legitimate and worthy purposes" and not to discriminate on the basis of sex. Even though few women benefitted from the scheme, Justice Stewart argued that "veteran status is not uniquely male." Furthermore, the law placed many men who were not veterans at a disadvantage as well. The distinction in the law was clearly between veterans and nonveterans, not between men and women. C. What level of scrutiny for other suspicious classifications Topic Notes: Central lesson of the race discrimination cases, amplified in the sex discrimination cases: a group could sweep away almost all formal state discriminations stigmatizing is members if social movement lawyers could persuade the Court to recognize the trait marking the group's members as a "suspect" or "quasi-suspect" classification. 1. Wealth Topic Notes: Since Civil War, statutes discriminating on the basis of wealth have mostly disappeared, but there is now legislation that has passed which had a discriminatory effect on those without money. M.L.B. v. S.L.J. (1996): MS terminated parental rights of PL, who couldn't appeal b/c she couldn't afford the state fees required to appeal. The Court reversed this decision, saying a person couldn't be denied the right to appeal losing parental rights solely b/c of money 2. Physical or mental disability City of Cleburne v. Cleburne Living Center (1985) Case Brief: Style (name of case): City of Cleburne v. Cleburne Living Center (1985) Relevant Facts: In 1980, Cleburne Living Center, Inc. submitted a permit application to operate a home for the mentally retarded. The city council of Cleburne voted to deny the special use permit, acting pursuant to a municipal zoning ordinance. Issue: Under constitutional law, does the denial of the permit violate the Equal Protection rights of Cleburne Living Center, Inc. and its potential residents? Holding: Yes. Court held that the denial of the special use permit to Cleburne Living Centers, Inc. was premised on an irrational prejudice against the mentally retarded, and hence unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Court's Rationale/Reasoning: In overturning the ordinance, the court noted that it "rests on a bare desire to treat the retarded as outsiders, pariahs who do not belong in the community." On the bases of both the overall inability to be seen as equal mentally in the eyes of the Court, as well as the legislature's intent to provide for the needs of the mentally challenged, the acts of discriminating as such was not looked upon favorably. Even the TX legislature has enacted law to help combat discrimination against the mentally retarded. Legislative response has also shows that there is massive public support for such legislation. The Court should look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us. Because of all the above reasons, such discrimination is something which is not tolerated by the Constitution. The rational basis for the developmentally disabled gives legislatures the latitude to enact law which should be justified by legitimate reasons for assisting, not neglecting or discriminating. If other multiple-dwelling buildings in town are not regulated by permit, how can this building be mandated to have a permit? There is a difference in the residents of the home as opposed to the general public, but they are not threatened by the home's existence. Rule: Strict scrutiny based on discrimination of physically or mentally handicapped. Must have been a justifiable reason for denying the permit. Important Dicta: While the Court declined to grant the mentally retarded the status of a "quasi-suspect class," it nevertheless found that the "rational basis" test for legislative action provided sufficient protection against invidious discrimination. Dissenting: Justices Marshall, Brennan, Burger (also concurred in part): Marshall applied the sliding scale principle (substantiality of state interests & reasonableness of means which State sought to advance those interests). Wants more strict scrutiny to be applied. Concurring: (Justices Stevens, Burger): The reason why the Court has invalidated laws related to discriminating against others is not b/c of intermediate scrutiny, but b/c of the group itself is or is not relevant to a valid public purpose, or to the purpose that the challenged laws purportedly intended to serve. Every law that places the mentally retarded in a special class is not irrational. There are some that are designed to help them despite making those who qualify a separate class. A. Note on Cleburne & equal protection tiers Topic Notes: This case is more indicative of rational basis with teeth. Heightened scrutiny in the race and sex discrimination cases starts with a presumption of unconstitutionality, shifts the burden of justification to the gov't, and limits the kinds of args the gov't can make. Ordinary rational basis review starts with a presumption of constitutionality, which the challenger can rebut only by demonstrating that there is no reasonable connection with any state goal. Cleburne-style rational basis starts with a presumption of validity, but might be understood to allow the challenger to create a prima facie case of invalidity by showing no rational fit with the asserted purpose or by demonstrating antipathy. This shifts the burden back to the State to demonstrate a rational and neutral justification for its discrimination. 3. Sexual Orientation A. Heightened Scrutiny United States Army (1989) Case Brief: Style (name of case): Watkins v. United States Army, U.S. Circuit Court for the 9th Circuit (1989) Relevant Facts: Army policy of discriminating homosexuals, bisexuals from the armed forces. Issue: Under constitutional law, is the Army's policy of discrimination against homosexual and bisexual individuals violative of the EPC? Holding: Yes. Application of strict scrutiny showed there was no compelling interest from keeping homosexuals out of the military. Court's Rationale/Reasoning: Using strict scrutiny, the judge applied the following factors: (1) the group at issues had suffered a history of discrimination without a purpose. (2) the discrimination embodied a gross unfairness that is sufficiently inconsistent with the ideals of EPC to term it invidious. In deciding so, the court considered if the disadvantaged class was discriminated by a trait which had nothing to do with an ability to contribute/perform in society. Additionally, the court found there were unique disabilities b/c of inaccurate stereotypes. Third, the court said that sexual preference rested on the conscious choice of the individual. Rule: Discriminating on the basis of homosexuality is violative of the EPC. Important Dicta: N/A. Dissenting: (Judge Reinhardt): Thought that the actions of homosexuals was what determined the level of discrimination (sodomy was a military crime). B. Rational Basis Romer v. Evans (1996) Case Brief: Style (name of case): Romer v. Evans (1996) Relevant Facts: Colorado voters adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." Following a legal challenge by homosexual and other aggrieved parties, the state trial court entered a permanent injunction enjoining Amendment 2's enforcement. The Colorado Supreme Court affirmed on appeal. Issue: Under constitutional law, does Amendment 2 of Colorado's State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violate the Fourteenth Amendment's Equal Protection Clause? Holding: Yes. The law itself fails to justify any legitimate governmental interest, in addition, it teeters as discriminatory on its face. Court's Rationale/Reasoning: Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. In his opinion for the Court, Justice Anthony Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest." Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Kennedy said even a plain inference of the law shows that there is an intent to deprive gays and lesbians of even the most general laws that prohibit discrimination. This is not a deprivation of only special rights; there is room for a broader interpretation. It fails rational basis because the law names one specific group in its legislation, the breadth of the law is so broad that it fails to justify any legitimate state interest. It is too narrow and too broad; too narrow in its naming of one group of people, and too broad in the amount of rights which are covered under it. The Court refused to agree to such a law b/c gov't is for all people; everyone has the right to seek help through the law. It is also possible the agenda behind such a law is animosity towards a specific class of individuals. This cannot constitute a legitimate governmental interest. Rule: A law must bear a rational relationship to a legitimate governmental purpose to pass constitutional muster. Important Dicta: Was the reason for using rational basis that the Court was trying to send a message that even this law couldn't pass rational basis, meaning it was blatantly discriminatory? Dissenting: (Justices Scalia, Rehnquist, Thomas): This is not blatant animosity against homosexuals; it is a protection of traditional sexual mores against a politically powerful minority to revise those mores through legislation. The amendment prohibits special treatment of homosexuals and nothing more. What the majority sends is that a person who gets treated equally under the law, but cannot readily obtain special treatment under the laws as well, has been denied equal protection of the laws. Dissenters point out there was a legitimate governmental rational basis for passing such a law. If a state can make laws which give it the right to make homosexual conduct a crime (Bowers v. Hardwick), then it should be able to make laws which disallow special treatment for gays and homosexuals. This Court has passed similar laws in the past, like forbidding methadone users to operate trains, or a mandatory retirement age of 50 for police officers, so the reasoning of drawing a more defined law is unpersuasive. As far as animosity goes, the only thing which qualifies would be an actual violent act (like murder). There is no such action here. Last, the state sought to remedy a constitutional question through a vote, and the vote passed. The concentration of this class of people in combination with their disposable income made putting such a law on the table necessary. 