Constitutional Law Article I- Legislative power is vested in congress which consists of Senate and House of representative Section 2 house

e of representative Section 3- Senate Section 4- what congress should/may do Section 5- House Section 6- senators and representatives Section 7- Bills Section 8- What congress can do and its power to do. Section 9- What congress cannot do Section 10- What states cannot do Article II- Executive branch Section 1- Presidents terms, electors, qualifications Section 2- Power of president Section 3 Section4 Article III- Judicial Branch Section 1- power of judicial branch Section 2- extension of power Section3- Treason, war Article IV- Full faith and Credit Section1- state- Full faith and credit clause Section2- citizen Section3- New state Section 4- Guarantee clause Article V- Amendments Article VI- Debt, treaty, Constitution Article VII- Ratification AMENDMENTS IReligeon, freedom of speech, press, petition government IIMilitia and right to bear arms IIISoldier IVRight of peopple to be secure at own place VProtection from being witness against himself, not to be subjected for the same offence twice VIRight to speedy and public trial VIIRight to trial by jury VIIIExcessive bail is not permitted, cruel and unusual punishment IXConstitutional rights cannot be denied XState power XIJudicial power not extended to Citizens of another state. Sovereign immunity XIIElections, votes XIIISlavery XIV- Section 1- Due process clause, Equal protection XVVoting rights XVI- Congresss right to tax XVII- Composition of senate XVIII- Beverage transportation?? XIX- Right to vote XXTerms of president and senators XXI- Repealed XVIII amendment- transportation of beverage?? XXII- Presidential election XXIII- Electoral vote? XXIV- Right of citizens to any primary election for president/vice president XXV- Removal of president XXVI- Right to vote for above 18 age adults XXVII- No law against election Class- 8/22/2011

what was before constitution- atrcticle of confederation. whjy there was a change needed? articles of confederation allowed states to do what they wanted to do but constitution does not allow that and it protects individual rights. where in constitution the individual rights are protected? -Bill of rights- in the constitution, the bill of rights protects the individual rights. Amendment 1-

10 -Equal protection- Amendment 14 -vote Centraliazed Government- Article I. what is the gest of Article I? -Legislative branch- what the legislature can or cannot do, voting needs etc. to borrow money, to create uniform rule for naturalization- section 8? Section 9- (2) whats habeus corpus. it restricts the power of congress and thus give us the right. just the congress. Article I is all about congress and speaks what a state can or cannot do. section 8 describes what congress can do and section 9 describes what congress cannot do. where in the constitution says it can be amended?- Article V gives the power to amend the constitution. how is the constittution amended?- 1. put up states, Ratification 3/4 states. 2/3 of congress. amendment XXVII was the last amendment done in 1992. Article II- Executive branch Article III- judiciary branch Check and balance- Article I, II, III - Legislative, executive and judiciary branches need to vote for any change and that is how it is check and balance. Legislative intentoriginalist- supreme court judges are not elected, they are short listed by the president and confirmed by the congress and non originalistsCompare and contrast cases. Article IVWe do not need to know Article V, VI or VII. Judiciary act 1789- Writ of mandamus. Chapter 1 Federal judicial power A. The authority for judicial review The authority for judicial review was first announced by the supreme court in marbury v. Madison. Marbury establishes the authority for judicial review of both federal executive and legislative acts. Case- Marbury v. Madison Facts- On his last day in office, President John Adams named forty-two justices of the peace and sixteen new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office. The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of this opinion), but they were not delivered before the expiration of Adamss term as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adamss term. William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury applied directly to the Supreme Court of the United States for a writ of mandamus to compel Jeffersons Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1783 had granted the Supreme Court original jurisdiction to issue writs of mandamus to any courts appointed, or persons holding office, under the authority of the United States. Issues 1. Does Marbury have a right to the commission? 2. Does the law grant Marbury a remedy? 3. Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void? 4. Can Congress expand the scope of the Supreme Courts original jurisdiction beyond what

is specified in Article III of the Constitution? 5. Does the Supreme Court have original jurisdiction to issue writs of mandamus? Holding and Rule (Marshall) 1. Yes. Marbury has a right to the commission. The order granting the commission takes effect when the Executives constitutional power of appointment has been exercised, and the power has been exercised when the last act required from the person possessing the power has been performed. The grant of the commission to Marbury became effective when signed by President Adams. 2. Yes. The law grants Marbury a remedy.The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual who considers himself injured has a right to resort to the law for a remedy. The President, by signing the commission, appointed Marbury a justice of the peace in the District of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy. 3. Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. 4. No. Congress cannot expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution. The Constitution states that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. 5. No. The Supreme Court does not have original jurisdiction to issue writs of mandamus. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and is therefore a matter of original jurisdiction. Disposition- Application for writ of mandamus denied. Marbury doesnt get the commission. Marbury establishes number of key points- Creates the authority for judicial review of executive actions. Court draws distinction between areas in which there are individual rights, and therefore government duties, and those in which the executive has discretion as to how to act. In the latter, the court says that only the political process is the check on the executive branch. - It also establishes that ARTICLE III is the ceiling of federal court jurisdiction. Precisely, the congress cannot expand the original jurisdiction of supreme court. Generally, marbury stands for the proposition that Article III authorizes the maximum jurisdiction of

the federal court and as result, congress cannot authorize federal courts to hear cases beyond Article III and cannot gain jurisdiction by consent. It establishes the authority for judicial review of legislative acts. Judicial act of 1789 authororizes supreme court to exercise mandamus on original jurisdiction. Thus Marbury v. Madison provides foundation for americal constitutional law by establishing the authority for judicial review of executive and legislative acts.

Class- Does the delivery matter? jefferson made a decision not to deliver. may the court review the decision? - if it effects the rights on indivuidual then the court may examine the legality of the decision. 1. delivery= formality. Signed+ Sealed. entitled to commission 2. Court authority over executive <--------Judicial review over executive branch (ck/balance) a. a right of individual-> court can examine . b. Political decision (discretion)- Court cannot review. ARTICLE III Section 2 is the breadth of this. page 4- highlight first paragraph- "the question whether..." judiciary act of 1789 conforms what kind of jurisdiction?- original jurisdiction. But what makes it different than the next level? May congress make exception to original jurisdiction? Exception cant apply on the first sentence but it applies to sencond sentence. section 2, clause 1- list all the court jurisdiction.

3. Jud. Act -/ Unconstitutional ----> Judicial review of legislative branch (ck/balance) supreme law of land- constitution. First para of constitution, article 6 clause 2. TEXT- This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state. (Note that the word "shall" is used, which makes it a necessity, a compulsion.) However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of the Supremacy Clause itself. The "supremacy clause" is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts. -

class note- Murbary v. madison case - how the court win about establishing. Justice Marshall chose that the Constitution trumphs any other. therefore the court has no jurisdiction. Martin v. Hunters lesee
Brief Fact Summary. The state of Virginia granted the same tract of land to the Appellee, Hunter (Appellee), that a federal treaty give to the Appellant, Martin (Appellant). The Supreme Court of the United States (Supreme Court) declared that Appellant was so entitled, but the Virginia Court of Appeals, to which the case was remanded, refused to carryout the Supreme Courts judgment. Rule of Law. The United States Constitution (Constitution) and the laws of the United States made in pursuance thereof shall be the supreme law of the land and the judges in every state shall be bound thereby. Facts. Appellee claimed ownership of a tract of land in the state of Virginia that was given to him by the State pursuant to a land confiscation act. Appellant claimed ownership to the same tract of land, arguing that the Act was in violation of a treaty between the United States and Great Britain. The Virginia Court of Appeals, reversing the trial court, found in favor of Appellee. The Supreme Court took jurisdiction over the case, reversed and remanded the case back to the Virginia Court of Appeals and instructed it to enter judgment for Appellant. On remand the Virginia Court of Appeals declined and argued that the law, section 25 of the Judiciary Act (the Act), pursuant to which the Supreme Court took appellate jurisdiction over the Court of Appeals, was unconstitutional. Issue. Was section 25 of the Act Constitutional? Held. Yes. The appellate power of the United States does extend to cases pending in state courts. Section 25 of the Act is supported by the letter and spirit of the Constitution. The framers obviously contemplated that cases within the Supreme Courts appellate jurisdiction would arise in state courts. Article VI of the Constitution says that [the] Constitution and the laws of the United States . . . made in [p]ursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby. .. The very nature of state court judges judicial duties indicates that such judges are to decide cases not only in accordance with state law, but also in accordance with the Constitution. It is a mistake to say that the Constitution was to operate only upon the people and not upon the States. Article 1, Section 10 of the Constitution contains a litany of prohibitions the Constitution places upon the States. The need for uniformity of decisions throughout the whole United States also calls for Federal courts to have appellate jurisdiction over state court decisions. Discussion. Its important to recognize that this case pertains to the power of the federal courts to review decisions by state courts. In Marbury v. Madison, at issue was as a federal courts power to review an act by another branch of the federal government. Cohens v. Virginia
PROCEDURAL POSTURE: Plaintiffs appealed a judgment of the Court of Hustings, Borough of Norfolk (Virginia) finding Virginia statute prohibiting sale of lottery tickets was valid despite statute passed by Congress authorizing the sale of lottery tickets in Washington, D.C. OVERVIEW: Plaintiffs filed writ of error appealing the judgment of lower court convicting them of violating Virginia's gaming laws. Plaintiffs legally purchased lottery tickets in Washington, D.C. and sold them in Virginia. The Court affirmed. The Court found the writ of error was governed by the Constitution, and judicial power extended to all cases arising under the Constitution without respect to the parties. The Court found the Constitution granted it jurisdiction and authority to hear the controversy between a gaming law enacted by Congress, and a state law prohibiting the sale of lottery tickets. The Constitution further granted the federal judiciary with supervisory power over state court judgments. Lastly, the Court found that Congress enacted the lottery statute according to its exclusive legislative power over Washington, D.C. intending it to be local legislation. Since the lottery statute was not enacted as a law of the United States, it did not preempt state statutes. OUTCOME: The court affirmed the judgment finding the Constitution granted it jurisdiction to hear the controversy, and the lottery statute passed by Congress applied to Washington, D.C. only.

Note: Martin and cohen cases established the authority for judicial review of state court decisions B. LIMITS ON THE FEDERAL JUDICIAL POWER Three primary limit exists: 1. Interpretive limits: it raises the question of how Constitution should be interpreted. Some approaches seek to greatly narrow judicial power; others accord judges broad latitude deciding the meaning. District of Columbia v. Heller a. Originalists: believe the court should find a right to exist only when it is expressly stated in text and if cons. Is silent, then it is for legislature, unconstrained by the courts, to decide. They believe constitution should evolve solely by amendments b. Non originalists: believe constitutions meaning can evolve by amendment and by interpretation. 2. Congressional limits: it refers to the ability of congress to restrict federal court jurisdiction. 3. Justiciability limits: refers to series of judicially created doctrines that limit the type of matters that federal courts can decide. Interpretive limits:

District of Columbia v. Heller

PROCEDURAL POSTURE: Petitioner District of Columbia sought certiorari review of a judgment from the United States Court of Appeals for the District of Columbia Circuit which held that the Second Amendment protected an individual's right to possess firearms and that the total ban on handguns under D.C. Code 7-2501.01(12), 72502.01(a), 7-2502.02(a)(4), as well as the requirement under D.C. Code 7-2507.02 that firearms be kept nonfunctional, violated that right. OVERVIEW: Respondent, a special policeman, filed the instant action after the District refused his application to register a handgun. The Court held that the District's ban on handgun possession in the home and its prohibition against rendering any lawful firearm in the home operable for the purposes of immediate self-defense violated the Second Amendment. The Court held that the Second Amendment protected an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as selfdefense within the home. The Court determined that the Second Amendment's prefatory clause announced a purpose but did not limit or expand the scope of the operative clause. The operative clause's text and history demonstrated that it connoted an individual right to keep and bear arms, and the Court's reading of the operative clause was consistent with the announced purpose of the prefatory clause. None of the Court's precedents foreclosed its conclusions. The Court held that the Second Amendment right was not unlimited, and it noted that its opinion should not be taken to cast doubt on certain long-standing prohibitions related to firearms. OUTCOME: The Court affirmed the judgment of the Court of Appeals. Assuming respondent was not disqualified from exercising Second Amendment rights, the Court held that the District must permit respondent to register his handgun and must issue him a license to carry it in his home. 5-4 Decision; 2 Dissents.

Note- second amendment is divided into two parts: 1. Operative clause 2. Prefatory clause Relationship between prefatory and operative clause defined by court in Heller: it is sensible that the second amendments prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right. Courts interpretation is confirmed by analogous arms bearing rights in state constitutions that preceded and immediately followed adoption of the second amendment. Among four states that adopted it, two of them- PA and Vermont adopted individual rights unconnected with militia service. Heller case holds, that the districts ban on gun possession in home violates the second amendment, as does it prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self defense. District must permit him and issue a license. The dissent takes the Miller case view. In U.S. v. Miller case, it stands only for the proposition that the second amendment right, whatever its nature, extends only to certain types of weapons. It protects the right to keep certain types of arms for certain military purposes but that it does not curtail the legislatures power to regulate the nonmilitary use and ownership of weapons- is the most natural reading of amendment and the interpretation is most faithful. CONGRESSIONAL LIMITS: Article III of constitution provides that the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make. There is no definite answer to may congress use the authority to restrict supreme court jurisdiction to hear particular types of cases so as to effectively overrule supreme corts decision. Two issues on debate: 1. Exceptions and regulations Clause: What does the language of article III mean when it says SC jurisdiction exists subject to such regulations and exception as congress shall make? 2. Separation of powers: Does separation of powers limit the ability of congress to restrict SC jurisdiction? The Exceptions and Regulations clause: (Ex Parte McCardle) One side believes that congress is limited in its ability to control supreme court jurisdiction. Some argue that the term exception was intended to modify the word factbecause framers were concern about the supreme courts ability to overturn fact finding by lower court when

specially done by juries. Under this view, congress congress could create an exception to the supreme courts jurisdiction for review of matters of facts, but congress could not eliminate the courts appellate jurisdiction for issues of law. Other side argues, even though congress is given the authority to limit supreme court jurisdiction under the text of Article III, this power like all congressional powers cannot be used in a manner that violates constitution. Opponents of jurisdiction restriction contend that congressional preclusion of supreme court review of particular topics would violate other parts of constitution. Primary case interpreting exceptions and regulations is Ex Parte McCardle case.

Ex Parte McCardle: Constitutionality of reconstruction. Editor challenges constitutionality

of military rule on civilian.
Brief Fact Summary. McCardle, a newspaper editor arrested for writing articles critical of Reconstruction, petitioned the Supreme Court of the United States (United States) for a writ of habeas corpus. McCardle argued the Military Reconstruction Act (the Act) and his prosecution were unconstitutional. Synopsis of Rule of Law. Congress, by repealing the United State Supreme Courts (Supreme Court) appellate review of writs of habeas corpus, effectively took jurisdiction over McCardles case away from the Supreme Court. Facts. After writing a series of articles that were highly critical of Reconstruction, federal officials arrested McCardle under the Act. McCardle contended the Act was unconstitutional in providing military trials for civilians and claimed his prosecution violated provisions of the Bill of Rights, including the First, Fifth, and Sixth Amendments of the United States Constitution (Constitution). Before the Supreme Court ruled on the merits, Congress passed a law repealing Supreme Court appellate review of writs of habeas corpus. Issue. Does the Act of Congress repealing Supreme Court appellate review of habeas writs remove jurisdiction in McCardles case? Held. Yes. Case dismissed for want of jurisdiction. The appellate jurisdiction of the Supreme Court is not conferred by Congress. However, the Constitution confers jurisdiction with such exceptions and under such regulations as Congress shall make. Due to the constitutional authorization, the repeal of jurisdiction is valid. Discussion. Another politically-charged case, Congress repealed jurisdiction out of a fear that the Supreme Court would rule adversely on the constitutionality of the Military Reconstruction Act. However, the Supreme Court notes that it is not at liberty to inquire into the motives of the legislature, but only the constitutional authority to divest jurisdiction is examinable by the Supreme Court.