1) Notes on Evans & its implications for jud. review of antigay state policies Topic Notes: Romer can be read broadly or narrowly, but the latter has been more regularly done. In Shahar v. Bowers, the Court upheld GA's Attorney General's decision to revoke employment from a woman he found out was a lesbian. The Court held that it was essential for the people to have confidence in their AG and government. On the flip side, in Stemler v. City of Florence, the sixth circuit held equal protection for a woman who was wrongfully arrested for drunken driving as the result of trying to help a battered woman get away from her boyfriend at a bar. 2) Note on jud. review of popular initiatives & referenda Topic Notes: The Court had rarely reviewed the constitutionality of state lawmaking through political process, and until Romer, focused its efforts on racially-based discriminatory laws. This might start a trend of the Court turning its attentions to scrutinizing such laws even moreso than legislatively-passed statutes. Others say via public choice theory, that legislators would not confront such an issue behind its own closed doors, and instead would rather put it to a vote. VII. Protecting Fundamental Rights A. Should Courts ever enforce unenumerated rights Skinner v. Oklahoma ex rel. Williamson (1942) Case Brief: Style (name of case): Skinner v. Oklahoma ex rel. Williamson (1942) Relevant Facts: Oklahoma's Criminal Sterilization Act allowed the state to sterilize a person who had been convicted three or more times of crimes "amounting to felonies involving moral turpitude." PL was convicted of robbery twice and once for stealing chickens. Issue: Under Constitutional law, did the Act violate the Due Process and Equal Protection Clauses of the 14th Amendment? Holding: Yes. A unanimous Court held that the Act violated the Equal Protection Clause of the Fourteenth Amendment. Since some crimes such as embezzlement, punishable as felonies in Oklahoma, were excluded from the Act's jurisdiction, Justice Douglas reasoned that the law had laid "an unequal hand on those who have committed intrinsically the same quality of offense." Moreover, Douglas viewed procreation as one of the fundamental rights requiring the judiciary's strict scrutiny. Court's Rationale/Reasoning: The court found this to be "abstract symmetry" of making law. As making such a decision is usually a "last resort" for the Court, the combination of an overly arbitrary system for qualifying victims for sterilization and the sterilization itself being a deprivation of a fundamental right were factors in the Court's application of strict scrutiny here. Discriminating class: felons of moral turpitude Non-discriminated: non-felons, felons of certain crimes not of moral turpitude Reason: not compelling as police power; no way to tell if sterilee would be parent to a potentially dangerous criminal Reason 2: no due process to be heard otherwise Rule: A law which deprives a person of their constitutional and procedural due process is applied strict scrutiny. Important Dicta: Court passes on the cruel and excessive punishment portion of the PL's argument. 1. Notes on Skinner & protecting implied fundamental rights Topic Notes: (1) equal protection: standard of review essentially dictates the outcome (2) other theories: cruel and unusual punishment not viable, but procedural (notice, right to be heard) due process and substantive due process (limits on deprivation of liberties) both were elaborated by the Court (3) examining the potential theories in Skinner: sort out how potential theories might apply (in the future, if held so) 2. A note on the social context of Buck v. Bell & Skinner Topic Notes: Buck v. Bell (1927): Court upheld a statute that established a process for the sterilization of mentally retarded persons in state institutions. Statute based on the assumptions that developmental disability is inheritable, that their reproduction is against society's interests, and if released that some of them could be productive self-supporting members of society. Buck was a retarded, institutionalized woman, who argued that such an intrusion was a deprivation of substantive due process, and that since the statute was categorizing against institutionalized people, that it was underinclusive so as to violate EPC. Both arguments dismissed. The Court found that the statute did not violate the Constitution. Justice Holmes made clear that Buck's challenge was not upon the medical procedure involved but on the process of the substantive law. Since sterilization could not occur until a proper hearing had occurred (at which the patient and a guardian could be present) and after the Circuit Court of the County and the Supreme Court of Appeals had reviewed the case, if so requested by the patient. Only after "months of observation" could the operation take place. That was enough to satisfy the Court that there was no Constitutional violation. Citing the best interests of the state, Justice Holmes affirmed the value of a law like Virginia's in order to prevent the nation from "being swamped with incompetence . . . Three generations of imbeciles are enough." bottom line is: rational basis applied to discrimination cases involving the disabled/handicapped is always subject to laws which seem to prejudice this class as opposed to helping it social mores are a big factor in how the Court's opinion changes; in Buck, the Court dealt with a time when it was the "in thing" to consider sterilization a necessary option, but by the time Skinner cam around, the Court backed away as more activists spoke out. 3. Note on unenforced textual rights - the 2nd amendment Topic Notes: Should all the fundamental rights listed in the Constitution be enforced? The second amendment has rarely been touched as a right to be enforced or limited expressly. B. Equal Protection & Fundamental Interests 1. Protecting economic liberty & property A. The rise & decline of liberty of contract & substantive due process review Topic Notes: Between 1898-1905, the Court upheld a series of state laws limiting freedom of K, sometimes relying upon the idea suggested in Holden v. Hardy (upheld due process attack for health reasons, a law limiting hours of mine workers) that placing an employer and employee on a more equal footing was itself a sufficient state interest to justify labor regulation. The Court got more moderate in their application of substantive due process review after the late 1890s, as illustrated by Lochner. Lochner v. New York (1905) Case Brief: Style (name of case): Lochner v. New York (1905) Relevant Facts: The state of New York enacted a statute forbidding bakers to work more than 60 hours a week or 10 hours a day. PL Lochner an employer in the business of making biscuits, bread, cakes, or confections, required or permitted an employee to work more than sixty hours in one week. Plaintiff's Argument: (NY) It is the interest of the state to preserve the health of its population to ensure that it is robust and strong. Defendant's Argument: The Act prohibits the right to enter and make voluntary contracts, which is a liberty under the 14th. Issue: Under constitutional law, does the New York law violate the liberty protected by due process of the Fourteenth Amendment by prohibiting the right of employers/employees from voluntarily entering into contracts? (or does the Act relates to the safety, health, morals, and general welfare of the public under the police powers) Holding: Yes. The Court invalidated the New York law. The majority (through Peckham) maintained that the statute interfered with the freedom of contract, and thus the Fourteenth Amendment's right to liberty afforded to employer and employee. The Court viewed the statute as a labor law; the state had no reasonable ground for interfering with liberty by determining the hours of labor. Court's Rationale/Reasoning: The Court may only decide whether the act is a legitimate police power of the state. If the act made no reference whatever to the question of health, it would involve no interest of the public, neither safety, nor welfare of the public. The limit of police power has been reached an passed in this case. The character of this law and the subject it legislates is not intended to preserve public health and welfare. The purpose of this statute has no direct relation or substantial effect upon the health of an employee. It only seeks to regulate the hours of labor between an employee and an employer, in a private business. The freedom to contract with each other in relation to employment cannot be prohibited or interfered with, without violating the Constitution. Rule: The right to make a contract in relation to business is part of the liberty of the individual protected by the 14th Amendment. The 14th may not interfere with legitimate state police powers. Important Dicta: N/A. Dissenting: (Justices Holmes, Harlan, White and Day): The Constitution is not intended to embody a particular economic theory. The liberty of Contract may be subjected to regulations to promote the general welfare or to guard the public health, that a state may reasonably prescribe for the common good. A state of Federal legislative enactment, is never to be held invalid unless it is plainly and palpably in excess of legislative power. When the validity of a statute is questioned the burden of proof is upon those who assert it to be unconstitutional [McCulloch]. The Court uses Due Process Clause to strike down law that is unreasonable, unwise, or incompatible with economic or social philosophy. Last three dissenters talk about how there really is a health problem amongst the bakers, and that in light of the economic theory, there is no cause to see the other when the first is dominant in the discussion. 1) Notes on Lochner & the heyday of substantive due process Topic Notes: The Court's decision in Lochner signaled a reinvigorated judicial hostility (at both the state and federal level) to legislation enacted at the behest of labor unions. This case was a big part of the abolition of yellow dog contracts (where workers would promise not to join a union) West Coast Hotel v. Parrish (1979): Court upheld a state law establishing a minimum wage for women, overruling the Lochner-like Adkins holding (which struck down a minimum wage for female employees). Facts: Elsie Parrish, an employee of the West Coast Hotel Company, received sub- minimum wage compensation for her work. Parrish brought a suit to recover the difference between the wages paid to her and the minimum wage fixed by state law. Issue: Did the minimum wage law violate the liberty of contract as construed under the Fifth Amendment as applied by the Fourteenth Amendment? Conclusion: In a 5-to-4 decision, the Court held that the establishment of minimum wages for women was constitutionally legitimate. The Court noted that the Constitution did not speak of the freedom of contract and that liberty was subject to the restraints of due process. The Court also noted that employers and employees were not equally "free" in negotiating contracts, since employees often were constrained by practical and economic realities. This was found to be especially true in the case of women. This case explicitly overruled the Court's decision in Adkins v. Children's Hospital (1923). Williamson v. Lee Optical (1955): Court upheld an OK statute that prohibited opticians from duplicating or replacing lenses w/o a written prescription from an opthamologist or optometrist, even thought optometrists have the experience and expertise to take a lens and determine the prescription for it. Although the Court admitted the statute was a wasteful requirement, it did not violate due process (it's for the legislatures to balance the advantages and disadvantages) 2) Note on state substantive due process Topic Notes: Since the New Deal, the Court has almost completely abandoned the Lochner strict scrutiny approach to social and economic legislation. The Court defers to the legislature to make laws it sees fit as far as social and economic legislation, and the state supreme courts as well. B. The Takings Clause Topic Notes: The Takings Clause prohibits the gov't from "taking the private property for public use w/o just compensation." Applies to condemnation cases where the gov't seizes property for roads and the like. 2. Voting Bush v. Gore (2000) Case Brief: Style (name of case): Bush v. Gore (2000) Relevant Facts: Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore's contest of the certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later, and reversed the Florida Supreme Court's order. Issue: Under constitutional law, did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution? Holding: Yes. Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Court's Rationale/Reasoning: The Court does not even bother with the issue of whether or not the FL Supreme Court had actual authority to demand the recount, they just looked at the recount itself. In so doing, the Court found this recount did not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right to vote. The Florida Supreme Court's demand for recount is to capture the intent of the vote, which is abstract in principle, as there are no specific standards for determining intent. The recount deals with holes on a cardboard piece of paper; intent on a hole is very difficult. The state had a date by which to set forth a policy for a recount, but never did so (probably not ever anticipating such events would occur). Rule: Without actual uniform guidelines or procedure to determine voters' intent, mere arbitrary determination violates a voter's right to the privilege. Important Dicta: No. Concurring: (Justices Rehnquist, Scalia & Thomas): Argued that the recount scheme was also unconstitutional because the Florida Supreme Court's decision made new election law, which only the state legislature may do. Dissenting: (Justices Breyer & Souter):Florida Court's recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be fashioned. Time is insubstantial when constitutional rights are at stake. Dissenting: (Justices Stevens, Ginsburg, Breyer): Argued that for reasons of federalism, the Florida Supreme Court's decision ought to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires that every vote be counted. A. Notes on Bush v. Gore Topic Notes: Bush dramatically demonstrates the difference between a substantive claim and an equality claim. Substantive was the right to vote issue, b/c abolishing the right would seem to raise some constitutional problems. Equality dealt with the different methods used to decipher poorly marked ballots. Defenders of the Court tend to say that the Florida recount procedure was too arbitrary and the Court properly stepped in and limited it. Others argued for a remand, thinking that the trial court, with enough time, could achieve compliance with the rules. 3. Basic rights for the least advantaged Topic Notes: Once the NAACP had substantially won its campaign against apartheid, its focus shifted from policies discriminating on the basis of race to those having racially disproportionate effects (welfare rights, shortchanging the poor, capping family grants) San Antonio Independent School District v. Rodriguez (1973) Case Brief: Style (name of case): San Antonio Independent School District v. Rodriguez (1973) Relevant Facts: In addition to being funded through a state-funded program, designed to establish a minimum educational threshold in every school, Texas public elementary and secondary schools rely on local property taxes for supplemental revenue. The San Antonio Independent School District (SAISD), acting on behalf of students whose families reside in poor districts, challenged this funding scheme by arguing that it underprivileged such students because their schools lacked the vast property tax base that other districts utilized. The reliance on assessable property, SAISD claimed, caused severe interdistrict disparities in per-pupil expenditures. Issue: Under constitutional law, did Texas' public education finance system violate the Fourteenth Amendment's Equal Protection Clause by failing to distribute funding equally among its school districts? Holding: No. The Court refused to examine the system with strict scrutiny since there is no fundamental right to education in the Constitution & since the system did not systematically discriminate against all poor people in Texas. Court's Rationale/Reasoning: Given the similarities between Texas' system and those in other states, it was clear to the Court that the funding scheme was not "so irrational as to be invidiously discriminatory." Justice Powell argued that on the question of wealth and education, "the Equal Protection Clause does not require absolute equality or precisely equal advantages." There was no distinct proof of discrimination on the basis of wealth. Second, education cannot be compared to property value rationally. Rule: In order for a party to show that there are expenditures which fall short to a minority, there must be actual tangible proof; assumptions made based on a different standard, such as property values, is unfounded. Important Dicta: No. Dissenting: (Justices Marshall & Douglas): Equal protection does not only fall within the realm of strict scrutiny and rational basis. This is a plea for more rational basis with teeth (or bite). The determination of what is a fundamental right should also not be determined solely by looking to see if it is located in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly. Things like procreation, access to criminal appellate process not expressly in the Constitution, but interests have been afforded as such to these rights. Plyler v. Doe (1982) Case Brief: Style (name of case): Plyler v. Doe (1982) Relevant Facts: A revision to the Texas education laws in 1975 allowed the state to withhold from local school districts state funds for educating children of illegal aliens. This case was decided together with Texas v. Certain Named and Unnamed Alien Child. Lower courts said the statute was violative of EPC. This Court affirms. Issue: Under constitutional law, Did the law violate the Equal Protection Clause of the Fourteenth Amendment when it withheld funds to illegal aliens? Holding: Yes. The Court reasoned that illegal aliens and their children, though not citizens of the United States or Texas, are people "in any ordinary sense of the term" and, therefore, are afforded Fourteenth Amendment protections. Court's Rationale/Reasoning: EPC was supposed to end all caste based discrimination. This statute was the antithesis of such progress under EPC. Illegal aliens aren't suspect b/c they voluntarily come over, and it was not seen as a constitutional irrelevancy. Children of those who sneak into the country should not be treated like their parents, as they have no control over where they go or how they get there. Additionally, public education is not a fundamental right, it is also not some governmental benefit indistinguishable from other forms of social welfare legislation. Rule: Illegal aliens are not a suspect class. No child is responsible for his birth and penalizing the child is an ineffectual as well as unjust way of deterring the parent. Important Dicta: N/A. Dissenting: (Justice Burger): "Once it is conceded -- as the Court does -- that illegal aliens are not a suspect class, and that education is not a fundamental right," the only issue logically was whether "the legislative classification at issue bears a rational relationship to a legitimate state purpose." Concurring: (Justices Blackmun, Powell): Such a discrimination violates EPC by involving the State to make permanent class distinctions, analogous to deprivation of the vote. A. Notes on Rodriguez & Plyler Topic Notes: After Rodriguez, one would expect the Court not to recognize more fundamental interests as a mechanism for equal protection heightened scrutiny (even though abortion is a fundamental right, they did not subject the states to strict scrutiny criticism when they refused to cover abortion - municipal hospital could refuse to provide abortion services) Best way to explain Plyler is that the TX law looked punitive and short-sighted to the Court. It was seen as "renegade immigration politics" and risked creating a permanent "underclass." 