Note: one year after McCardle, SC decided in Ex Parte Yerger case that it had authority to review habeas corpus decisions of lower federal courts under the judicial act of 1789. Like mccardle, yerger also involved a newspaper editors challenge to the constitutionality of military reconstruction act. After SC upheld their jurisdiction to decide yerger case, federal military authorities dismissed all charges against him, thereby again preventing SC to review of constitutionality of reconstruction. SEPERATION OF POWERS AS A LIMIT ON CONGRESSS AUTHORITY Supreme court decision finding a federal law unconstitutional on the grounds that it violates separation of powers is United States v. Klein. In Klein case, consider the limits it imposes on congresss ability to control or restrict SC jurisdiction.

States v. Klein
Brief Fact Summary. The Respondent, Klein (Respondent), brought suit in the United States Court of Claims, seeking compensation for property taken during the Civil War. The Respondent now argues for affirmation on appeal. Synopsis of Rule of Law. Although Congress has power to limit the appellate jurisdiction of the federal courts, it may not use this power to effectively prescribe a rule for the decision of cases before the courts. Facts. The Supreme Court of the United States (Supreme Court) had ruled that a presidential pardon had the effect of proof one did not support the rebellion. This allowed pardoned individuals to petition for return of property or compensation from the federal government. In response to the decision, Congress passed a statute stating that a pardon was inadmissible as evidence in a claim for seized property. Congress went further and required that if a court find that a pardon was secured without an express disclaimer of guilt (of aiding the rebellion), such finding was to act as a bar to jurisdiction. The estate of the Respondent who was pardoned had received a judgment granting

recovery from the Court of Claims. The United States now appeals, arguing that the statute requires dismissal of the case for want of jurisdiction. Issue. Is the statute in question a valid exercise of congressional authority under the Exceptions and Regulations Clause of the United States Constitution (Constitution)? Held. No. Judgment affirmed. By requiring the courts to make a specific finding of fact in a case over which the court has jurisdiction and then removing the courts jurisdiction after the finding, Congress is not limiting jurisdiction, but rather prescribing a rule of decision for the courts. Congress impaired the presidential pardons by requiring that they be inadmissible as evidence in these cases. The President of the United States has the constitutional authority to pardon offenses. By disallowing the full effect of the pardons, Congress attempted to reduce the Presidents constitutional authority Discussion. United States v. Klein does not represent Exceptions and Regulations jurisprudence as much as it represents the separation of powers outlined in the United States Constitution. The statute overreached the power of Congress by attempting to exercise authorities constitutionally delegated to the judicial and executive branches.

class 8/24/2011 what we learned in the previous class? Supreme court has authority over legislative and executive branch for judicial review. legislative- Appointed officials congress, Speaker executive- Elected officials president, vice president (P & VP- political discretionary acts appointed?), Cabinet (secretary of state, secretary of treasury, of defense, of transportation, of intercommerce) judiciary Article II- A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. in this article, there is no dispute about the part 'shall not be infringed'. Justice Scalia's view : able bodied people- 1. protects against invasion, 2. control land state. he concentrated on individual use for self defense justice Stevens (dissenting)- for the purpose of militia. he concentrated more on firearms use for militia purpose. why are prefertory clause and operative clause important? what is the relation between them? (p.17) preferatory clauseoperative clause- what is justice Scalia and Stevens point of view on operative clause. Justice Steven does not seperate the clauses. his view is people's right to keep and bear arms when it is to protect the country organized as a militia. Strict Scrutiny- devided in to two- 1. type of interest 2. relationship or the fit of the statute to achieve that interest. Strict scrutiny is to have COMPELLING interest that is NARROWLY TAILORED(relationship or the fit of sttute to achieve that interest). means the government has to have it. your interest have to be so up as to make it compelling interest to pass the law. the way of achieving the interest has to be narrowly tailored. strict scrutiny broadly is race, origin, fundamental rights. these three factors would trigger strict scrutiny. Next level of scrutiny is intermediate: gender, illegitimate children (born out of wedlock): this scrutiny has to be SIGNIFICANT (interest) and of SIGNIFICANTLY RELATED (relationship or the fit of sttute to achieve that interest). 3rd level is the RATION BASIS- this needs to be LEGITIMATE(interest) and REASONABLY RELATED( relationship or the fit of sttute to achieve that interest). Heller and McDonald- gun control law. Ex Parte McCardle Article III Section 2, Clause 2 gives the jurisdiction of supreme court. "In all other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions." in interpreting, one view is exception apply directly to appelate and the other interpretation is

exception apply to the facts. issue: constitutionality of reconst. act, his prosecution was a violation. Writ of habeas corpus 1868 act: does it tough 1867 act? Act of 1789- writ of Habeas Corpus only for federal custody 1867- writ of habeas corpus reviewed by those confined by statr or fed. (crossed out) 1868- repeals 1867 Judiciary leg state exec | - Cts jurisdiction - Congressional control - Regnt for judicial review | Standing | | | Injury causation equal protection

| redressability

CLASS 8/29/2011- CONGRESSIONAL CONTROL In McCardle, court did not have jurisdiction because of the 1868 act passed by the congress. Three days after the decision, congress came in to take away the jurisdiction. Congress act: Loyal-> get property that was seized will be returned Supreme Court: pardon= loyalty Congress: pardon inadmissible. Jurisdiction shall cease and court shall dismiss. Supreme Court: yes it has jurisdiction. How Supreme Court is saying it has jurisdiction when congress said pardon is inadmissible? It doesnt give the pardon its full effect. Statutes interfere with executive power .. There hasnt still been a decision in the Klein case because it is still in review. How do we reconcile this with McCardle?- in McCardle congress may revoke jurisdiction In McCardle, congress could step in and take away jurisdiction. Klein gives a but- you can but you cannot tell the court what to do to make a rule of decision. How do we know when is congress violating? This is how Klein comes into play. Robertson v. Seattle Audubon society- this case distinguishes Klein case.
PROCEDURAL POSTURE: Petitioners appealed a judgment from the United States Court of Appeals for the Ninth Circuit that held that 318 of the Department of the Interior and Related Agencies Appropriations Act, 103 Stat. 745, was unconstitutional, contending that the lower court improperly ruled that 318 violated U.S. Const. art. III by impermissibly directing a particular judicial decision without repealing or amending the statutes underlying the litigation. OVERVIEW: Respondents filed suits under several statutes challenging petitioners' allowance of the harvesting and sale of timber from old-growth forests. In response, Congress enacted 318 of the Department of the Interior and Related Agencies Appropriations Act, 103 Stat. 745, which, among other things, specifically stated that Congress determined and directed that management of the forests according to 318(b)(3) and (b)(5) was adequate consideration for the purpose of meeting the statutory requirements that were the basis for respondents' underlying suits. On consolidated appeals from the trial courts' decisions upholding 318 as constitutional, the appellate court reversed. On certiorari, the court reversed, rejecting respondents' contention that 318 impermissibly directed a particular judicial decision without repealing or amending the statutes underlying the suits. Rather, the court ruled, in replacing the legal standard applicable to the pending suits, 318 merely compelled changes in the law, not results under the old law, and did not direct courts to make any particular findings of fact or applications of law to fact. Thus, the statute did not violate U.S. Const. art. III. OUTCOME: The court reversed a judgment that ruled that a provision of a federal environmental statute was unconstitutional because, despite respondents' argument to the contrary, the provision merely amended the old law and did not compel results in the underlying litigation nor compel any particular findings of fact or applications of law to fact, in its replacement of the legal standards applicable to the underlying suits.

Class- The court said that Klein applies in a situation where congress directs the judiciary as to decision making under an existing law and does not apply when congress adopts a new law. The court found that as a new law the statute was constitutional. In Robertson, congress is interpreting the law. 3. JUSTICIABILITY LIMIT Article II section 2 authorizes federal court to hear several types of cases and supreme court interpretes it as limits on its power. These limits are referred as justiciability doctrine. Justiciability doctrines are judicially created limits on the matters that can be heard in federal court. Supereme court declared some doctrines are CONSTITUTIONAL and congress by statute cannot override them Some doctrines are PRUDENTIAL meaning they are based on prudent judicial administration and can be overriden by congress since they are not constitutional requirements. There are five justiciability doctrines and all must be met for any federal court at any level to hear a case. and they are prohibitions against: 1. Advisory opinion 2. Standing 3. Ripeness 4. Mootness, and 5. The political question doctrine. In addition to justiciability doctrines, the supreme court said it would follow certain PRINCIPLES OF AVOIDANCE to ensure that it will reach constitutional questions only when it is necessary. Most famous case on avoidance is Ashwander v. Tennessee Valley Authority. Court developed series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. Justiciability limits: justice Brandies seven avoidance principals: 1. The court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessary in the determination of real, earnest and vital controversy between individuals. 2. The court will not anticipate a question of constitutional law in advance of the necessity of deciding it. Court is not to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. 3. The court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. 4. The court will not pass upon a constitutional question although properly presented by the record if there is also present some other ground upon which the case may be disposed of. This has most varied application. Thus, if a case can be decided on either of the two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the federal constitution are frequently dismissed because the judgment can be sustained on an independent state ground. 5. The court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation- denial of the right to challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. 6. The court will not pass upon the validity of a statute at the instance of one who has availed himself of its benefits. 7. When the validity of an act of the congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principal that this court will first ascertain whether a construction of the statute is fairly possible by which the question

may be avoided. Some of these overlaps with justiciability doctrines and some are just additional constraint. The five justiciability doctrines areProhibition of advisory opinions Standing Ripeness Mootness The political question doctrine

1. 2. 3. 4. 5.

Class: Opinion of the justices: PartiesadversarialrepresentingJudicial decision has to effect change | facts have developed | interest to fullest (legal argument) Advisory opinion is prohibited for two reasons below. Advisory opinion prohibition does not apply to state courts. a. PROHIBITION OF AVDISORY OPINION: It does not apply to state courts. The core of article IIIs requirements for cases and controversies is that federal courts cannot issue advisory opinions. There are some CHARACTERISTICS that must be present in a lawsuit to avoid being an advisory opinion There must be an actual dispute between adverse litigants. If it is an hypothetical case and not an actual, then it will become advisory opinion. In order for a case to be justiciable and not an advisory opinion, there must be an substantial likelihood that a federal court decision in a favor of a claimant will bring about some change or have some effect. The earliest case was Hayburns case where majority decided that duty of making recommendation regarding pensions was not of judicial nature. They said it would violate separation of powers because the judicial actions might be revised and controlled by the legislature, and by an officer in the executive department. The new case on this is the Plaut case. Plaut v. Spendthrift Farm, Inc
Brief Fact Summary. The Plaintiff Petitioner, Plaut (Petitioner), sued the Defendant Respondent, Spendthrift Farm (Respondent), under Section: 10 of the Securities Exchange Act of 1934 (the Act). The suit was dismissed for not being filed in a timely fashion. Synopsis of Rule of Law. Congress may not require the federal courts to reopen a case after a court has rendered final judgment Facts. In 1991, the Supreme Court of the United States (Supreme Court) ruled that actions brought under Section: 10(b) and Rule 10(b)(5) of the Act must be brought within one year of discovering the facts leading to the violation and within three years of the violation itself. In response, Congress amended the law to allow cases filed before the decision to go forward, if they could have been brought under the previous law. Petitioner had brought suit prior to the decision, but the suit was dismissed in accordance with the Supreme Courts ruling. Petitioner attempted to resume prosecution of the dismissed case. Issue. May Congress require Article III courts to reopen cases on which they have passed judgment? Held. No. Appeals court ruling affirmed. Congress may pass retroactive legislation that affects cases still pending appeal. However, this amendment requires cases to resume prosecution after judgment has been rendered. A judgment conclusively resolves the case. The statute in question offends this postulate. Discussion. Justice Antonin Scalia (J. Scalia) argues Congress has violated the separation of the judicial and legislative powers, by requiring courts to set aside final judgments, which the framers of the constitution envisioned as dispositive.

Notes on advisory opinion: many of the other justiciability doctrines implement the prohibiton against advisory opinion. The standing requirement for an injury, the need that a case be ripe, and that it not be moo, all seek to ensure that there is an actual dispute between parties. Similarly, the standing requirement that the plaintiff demonstrate that the defendant is the CAUSE of the injury so that a FAVORABLE court decision will REMEDY the harm seeks to

ensure that a federal court ruling will make a difference. Subsequestly, the SC said that suits for the Declaratory Judgmnents are justiciable so long as they meet the requirements for judicial review. Sec reg- statute of limitation Within one year facts discovered, 3 year from violation. These are the statute of limitation. congress act: congress redefined: retroactive. Cases have been dismissed. Limit of congressional control mcCardle- limitations ok Klein- but not make rule of decision Plaut- but not affect courts finality Opinions of justices Hayburns case- no finality= advisory. Pension case. Congress did not have to follow the decision and could amend. (if no finality then it is advisory). Nashville, C. & ST. L. RY v. Wallace: a company sought declaratory judgment that a tax was an unconstitutional burden on interstate commerce. SC explained that because the matter would have been justiciable as a request for an injunction, the suit for declaratory judgment was capable of federal adjudication. The court emphasized that focus on SUBSTANCE and not with form and that the case is justiciable so long as the case retains the essentials of adversary proceeding, involving a real and not hypothetical controversy. b. STANDING SC has declared that standing is the most important justiciability requirement. Standing is the determination of whether a specific person is the proper party to bring amatter to the court for adjudication. There are several requirements that must be met in order for plaintiff to have standing. Court said some of them are based interpretation of Article III, and thus constitutionally required, while others are prudential. Three constitutional requirements are1. The plaintiff must allege that he has suffered or imminently will suffer an injury 2. The plaintiff must allege that the injury is fairly traceable to the defendants conduct. 3. Plaintiff must allege that a favorable federal court decision is likely to redress the injury. Two major prudential standing principals: 1. Party generally may assert only his or her own rights and cannot raise the claims of third parties not before the court. 2. A plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers. Unlike constitutional barriers, congress may override prudential limits by statute. i. Constitutional standing requirements: Allen v. Wright case has major ruling on constitutional standing requires- injury, causation, redressability. STANDING (Constitutional) has three components: | | | Injury Causation Redressability Allen v. Wright article III section 2 clause 1 ***** Brief Fact Summary. Parents of black public school children brought suit against the Internal Revenue Service (IRS), alleging that insufficient denial of tax-exempt status to racially discriminatory private schools interferes with their childrens ability to receive an education in public schools. Synopsis of Rule of Law. Article III standing requires that a plaintiff allege a harm directly traceable to specific action on the part of the defendant. Facts. Parents of black public school children sued the IRS, alleging that by not denying taxexempt status to racially discriminatory private schools, the IRS was harming their children in two ways. First, the IRS conduct was in fact giving federal financial aid to racially segregated

institutions. Second, the conduct encourages the operation and expansion of such schools and this interferes with desegregation of the public schools. Issue. Does the harm alleged by the respondents fulfill the constitutional requirement of standing? Held. No. Reversed and remanded. Addressing the first allegation, Justice Sandra Day OConnor (J. OConnor) notes an asserted right to have the government act in accordance with the law is insufficient to grant jurisdiction. Extending this line of argument, she says [a] black person in Hawaii could challenge the grant of a tax exemption to a racially discriminatory school in Maine. Furthermore, the issue of funding the schools does not harm the respondents directly. The second allegation does present harm, that the respondents children are being denied an integrated educational experience. However, the IRSs actions are too far attenuated from this harm. There is no evidence that denying tax-exempt status to the private schools in question would result in a more integrated public education system. Dissent. Justice John Paul Stevens (J. Stevens), dissenting, postulates that removing tax-exempt status from the private schools, will make the schools more expensive to operate, causing them to be less cost competitive or requiring them to change their admissions policies to remain open Discussion. While the dissents argument has theoretical soundness removing tax-exempt status will cause an immediate increase in cost the majority points out that this does not guarantee integration. For example, Private donors could still make up the difference in lost funding. Injury has to be concrete and palpable. Class- 8/31/2011 Difference between constitutional and prudential requirement- constitutional is within the text of the constitution whereas the prudential requirement is judicially imposed but not present within the context of constitution. Standing- injury Causation- Fairly traceability Redressability- favorable decision remedy the harm Allen v. Wright continues. 1. Stigmatic of govt giving aid to discriminatory schools 2. Education effect of children in non integrated schools. Did the court find it to be sufficient injury?- no because they were not directly injured by it. They did not find direct injury because that applies to everyone. You cant make the government comply with the law- generalized grievance citizen standing. INJURY- one aspect: concrete, palpable and discrete to the individual. It has to be concrete and palpable and discrete to the individual. i.e. tax dollar being used in building church would be violation of first amendment and you are entitled to your specific dollar amount you paid. Getting that dollar amount is the right they are talking in Allen v. Wright. In this case, court says, the claim is too generalized and not specific enough to individuals like their own dollar amount they are entitled to get back from the tax return. Another aspect: in order to understand the other aspect, we have to go back to the causation which means it has to be fairly traceable. CAUSATION: In this case, court finds that IRS did not cause the harm because the causal link is too weak and therefore attenuated. It is too attenuated to be traceable (tort idea). Why is it attenuating? Because decisions made by others to send kids and schools own decision. Decisions- 1. Schools, 2. Parental which is independent third party. The dissents argument is with the tax exemption, the school can actually offer the lower tuition for their preferred students and thus become discriminatory and kin this way, this also allows the parents to choose to send their kids to the discriminatory school and thus be discriminatory. REDRESSABILITY: Not redressable because it is too speculative because of the speculated decisions of schools and parents who is independent third party. What is the dissents view of this argument?