4. The right to travel Saenz v. Roe (1999) Case Brief: Style (name of case): Saenz v. Roe (1999) Relevant Facts: Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), states receiving Temporary Assistance to Needy Families (TANF) can pay the benefit amount of another State's TANF program to residents who have lived in the State for less than 12 months. When California announced it would enforce this option, Brenda Roe brought this class action, on behalf of other first year residents, challenging the constitutionality of the durational residency requirement. On appeal from successive adverse rulings in the lower courts, the Supreme Court granted Rita Saenz, the Director of California's Department of Social Services, certiorari. Issue: Under constitutional law, does a state statute, authorizing states receiving Temporary Assistance to Needy Families to pay the benefit amount of another State's TANF to its first year residents, violate the Fourteenth Amendment's right-to-travel protections? Holding: Yes. In a 7-to-2 decision, the Court held that the 14th Amendment protects the right to travel in three ways. Court's Rationale/Reasoning: The Court explained that by paying first-year residents the same TNF benefits they received in their state of origin, states treated new residents differently than others who have lived in their borders for over one year. As such, enforcement of the PRWORA power unconstitutionally discriminated among residents. A classification that has the effect of imposing a penalty on the right to travel violates the Equal Protection Clause absent a compelling government interest. The right to travel in this context entails the right of travelers electing to become permanent residents of a State to be treated like other citizens of that State. Privileges or Immunities Clause of the Fourteenth Amendment protects the status of a new resident. Comparison should not be between benefits new residents are receiving and benefits the people in their previous state of residence are receiving; comparison is with other residents of new state who have been living there for at least a year. Money saved is not a compelling government interest satisfying strict scrutiny test. Congressional statute authorizing California's law is invalid. Congress cannot authorize the States to violate the Fourteenth Amendment. Rule: The 14th Amendment protects the right to travel in three ways: by allowing citizens to move freely between states, securing the right to be treated equally in all states when visiting, and securing the rights of new citizens to be treated like long-time citizens of a state. Important Dicta: N/A. Dissenting: (Rehnquist, Thomas): The right to travel and the right to state citizenship are distinct, non-reciprocal, and not a component of the other. This case is only about the right to immediately enjoy all the privileges of being a California citizen versus the State's ability to test the good faith assertion of the right. States have a right to ensure those entering the State are not simply taking advantage of their programs for a short period of time. The Court has allowed residency requirements on right to vote, obtain a divorce in state courts. Why not here? (Justices Thomas, Chief Justice): The majority is attributing a meaning to the Privileges or Immunities Clause that was not meant by the Framers. This Clause's applicability was severely limited by the Slaughter-House Cases. A. Notes on Saenz Topic Notes: Apart from the appeal to originalism, Justice Thomas also argues that the majority's opinion of the clause is too open-ended. Obviously, the majority's interpretation of the P or I clause is not fully fleshed out. Saenz has been hailed for resurrecting the P or I clause as a formidable constitutional provision. It is unclear how the majority views all the broader issues about the clause as discussed by Justice Thomas. The majority speaks of two prongs, (1) the right to equal treatment for new state residents and (2) the nationally protected rights covered by the clause. It seems like the first prong was resurrected by the Saenz decision. C. Fundamental Privacy Rights Meyer v. Nebraska (1923) Case Brief: Style (name of case): Meyer v. Nebraska (1923) Relevant Facts: Nebraska, along with other states, prohibited the teaching of modern foreign languages to grade school children. Meyer, who taught German in a Lutheran school, was convicted under this law. Issue: Under constitutional law, does the Nebraska statute violate the Fourteenth Amendment's Due Process clause when it limits the subject matter taught in public schools? Holding: Yes, the Nebraska law is unconstitutional. Nebraska violated the liberty protected by due process of the Fourteenth Amendment. Court's Rationale/Reasoning: State regulation of liberty must be reasonably related to a proper state objective. The legislature's view of reasonableness was subject to supervision by the courts. The legislative purpose of the law was to promote assimilation and civic development. But these purposes were not adequate to justify interfering with Meyer's liberty to teach or the liberty of parents to employ him during a "time of peace and domestic tranquillity." Education and acquisition of knowledge is a fundamental right, and are matters which should be "diligently promoted." Reasonable regulations for all schools are not at issue here, including regulating that English be taught in public schools; State regulations are not at issue here either. Rule: Liberty means more than freedom from bodily restraint. Important Dicta: N/A. 1. What kinds of liberty are substantively protected by the due process clause Topic Notes: Following Meyer, the Court in Pierce v. Society of Sisters ruled that the State could not require all children to attend public school. Early ways one could understand these zones of privacy are: (1) privacy as family: the state cannot interfere in the individual's choices as to marriage and the marries couple's choices as to how to raise its family (2) privacy as life choices: Meyer's list of common law privileges "essential to the orderly pursuit of happiness by by free men" boil down to certain kinds of life choices with which the State cannot readily interfere (3) privacy as inaccesability: Meyer starts with the proposition that liberty naturally includes "freedom from bodily restraint" (like the State could not force a personal injury PL to submit to a medical examination) 2. Contraception, marriage and family Topic Notes: Laws by WWI were harsh on women (like making it illegal to distribute articles of contraception), so as to threaten their life choices and even their health. Because of this, Planned Parenthood was started and have strived to nullify State and Federal contraception laws. Griswold v. Coonecticut (1965) Case Brief: Style (name of case): Griswold v. Connecticut 91965) Relevant Facts: Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling, and other medical treatment, to married persons for purposes of preventing conception. (it was not a crime to sell birth control devices, but it was a crime to use any drug or medicinal instrument for the purpose of preventing contraception) Issue: Under constitutional law, does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? Holding: Yes. The Connecticut statute conflicts with the exercise of this right and is therefore null and void. Court's Rationale/Reasoning: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. Under the rulings of Meyer and Pierce, and other 1st Amendment cases, the implicit right to do things associated with those Amendments has been granted. The same rule should apply here: the 3rd Amendment stops soldiers (read: police power or executive branch) from quartering soldiers in one's home, the 5th Amendment enables persons to a zone of privacy which the gov't may not force someone to surrender to their detriment, and the 9th Amendment explicitly says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (read: the explicit and heretofore decided implicit guarantees in the Bill of Rights cannot be used against people) Rule: Under the 1st, 3rd, 4th and 9th Amendments, the right to family was created and thus protects the right of marital privacy. Important Dicta: N/A. Dissenting: (Justice Black with Stewart): There is no constitutional right to privacy, as the majority says there is. There are some constitutional guarantees, like the 4th Amendment, but not the 14th, which Black generally calls a stretch. As for the 9th Amendment, there is no need for this analysis, as the Framers created this Amendment to "assure the people that the Constitution in all its provisions was intended to limit Federal Government to the powers granted expressly or by necessary implication. (Justice Stewart with Black): The law does not violate the Constitution, although the law itself is silly, outdated, and unenforceable. Concurring: (Justices Goldberg, Warren, Brennan): Doesn't think that the ninth amendment, as introduced by Madison to Congress, was to protect the people from the other eight amendments' specificity. This concurrence feels that the original eight were fine enough to stand on their own as protective of the penumbra the majority brings to light in this decision. (Harlan): The use of the constitutional amendments are not necessary to justify this ruling, when the court takes a look at the doctrines of federalism and separation of powers. (White): Feels this is a due process violation of the 14th Amendment. This is the state acting to limit a right to family, and there is no justification by Connecticut's argument it reinforces a ban on illicit sexual relationships. penumbra: a space of partial illumination (as in an eclipse) between the perfect shadow on all sides and the full light b: a shaded region surrounding the dark central portion of a sunspot 2 : a surrounding or adjoining region in which something exists in a lesser degree :FRINGE 3 : a body of rights held to be guaranteed by implication in a civil constitution Roe v. Wade (1973) Case Brief: Style (name of case): Roe v. Wade (1973) Relevant Facts: Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall. Issue: Under constitutional law, does the Constitution embrace a woman's right to terminate her pregnancy by abortion when a state law forbids the act except in situations where the woman could die? Holding: The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold) protected by the 14th Amendment. Court's Rationale/Reasoning: The Constitution does not explicitly mention any right of privacy, but the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, do exist under the Constitution. The 1st, 4th, 5th, and 9th Amendments all mention a hint of a penumbra of individual privacy, and when combined, they create a fundamental right, which extends to family, marriage, procreation, contraception, child rearing and education. The right of privacy can be found in either the 14th or 9th amendment. The detriment that a State can cause a woman by denying the right to abortion is great. Medical, personal, psychological, and familial problems all can arise from such a situation. The Court did recognize that there are some State concerns under the same scenario, and those interests are compelling as well (safeguarding health, maintaining medical standards), which is why the Court decided to balance the needs of the State against the needs of the people (read: women). The Constitution does not define person, but the 14th Amendment does mention citizens as those who were naturalized or born in the U.S. The same words are in the Due Process Clause and in the EPC. That, in conjunction with common law practice regarding abortion, and the fact that there is no pre- natal mention of the term person in the Constitution, means that the term person does not extend to the unborn. However, since the woman is carrying an embryo, then a fetus, a State may have a compelling enough reason to dictate at some time a limit on abortion rights. Texas says life begins at conception; the Court did not touch this issue. But, the rights of the pregnant woman are important as are the State's, and both are protected with this holding. A state may regulate the abortion procedure to the point that the regulation reasonably relates to the protection and preservation of maternal health. Rule: The right to an abortion is unlimited within the first trimester of pregnancy; under Roe, states can pass laws regulating second- and third- trimester abortions. The fundamental right to personal privacy has been extended this far. Important Dicta: The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling. Dissenting: (Justice Rehnquist): There is no right of privacy involved in the Texas statute, as a transaction resulting in an operation is not private. Nor is the reference to the 4th amendment here a privacy issue. Rehnquist advocates using a rational relation (basis) test to justify that the Texas law is valid by protecting the life of the child. Planned Parenthood of SE PA v. Casey (1992) Case Brief: Style (name of case): Planned Parenthood of SE PA v. Casey (1992) Relevant Facts: The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. Issue: Under constitutional law, can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade? Holding: No. The holding of Roe should once again be retained and once again reaffirmed. Court's Rationale/Reasoning: The Roe standard has 3 parts: (a) recognition of the right of the woman to choose to have abortion before viability of the fetus and to be able to get it w/o undue interference from the state (b) confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health (c) the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become the child. [the Court agrees to each of these parts] Part a: recognized in the DPC of the 14th Amdt. This includes substantive due process, as well as procedural due process. The penumbras of the Bill of Rights are protected as well, things not mentioned explicitly are now covered like marriage, abortion, family, parenthood, and bodily integrity, among others. Part b: abortion is a dangerous act, and the State has a right, if it deems it important enough, to protect the rights of the viable fetus, by instituting statutes which do so. Part c: there are legitimate interests, psychological, physical and emotion for both the mother and the child which can be protected by the State. It can't force itself on the parent at all stages, but can do so at appropriate times set forth by the Court. But the Court goes into a whole dissertation on stare decisis being the most important factor, maybe to show that the Court was serious and not teetering in its opinion since deciding Roe. It showed that the liberty of women to act in society, make reproductive decisions and personal and liberty autonomy have not changed. O'connor compares this decision with that of Brown, as both had to settle national crises of opinion. Liberty factors outweigh those critics in this case. As do stare decisis and viability factors. The new standard gets rid of the trimester standard, as it does not cater to the needs of women or the States. So the Court decides that only those laws which cast an undue burden on women to make the decision are unconstitutional; a statute must calculate to inform the women's choice, not hinder it. So regulations which do no more than create a structural mechanism by which the State, parent, or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices. Rule: If a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," then it is unconstitutional. Important Dicta: Maybe the whole part on stare decisis. Concurring/Dissenting: (Justices Scalia, Chief Justice, White, Thomas): The decision stands b/c even though the Constitution is silent about it, the longstanding traditions of American society have permitted it to be legally proscribed. Concurring/dissenting on reaffirmance of Roe: (Justices Rehnquist, White, Scalia and Thomas): Abortion is unique, and therefore different from parenting, contraception and marriage. Traditional history does not show any leaning to a reaffirmance of Roe. Nothing speaks of this as a fundamental right. A. Notes on Griswold and the right of privacy Topic Notes: Could the Court have invoked EPC, as the people who were probably most hit hard by the law were underprivileged women? Should a strikingly disparate impact on women influenced the outcome of this case? Carey v. Population Services Int'l (1977): The Court concluded that restrictions on sales of contraceptives to minors infringed on minors' right to privacy. Three concurring justices thought that minors didn't have a constitutional right to be sexually active, but decided that allowing the law to stand was not the best way to deter sexual activity. Justice Rehnquist, the lone dissenter, took an originalist approach, asking the majority to imagine what the Fraamers would think today if they knew such a law was struck. B. Note on the 9th Amendment Topic Notes: The maxim of interpretation that the expression of certain things implies the exclusion of all other things suggests that at least some parts of the Constitution are not to be interpreted according to this maxim. Goldberg view: the Framers of the Bill of Rights intended to rebut the maxim about the existence of unenumerated rights Black view: to the contrary, the Framers intended to rebut the maxim negative implication about the existence of unenumerated federal powers The state-law view: the 9th Amendment was designed simply to preserve rights recognized under state law (also subscribed to by some scholars) C. Note on the fandamental right to marry Topic Notes: Marriage statutes barring those who were in prison, or people who were in arrears with ex-spouses, were struck down by the Court as violating a fundamental right to marry. Troxel v. Granville (2000): During Tommie Granville and Brad Troxel's relationship, which ended in 1991, they had two daughters. Until Brad's suicide in 1993, Brad's parents Jennifer and Gary Troxel, the paternal grandparents, had regularly seen their granddaughters on weekends. However, after Brad's suicide, Granville informed the Troxels that she wished to reduced their visitation time to one short visit per month. The Troxels filed suit for the right to visit their grandchildren, under section the Revised Code of Washington, which permits "any person" to petition for visitation rights "at any time" and authorizes state superior courts to grant such rights whenever visitation may serve a child's best interest. Granville did not oppose the petition outright but did oppose the amount of visitation time sought by the Troxels. Subsequently, a Washington Superior Court ordered more visitation than Granville desired. On appeal, the Washington Court of Appeals reversed that decision, holding that non-parents lacked standing to sue under the statute. In affirming, the Washington Supreme Court ruled that the statute unconstitutionally interfered with parents' right to rear their children. Issue: Does the Washington statute, which allows any person to petition for a court- ordered right to see a child over a custodial parent's objection if such visitation is found to be in the child's best interest, unconstitutionally interfere with the fundamental right of parents to rear their children? Holding: Yes. In a 6-3 decision delivered by Justice Sandra Day O'Connor, the Court held that the Washington Statute violated the right of parents, under the due process clause of the Constitution's Fourteenth Amendment, to make decisions concerning the care, custody, and control of their children. Justice O'Connor wrote for the Court that "[t]he liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their children -- is perhaps the oldest of the fundamental liberty interests recognized by this Court." Justices John Paul Stevens, Antonin Scalia, and Anthony Kennedy dissented. D. Notes on Roe & the abortion controversy Topic Notes: The Court has also invalidated a statute that mandated abortions be performed in hospitals and set up special procedures for hospital approval of such operations. Additionally, the Court may have acted too soon in allowing women to abort their