Massachissetts v. EPA (prof. Skipped this case but here is the gyst) This case is about global warming. Epa is not taking enough care to reduce global warming. US is third in the world for carbon emission and MA says it is fairly traceable to the global warming and EPA should regulate more strictly. The first two- china and india- how do they effect the causation? China and India are contributory (tort) actors. Their contributory does not negate the contribution of USA to the global warming and therefore it is fairly traceable. Independant actor =/ causation and =/ redressability. Independant actors are not named defendants in the case and nor are the contributory actors. Court has control only over the named actors in the case. Is EPA and their action entirely responsible for whole USAs global warming? Injury cases are discussed below, then comes causation and redressability: Injury: SC emphasizes that injury is a core requirement of ARTICLE III in order for there to be a case or controversy. City of Los Angeles v. Lyons (injury)
Brief Fact Summary. Adolph Lyons (Lyons) was pulled over by a Los Angeles police officer for a traffic violation. He offered no resistance, and without provocation, the police officer seized Lyons and placed him in a chokehold, rendering Lyons unconscious. Synopsis of Rule of Law. A plaintiff who wants to invoke the jurisdiction of the Supreme Court must allege an actual case or controversy. Further, the injury complained of by plaintiff must be immediate. Past exposure to illegal conduct does not, by itself, show a present case or controversy. Facts. In 1976, Lyons was pulled over by a Los Angeles police officer for a traffic violation. Although Lyons offered no resistance, the officer asked him to step out of the car, and proceeded to place Lyons in a chokehold, rendering Lyons unconscious. Lyons sued the municipality and sought damages and injunctive relief in District Court for the Central District of California. He asked the court to issue an injunction preventing the police department from using chokeholds in the future unless circumstances were to result in death or serious bodily injury if force was withheld. The District Court entered such an injunction. The Court of Appeals for the Ninth Circuit affirmed. The municipality appealed to the Supreme Court. Issue. Does this case present an actual case or controversy that can be determined by the Supreme Court? If so, does Lyons have standing to seek injunctive relief against the municipality of Los Angeles? Held. This case does not present an actual case or controversy as required in the Constitution under Article III. Past illegal conduct, by itself, is insufficient to establish an actual case or controversy for injunctive relief. Even though Lyons was injured by the police in the past, this act alone does not establish that Lyons is threatened with immediate injury or that he will be pulled over and placed in a chokehold again. Lyons did not have standing to bring this case to the Supreme Court. In order to have standing, a plaintiff must show 1) an actual or likely injury in fact, 2) that the injury is sufficiently concrete and individually affects the plaintiff, 3) that the challenged action is the cause in fact of the injury, and 4) that the Court will be able to redress the injury by its decision. In this case, injunctive relief against the municipality may or may not address the injury suffered by Lyons. He could seek damages for any injuries he sustained from the chokehold (i.e. hospital bills, etc.), but he did not have standing to enforce an injunction where it was not clear if others would be placed in a chokehold in the future. Furthermore, it was speculative, at best, that Lyons himself would be placed in a chokehold in the future, and therefore injunctive relief would not clearly redress any potential injury. Dissent. Lyons did have standing to bring a claim for injunctive relief against the municipality because he did present an actual case or controversy and had suffered damages relating to the chokehold. Standing has always depended on whether a plaintiff has a personal stake in the outcome of the controversy. The Dissent explained that Lyons request for injunctive relief was coupled with his claim for damages based on past injury. Because he has an actual claim for damages, he need not rely solely on the threat of future injury to establish his personal stake in the outcome of the controversy. Discussion. Past exposure to illegal conduct does not, by itself, establish a present case or controversy, and therefore cannot meet the Article III Constitutional requirement of actual case or controversy.

Note: Injury: concrete, palpable, discrete to individual. Fear- is it one aspect of injury? Is fear cognizable? In order to be injurious, fear should be cognizable. This case is important because it does not ask for remedy or damages but for INJUNCTION. The requirements for injunctive relief are imminent and irreparable. The courts view is, they dont know how imminent the chokehold for this person is in the future anymore. Declaratory judgment tells us what our rights and obligations.

Lujan v. Defenders of wildlife (injury)

Brief Fact Summary. Plaintiffs brought suit requesting an injunction requiring the Secretary of the Interior (Secretary) to reinstate an initial interpretation of the Endangered Species Act of 1973 (ESA). The initial interpretation applied the Act to actions taken in foreign nations. The Secretary claimed that the Plaintiffs lacked standing. Synopsis of Rule of Law. Congress cannot create standing when an injury in fact, a causal connection and redressability are not present. Facts. The ESA was promulgated to protect endangered and threatened animals. Under the authority of the ESA, the Secretary declared that the ESA applied to actions outside of the United States. Upon further review, the Secretary reinterpreted the ESA to be applicable to actions only within the United States or the high seas. The Plaintiffs, organizations dedicated to wildlife conservation, filed an action against the Secretary seeking an injunction requiring the Secretary to reinstate the initial interpretation of the ESA. The Secretary moved for summary judgment due to a lack of standing and the Plaintiffs moved for summary judgment on the merits. The District Court denied the Secretarys motion and affirmed the Plaintiffs motion. The Court of Appeals Affirmed the District Court. Issue. Plaintiffs have standing to challenge the Secretarys interpretation of the ESA under either traditional rules of standing or the individual cause of action created within the ESA? Held. No. Judgment reversed. The case and controversy requirement of Article III creates three minimal elements in order to have standing. The plaintiff must have suffered (i) an injury in fact; (ii) there must be a causal connection between the injury and the conduct complained of; and (iii) it must be likely that this injury will be redressed by a favorable decision. In this case, the Plaintiffs failed to establish injury in fact or redressability. Because of the limited effect of the ESA, it is too speculative to claim that not enforcing an injunction on the Secretary would result in an injury in fact to any of the Plaintiffs. Likewise, it is too speculative to assume that any redress by the courts would have substantial impact on threatened species outside of the United States. The Plaintiffs claim that they suffered a procedural injury established by a citizen-suit provision within the ESA is also without merit. To permit standing based on this Congressional Act would usurp the power of the Executive to take Care that the Laws be faithfully executed. Dissent. The Plaintiffs have raised genuine issues of fact as to both injury and redressability. Additionally, the courts enforcement of Congressional Acts through the citizen-suit provision do not violate separation of powers Concurrence. Congress does have the power to create standing where it had not existed before, but must identify the injury it seeks to vindicate and relate that injury to those bringing suit. Discussion. Congresss citizen-suit provision in the ESA was unconstitutional because it created a law where federal courts would be forced to recognize suits where no real world harm had occurred.

Class note: The book talks about animal nexus, vocational nexus and ecosystem nexus for standing purpose. The says that if to find standing through those nexuses, then anyone has any interest in seeing the animals but failed to see in the zoo will have standing to sue- it may even reach down to the 4 year old. And everyone having standing under those nexuses will be able to sue and it will become a problem. Therefore, court does not recognize having standing under those nexus theories. Besides failing to show injury, plaintiff failed to show Redressability. Instead of attacking separate decisions to fund particular projects allegedly causing them harm, they chose to challenge a more generalized level of government action- and its invalidation will affect all overseas projects. Before summary judgment, you need to provide proof that they are injured. To show proof their injury, they showed affidavits. They could not show or buy tickets because there was civil war- a very plausible reason. At that stage it should be sufficient to move forward. But how do the plaintiff failed causation? The animals are not linked. Standing is who part Who part of alitigation Mootness- When part of litigation
United states v. Hays PROCEDURAL POSTURE: Appellant State sought to overturn the judgment of a United States district court, which held that the State's redistricting plan violated the Fourteenth Amendment rights of appellee voters under the Voting Rights Act of 1965. OVERVIEW: The State's congressional redistricting plan was challenged by the voters, under the Voting Rights Act

of 1965, as being a racially discriminatory gerrymander that violated the Fourteenth Amendment. However, none of the voters lived in the district that was the primary focus of their appeal. The district court found that the voters had standing and that the redistricting plan was unconstitutional. The Court vacated the district court's judgment and held that the voters did not have standing. The Court held that to have standing, a litigant was required to have a concrete and particularized injury as opposed to a generalized grievance. Only those who were personally denied equal treatment by the challenged discriminatory conduct had standing to challenge the alleged discrimination. Because the voters presented no evidence that they were personally subjected to a racial classification, they had no standing, and their complaint was dismissed. OUTCOME: The Court vacated the judgment of the district court, which held that the State's congressional redistricting plan was unconstitutional. The Court remanded the action to the district court with instructions that the complaint was to be dismissed.
From Lexisnexis: A plaintiff may state a claim for relief under the equal protection clause of the Fourteenth Amendment by alleging that a State adopted a reapportionment scheme so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race and that the separation lacks sufficient justification. Section 5 of the Voting Rights Act of 1965, codified at 42 U.S.C.S. 1973c, provides that whenever a covered jurisdiction shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, it must first either obtain a declaratory judgment from the United States District Court for the District of Columbia that the change does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or receive preclearance from the Attorney General to the same effect. Any redistricting plan in Louisiana is subject to the requirements. The question of standing is not subject to waiver. The United States Supreme Court is required to address the issue of standing even if the courts below have not passed on it, and even if the parties fail to raise the issue before it. The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of the jurisdictional doctrines. The irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"- an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. It is the burden of the party who seeks the exercise of jurisdiction in his favor to clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. When a case has proceeded to final judgment after a trial, the jurisdictional facts, if controverted, must be supported adequately by the evidence adduced at trial to avoid dismissal on standing grounds. The rule against generalized grievances applies with as much force in the equal protection context as in any other. Even if a governmental actor is discriminating on the basis of race, the resulting injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct. Redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race demands the same close scrutiny that courts give other state laws that classify citizens by race. Any citizen able to demonstrate that he or she, personally, has been injured by that kind of racial classification has standing to challenge the classification in federal court. Where a plaintiff resides in a racially gerrymandered district, the plaintiff has been denied equal treatment because of the legislature's reliance on racial criteria and, therefore, has standing to challenge the legislature's action. Where a plaintiff does not live in a district that is being redistricted, he or she does not suffer special harms, and any inference that the plaintiff has personally been subjected to a racial classification is not justified absent specific evidence tending to support that inference. Unless such evidence is present, that plaintiff is asserting only a generalized grievance against governmental conduct of which he or she does not approve. The legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors. That sort of race consciousness does not lead inevitably to impermissible race discrimination. It follows that proof of "that sort of race consciousness" in the redistricting process is inadequate to establish injury in fact. An individual juror does not have a right to sit on any particular petit jury, but he or she does possess the right not to be excluded from one on account of race.

Federal Election commn. V. Akins(small case in book)

PROCEDURAL POSTURE: Respondent voters sought review of an order of the United States Court of Appeals for the District of Columbia that affirmed an order granting summary judgment to petitioner political action committee after it found respondents did not have standing to challenge the Federal Election Commission's determination that petitioner was not a political action committee. OVERVIEW: The Federal Election Campaign Act (Act), 2 U.S.C.S. 431 et seq., imposed extensive recordkeeping and disclosure requirements on political action committees. The Federal Election Commission (FEC) found that petitioner was not a political action committee within the meaning of the Federal Election Campaign Act (Act), 2 U.S.C.S. 431 et seq. Respondent voters sought challenged that determination. The lower court found that respondents did not have standing to challenge the FEC's order. The intermediate appellate court affirmed. Respondents sought review. The court found that 2 U.S.C.S. 437g(a)(1) provided any person who believed a violation of the Act had occurred to file a complaint with the FEC. Any party aggrieved by an order of the FEC that dismissed a complaint filed by such party could file a petition in court to seek review of the dismissal. 2 U.S.C.S. 437g(8)(A).The court reversed and remanded because the injury related to voting, the most basic of political rights, and was sufficiently concrete that the fact it was widely shared did not deprive Congress of the power to authorize its vindication in federal courts. OUTCOME: Judgment of the intermediate appellate court that affirmed an order dismissing respondent voter's suit was reversed and the case was remanded, because respondent voters had standing to challenge an order of the Federal Election Commission that found petitioner was not a political action committee within the definition of the Federal Election Campaign Act.

CAUSATION AND REDRESSABILITY Allen and lujan also make clear that there are two other constitutional requirements for standing. Plaintiff must allege and prove that the defendant caused the harm. So it is likely that a favorable court decision will remedy the injury. They are obviously interrelated. It can be argues that this requirement simply implements the prohibition against advisory opinion; if a federal court decision will have little effect, if it will not redress the injuries, then it is an advisory opinion. On other hand, can be argued, that causation and redressability are inappropriate determinations to make basis of pleadings. Standing is iniatially based on pleadings assuming allegations are true. Next cases are useful to understand the competing views: Linda R.S. v. Richardson(small case in book)
PROCEDURAL POSTURE: Appellant mother challenged the decision of the United States District Court for the Northern District of Texas, which dismissed her

action to enjoin the allegedly discriminatory application of Tex. Penal Code Ann. art. 602, for want of standing. OVERVIEW: Mother alleged that a certain individual was the father of her illegitimate child, that he refused to pay support, and that the district attorney refused to enforce art. 602 against him because illegitimate children were outside of the statute's scope. Mother argued that such an interpretation of the statute discriminated between legitimate and illegitimate children without rational foundation and therefore violated the Equal Protection Clause of the Fourteenth Amendment. The Court affirmed the dismissal and held that mother failed to allege a sufficient nexus between her injury and the government action she attacked to justify judicial intervention. The Court determined that mother made no showing that her failure to secure support payments resulted from the nonenforcement of art. 602. The Court concluded that mother made an insufficient showing of a direct connection between the vindication in her interest in her child and the enforcement of state criminal law. OUTCOME: Dismissal of action for lack of standing was affirmed.