children, as both the ALI and 13 other states were either considering relaxing their stance on abortions or had already done so. E. Note on Abortion Regulation as sex discrimination Topic Notes: Some have suggested that the Court should have placed the woman alone, rather than the woman tied tied to her physician. F. Note - the abortion right from Roe to Casey Topic Notes: Just as Roe invigorated women's rights, it also sparked the pro-life movement, but certain cases were struck down which narrowed the choice of women: Planned Parenthood v. Ashcroft (1983): upheld a state law requiring a minor to obtain either parental consent or judicial approval of her choice to abort H.L. v. Matheson (1981): approving law requiring that parents be notified whenever possible Akron v. Akron Center for Reproductive Health (1983): Court struck down a requirement that dilation an evacuation abortions be performed in hospitals, b/c the ban imposed a heavy and unnecessary burden on women's access to a relatively inexpensive, otherwise accessible, and safe procedure in abortion clinics. Webster v. Reproductive Health Services (1989): In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. The statute's preamble indicated that "[t]he life of each human being begins at conception," and the law codified the following restrictions: public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability tests upon women in their twentieth (or more) week of pregnancy. Lower courts struck down the restrictions. In a controversial and highly fractured decision, the Court held that none of the challenged provisions of the Missouri legislation were unconstitutional. First, the Court held that the preamble had not been applied in any concrete manner for the purposes of restricting abortions, and thus did not present a constitutional question. Second, the Court held that the Due Process Clause did not require states to enter into the business of abortion, and did not create an affirmative right to governmental aid in the pursuit of constitutional rights. Third, the Court found that no case or controversy existed in relation to the counseling provisions of the law. Finally, the Court upheld the viability testing requirements, arguing that the State's interest in protecting potential life could come into existence before the point of viability. The Court emphasized that it was not revisiting the essential portions of the holding in Roe v. Wade. Hodgson v. Minnesota (1990): A requirement that both parents were required to be notified within 48 hours for an abortion was struck down by the Court. Section 6 of the law allowed the courts to judicially bypass Section 2 if the young woman could maturely demonstrate that notification would be unwise. Held: The Court found Section 2 of the statute unconstitutional because requiring notification of both parents, whether or not both wanted to know or had taken responsibility for raising the child, did not serve a legitimate state interest (was an undue burden). The Court favored notification of only one parent and a 48 hour waiting period. The Court upheld Section 6 of the law. G. Notes on Casey & the fundamental right to abortion Topic Notes: (1) spousal notification: the PA statute required that women sign a form stating they notified their husband about the abortion, but the Court disagreed, saying that the husband should not have that kind of power in the pregnancy, but the Court also called husband's role in the marriage "bilateral loyalty." (2) waiting periods: PA statute required a 24-hour waiting period after a doctor provided specified info about abortion. The Court did conclude this provision was valid, as requiring information about the fetus was acceptable as part of informed consent (this was invalidated in Akron) (3) parental consent (with judicial bypass): Court said minors should be required to inform parents, unless there was a compelling reason not to, in which case the mother could tell a judge; this is a change from Hodgson, where the Court said some young women fear their fathers, mothers and too intimidated to tell a stranger (4) the fetus as a person: Rehnquist's dissent focused on the right to abortion being a unique exception to liberty, b/c it effects a potential life (5) conservation and tradition: tradition had an effect on his opinion, as he stated b/c abortion had never been explicitly mentioned in any legislation, that it is not included in the word "liberty;" this is stark contrast to previous justices who rallied around expansion of phraseology in conjunction with the Constitution. Sternberg v. Carhart (2000): A Nebraska law prohibited any "partial birth abortion" unless that procedure was necessary to save the mother's life. It defined "partial birth abortion" as a procedure in which the doctor "partially delivers vaginally a living unborn child before killing the... child," and defined the latter phrase to mean "intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the... child and does kill the... Child." Violation of the law is a felony, and it provides for the automatic revocation of a convicted doctor's state license to practice medicine. Leroy Carhart, a Nebraska physician who performs abortions in a clinical setting, brought suit seeking a declaration that the statute violates the U.S. Constitution, claiming the law was unconstitutionally vague and placed an undue burden on himself and female patients seeking abortions. The District Court held the statute unconstitutional. The Court of Appeals affirmed. Issue: Does the Nebraska statute, which makes the performance of a "partial birth abortions" a crime, violate the liberty protected by due process of the Fourteenth Amendment in the U.S. Constitution? Held: Yes. In a complicated 5-4 decision delivered by Justice Breyer, the Court held that "Nebraska's statute criminalizing the performance of "partial birth abortion[s]" violates the U.S. Constitution, as interpreted in Casey and Roe." The sharply divided Court struck down the statute because it placed an undue burden on a woman's right to have an abortion and did not allow for exception in cases of threatened health. "All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment," that results in "an undue burden upon a woman's right to make an abortion decision," wrote Justice Breyer for the Court. Justice Scalia's dissent concluded that "[t]he notion that the Constitution of the United States... prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd." 3. Consensual Sexual Activity Bowers v. Hardwick (1986) Case Brief: Style (name of case): Case v. Case (year) Relevant Facts: Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized homosexual sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari. Issue: Under constitutional law, Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal? Holding: No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Court's Rationale/Reasoning: The Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko) or when they are "deeply rooted in the Nation's history and tradition" (Griswold). The right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy. Ironically, White even said that the privacy cases of Griswold and Casey did not have any effect on the rights of gay men to be protected constitutionally. Common law said sodomy was a criminal offense, and forbidden by lawmakers upon passing the Bill of Rights, and also continued at the time the Civil War ended, when only 5 of 37 States did not have sodomy laws in place. The Court cannot go and just make up law which has no history, or intent to be protected by the Constitution. In comparing Stanley v. GA, the Court made a distinct difference between the two, as Stanley involved a 1st Amendment protection of free speech, while sodomy is not free speech (despite possible being a private act). Rule: If an act is not covered as an ordered liberty or nationally protected tradition, then they are not constitutional, and any law which bans such activity is constitutional. Important Dicta: No. Dissenting: (Justices Blackmun, Brennan, Marshall, Stevens): This is a case about privacy (Katz, Stanley v. GA: where watching obscene movies was okay, and the Olmstead dissent). Just b/c the Court has never encountered the fundamental right to privacy of homosexual activity, doesn't mean the Court should cast it aside as therefore unconstitutional. If the previous cases all had something to do with previously never discussed events, then the Court should be just as open to change now as they were then. This is also a family issue, and as Blackmun says "[o]nly the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality." (Justices Stevens, Brennan, Marshall): The old history argument doesn't fly with this group either. The old prohibitions on sodomy applied equally whether the parties were married or not, heterosexual or homosexual. Further, Georgia's law has teetered back and forth on some homosexual acts for women, but not for men. So just b/c a State says it's reason for disapproval of sodomy is enough reason to have a statute prohibiting it Also, the statute's attempt to totally prohibit sodomy on all bases is not allowed, according to stare decisis set forth in Loving, Griswold, and Eisenstadt. Concurring: (Justice Burger): Agrees with the "ancient roots" argument, and that it would be immoral to contradict all that both international and GA history have shown. (Justice Powell): There is no fundamental right -- no substantive right under the Due Process Clause -- such as that claimed by Hardwick. However, Hardwick may have an eighth amendment argument for cruel and unusual punishment (or excessive punishment). Lawrence v. Texas (2003) Case Brief: Style (name of case): Lawrence v. Texas (2003) Relevant Facts: Lawrence, on a weapons charge, was caught in the middle of anal sex with Garner. Both arrested and detained for violating TX's "Homosexual Conduct Law," which made homosexual sex criminal. 