Warth v. Seldin(small case in book)

Brief Fact Summary. Plaintiffs claimed that a local zoning ordinance excluded persons of low and moderate income from living in a certain community. Defendants responded by claiming that Plaintiffs lacked standing to bring suit. Synopsis of Rule of Law. A plaintiff must generally allege a specific case or controversy between herself and the defendant in order to have standing. Facts. The Plaintiffs were various organizations and individuals residing in Rochester, New York (Rochester). The Plaintiffs brought suit against the town of Penfield, New York (Penfield) and members of Penfields Zoning, Planning, and Town Boards (Defendants). Plaintiffs contended that Penfields zoning ordinance effectively excluded persons of low and moderate income from living in the town, in contravention of constitutional and statutory rights. The lower federal courts held that none of the Plaintiffs had standing. Issue. Have the Plaintiffs established that a case or controversy exists between themselves and the Defendants within the meaning of Article III of the United States Constitution (Constitution), in order to have standing? Held. Yes. Judgment affirmed. In order for a federal court to have jurisdiction, the plaintiff himself must have suffered some threatened or actual injury resulting from the putatively legal action. Additionally, standing will generally not be found when: a generalized grievance is shared in substantially equal measure by all or a large class of citizens a plaintiff attempts to claim relief on the legal rights of third parties. Congress may create standing for individuals through statutes who would otherwise lack standing, so long as the plaintiff alleges a distinct and palpable injury to himself. In the present case, the Plaintiffs claimed the enforcement of zoning ordinances against third parties had the effect of precluding the construction of housing suitable to their needs. For standing, a plaintiff must allege that the challenged practices affect him specifically and that court intervention would personally benefit the plaintiff. In order for an organization to have standing, it must claim that all or any one of its members are suffering immediate or threatened injury as a result of the challenged action. Plaintiffs in this case fail to do so. Dissent. The Plaintiffs have submitted a sufficient pleading to avoid a motion to dismiss for lack of standing. The majoritys opinion is based instead on the merits of the claim. Discussion. The purpose of the standing requirement is to prevent the courts from being forced to adjudicate abstract questions of wide public significance, which could better be determined in other forums.

Simon v. Eastern Kentucky Welfare Rights Organization(small case in book)

PROCEDURAL POSTURE: Plaintiffs sought certiorari to review a judgment of the United States Court of Appeals for the District of Columbia Circuit, which rejected plaintiffs' contention that the Internal Revenue Service violated the Internal Revenue Code by issuing Rev. Rul. 69-545, allowing favorable tax treatment to nonprofit hospitals that only offered emergency room services to indigents instead of full patient services. OVERVIEW: Plaintiffs, several indigents and indigent groups, brought an action under 5 U.S.C.S. 702, alleging that the Internal Revenue Service violated the Internal Revenue Code and the Administrative Procedure Act by issuing a revenue ruling allowing favorable tax treatment to nonprofit hospitals that only offered emergency-room services to indigents instead of full hospital services. The complaint alleged specific occasions on which each of the individual plaintiffs was denied medical treatment. Plaintiffs failed to name any of the hospitals as defendants in the complaint. Defendants filed a motion to dismiss challenging plaintiffs' standing and suggested the nonjusticiability of the subject matter of the suit. In order to achieve standing, federal plaintiffs must allege some threatened or actual injury before a federal court may assume jurisdiction. The Court held that plaintiffs lacked standing to bring the suit since they failed to establish that the asserted injury was the consequence of defendants' actions. The Court further stated that there was no substantial likelihood that victory in the suit would result in plaintiffs receiving the hospital treatment they desired. OUTCOME: The Court held that plaintiffs lacked standing to bring the suit. Plaintiffs failed to establish that the asserted injury was the consequence of defendants' actions. The Court stated that there was no substantial likelihood that victory would result in plaintiffs' receiving the hospital treatment they desired. The Court vacated the decision of the appellate court, and remanded to the district court with instructions to dismiss the complaint.

Duke Power Co. V. Carolina environmental study group, Inc.

PROCEDURAL POSTURE: Appellant power company sought review of a judgment from the United States District Court for the Western District of North Carolina, which determined that appellees, environmental organizations and individuals who resided within close proximity to a planned nuclear power facility, had standing to bring a claim for declaratory relief, and that the Price-Anderson Act, 42 U.S.C.S. 2210 et seq., was unconstitutional. OVERVIEW: In an action brought by appellees, environmental organizations and residents of the area near a planned nuclear power facility, the district court determined that the Price-Anderson Act (Act), 42 U.S.C.S. 2210 et seq., which was intended to protect the public and encourage the development of the private atomic energy industry by limiting the aggregate liability of the industry, was unconstitutional on the ground that it violated the Due Process Clause of U.S. Const. amend. V. The Court reversed the district court holding. The Act was presumed constitutional, and the burden was on appellees to show that the legislature had acted in an arbitrary and irrational way. The record supported the need to statutorily limit liability and was found to bear a rational relationship to Congress's concern for stimulating the involvement of private enterprise. The argument as to the arbitrariness of the $ 560 million statutory ceiling on liability was rejected in view of the extremely remote possibility of an accident where liability would exceed the limitation of 42 U.S.C.S. 2210 (e), whereby Congress committed to take necessary actions to protect the public in case of such a disaster. OUTCOME: The Court reversed the finding that the Price-Anderson Act was unconstitutional because Congress had not acted in an arbitrary or irrational manner in enacting the statute. The need to statutorily limit the liability of the nuclear power industry was rationally related to the need to develop the private sector interest, and the liability ceiling was based on the remote possibility of an accident where liability would exceed that limitation.

ii. PRUDENTIAL STANDING REQUIREMENTS There are two major prudential standing requirement: 1. The prohibition of third party standing, and 2. The prohibition if generalized grievances.

The prudential requirements are judicially created and congress by statute can overrule. Class 9/7/2011 THE PROHIBITION OF THIRD PARTY STANDING Even when a plaintiff alleged injury sufficient to meet case or controversy requirement, the plaintiff generally must assert his own LEGAL RIGHTS AND INTERESTS, and cannot rest his claim to relief on the legal rights or interests of third parties. Plaintiff can assert only injuries that he has suffered, cannot present claims for third parties who are not part of lawsuit. Court recognized exceptions to this requirement- following case explain the situation where plaintiff meets other standing requirements may present claim for third party. Class- Third party Standing- 1. Relationship, 2. Obstacle to litigation 1. Relationship- aligned interest in outcome. Relationship of the litigant to the third party. If the enjoyment of the right is inextricably bound up with the activity litigant wishes to pursue, the court atleast can be sure that its construction of the right is not unnecessary in the sense that the rights enjoyment will be uneffected by the outcome of the suit. Furthermore, the relationship between litigant and third party may be such that the former is fully or nearly as effective a proponent of the right as the latter. (singleton- doctor case) 2. Obstacle to litigation- ability of the third party to assert his own right. Even where the relation is close, the reasons for requiring persons to assert their own rights will still apply. If there is genuine obstacle, the third partys absence loses its tendency to suggest that his right is not truly at stake, or truly important to him, and the party who is in court becomes by default the rights best available proponent. (singleton- doctor case). For these reasons, court concluded in singleton that it is generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision. a. Privacy b. mootness Singleton v. Wulf
Brief Fact Summary. Two Missouri physicians sued the state, charging that Missouris statute prohibiting Medicaid payments for abortions which are not medically indicated unconstitutionally interferes with the decision to terminate a pregnancy. Synopsis of Rule of Law. The rule prohibiting third-party standing should not apply when the relationship of the litigant and the one whose rights he asserts is significantly close and where there is some obstacle to the first party bringing a suit on his own. Facts. Two Missouri physicians sued the state, showing that they had provided abortions to Medicaid-eligible patients. The state had denied payment for these services on statutory grounds. The physicians stated that they would continue to perform such procedures and stood to be denied payments in the future. Issue. Do the physicians have standing to bring the suit when the immediately affected are indigent women seeking abortions? Held. Yes. Court of appeals ruling affirmed. Two standing questions were presented: (i) whether plaintiff sustained injury in fact and (ii) whether they are the proper individuals to assert the constitutional right in question. The first question is easily answered. Here, the physicians have been denied compensation and stand to be denied further compensation. As to the second question, the general rule of prohibiting third-party standing only applies if the relationship between the litigant and the party directly affected is such that the litigant does not effectively serve as a proponent of the affected party and if there is some impediment to the affected party bringing suit himself. Here, the litigant was deemed to effectively serve as a proponent. Discussion. The Supreme Court of the United States (Supreme Court) does not say that there must be an absolute obstacle to the directly affected party bringing suit, only that there is some genuine impediment (e.g., protecting the privacy of her decision to terminate a pregnancy, the imminent mootness of her claim, etc.).

Singleton case focused on two factors determining whether a party can sue on behalf of third party- the closeness of relationship, and likelihood that the third party can sue on its own behalf. Notes: does the doctor have injury?- yes because if he doesnt get paid, it is economically injurious to him. Does he have... and redressability?-

Third party standing issue and not direct standing issue because eventhough the doctor receive the injury, it is not within the scope of the statute. The statute is directed toward the pregnant women who might be seeking abortion. Why would not we allow other people to complain?- ordinarily, one may not claim standing in this court to vindicate the constitutional rights of some third party. The court two factual elements to determine whether the rule should apply in a particular case1. Relationship- aligned interest in outcome. The relationship of the litigant to the person whose right he seeks to assert. If the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, the court at least can be sure that its construction of the right is not unnesecary in the sense that the rights enjoyment will be unaffected by the outcome of the suit. Furthermore, the relationship between the litigant and the third party may be such that the former is fully, or very nearly as effective a proponent of the right as the latter. 2. Rights- ability of the third party to assert his own right. If theres some genuine obstacle to such assertion, the third partys absence from the court loses its tendency to suggest that his right is not truly at stake, or truly important to him, and the party who is in court becomes by default the rights best available proponent. Barrows v. Jackson (small case)
PROCEDURAL POSTURE: Petitioner homeowners sought review of a judgment of the District Court of Appeal of California, Second Appellate District, which affirmed a demurrer to the homeowners' action at law to recover damages resulting from a breach of a restrictive covenant agreement entered into by respondent grantor and the homeowners. OVERVIEW: The homeowners sued the grantor for damages for a breach of a restrictive covenant agreement entered into between the parties. Under the terms of the restrictive covenant, the signors and their successors promised that no part of the real property would ever be used or occupied by persons who were not white. The homeowners brought suit after the grantor conveyed her property to minorities and failed to include the restrictive covenant in the deed. Affirming the lower court's order sustaining a demurrer to the petition, the Court held that because enforcement of the restrictive covenant at law would have constituted state action, the state's enforcement would have denied minorities of their right to enjoy property on the same terms as whites, so that said denial of equal protection of the law would be in violation of the Fourteenth Amendment. While noting that the grantor would not be constitutionally injured, the Court permitted the grantor's assertion of others' rights where the need to protect fundamental rights would be denied if the action for damages was maintained. OUTCOME: The Court affirmed the judgment sustaining the demurrer to the homeowners' petition.

Craig v. Boren(very small):Brief Fact Summary. Oklahoma State maintained different drinking ages
between men and women for the consumption of 3.2% alcohol beer. The State of Oklahoma prohibited the sale of nonintoxicating 3.2% alcohol beer to men under the age of 21 and women under the age of 18. Suit was brought against the State, alleging the law violated the Equal Protection clause of the Fourteenth Amendment of the Constitution. Synopsis of Rule of Law. Gender-based classifications must satisfy intermediate scrutiny requirements to pass constitutional muster.

NOTE:You do not get standing unless you satisfy the requirements. In this case, the bartender was allowed standing because the statute was affecting him economically because of his inability to sell bear. The injury has to be concrete and palpable. His financial effect was concrete and palpable so he met the injury requirement Gilmore v. Utah: Gilmore was sentenced to death but chose not to pursue habeus corpus relief. His mother sued
for a stay of execution on his behalf but court refused to hear because defendant waived his right. When he waived along with all the papers submitted for it, court is without jurisdiction to entertain the next friend. Court said it has jurisdiction pursuant to article III only over cases and controversies.

NOTE: The mother and son has a relationship but they did not have a legal relationship. The son did not ask for habeas corpus but his mother asked for it on his behalf. It shows that even if you have a very close family relationship, you may not have a legal relationship. Elk Grove Unified School District v. Newdow Fact: PROCEDURAL POSTURE: Respondent father sued petitioners, including a school district, alleging that the school district's policy requiring the
recitation of the Pledge of Allegiance (Pledge) at his daughter's school violated the First Amendment. The United States Court of Appeals for the Ninth Circuit found that the father had standing and ruled in favor of the father. Certiorari was granted to review the standing and First Amendment issues. OVERVIEW: The father, an atheist, contended that the words "under God" in the Pledge violated the Establishment and Free Exercise Clauses of the First Amendment and that the school district's recitation policy was unconstitutional. Pursuant to a state-court order, the child's father and mother had joint legal custody and the father had the right to consult on issues relating to the child's education, but the mother endorsed the religious ideas and possessed what amounted to a tiebreaking vote. The state court also enjoined the father from suing as his daughter's "next friend." The United States Supreme Court determined that the noncustodial father lacked prudential standing to bring the suit in federal court. It was improper for the federal courts to entertain the claim of the father whose standing to sue was founded on family law rights that were in dispute, when prosecution of the lawsuit could have had an adverse effect on the person who was the source of the father's claimed standing. Also, nothing that either the mother or the school district had done impaired the father's right to instruct his daughter in his religious views. OUTCOME: The Supreme Court reversed the judgment of the appellate court.

California Rule: every public elementary school must begin each day with appropriate patriotic exercises. THE PROHIBITION OF GENERALIZED GRIEVANCES and the EXCEPTION

THE PROHIBITION OF GENERALIZED GRIEVANCES The prohibition prevents individuals from suing if their only injury is as a citizen or a taxpayer concerned with having the government follow the law. This prohibition is a prudential principle preventing standing when the asserted harm is a generalized grievance shared in a substantially equal measure by all or large class of citizens. United State v. Richardson- prohibition of generalized grievance Brief Fact Summary- Richardson, the Plaintiff-Respondent (Plaintiff) sued Congress. He alleged that public reporting under the Central Intelligence Agency (CIA) Act of 1949 violates Article I, s 9, cl. 7 (the Act) of the United States Constitution (Constitution), the statement and account clause. Synopsis of Rule of Law- Standing is denied to generalized grievances. Facts. Plaintiff sued Congress, hoping to compel release of detailed funding records of CIA funding. Plaintiff based his standing to sue on his status as a United States taxpayer. Richardson, a taxpayer interested in activities of the Central Intelligence Agency, sued the government to provide records detailing the CIA's expenditures. Issue. Is taxpayer status sufficient to establish standing to bring suit in this case? Held- No. Appeals court ruling reversed and remanded. The Supreme Court of the United States (Supreme Court) applied the two-prong test developed in NOTE: This case gives two prong standing test (for generalized grievance?) which requires allegations 1. Challenging an enactment under the taxing and spending clause of article I section 8, and 2. Claiming that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power. What must be shown- it is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action, he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public. SC recognized only one exception where taxpayer standing is permitted to challenge government expenditures as violating the ESTABLISHMENT CLAUSE, the provision that prohibits congress from making any law respecting the establishment of religion. Class- Question: Does a federal taxpayer have standing to force the government to disclose expenditures of the CIA? Conclusion: The Court held that Richardson did not have standing to sue. Using the twopronged standing test of Flast v. Cohen (1968), Chief Justice Burger found that there was no "logical nexus between the status asserted [by Richardson as a taxpayer] and the claim sought to be adjudicated." It was clear to Burger that Richardson was not "a proper and appropriate party to invoke federal judicial power" on this issue. Notes: you cannot ask government to follow the law because you cannot do something about it in the court. For a plaintiff to have generalized grievances, they ask you to exercise your right and vote and go more toward political change rather than asking the court to have government follow the rule. How is it contrasted with the Akins case? P.66- Akins had a statute to define injury and the injury was inability to obtain information. The alleged infringement of that statutory right was deemed sufficient to meet Article III and to allow standing under the broad citizen suit provision for any aggrieved person. The difference is- someone requirement Generalized grievance is prudential and court created this. FLAST v. COHEN- exception to generalized grievance (expenditure on religion- violation of

first amendment section 8)

Brief Fact Summary. The Appellant, including Flast (Appellants), brought suit, claiming standing solely as taxpayers, seeking to enjoin expenditure of federal funds on religious schools. Appellants claimed such expenditures violated the Establishment and Free Exercise clauses of the First Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. Taxpayer standing is appropriate when the plaintiff challenges an enactment under the taxing and spending clause of the Constitution and the enactment exceeds specific constitutional limitations on taxing and spending. Facts. Congress had funded, under Titles I and II of the Elementary and Secondary Education Act of 1965 (the Act), writing, arithmetic, and other subjects in religious schools. Appellants brought suit, claiming that these expenditures violated the Establishment and Free Exercise clauses of the First Amendment of the Constitution. The only claim to standing provided was that all Appellants were taxpayers. Issue. Have the Appellants established standing to bring suit in an Article III court? Held. Yes. Reversed and remanded. The Supreme Court of the United States (Supreme Court) states that standing refers to the plaintiff(s) having a personal stake in the outcome of the case. In the taxpayer context, the Supreme Court outlines two requirements to show this personal stake. The first requirement is that the taxpayer must challenge the constitutionality only of exercises under the taxing and spending clause of the Constitution. Expenditures which are incidental to a regulatory statute or other incidental expenditures do not give rise to taxpayer standing. The second requirement is that the moving party must allege that Congress acted beyond the scope of a particular constitutional provision. It is insufficient to allege spending beyond the powers delegated under Art. I, Section: 8 of the Constitution. Dissent. Justice John Marshall Harlan (J. Harlan) argues that the two requirements outlined by the majority do not establish that P has a personal stake in the outcome. Discussion. The Supreme Court establishes a two-prong test that allows taxpayer standing without opening the federal courts to generalized grievances.