14th Circuit Court of Appeal struck the law down as violating constitutional equal protection guarantees. However, the 14th Circuit then reheard the case en banc, and upheld the statute, reinstating the ban on homosexual sodomy. Lawrence and Garner appealed the en banc decision to the Texas Court of Criminal Appeals, the highest court in Texas for criminal matters. The Court of Criminal Appeals refused to hear the case, thereby letting the 14th Court's decision stand. Issue: Under constitutional law, do homosexual sodomy laws deny equal protection to gay individuals, and should Bowers, a case that found that sodomy bans do not infringe on the substantive due process rights of individuals, should be overruled and readdressed? Holding: Yes. The Court stated that, as part of constitutionally protected liberty, homosexuals have "the full right to engage in private conduct without government intervention." Court's Rationale/Reasoning: The history argument is attacked first from the decision in Bowers, and the majority held there was no longstanding prohibition on such activity. To be sure, the same law which was prohibited in Bowers is an exception to the rule, as laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. It wasn't discussed in early legal literature, and only nine states have singled out same- sex relations for criminal prosecution. The MPC never prescribed such a penalty either. What the majority writes here, is that the Bowers majority tried to enforce its religious and moral beliefs on the country, which under Griswold, is not permitted. Citing Dudgeon v. United Kingdom, a 1981 case heard by the European Court of Human Rights, as demonstrating in part that the court's assumption in Bowers (that Western civilization uniformly condemned homosexuality) was erroneous, and added that "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." The Court sees homosexuals as a quasi-suspect class here, and such cases as Romer, Casey and what wasn't but should have been Bowers, stand for the right to privacy as well. The majority decision found that the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's Due Process Clause. Holding that "[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," the court struck down the anti-sodomy law as unconstitutional (both for equal protection and substantive due process reasons). This Court used rational basis with teeth as its standard of review for the equal protection b/c it seemingly discriminated against homosexuals (animus). The substantive due process right which falls under the right to privacy. "Bowers was not correct when it was decided, and it is not correct today." Kennedy goes on, "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." Rule: Bowers overruled, and laws which prohibit homosexual acts in the privacy of the home are unconstitutional on both EPC (animus) and privacy (substantive due process) grounds. Important Dicta: No. Dissenting: (Justices Scalia, Thomas, and Rehnquist): Scalia objected to the Court's decision to revisit Bowers, pointing out that there were many subsequent decisions from lower courts based on Bowers that, with its overturning, may now be open to doubt: Williams v. Pryor, which upheld Alabama's prohibition on the sale of sex toys; Milner v. Apfel, which asserted that "legislatures are permitted to legislate with regard to morality ... rather than confined to preventing demonstrable harms"; Holmes v. California Army National Guard, which upheld the federal statute and regulations banning from military service those who engage in homosexual conduct; Owens v. State, which held that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage." There is also a slippery slope argument, that all kinds of things (adult incest, bestiality, obscenity, prostitution) would all be let in by such rationale. Concurring: Justice O'Connor agreed with the invalidation of the sodomy law but not with Kennedy's rationale. O'Connor disagreed with both the overturning of Bowers (in which she was in the majority) and with the court's invocation of due process guarantees of liberty in this context. O'Connor instead preferred the more limited Equal Protection argument which would still strike the law because it was directed against a group rather than an act, but would avoid the inclusion of sexuality under protected liberty. Under this argument, a sodomy law that was neutral both in effect and application might well be constitutional, but that there was little to fear because "democratic society" would not tolerate it for long. She did leave the door open for laws which distinguished between homosexuals and heterosexuals on the basis of legitimate state interest, but found that this was not such a law. A. Note on Bowers & Privacy for gay men and lesbians Topic Notes: (1) the role of precedent and principle: the majority might have decided so to make a distinction between cases like Griswold and Casey, which dealt with pregnancy, to homosexual intimacy, which had nothing to do with pregnancy. (2) history and tradition in Bowers: Hardwick was arrested for performing fellatio, not sodomy; fellatio was added to the common law statutes only in the late 18th and 19th centuries, so they were not as old as explained by the Court. One other point: does traditional hostility to a single class/race/gender give the Court or anyone else to continue such a tradition, on the basis that the tradition existed? (3) equal protection issues: are gay man and lesbians a "discrete and insular" minority? Should such a statute be subjected to some form of heightened scrutiny? Could it survive such scrutiny? Neither and EPC nor 9th amendment claim was raised by Hardwick Commonwealth of KY v. Wasson (Ky. 1992): State overturned a statute, despite please from the state to follow Bowers, that homosexual sexual relations were criminal even with consent of the partner. The statute was overturned on EPC argument, as well as right to privacy standards. The court pointed to numerous examples where it had afforded stronger protection of individual rights under its own laws than the US Constitution did. Recognized on textual differences, precedent in KY, and a flaw in Bowers based on original intent being misconstrued. B. Notes on Lawrence & the future of the right of privacy Topic Notes: (1) stare decisis in Constitutional cases: Roe, which sought to protect a liberty interest, got more stare decisis protection than did Bowers, a precedent declining to protect a liberty interest. Criminal prohibitions were always looked on more strongly than civil prohibitions. Bowers' holding based on anti-gay sentiment being enough of a rational basis to deny protection from the GA law for Hardwick does not jive with the reasoning behind Romer, which rejected Amendment 2 in Colorado (denying protection to homosexuals from discriminatory actions). This Court chose the Romer standard. Socially, this script followed that of Casey: both movements (pro-choice and gay rights) were picking up steam, tolerance was preached by both, and both came out with expansive protections to their fundamental rights as part of those classes of people. (2) history and political theory: the dissenters, led by Scalia, tried to regroup their long- standing historical analysis in Lawrence, but fail to realize this argument was rejected in Loving, Griswold, Roe and Casey. Kennedy's analysis of history was more general than Scalia's was in Lawrence. (3) can state morals laws survive Lawrence?: what about state morals laws; could they be next on the list of those struck down for individuality? Think about some of the following examples: (a) use of sex toys on oneself or on another person (b) unmarried sex (c) adult incest between 1st cousins (d) prostitution (e) bestiality (f) adultery D. Procedural Due Process 1. Introductory Notes on Procedural Due Process Topic Notes: (1) Procedural vs. Substantive Due Process: substantive is based on the 5th and 14th amendments (2) Procedural Due Process Values: the guarantee of procedural fairness in adjudication, whether in courts or in quasi-judicial proceedings. There are 2 central concerns of procedural due process: (a) Utilitarian: the gov't should not deprive a person of an important interest unless the correct understanding of the facts and the law allows it to do so. (this relates to the appearance of justice) (b) Normative (AKA dignitary or intrinsic): even if the gov't may lawfully deprive someone of an important interest, respect for that individual demands that she have the opportunity to be heard by a neutral decisionmaker under fair proceedings before the deprivation occurs. (this relates to the actuality of justice) (3) Rules versus adjudications: legislative policy decisions are not generally subject to due process, but individualized fact determinations are usually subject to some due process requirements. (ex: legislative tax on those who have more than 2 cars. In passing the statute, the legislature is under no duty of any kind to conduct hearings [legislative policy decisions], but a taxpayer must be given some opportunity to establish that she does not in fact own more than 2 cars [individualized fact determinations]) (4) critical definitional issues: life, liberty and property are not defined, SO: (a) if a person who had welfare, suddenly gets notice it will be cut off soon, and further finds that the only means for review is to write a "letter of protest" which will be read "sometime in the future," what is he being deprived of? (property, liberty?) (b) further, what if a person applies for welfare but can't receive it, despite considering herself eligible, and is given no avenue to challenge the denial. Is that person denied liberty or property in any sense of the word if that person wasn't even receiving anything before the denial? So now the question turns to what "process" is due, if there has been a deprivation of life, liberty or property. Is a trial or trial-like proceeding in the making here, b/c if so, there are several concerns: (a) who bears the burden of proving the welfare recipient or applicant eligible or ineligible? (b) what is the burden of proof? (c) may the recipient/applicant be represented by an attorney? (d) if the recipient cannot afford counsel, must the State provide some form of assistance? (e) is there a right to confront/cross-examine adverse witnesses? (f) must an administrative appeal and/or the chance to challenge the administrative decision in court be available? (g) is a neutral decisionmaker required? (h) should a decision based on the record with a statement of reasons for the decision be available? Intrinsic values might consider a cost/benefit analysis (cost of procedures vs. the likelihood there will be erroneous deprivations and the magnitude of those deprivations) Intrinsic values might consider better processes are due unless they unduly burden the gov't and tend to foster the appearance of justice and to reduce psychological harm (5) when the State has a program that does not involve any substantive constitutional right, the State has a virtually free hand over eligibility standards (ex: states decide requirements for revoking a driver's license). So now we look to the State question as to: "what factual findings are necessary to determine continued eligibility for this benefit?" but, if the question is changed to procedure, the analysis turns to that of procedural due process (1st, are there life, liberty or property issues at stake?; 2nd, did the State establish sufficient procedures for such a hearing?) (6) introduction to the doctrinal debate: prior to the 1960's, the Court tended to look to the common law for guidance in determining what "liberty" and "property" were. If one of those interests were present, the Court assumed that process was due. Common law rule was that benefits were privileges, not rights. Goldberg v. Kelly (1970): Welfare recipients whose benefits were terminated without notice sued and won, as the continued receipt of such benefits is property whose deprivation triggers the protections of the DPC. (avoiding a condemning loss weighed against governmental interest in summary adjudication) 2. Defining Liberty & Property Board of Regents v. Roth (1972) Case Brief: Style (name of case): Board of Regents v. Roth (1972) Relevant Facts: Roth hired to teach at Wisconsin State for one year, then told he wouldn't be retained. Demanded to know why, which was denied, and he had no opportunity to challenge it. The school president's action complied with state law and university rules. Issue: Under constitutional law, did the failure to provide a state employee with a statement of reasons or a hearing to challenge a decision to decline rehiring that employee violate any procedural due process rights? Holding: No. The range protected by procedural due process is not infinite. Court's Rationale/Reasoning: The court based its decision on two major principles within the Due Process clause of the 14th Amendment. These two principles were whether there was any depravation of liberty or property in the decision to not renew Mr. Roth's contract. In regard to the liberty interest, the Court held that the university did not base its decision on a negative charge, nor did it attempt to harm the respondent's name or character within his community. However, Roth argued that when he looked for future employment and they asked him why he was not rehired, he would have no proof that he was "wrongfully" unrenewed. His reasoning was denied and the lack of infringement upon his "good name, reputation, honor, or integrity" caused the Court to deny his claim. (via Goldberg decision). Essentially, there is no liberty lost when a person winds up the same way they were, to find whatever job they wanted, upon being fired. The second aspect of the 14th Amendment in question was whether David Roth had a property right for his position. The contract for Roth's position had no clause that guaranteed him a position with the University of Wisconsin. Moreover, the ending of the contract was June 30. Because he was not tenured, he was not granted a hearing nor a summary judgment. His property right, or lack thereof, resulted in the Court reversing the case and ultimately leaving Roth unemployed. Rule: School employees with tenure or "continuing contract status" or who are fired for stigmatizing reasons have a right under the 14th Amendment to procedural due process. This due process includes notice of the charges and a fair hearing before an unbiased party that includes the right to counsel, to present evidence, and to call and cross-examine witnesses. Important Dicta: No. A. Notes on defining 'property' & 'liberty' Topic Notes: (1) defining "property": entitlements: Roth rejected one plausible interpretation of Goldberg, that "property" in the administrative state might include all of the many important economic interests flowing from the government. This decision does recognize that a bona fide expectation of continuing employment arising from state law is "property" for due process purposes. (2) the purposes of a hearing: this case also stands for taking a harder stance on summary process for at-will employees only if the individual can legally force the government to make a favorable decision by proving certain facts (3) the consequences of finding "property": if the entitlement under state law is shown, then "property" is present and procedural due process applies notwithstanding any procedural conditions found in the employee's contract. (4) liberty interests: many gov't actions don't directly deprive an individual of property, even in the broad form of government assistance, and yet cause substantial hardship. Roth lost his job, as it was not seen property by the Court. (5) liberty and imprisonment: prison cases are tricky issues; have to look to see if conditions of the confinement or impending confinement threaten any constitutional liberty interests. (6) procedural due process: selective incorporation of certain Bill of Rights amendments created criminal procedure law and incorporation of other cases have changed civil practice and procedure as well 3. Defining ''what process is due'' Topic Notes: Must first ask "what process is actually required" in such a case. Then can seek how to determine what process is required by due process. Mathews v. Eldridge (1976) Case Brief: Style (name of case): Mathews v. Eldridge (1976) Relevant Facts: George Eldridge, who had originally been deemed disabled due to chronic anxiety and back strain, was informed by letter that his disability status was ending and that his benefits would be terminated. Social Security Administration procedures provided for ample notification and an evidentiary hearing before a final determination was made, but Eldridge's benefits were cut off until that hearing could take place. Eldridge challenged the termination of his benefits without such a hearing. Issue: Under constitutional law, did the lack of an evidentiary hearing prior to the termination of disability benefits violate the Due Process Clause of the Fifth Amendment? Holding: No. In an 6-to-2 decision, the Court held that the initial termination of Eldridge's benefits without a hearing did not violate due process. Court's Rationale/Reasoning: Unlike Goldberg, Eldridge's benefits were not based on need, but rather on other factors designated by statute. The degree of potential deprivation is significantly less than that of Goldberg as well. As to the length of wrongful deprivation exceeds one year, and is also significantly less in scope than in Goldberg. Despite the fact that a person on disability is likely to be at some hardship, the Court reasoned that it is not more than that of a welfare recipient. As to the fairness aspect, the Court found that there were numerous safeguards to prevents errors in making decisions to terminate disability benefits and argued that "[a]t some point the benefit or an additional safeguard to the individual affected by the administrative action and to society, in terms of increased assurance that the action is just, may be outweighed by the cost." As to the public interest, the burden actually weighs more on Eldridge, as the Court cites the many hearings it would take to get benefits back, as well as the increased costs of providing benefits to that person while they wait to have their day in court or in a proceeding, but not that expensive. However, the Court did find that if the government were forced to pay out to everyone whose claims were waiting, it could also be serving the interests of those who have completely ridiculous claims, thus the cost on taxpayers and the agencies would be burdened significantly from such a policy. Rule: The nature of the hearing must be commensurate with the interest affected, taking into account the state's administrative needs: All courts must now employ the Mathews balancing test to determine the type of procedures that are required by due process when a governmental action would deprive an individual of a constitutionally protected liberty or property interest. On the individual's side, a court must assess two factors: 1) The importance of the individual liberty or property interest at stake (private interest); 2) The extent to which the requested procedure may reduce the possibility of erroneous decision-making (government's interest). On the other side of the balancing scale, the court must assess the governmental interest in avoiding the increases administrative and fiscal burdens which result from increased procedural requirements. (risk that procedures used will lead to erroneous decisions) Important Dicta: No. A. Notes on defining ''what process is due'' Topic Notes: (1) utilitarianism and due process: the dignitary/intrinsic value may have been slighted here, as the loss of benefits might be devastating: Eldridge's home was foreclosed upon, the family's furniture was repossessed, and the whole family was forced to sleep in one bed. Maybe a case-by-case categorical approach to the balancing approach? (2) determining "what process is due": questions of timing (how soon should the hearing have been?), and formality (there could have been several types of hearings: oral, evidentiary, neutral tribunal, decision by governmental official)...now process is decided on a case-by-case basis. (3) due process and especially sensitive areas of liberty: the Court has upped the burden of proof of evidence in some situations, like family cases, from a mere "preponderance of the evidence" standard, to that of "clear and convincing evidence."