- Established clause violation - Taxing and spending Valleyforge- establish clause, no standing, because property clause. NOTE: When can you apply the exception to generalized grievance?- The two prong test from Flast: 1. The taxpayer must establish a logical link between the status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of excercises of congressional power under the taxing and spending clause or Art 1, section 8. 2. The taxpayer must establish a nexis between that status and the precise nature of the constitutional infringement alleged. Under this requirement, taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to congress by article 1 section 8. When both nexuses are established, the litigant will have shown the taxpayers stake in the outcome of the controversy and will be proper and appropriate party to invoke a federal question jurisdiction. Flast has never been overruled but never also EXTENDED beyond challenges to expenditure. Taxpayers only have standing to challenge government expenditures as violating the establishment clause. It has been so limited that taxpayers lacked standing to challenge expenditures from general executive revenue as violating establishment clause. Hein v. Freedom From Religion Foundation ( between Flast and Hein- expenditure v. executive revenue)
PROCEDURAL POSTURE: Respondents, an organization and three of its members, sued petitioners, Executive Branch officials, in district court, alleging that the officials violated the Establishment Clause. The district court dismissed for lack of standing. The United States Court of Appeals for the Seventh Circuit reversed. The Supreme Court granted certiorari. OVERVIEW: The officials directed the White House Office of Faith-Based and Community Initiatives and Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments. Respondents alleged that the officials organized conferences at which religious community groups were promoted over secular ones. Respondents asserted taxpayer standing. The Court held that respondents lacked standing under U.S. Const. art. III, although there was disagreement over whether the Flast v. Cohen exception to the general prohibition against taxpayer standing should remain viable. A plurality of the Court

found that the Flast exception applied only to challenges directed at exercises of congressional power under the Taxing and Spending Clause, U.S. Const. art. I, 8, and did not apply to respondents' challenge to the use of funds that were appropriated for the general discretionary use of the Executive Branch. The challenged expenditures were not expressly authorized or mandated by any specific congressional enactment; as a result, the action lacked a logical nexus between taxpayer status and the type of legislative enactment attacked. OUTCOME: The Seventh Circuit's judgment was reversed.

Heins points out, there would be serious separation of powers concern. It also talks bout the Wallet injury and psychic injury. Not an act of congress but took place under the executive discretion. CLASS 9/12/2011 C. RIPENESS Ripeness is another justiciability doctrine determining when athe review is appropriate. While standing is concerned with who is proper party, ripeness and mottness determine when the litigation may occur. Ripeness specifically seeks to separate matters that are premature for review because the injury is SPECULATIVE and never may OCCUR, from those cases that are appropriate for federal court action. There is an overlap with injury requirement in order to have standing, the plaintiff must demonstrate inury occurred or imminent. In order for the case to be ripe, the plaintiff must show that the review is not premature- the plaintiff must show that harm occurred or imminent. Poe v. Ullman (Ripeness required) Brief Fact Summary. The Appellants, several couples and their physician (Appellants), brought suit, seeking the overturn of a Connecticut statute prohibiting the use of contraceptive devices and the giving of medical advice on the use of such devices. Synopsis of Rule of Law. A penal statute is not ripe for constitutional challenge unless it is enforced by the state enacting the statute. Facts. The Connecticut Supreme Court of Errors construed a state penal statute as prohibiting the use of contraceptive devices and the giving of medical advice on their use. Appellants included a couple who had several pregnancies result with severely abnormal progeny which died shortly after birth, a couple whose wife had experienced a severely traumatic pregnancy and their physician, who believes the safest course of treatment for the couples includes using contraceptive devices. Issue. Is the petitioners claim ripe for judicial review? Held. No. Judgment affirmed. Connecticut has never attempted to fully prosecute any case under the statute. Because of this, not only have the Appellants not suffered injury in fact from the statute, but there is no evidence that they would be prosecuted for acting in violation of the statute. Dissent. Justice William Douglas (J. Douglas) argues that the mere threat of prosecution is injury in fact, that it is not the choice worthy of a civilized society to require individuals to risk penalty for their behavior to have their constitutional rights determined. Discussion. Although ripeness is the central issue in Poe, the Supreme Court of the United States (Supreme Court) does not articulate any clear guidelines to evaluate ripeness. Nonetheless, the Supreme Court seems to articulate that a penal statute that has not been enforced is not ripe for judicial review. Class note: In this case, the court does not find ripeness. But the plaintiff wants declaratory judgment. Ripeness comes into play whenever we want court to look into a case BEFORE there is a law against you is enforced. Pre-enforcement review from fear of prosecution 1. Fitness for judicial decision 2. Hardship to parties- if we dont review the case right now and wait till law is actually enforced. But if we wait and have the law be enforced against then the party will suffer an injury- health and arrest. The dissent of this case, talks about the hardship of situations like in this case. Abbott Laboratories v. Gardner sets out criteria for RIPENESS

Brief Fact Summary. A group of drug manufacturers challenged the authority of the Commissioner of Food and Drugs to make regulations about labeling and advertising prescription drugs under the amended Federal Food, Drug and Cosmetic Act. The challenge was brought prior to enforcement of the regulations. Synopsis of Rule of Law. Pre-enforcement review is appropriate where not prohibited by the text of the Act itself, nor inconsistent with the legislative intent behind the Act. There is an actual case or controversy where there has been a final agency decision and withholding judicial consideration will result in hardship to the parties. Facts. Congress amended the Federal Food, Drug and Cosmetic Act in 1962 to require manufacturers of prescription drugs to print the established name (generic name) of the drug prominently and in type at least half as large as the type used for the proprietary name (brand name) on labels and other printed material. The purpose was to inform doctors and patients of drugs established names so that they could be purchased at lower prices. The Commissioner of Food and Drugs published proposed regulations (in addition to the Act) which required all drug labels and drug advertisements to put the established name next to the proprietary name every time the proprietary name appeared. A group of 37 drug manufacturers (the Petitioners) challenged the regulations on the grounds that the Commissioner exceeded his authority under the Act in issuing the regulations. The District Court granted injunctive and declaratory relief against the Commissioner. The Court of Appeals for the Third Circuit reversed, holding (1) that pre- enforcement review of the regulations was not permitted by the Act, and (2) that no relief was available under the Administrative Procedure Act because no actual case or controversy existed. The Supreme Court of the United States granted certiorari. Issues. Did Congress, by its Federal Food, Drug and Cosmetic Act, intend to forbid preenforcement review of the sort of regulations promulgated by the Commissioner? Were the issues ripe for judicial decision? Would withholding court consideration result in hardship to the parties? Held. Reversed and remanded to the Court of Appeals to review the District Courts decision that the regulation was beyond the power of the commissioner. No. Nothing in the Act itself precludes pre-enforcement review. A review of the legislative history of the Act reveals that the specific review provisions were designed to provide an additional remedy, and not to cut down more traditional channels of review. The Act itself states, The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law. Yes, the issues presented were ripe for judicial consideration, and withholding judicial consideration would result in hardship to the parties. The parties agreed that the issue tendered was a purely legal one. The regulations in issue were reviewable as a final agency action under the Administrative Procedure Act because when, as here, they are promulgated by order of the Commission and the expected conformity to them causes injury cognizable by a court of equity, they are appropriately the subject of attack. The regulations would have a direct day-to-day impact on the operation of the companies, who either had to incur huge costs to comply with the regulations requirements or risk prosecution. Dissent. There were two unpublished dissents by Mr. Justice Fortas and Mr. Justice Clark. Concurrence. None. Discussion. Courts should look to the text of the statute itself, along with the legislative history, to determine the intended application and scope. In this case, pre- enforcement review was not precluded by the Federal Food, Drug and Cosmetic Act. Pursuant to the Constitution of the United States, there must be an actual case or controversy in order for the Supreme Court of the United States to grant certiorari. Under the Administrative Procedure Act, final agency actions are considered ripe for judicial review. Here, the Petitioners would have suffered an operational and financial hardship if judicial consideration was withheld. Book note: Ripeness is required to prevent court through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies. And also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Class note: the brand names were gonna lose out because as law, if the generic brands have the

ingredients listed on the bottle, then people will buy more of generic medication instead of paying more for brand name just for their trade mark. Among the 2 (fitness for judicial decision and hardship to parties) More questions will be on hardship- what would the plaintiff suffer if the court say wait until the law is regulated. In this case, the plaintiff cannot wait till the injury because they have marketability, labeling and money at stake. The court is also concerned about the CRIMINAL PROSECUTIONS about this case. (Is the court being genuine? Before it decided to wait till ripeness but in this case, criminal prosecution becomes their concern- MONEY and Lobbying going on?) Standing- injury: whether or not it is imminent meaning you have an injury or YOU THINK YOU WILL HAVE AN INJURY. Ripeness- Fear a law will be enforced against you. Step by step process for finding standing and ripeness 1. Identify the law 2. What does plaint want done with law? 3. Does plaintiff fear law will be enforced against plaintiff? (If yes, you specially have ripeness) 4. Has law been enforced yet against the plaintiff? (if no, you do not have ripeness but you anticipate there will be law enforced against you. If yes, then not a ripeness isue) United public workers v. Mitchell PROCEDURAL POSTURE: Appellant federal employees challenged the decision of the United States District Court for the District of Columbia, which dismissed their complaint and granted summary judgment to appellees, members of the Civil Service Commission. Federal employees had filed suit to enjoin the members of the commission from enforcing 9(a) of the Hatch Act, 18 U.S.C.S. 61h, contending that it was unconstitutional. OVERVIEW: Federal employees contended that 9(a) of the Hatch Act, which prohibited them from taking an active part in political management or political campaigns, violated their rights under the First, Fifth, Ninth, and Tenth Amendments. First, the Court held that the 60-day docketing requirement of 28 U.S.C.S. 380a did not limit its power to hear the appeal because it could permit an extension of time when large records were involved. Second, the Court held that the federal employees who had not yet engaged in the activities prohibited by 9(a) did not state a cognizable controversy because they sought an advisory opinion on broad claims of constitutional rights. Therefore, the district court erred in hearing the claims of those employees. Third, although the federal employee who had been charged by the commission with political activity presented matters appropriate for judicial determination, the Court held that a breach of the Hatch Act and Civil Service Rule 1 could, without violating the Constitution, be made the basis for disciplinary action. Section 9(a) was only directed at partisan political activity and its application to all federal employees was justified. OUTCOME: The Court affirmed the judgment of the district court dismissing federal employee's claims. International longshoremen's & warehousement's union local 37 v. Boyd Facts The Immigration and Nationality Act of 1952 involved the status of aliens residing within the United States. The International Longshoremens Local 37 labor union and a number of its members sued to enjoin Boyd, District Director of the Immigration and Naturalization Service (INS), from construing the Act as to treat all aliens domiciled within the continental United States returning from temporary work in Alaska as if they were aliens entering the country for the first time. The plaintiffs also sought a declaratory judgment that the Act is unconstitutional. Plaintiffs did not show that any sanctions had been sought against any union members or that any of the proposed hypothetical situations had yet arisen. The District Court dismissed the lawsuit on the merits and the Supreme Court granted certiorari. Issue May a party seek a declaratory judgment regarding the scope or constitutionality of a statute before a concrete case has arisen to which the statute may apply? Holding and Rule (Frankfurter) No. A party may not seek a declaratory judgment regarding a

statute if no sanctions have been sought under the statute and no occasion for doing so has arisen. The Longshoremens Union in effect asked the District Court to rule that a statute would not be applied to them under certain circumstances in the future, when no sanctions had been sought against union members and there was no occasion for doing so. That is not a lawsuit to enforce a right; it is an effort to obtain assurance from a court that a statute will or will not apply under certain hypothetical situations. Determination of the scope and constitutionality of a law before a concrete case exists involves an inquiry that is too remote and abstract for a court to resolve. The complaint does not present a case or controversy and must therefore be dismissed. Disposition Judgment of the District Court vacated with directions to dismiss the complaint. Class note: the court does not find ripeness. Hardship- whether they should take the job and risk coming back or not take the job at all? Regional Rail Reorganization Act Cases PROCEDURAL POSTURE: Defendants, the United States and the U.S. Railway Association, appealed a judgment of District Court for the Eastern District of Pennsylvania, which held that the Regional Rail Reorganization Act, 45 U.S.C.S. 701 et seq., unconstitutionally violated the Fifth Amendment, as it constituted taking of private railroad property without just compensation, and the bankruptcy uniformity provisions. The district court enjoined its enforcement. OVERVIEW: In response to a rail transportation crisis following the initiation of bankruptcy reorganization proceedings by eight major railroads, Congress enacted the Regional Railroad Reorganization Act (Act), 45 U.S.C.S. 701 et seq., to reorganize railroads into a single viable system operated by a private, for profit corporation set up by the government. In exchange for conveyance of the bankrupt railroad properties to the corporation, the railroads were to receive shares in the corporation. Plaintiff, the largest of the eight railroads, claimed that Act was a taking of rail properties without payment of just compensation in violation of U.S. Const. amend. V. The district court held that certain provisions of Act violated the Fifth Amendment and the bankruptcy uniformity laws under U.S. Const. art. I, 8, cl. 4. The district court enjoined enforcement of the Act. On appeal, the Court reversed, holding that the Act did not bar resort to the Tucker Act, 28 U.S.C.S. 1491, which was available to provide just compensation for any taking. The Act operated uniformly on all bankrupt railroads then operating in the United States and uniformly with respect to all creditors of the railroads. OUTCOME: The Court reversed the district court ruling. The Court held that the Rail Reorganization Act (Act) did not bar resort to the Tucker Act remedy that was available to provide just compensation for any taking resulting from the implementation of the Act, the availability of the Tucker Act guaranteed an adequate remedy at law and the Act operated uniformly on all bankrupt railroads and on all creditors of the railroads. Class note: What hardship might they suffer or have to endure to show injury? Why not they wait until injury happens?

Inevitability
Lake carriers assn. v. MacMullan INEVITABILITY PROCEDURAL POSTURE: Appellant cargo vessel association (association) sought review of the order of the United States District Court for the Eastern District of Michigan, which dismissed the association's complaint against appellee state officials to declare invalid and enjoin enforcement of a state statute that required vessels with marine toilets to have sewage storage devices. OVERVIEW: The State enacted the Michigan Watercraft Pollution Control Act of 1970 (Act), Mich. Comp. Laws Ann. 323.331 et seq. (1971), which prohibited the discharge of sewage, whether treated or untreated, into state waters and required vessels with marine toilets to have sewage storage devices. The cargo vessel association filed an action against state officials for declaratory relief and claimed that the Act denied them due process and equal protection, was unconstitutionally vague, was pre-empted by federal law, and was invalid under the Supremacy

Clause. The Court held that the association's claims raised justiciable controversies which were ripe for decision by a three-judge court and that compliance with the Act was coerced by the threat of enforcement, which rendered the controversy both immediate and real. The Court held, however, that the publication of proposed federal standards that could be considered by the state in the interpretation and enforcement of the Act pointed toward "special circumstances" permitting abstention. OUTCOME: The Court affirmed the decision of the district court to abstain from deciding cargo vessel association's claims that state statute was invalid. The Court, however, vacated the judgment and remanded to the district court with directions to retain jurisdiction pending state court proceedings. Class: MOOTNESS in contrast with ripeness- is it too late to bring? Election issues generally are moot because it is for a short period and by the time it comes to the court, it is too late. Election already takes place by the time Supreme Court hears it. Mootness has exceptions EXCEPTION TO MOOTNESS 1. Capable of repetition yet evading review. Can the issue recur? a. Elections. Fall under this exception b. Abortion. Abortion law 2. Voluntary cessation- if there is no reasonable likelihood of continuing. 3. Class actions- if one live claimant, enough to allow for certification. 4. Collateral consequences- If you were in jail but got out- no longer in jail. Even though that person is no longer in jail, she may have other consequences- reputation, employment, character and fitness in the Bar. Book does not talk about this exception but we need for Bar. d. MOOTNESS (book outline) a plaintiff must present a live controversy at all stages of federal litigation. If anything occurs while a lawsuit is pending to end the plaintiffs injury, the case is to be dismissed as moot. A case is moot is acriminal defendant dies or if a civil plaintiff dies where the cause of action does not survive death. Also, if parties settle, a challenged law is repealed or expires. The mootness doctrine is derived from Article IIIs prohibition against federal courts issuing advisory opinions because if a case is moot, there is no actual controversy. Also if case settles, then federal court decision is not likely to have any effect. Mootness is applied in less strict manner and this flexibility is manifested in the three exceptions to mootness doctrine. They are repetition, voluntary cessation, and class action suite. 1. One exception is for wrongs capable of REPETITION but evading review. Some injuries are of such short duration that inevitably they are over before the federal court proceedings are completed. A case is not dismissed even though a case is moot, if there is an injury likely to recur in the future and it is possible that it could happen to the plaintiff again. And it is of such a short duration that it likely always will evade review. Moore v. Ogilvie PROCEDURAL POSTURE: Appellants, independent candidates for offices of presidential electors from Illinois, brought a suit against appellees, members of the Illinois Electoral Board. Appellants, challenging the constitutionality of Ill. Rev. Stat. ch. 46, para. 10-3 (1967), sought declaratory relief and an injunction. The U.S. District Court for the Northern District of Illinois dismissed the complaint for failure to state a cause of action. Certiorari was granted. OVERVIEW: The statute provided that nominating petitions for independent candidates had to have 25,000 signatures, including 200 signatures from each of at least 50 of the State's 102 counties. Appellants' petitions contained over 25,000 signatures but not from 200 voters from each of the 50 counties. The Board ruled that appellants could not be certified for the 1968 election. Of the State's registered voters, 93.4 percent resided in the 49 most populous counties, and only 6.6 percent were in the remaining 53 counties. The Board sought dismissal of the appeal, arguing that since the 1968 election had been held, the case was moot. The Court

overturned the district court's dismissal, holding that the case was not moot. A burden that was placed on nominations controlled future elections. Thus, the problem was capable of repetition, yet evading review. The law applied a rigid, arbitrary formula to rural counties and populous counties alike. Thus, by discriminating against residents of populous counties in favor of rural sections, it violated theFourteenth Amendment. In so holding, the Court overruled MacDougall v. Green, 335 U.S. 281, as being out of line with its recent apportionment cases. OUTCOME: The Court reversed the judgment of the district court. Roe v. Wade
Facts. Texas statutes made it a crime to procure or attempt an abortion except when medically advised for the purpose of saving the life of the mother. Appellant Jane Roe sought a declaratory judgment that the statutes were unconstitutional on their face and an injunction to prevent defendant Dallas County District Attorney from enforcing the statutes. Appellant alleged that she was unmarried and pregnant, and that she was unable to receive a legal abortion by a licensed physician because her life was not threatened by the continuation of her pregnancy and that she was unable to afford to travel to another jurisdiction to obtain a legal abortion. Appellant sued on behalf of herself and all other women similarly situated, claiming that the statutes were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Synopsis of Rule of Law. Statutes that make criminal all abortions except when medically advised for the purpose of saving the life of the mother are an unconstitutional invasion of privacy. Issue. Do the Texas statutes improperly invade a right possessed by the appellant to terminate her pregnancy embodied in the concept of personal liberty contained in the Fourteenth Amendments Due Process Clause, in the personal marital, familial, and sexual privacy protected by the Bill of Rights or its penumbras, or among the rights reserved to the people by the Ninth Amendment? Held. The right to personal privacy includes the abortion decision, but the right is not unqualified and must be considered against important state interests in regulation. The abortion laws in effect in the majority of the States are of relatively recent vintage, deriving from statutory changes generally enacted in the latter half of the 19th century. At common law abortion performed before quickening (the first recognizable movement of the fetus in utero) was not an indictable offense, and it is doubtful that abortion was ever a firmly established common law crime even when it destroyed a quick fetus. Three reasons have been advanced for the historical enactment of criminal abortion laws. The first is that the laws are the product of a Victorian social concern to discourage illicit sexual conduct, but this argument has been taken seriously by neither courts nor commentators. The second reason is that the abortion procedure is hazardous, therefore the States concern is to protect pregnant women. However, modern medical techniques have altered the situation, with abortions being relatively safe particularly in the first trimester. The third reason is the States interest is in protecting the prenatal life. However, this is somewhat negated by the fact that the pregnant woman cannot be prosecuted for the act of abortion. For the stage prior to the approximate end of the first trimester, the abortion decision must be left to the medical judgment of the pregnant womans attending physician, and may not be criminalized by statute. For the stage subsequent to the approximate end of the first trimester, the State may regulate abortion in ways reasonably related to maternal health based upon the States interest in promoting the health of the mother. For the stage subsequent to viability, the State may regulate and even proscribe abortion, except where necessary for the preservation of the mothers life, based upon the States interest in the potential of the potential life of the unborn child. Dissent. Justice Rehnquist. The right to an abortion is not universally accepted, and the right to privacy is thus not inherently involved in this case. Discussion. The Court finds that an abortion statute that forbids all abortions except in the case of a life saving procedure on behalf of the mother is unconstitutional based upon the right to privacy. However, it does allow for regulation and proscription of abortion when the statute is narrowly tailored to uphold a compelling state interest, such as the health of the mother or the viable fetus. The court declined to address the question of when life begins.

Defunis v. Odegaard Brief Fact Summary. Marco DeFunis, Jr. applied for admission as a first-year student at the University of Washington Law School, a state-operated institution. When he was denied admission, he brought suit in a Washington trial court claiming that the admissions committee procedures were racially discriminatory. Synopsis of Rule of Law. In federal cases before the Supreme Court, there must be an actual case and controversy which exists at the stages of appellate or certiorari review, and not simply at the date the action is initiated.

Facts. Marco DeFunis, Jr. sued the University of Washington Law School, a state operated university. DeFunis argued that the Universitys admissions policies and criteria were racially discriminatory. However, DeFunis was allowed to attend the law school during the case and was in his third year when the case was heard by the Court. Further, the University has agreed to let him graduate upon completion of his last year. Issue. Does an actual controversy exist between the parties, capable of redress by the United States Supreme Court (Supreme Court)? Held. The Court ordered the parties to address the issue of mootness before they proceeded to any other claims in the petition. The Court reasoned that federal courts are without power to decide questions that cannot affect the rights of litigants in the cases before them. This requirement stems from Article III of the Constitution, under which the exercise of judicial power depends upon the existence of a case or controversy. No amount of public interest would be sufficient to create an actual case or controversy, and the case was rendered moot because DeFunis was going to graduate from the law school regardless of the Courts ruling. Thus, the case was rendered moot. [T]he controversy between the parties has thus clearly ceased to be definite and concrete. Dissent. There were numerous potential litigants who would be affected by a decision on the legal issues presented. Further, 26 amici curiae briefs were filed by parties in this case. The public interest would be best served by reviewing these issues now, as they would inevitably find their way back into the federal court system. There was a stronger interest in litigating these issues immediately to avoid repetitious litigation that would inevitably occur due to the high public interest in this issue. Discussion. A case is considered moot if a justiciable controversy existed when a case was filed, but circumstances after filing indicate the litigant no longer has a stake in the controversy. In such a situation, the Supreme Courts jurisdiction is not invoked, and the Court will not even hear the other issues presented. Class- mootness and ripeness is plaintiff driven. In this case, the plaintiff will graduate from law school and there is no chance of recurring of this situation for himself. As far as pregnancy and election, they can recur to that one individual. SECOND EXCEPTION TO MOOTNESS- Voluntary cessation Voluntary cessation- a case is not to be dismissed as moot if the defendant voluntarily ceases the allegedly improper behavior but is free to return to it at any time. Only if there is no reasonable chance that the defendant could resume the offending behavior is a case deemed moot on the basis of voluntary cessation. Friends of the earth, inc. v. Laidlaw environmental services
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. MORE FACTS: The Supreme Court (Court) reversed an appeals court decision that held that petitioners' citizen suit for civil penalties under Clean Water Act was moot when respondent came into compliance. The Court first addressed whether petitioners had standing to bring the action. It found respondent's discharges, and petitioners' reasonable concerns about the effects of those discharges, directly affected petitioners' recreational, aesthetic, and economic interests. The civil penalties petitioners sought carried with them a deterrent effect that made it likely the penalties would redress petitioners' injuries by abating current violations and preventing future ones. Thus, petitioners had standing. The Court then addressed whether the matter became moot when respondent came into compliance with its discharge permit. The Court held the action may have become moot only if respondent's compliance or respondent's closure of its facility made it absolutely clear that respondent's permit violations could not reasonably be expected to recur. The effect of respondent's compliance and facility closure on the prospect of future violations was a disputed factual matter. Thus, the matter was not moot. 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. 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).

THIRD EXCEPTION TO MOOTNESS- Class action suits Class action suits: SC has held that a properly certified class action suit may continue even if the names plaintiffs claims are rendered moot. Court reasoned that the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by the plaintiff and thus, so long as the members of the class have a live controversy the case can continue. United States Parole Commn. V. Garaghty
Brief Fact Summary. Geraghty, a federal inmate and Plaintiff-Respondent (Plaintiff), brought suit against the Defendant-Petitioner, the United States Parole Commission (Defendant). Besides his own suit he also sought certification of the suit as a class action on behalf of all federal prisoners who are or will become eligible for parole. Synopsis of Rule of Law. A class action may survive, even if the named Plaintiffs case becomes moot before certification of the class. Facts. Plaintiff had twice been denied parole from a federal prison. Plaintiff brought suit challenging the validity of the Parole Commissions Parole Release Guidelines. The district court denied Plaintiffs request to certify the suit as a class action on behalf of all federal prisoners who are or who will become eligible for release on parole, and also granted summary judgment for Plaintiff on the merits. Plaintiff was released from prison while his appeal to the court of appears was pending. Issue. May a trial courts denial of a motion to certify a class be reviewed on appeal even when the named plaintiffs personal suit has been settled or decided? Held. Yes. Reversed and remanded. The purpose of the personal stake requirement is to assure that the case is in a form capable of judicial resolution. Justice Harry Blackmun also argues that the named representative retains a personal stake in obtaining class certification to satisfy the case or controversy requirement. More importantly, however, the absence of the named plaintiff does not destroy the format of the dispute as appropriate for judicial determination. Discussion. If the personal stake requirement is in place to assure that the case is in a form capable of judicial resolution, it is clear that this is met in the case before the claim became moot. Now, the question is whether or not review of the denial of class certification will be allowed when there are still putative class members with ripe claims. As discussed, if the named plaintiff had a personal stake, the case is still in a form capable of judicial resolution, if certification of the class is appropriate, regardless of the plaintiffs absence in the putative class.

CLASS 9/14/2011 e. POLITICAL QUESTION DOCTRINE political question doctrine defined: this doctrine refers to allegations of constitutional violations that federal courts will not adjudicate, and supreme court deems to be inappropriate for judicial review. Court held that some constitutional provitions are left to the political branches of government to interpret and enforce. Although there is an allegation that the constitution is violated, cases brought under these provisions are dismissed as nonjusticiable political questions. Critics of this doctrines say it is wrong to leave some constitutional provisions solely to political branches to interepret. The argument is, the constitution is meant to insulate matters from the political process and therefore it is wrong too leave constitutional provisions to the elected branches of government to interpret and enforce. This doctrine is defended on separation of power grounds. For example, court rightly has treated many constitutional issues concerning foreign policy to be political question because of the greater information and expertise of the other branches of government. political question 1. Impeachment (article I section 2 clause 5, section 5 clause 1,2

2. Foreign policy- treaty POLITICAL QUESTION- ISSUES OF MALAPPORTIONMENT AND PARTISAN GERRYMANDERING Cases under the Guaranty clause are non justiciable. Baker v. Carr (political question doctrine- Malapportionment) 6 factor test
Facts Charles Baker (P) was a resident of Shelby County, Tennessee. Baker filed suit against Joe Carr, the Secretary of State of Tennessee. Bakers complaint alleged that the Tennessee legislature had not redrawn its legislative districts since 1901, in violation of the Tennessee State Constitution which required redistricting according to the federal census every 10 years. Baker, who lived in an urban part of the state, asserted that the demographics of the state had changed shifting a greater proportion of the population to the cities, thereby diluting his vote in violation of the Equal Protection Clause of the Fourteenth Amendment. Baker sought an injunction prohibiting further elections, and sought the remedy of reapportionment or at-large elections. The district court denied relief on the grounds that the issue of redistricting posed a political question and would therefore not be heard by the court. Issues 1. Do federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment? 2. What is the test for resolving whether a case presents a political question? Holding and Rule (Brennan) Yes. Federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment. The 6 factors to be considered by the court in determining whether a case presents a political question are: 1. Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e. foreign affairs or executive war powers)? 2. Is there a lack of judicially discoverable and manageable standards for resolving the issue? 3. The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion. 4. The impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government. 5. Is there an unusual need for unquestioning adherence to a political decision already made? 6. Would attempting to resolve the matter create the possibility of embarrassment from multifarious pronouncements by various departments on one question? The political question doctrine is based in the separation of powers and whether a case is justiciable is determined on a case by cases basis. In regards to foreign relations, if there has been no conclusive governmental action regarding an issue then a court can construe a treaty and decide a case. Regarding the dates of the duration of hostilities, when there needs to be definable clarification for a decision, the court may be able to decide the case. The court held that this case was justiciable and did not present a political question. The case did not present an issue to be decided by another branch of the government. The court noted that judicial standards under the Equal Protection Clause were well developed and familiar, and it had been open to courts since the enactment of the Fourteenth Amendment to determine if an act is arbitrary and capricious and reflects no policy. When a question is enmeshed with any of the other two branches of the government, it presents a political question and the Court will not answer it without further clarification from the other branches. 1. 2.

Class note: Guaranty clause- Guarantees you republic form of government. Bnote:In addition to election cases as Baker, it has been applied to three of the more important areas, so in total four areas as below: 1. Election case (Baker) 2. Challenges to restrictions on congressional membership- where this doctrine was rejected (??) 3. Challenges to the presidents conduct of foreign policy, and 4. Challenges to the impeachment process PQ doctrine applied: congressional self-governance Powell v. McCormack (elected official removed)
Brief Fact Summary. After being elected to the House of Representatives (the House), the House denied membership to the Plaintiff-Petitioner, Powell (Plaintiff). Plaintiff now sues for installment as a representative. Synopsis of Rule of Law. The textual commitment to a constitutional provision by a political branch is justiciable. Facts. During the 89th Congress, it was found that Plaintiff had engaged in deceptive and possibly illegal actions

surrounding his service as chairman of the Committee on Education and Labor. After his reelection to the 90th Congress, he was asked to step aside while the other representatives were sworn in. Also, he was later asked to inform the Governor of New York that his seat was vacant. Plaintiff sued, alleging the House did not have the constitutional authority to deny his seat when he met the qualifications expressly set forth for Representatives in Article I of the United States Constitution (Constitution). Issue. Does the House have a textual commitment in the constitution to determine the qualifications of its members? Held. Yes. Case reversed and remanded. The Defendants-Respondents, members of Congress including the Speaker of the House John W. McCormack (Defendants), argued that the House has broad powers under Article I, Section: 5 of the Constitution to determine the qualifications of its membership. Plaintiff argued and the Supreme Court of the United States (Supreme Court) agreed, the ratification debates and historical context of the framers limit the qualifications to those set forth in the Constitution. The Supreme Court also notes that to hold otherwise would nullify the framers decision to require two-thirds vote for expulsion. Discussion. There is actually one independent and one dependent issue in Powell. First, what power the Constitution confers on the House. In other words, is there a textually dependent commitment? Second, how to interpret the text on which such commitment depends. A textually dependent commitment is necessary for judicial review (i.e., the Supreme Court is the ultimate interpreter of the constitution). Once this is established, the Supreme Court must interpret the textual meaning. In Powell, it is clear and conceded that Powell met the requirements specifically mentioned in Article I regarding qualifications of representatives.

Class note: why this is not a political question? Which one is court relying on?- this case interprets the constitution and not a political question. It is not a political question because there is a clear standard. Article 1 section 2 PQ doctrine applied: Foreign Policy Goldwater v. Carter
Facts: President Carter terminated a defense treaty with Taiwan. Neither the Senate nor the House have taken action to prevent or contest the action. Several members brought this claim alleging the President has deprived them of their Constitutional role. Issue: Whether the President, in terminating at treaty with another country, needs the approval of Congress, and if so does it involve a political question? Holding: The issue involves a political question. Procedure: Ct. of App. judgment is vacated and the case remanded to D. Ct. for dismissal. Rule: The President is authorized to make treaties with the advise and consent of the Senate. Treaties shall be a part of the supreme law of the land. Judicial action is barred where there is an unusual need for unquestioning adherence to a political decision already made. Issues affecting allocation of power are unreviewable. Constitutional text which grants exclusive responsibility to a particular governmental function to one of the branches, and thereby eliminating the courts interference in the business of those other branches. Ct. Rationale: If Congress had challenged the Presidents authority to terminate, then the court would have justiciable issue to decide. Without a challenge the issue only involves a political question. Neither the Senate nor the House have taken any action, thereby rendering the case unripe for decision. There is no specific language preventing the President from terminating treaties without approval. There is no showing that Congress has rejected the Presidents claim. It is Congress choice to challenge the President not the Courts. Where the Constitution is silent this case is controlled by political standards. Congress has terminated treaties without Presidential approval. PL A: The Constitution makes specific mention that the President needs the approval and consent of the Senate to make a treaty, therefor the contra positive is true: President cannot terminate a treaty without approval and consent of the Senate. If so, a constitutional case and controversy are ripened for decision. Whether the decision making authority is Constitutionally valid is a determination left to the courts. Def A: The issue is a political question where the PL is asking the court to issue an advisory opinion on whether the President can or cannot terminate a treaty.

Class note: This case talks about ratification. President wants to rescind the treaty with Taiwan to recognize china. The case claims that the president do not have the power to rescind and or ratify a treaty. Ratification is in the Article II section 2- Executive branch. How does goldwater exceeded the carter scope? If you need senate to create it, you are going to need senate to tear it down. The court replied to the argument saying- and it relied on two factors such as nonjusticiable (when it is nonjusticiable, it is non reviewable),

Iv.

The political question doctrine applied: impeachment and removal

Nixon v. United States- (challenges to impeachment and removal are not justiciable)
Brief Fact Summary. Walter L. Nixon Jr. (Nixon) claimed that Senate impeachment hearings against him were unconstitutional because the entire Senate did not try him, but instead appointed a committee to make initial findings. Synopsis of Rule of Law. A controversy is nonjusticiable if there is a textually demonstrable commitment of an issue to a coordinate branch of government or a lack of judicially manageable standards for resolving the controversy. Facts. Nixon, a Chief Judge of the United States District Court, was the subject of an impeachment hearing before the Senate. The Senate appointed a committee under Senate Rule XI to create a report of findings regarding the impeachment of Nixon. Based on the findings of the committee and oral arguments from both the committee and Nixon, the Senate convicted Nixon by more than the constitutionally required two-thirds vote. Nixon commenced suit, claiming that Senate rule XI violates the constitutional grant of authority to the Senate to try all impeachments because it prohibits the entire Senate from taking part in the trial and evidentiary hearings. The District Court and the Court of Appeals held that the claim was nonjusticiable. Issue. Is the constitutionality of Senate Rule XI nonjusticiable because it involves a political question? Held. Yes. Judgment Affirmed. A controversy is nonjusticiable because of the political question doctrine for one of two reasons. First, if a textually demonstrable constitutional commitment of the issue to a coordinate political department is present. Second, if a there is a lack of judicially discoverable and manageable standards for resolving the controversy. A lack of judicially manageable standards may strengthen a conclusion that there is a textually demonstrable commitment. Nixons claim that the word try required proceedings in the nature of a judicial trial was rejected by the Court. The Court found that the word try has a broader meaning and that the Framers of the Constitution did not intend to impose additional limitations. The Court found that the Constitutions imposition of the sole power of impeachment on the Senate constituted a textually demonstrable commitment to a coordinate political department. The Court also found that the Framers intentionally separated impeachment trials from criminal trials in order to avoid an appearance of bias and that a lack of finality and difficulty in fashioning relief counsels against adjudicating the matter. Concurrence. Justice Stevens. The meaning of the words sole and try are not as significant as the designation of the impeachment power to the Legislative Branch. Justices White and Blackmun. The matter is not a nonjusticiable political question. Nonetheless the Senate fulfilled its constitutional obligation to try Nixon. Justice Souter. There are situations in which judicial review of an impeachment trial would be appropriate. Discussion. The majoritys findings support the political question doctrine by declining to adjudicate matters textually committed in the Constitution to other branches of government.

Class note: what is problematic about impeachment?- all the senators have to listen to all the witness. But to make the problem resolve, there is a committee. committee listens to witnesses and make report to senate. Nixons argument is to try means the whole senate should be involved to decide. The court defines try by taking evidence (by the witness testimony and from dictionary). Court says it is not justiciable because of senates sole authority to make decision. Court relies on some factors that were also relied on in Baker v. Carr case. C REVIEW: For a case to be justiciable, we have doctrines- justiciable Standing(Who), ripeness(when) mootness, political questions (what?) Generalized grievances Third party standing We dont want any of these doctrines in the way and get kicked out of the court because it will end the case. STANDING Injury 1. Concrete and palpable (allen v. Wright) and, 2. Imminent Causation 1. Fairly traceable to the defendant (like tort) Third party independent actor= no causation If contributory actor= causation occurs

Redressabilithy Favorable decision Remedy harm Generalized grievance- legislative branch using their legislative power Third part 1. Obstacle 2. relationsip Ripenessfitness for review Hardship Inevitable (do not say eminent injury because that is for Standing only) Mootness 1. Capable of repetition 2. Voluntary cessation- test: no reasonable likelihood that will recur. 3. Class action Political question doctrine- Foreign policy, Treaty, Impeachment, Guaranty clause- court finds guaranty clause to be political question. Essay question on chapter 1 notes *** when plaintiff thinks law will be enforced, it is not ripeness issue but when plaintiff knows law will be enforced against them, that is the ripeness issue. Ask Redressability Causation Ripeness STANDING 1. Harm environment 2. Lack of information- cannot study anymore for the harm. Who is causing the harm? Redressability (allen v. right) GENERALIZED GRIEVANCE Is it eminent? The essay has standing and generalized grievance issues.

CHAPTER 2 The federal legislative power

A. Introduction: congress and the states Basic principle is congress may act only if there is express or implied authority in the constitution, whereas states may act unless the constitution prohibits the action. Article I creates the federal legislative power. all legislative power HEREIN granted shall be vested in congress which is consists of senate and house of representative. 10th Amendment also declares, the power not delegated to the United States by constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Two factors in evaluating constitutionality of any act of congress: - Does congress has the authority to legislate under constitution? Scope of the powers granted to congress under Article I section 8. - If so, does the law violate another constitutional provision, such as by infringing separation of powers or interfering individual liberty. At times, court protected state sovereignty and used 10th amendment to do so. Other times, court did not protect so. Subsequent sections discusses particular federal powers, commerce clause, taxing and spending power, authority under section 5 of fourteenth amendment, and its power to authorize suits against state. The framework for analysis: McCulloch is the most important SC decision defining congresss

powers and delineating the relation between state and federal government. McCulloch v. Maryland
Brief Fact Summary. The state of Maryland enacted a tax that would force the United States Bank in Maryland to pay taxes to the state. McCulloch, a cashier for the Baltimore, Maryland Bank, was sued for not complying with the Maryland state tax. Synopsis of Rule of Law. Congress may enact laws that are necessary and proper to carry out their enumerated powers. The United States Constitution (Constitution) is the supreme law of the land and state laws cannot interfere with federal laws enacted within the scope of the Constitution. Facts. Congress chartered the Second Bank of the United States. Branches were established in many states, including one in Baltimore, Maryland. In response, the Maryland legislature adopted an Act imposing a tax on all banks in the state not chartered by the state legislature. James McCulloch, a cashier for the Baltimore branch of the United States Bank, was sued for violating this Act. McCulloch admitted he was not complying with the Maryland law. McCulloch lost in the Baltimore County Court and that courts decision was affirmed by the Maryland Court of Appeals. The case was then taken by writ of error to the United States Supreme Court (Supreme Court). Issue. Does Congress have the authority to establish a Bank of the United States under the Constitution? Held. Yes. Judgment reversed. Counsel for the state of Maryland claimed that because the Constitution was enacted by the independent states, it should be exercised in subordination to the states. However, the states ratified the Constitution by a two-thirds vote of their citizens, not by a decision of the state legislature. Therefore, although limited in its powers, the Constitution is supreme over the laws of the states. There is no enumerated power within the Constitution allowing for the creation of a bank. But, Congress is granted the power of making all laws which shall be necessary and proper for carrying into execution the foregoing powers. The Supreme Court determines through Constitutional construction that necessary is not a limitation, but rather applies to any means with a legitimate end within the scope of the Constitution. Because the Constitution is supreme over state laws, the states cannot apply taxes, which would in effect destroy federal legislative law. Therefore, Marylands state tax on the United States Bank is unconstitutional. Discussion. This Supreme Court decision establishes the Constitution as the supreme law of the land, taking precedent over any state law incongruent with it.

Class: court says congress have express powers and instead of interpreting it narrowly, we have to interpret according to what it meant. If power of post office does not mean they can delivery the mail as well, it would not have a meaning. That way, if creating and circulate money may mean creating a bank as well. congress is given the power by all the state as superior and taxing it would be like taxing every other state as they have money in the bank. The power to tax is to power to destroy. If you have power to tax united states then you may have power to destroy united states. What role should concern over protecting states have in defining congress powers? Constraint on congresss authority usually identifies three benefits of protecting state: 1. Decreasing federal tyranny 2. Enhancing democratic rule by providing a government that is closer to people 3. Allowing states to be laboratories for new ideas. Looked at 9 amendment- just because its not written, does not mean you do not have right. Constitution is the ceiling of our rights.
th

10th amendment addresses the power of state and its citizen. Counterpart of amendment 9 and 10 B. THE COMMERCE POWER Article I section 8 gives congress the authority to regulate commerce and also on a broad array of federal legislation from criminal to securities, to civil rights to environmental laws. Three question are to be defined to understand the scope of the clause- what is commerce? Among several states? Tenth amendment is a limit? There are four eras of commerce clause jurisprudence: i. History until 1890s: commerce clause was broadly defined but minimally used.

ii. iii. iv.

1890-1937: court narrowly defined the scope of commerce clause and used tenth amendment as a limit 1937-1990: court expansively defined commerce clause power and refused to apply tenth amendment. Since 1990: court again narrowed the scope and revived tenth amendment as an independant judicially enforceable limit

1. The initial era: Gibbons v. Ogden defines the commerce power Gibbons v. Ogden
Brief Fact Summary. Ogden was given an exclusive license, pursuant to a New York statute, to run a ferry between New York and New Jersey. Gibbons obtained a license, pursuant to federal law, to run a ferry in New York waters, thus, running in interference with Ogdens license. Ogden sought an injunction against Gibbons. Synopsis of Rule of Law. Congress power to regulate interstate commerce does not stop at the external boundary line of a State. Congress power to regulate within its sphere is exclusive. Facts. The New York legislature enacted a statute granting Fulton and Livingston an exclusive right to operate a steamboat in New York waters. Thereupon, Fulton and Livingston licensed Ogden to operate a ferry between New York and New Jersey. Later, Gibbons began operating a ferry, licensed under a statute enacted by Congress that necessarily entailed Gibbons entering into New York waters, thereby violating Ogdens monopoly. Ogden obtained an injunction against Gibbons from a New York court. Issue. Was the New York courts injunction against Ogdens license lawful? Held. No. The New York monopoly was invalid under the Supremacy Clause. Gibbons was given a license to move within the New York waterway, i.e., to navigate. Article I, Section 8 of the United States Constitution (Constitution) grants Congress the power to regulate commerce among the several states. Contrary to Ogdens assertion, commerce means more than traffic. It also encompasses navigation. The phrase among the several states means intermingled with them. Therefore, Congress power to regulate among the several states must not stop at the external boundary line of each State. Congress power must also extend to each States interior. Moreover, the power of Congress to regulate within its proper sphere, e.g., interstate commerce, is exclusive. Discussion. The student should note that chief Justice John Marshall (J. Marshall) in his holding is not saying that commerce that is completely internal and that does not affect other States is subject to regulation by Congress under the Commerce Clause.

Note: Gibbons gives meaning to among several state as to commerce among the state and cannot stope at the external boundary line of each state but may be introduced into the interior. It is the power to regulate that may be exercised to utmost extent and acknowledges no limitation except for what are precribed in constitution. Class: what does it mean by regulating commerce? It is within boundary of New York and New Jersey, yet why court says it has the power to give people license. What falls under commerce clause?- navigation Commerce is intercourse among the states. Inter means between the states. That is how court begins to define ocmmerce. How do we define among? inter mingle with more than one. 2. The 1890s-1937: A limited federal commerce power SC took very different approach than what is in Gibbons and narrowly interpreted commerce power of congress based on concern to leave regulatory matters to state government. During this era, SC majority was committed to laissez- faire- unregulated economy. Was also invalidating state laws regulating economy. Ex- if congress enacted minimum wage, that would be invalidated based on federalism. If state government adopted such law, it would be invalidated based on freedom of contract under Due Process Clase. Court applied three doctrinesi. Narrowly defined commerce ii. Applied restrictive conception of what is among the state iii. It held, congress violates tenth amendment when it regulates matters left to state Court reads commerce very narrowly. the business was in economic boom and court did not want to interfere with that. What is manufacturing? Court had decided in C v. CC that manufacturing is not a part of

commerce. Production is also not a part of commerce. In houston v. west texas, court finds commerce because it .. What does among the state mean?- during this era, court did not adopt consistent approach defining COMMERCE. Sometimes it accorded congress the ability to regulate intrastate transactions because of their impact on interstate commerce. But In A.L.A schecter poultry case, court limited the power by restricting congress to only those matters with a direct effect on interstate commerce. A.L.A. Schechter poultry corp v. United States vv imp (minimum wage, labor hour) Brief Fact Summary. The Defendant, A.L.A. Schechter Poultry Corporation (Defendant), a slaughterhouse in New York City, was sued under the Live Poultry Code, which regulated the poultry industry by requiring collective bargaining, a 40 hour work week, and a minimum wage, among other provisions. Synopsis of Rule of Law. The Commerce Power ceases where the currents of interstate commerce stop. Facts. New York City was the largest live poultry market in the United States. Ninety-six percent of the live poultry in New York comes from other states. Independent contractors generally unload the poultry in Manhattan or one of the four railway terminals in New Jersey that serve New York City. Defendants, slaughterhouse operators, bought poultry from the contractors in New York City and processed the birds in Brooklyn. The processed birds were sold directly to retailers in New York State. Defendant does not sell poultry interstate. Issue. Does the Commerce Clause give Congress the power to regulate the Defendants business? Held. No. Judgment reversed and remanded. The United States Supreme Court (Supreme Court) conceded the poultry is shipped interstate. However, as the Defendant corporation buys the poultry in state and sells the poultry in state for in state consumption, the corporation is not involved in interstate commerce. Therefore, the Commerce Clause does not give Congress the power to regulate the corporations. Discussion. The Supreme Court makes a strong distinction between the fact that 96% of the poultry coming into New York City was from out of state and the fact that the Defendant corporation bought and sold to in state entities. However, this distinction becomes less important in the Commerce Clause jurisprudence after 1937. Class-Child labor, Long hour and minimum wage as well as Live poultry code is at issue in this case. The interstate commerce stops at new york because it does not go anywhere else from new york. Court meant in hammer v. davenport- p 154 (dont read) but the court says, this is not commerce either because it is production. Very narrowed interpretation of commerce clause. p. 159 has discussion

Does Tenth amendment limit congressional powers? powers not delegated to United States, not it is prohibited to states, are reserved to the states respectively, or to the people there are two approaches interpreting it- Its not separate constraint, rather a reminder that congress may only legislate if it has authority under constitution. (Gibbons view) - Alternative approach: it protects state sovereignty. 3. 1937- 1990s: Broad Federal commerce power

Justice switching vote to dilute the majority.

Key decisions changing the commerce clause doctrine Laughlin steel, Darby, and Wickard overruled earlier era and expanded congress scope under the commerce clause.
NLRB v. Jones Laughlin Steel Corp. (Effect on Interstate)
Brief Fact Summary. This case challenges the constitutionality of the National Labor Relations Act of 1935 (the Act) when the Act regulates activity that occurs solely within the boundaries of one state. Synopsis of Rule of Law. Congress has the power to regulate intrastate activities that potentially could have a significant impact on interstate commerce. Facts. This case challenged the constitutionality of the Act. The National Labor Relations Board (NLRB) found that Jones & Laughlin Steel Corp. (Jones & Laughlin) engaged in unfair labor practices by firing employees involved in union activity. Jones & Laughlin failed to comply with an order to end the discriminatory practices. The NLRB sought enforcement of its order in the Court of Appeals. The Court of Appeals found the order was outside of the range of federal power. The matter was appealed to the Supreme Court of the United States (Supreme Court). Issue. Does the federal government have the power to regulate local employment practices in companies whose business effects interstate commerce? Held. Yes. Judgment reversed. The Supreme Court found that Jones & Laughlin does significant business outside of the state of Pennsylvania. The majority of its products were sold outside of the state. Congress retains the power to control and regulate interstate commerce. Although the employee discharges may be an intrastate activity, the repercussions from such discharges have the potential to significantly affect interstate commerce. Therefore, Congress has the power of legislation over such activities. Dissent. The employee discharges are too remote from interstate commerce to justify Congressional regulation. Discussion. Congress passed the Act under its commerce power. The commerce power is a broad ranging power, which is the basis for a significant amount of Congressional legislation.

Class- This case is about discrimination against union. Court was redefining commerce. Production of steel was going out of the state and court is concerned about that. Before it was like- production and people involved in production was interstate. United states v. Darby
Brief Fact Summary. Darby was charged with violating the Fair Labor Standards Act (the Act) by failing to comply with minimum wage and hour requirements for employees. He challenged the violation, claiming the regulation on intrastate wages and hours did not fall within the commerce powers of Congress. Synopsis of Rule of Law. If the regulated intrastate activity has a substantial effect on interstate commerce, Congress may regulate the activity regardless of Congresss motive. Facts. Darby, a lumber manufacturer challenged the constitutionality of the Act. Darby paid employees below the prescribed minimum wage and forced employees to work beyond the prescribed maximum weekly hours. The District Court found the Act was beyond the powers of Congress because it attempted to regulate hours and wages of employees in local manufacturing activities. The finding was appealed to the United States Supreme Court (Supreme Court). Issue. Do the wages and hours of local employees have such a substantial impact on interstate commerce as to allow Congress to constitutionally regulate them? Held. Yes. Judgment Reversed. The Supreme Court found that the manufacture of goods is not itself interstate commerce, but that the shipment of manufactured goods interstate is within the regulatory powers of Congress. The current legislation is an attempt to stop interstate competition in the distribution of goods produced under substandard labor conditions. Regardless of Congresss motive, Congress may regulate commerce so long as the regulations do not infringe on any other constitutional prohibitions. This decision overruled Hammer v. Dagenhart, 247 U.S. 251 (1918), which came to the opposite conclusion. Congresss power over interstate commerce extends to intrastate activities, so long as the intrastate activities have a substantial effect on the commerce or the exercise of Congressional power over it. Discussion. The Court in this case relies on the effects of a local economic activity on interstate commerce, establishing a substantial effect test.

Class- Court sees there is commerce in this case. Bottom of 165- last paragraph. Always think about what are the states right? Court addresses that here. Courts find tenth amendment doesnt do much but it is declatory. It announces what congress does. In this case congress is not doing

much. Therefore, the tenth amendment is not an issue in here Understand how these are developed one by one- local first then setting it aside and opening it up, then 10th amendment came into play. 166- 174, 1835 cases.

CLASS- 9/21/2011 What is commerce? If farmer over produce- price drops, if farmer produce less- price hikes. But we as consumers need predictability. Backdrom- Dustball, coincided with national depression. Farmer produced little more than the Act allowed. He was using the extra for his personal use. Is congress validly using its commerce power to control his personal use? His production for personal use is reducing his needs for buying others products and not engaging/participating in commerce. How does the court begin to define the commerce?- previously it rejected local product, manufacturing. They are now including direct and indirect commerce that has an economic effect because he is not buying from anyone else. How is it national commerce to hit this farmer with the Act? Substantial economic effect in commerce (Wickard- Aggregately/cumulate) if all farmers start doing the same. Wickard is a very good law, previously court did not find production or indirect harm but Wickard brought it in. court looks into this case broadly and defines why congress Act has sufficient authority Wickard v. Filburn
Brief Fact Summary. The Appellee, Filburn (Appellee), produced wheat only for personal and local consumption. He was penalized for growing wheat in excess of his allotment allowed by the Department of Agriculture. Synopsis of Rule of Law. Congress may regulate the activities of entities totally apart from interstate commerce, if those activities affect interstate commerce. Facts. Appellee was an owner/operator of a small farm in Ohio. He sold milk, poultry, and eggs. He also grew a small crop of winter wheat every year. Appellee sold a portion of the wheat, used some as feed for poultry and livestock, used some to make flour for home consumption, and the kept the rest for the following seeding. Pursuant to the Agricultural Adjustment Act of 1938 (Act), the Appellees 1941 wheat allotment was 11.1 acres and a normal yield of 20.1 bushels per acre. In the Fall of 1940, however, he planted 23 acres, which yielded 239 bushels from his excess acreage. He was assessed penalties on this amount of 49 cents a bushel, or $117.11. Issue. May Congress regulate purely intrastate activities under the commerce clause? Held. Yes. Appeals court ruling reversed and remanded. Although the wheat may be entirely for personal consumption, it does compete for wheat in commerce, by taking away the demand for wheat by the one who grows it. As the one growing the wheat does not have to buy wheat, the demand for wheat goes down. When viewed in the aggregate (if everyone overgrew wheat for personal consumption), this decrease in demand would have a significant effect on interstate commerce. The Supreme Court of the United States (Supreme Court) acknowledges that the effect of the single farmer may well be negligible to interstate commerce, but when viewed in the aggregate of all farmers similarly situated it may significantly affect the value of wheat in commerce. Discussion. Wickard v. Filburn is in some ways the greatest exercise of the commerce power recognized by the Supreme Court. Note that the Supreme Court seems to say Congress can compel an individual to purchase wheat when the
individual could grow wheat for personal consumption.

Notes This case presents an example of the effectation doctrine; the Court focused on the final aggregate effect of the activity rather
than its geographical nature.

Meaning of commerce among the states Three areas where court had the occasion to consider commerce among states- civil rights, regulatory laws, criminal laws. Civil rights Law: Civil rights Act enacted by Fed- the law prohibits private employement discrimination based on race, gender, or religion and forbids racial discrimination by places of public accommodation (hotel, restaurants) congress did it under Commerce clause.

Congress pursuant to section 5, only could regulate government conduct and could not private conduct under fourteenth amendment. So congress used commerce clause as authority from these private conduct. Initially civil rights act was invalid. First we have to ask, where is congress source is coming from? (Just like judicial authority- is it justiciable?) check 14th amendment- only for GOVERNMENT. Congress chose to use the Commerce Claus as the authority for private discrimination. Before, congress could not do anything about it about private discrimination. There was no remedy for private discrimination under constitution and STILL NOT unless there is a state law regarding it. 14th amendment section 5- Civil rights Act (congress shall have power to enforce, to effectuate by appropriate legislation the provisions of this article). section 5 gives teeth to congress to extend its power under the section 1to protect equal protection. But section 5 does not allow congress to legislate against individual/private discrimination. It only reaches to governmental discrimination. Heart of Atlanta motel, inc. v. United States
Brief Fact Summary. Prior to passage of the Civil Rights Act of 1964 (the Act), the Appellant, Heart Atlanta Motel, Inc. (Appellant) operated a motel which refused accommodations to blacks. Appellant intended to continue this behavior to challenge Congress authority to pass the Act. Synopsis of Rule of Law. Congress may regulate the ability of commercial institutions to deny service on the basis of race under its power to regulate interstate commerce. Facts. Heart of Atlanta Motel had 216 rooms available to transient guests and had historically rented rooms only to white guests. Appellant solicits business from outside the State of Georgia through advertising in national travel magazines and other media. Approximately 70% of its guests are from outside the state. Appellant contends that Congress has overreached its authority under the Commerce Clause in enacting the Act. Issue. May Congress prohibit racial discrimination in hotel lodging under the Commerce Clause? Held. Yes. Appeals court ruling affirmed. Congress heard testimony from many sources describing the hardships blacks face in securing transient accommodations throughout the United States. With an increasingly mobile populace, this brought increasing difficulties to many United States citizens. It does not matter that Congress was addressing a moral issue (see the dissent in Hammer v. Dagenhart, 247 U.S. 251 (1918) and the Supreme Court of the United States (Supreme Court) opinion in Darby, 312 U.S. 100 (1941). What the Supreme Court is examining is Congress power to enact the legislation, not the impetus behind the Act. Concurrence. Justice William Douglas (J. Douglas) concurs in the judgment, but he is uneasy resting the decision on the Commerce Clause, rather than Section: 5 of the Fourteenth Amendment of the United States Constitution (Constitution). He feels that it is more appropriate to rest civil rights legislation on the constitutional status of the individual, than the impact on commerce. Discussion. The first of the modern civil rights cases before the Supreme Court, Heart of Atlanta Motel, illustrates the plenary nature with which the Supreme Court had vested the commerce power. The view expressed by J. Douglas was eschewed by the majority, largely because in The Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court had ruled that Section: 5 of the Fourteenth Amendment of the Constitution could not regulate private behavior.

Class- 14th amendment is not available for private discrimination, so congress used Commerce clause. They found interstate commerce is affected Concurrence: even though justice douglas concurred, he thinks it should be more under 14th amendment civil rights act than commerce clause. Always ask when see an act by Congress- where does congress get the source? Katzenbach v. McClung, Sr. & McClung, Jr.
Brief Fact Summary. Ollies Barbecue, a family-run business in Alabama did not serve blacks in the restaurant, which was in violation of Title II of the Civil Rights Act of 1964 (the Act). Synopsis of Rule of Law. Congress has the ability to require desegregation of restaurants under the Commerce Clause. Facts. Ollies Barbecue served barbecued meats and homemade pies from its location in Birmingham, Alabama. Before and after passage of the Act, the restaurant had only served black patrons on a carry-out basis. Approximately 50% of its food was purchased from a local supplier who procured it from out of state. Because of the local nature of its operations, the Appellees, Ollie McClung Jr. and Sr. (Appellees), argues that Congress has overstepped its powers under the Commerce Clause. Issue. May Congress regulate racial discrimination by locally owned and operated restaurants?

Held. Yes. Appeals court ruling reversed and remanded. Many of the issues in the case had been answered in Heart of Atlanta Motel, 379 U.S. 241 (1964). The largest remaining question was whether the Appellees establishment serves interstate travelers or offers food that a substantial portion of which has moved in interstate commerce. Because Appellees admitted the latter query was true, the Supreme Court of the United States (Supreme Court) ruled that Congress had authority to regulate the restaurant under the Commerce Clause. Discussion. Katzenbach v. McClung was decided on the same day as Heart of Atlanta Motel and represented the desegregation efforts by the Supreme Court. Again, it is notable that the Supreme Court ruled that Congress authority extended from the Commerce Clause.

Class- there is no evidence of African Americans were travelling interstate. It was a local establishment. But the food was coming from out of state and that is how it was part of commerce. We have to have Substantial effect and not only any economic effect. This case is going beyond travelers. Civil rights Act is valid after katzenbach but not because of the 14th amendment rights but for the commerce clause and therefore, statutory you have a right now under the civil rights act. You cannot mention about 14th amendment Civil Right in your complaint.

Regulatory laws:
Hodel v. Indiana
FactsCongress enacted a law regulating strip mining and requiring rehabilitation of the strip-mined land. Procedural History District Court found parts of the Act unconstitutional as the mining was not interstate commerce, order injuction against Secretary of the Interior. IssuesDoes Congress as the power to require strip-mined land be rehabilitated for reclamation? Holdings & Court OrderYes, reversed and remanded. ReasoningA court may invalidate legislation created under the Commerce Clause in only two situations. First, when there is no basis for Congress to rationally find the activity affects interstate Commerce. Second, if there is no reasonable relationship between the regulatory means and the ends.

Criminal Law: Perez v. United States FactsAct bans extortionate credit transactions, though purely intrastate. Loan sharking is traditionally a local activity. Issue Can Congress ban a local activity as affecting interstate commerce? Holding The intrastate activity of loan sharking may affect interstate commerce and thus may be made criminal by Congressand the courts have no power to excise, as trivial, individual instances of the class. Loan sharking affects interstate commerce because the funds are used for organized crime. There was no showing that this particular individual was involved in organized crime. The fact that any single business or individual regulated by Congress has only a small impact on interstate commerce is immaterial. The crucial question is whether there is an aggregate effect on other states by the class of activities regulated. JudgmentUpheld. Class- National league case (we did not read)- can you use commerce clause for no you cannot because commerce clause does not go into sovereignty. State has some power to regulate its power for citizens of own state- not under the commerce.

The Tenth amendment Between 1937-1990s In Darby case SC reminded congress to act it must have authority under constitution. 4. Since 1990s: Narrowing of the commerce power and revival of the tenth amendment as a constraint on congress In this era, SC again decided that congress power should be constraint and decided whether

tenth amendment is a limit. Lopez led to challenge dozens laws and court said congress exceeded its authority. It again used tenth amendment to protect state government. Lopez answers what is congress authority to regulate commerce among states. United States v. Lopez (commerce clause was narrowed through this case)
Brief Fact Summary. The Gun-Free School Zones Act (the Act) of 1990 made possessing a gun within a school zone a federal offense. A 12th grade student (Lopez) was convicted of violating the Act when he brought a handgun to his high school. Synopsis of Rule of Law. The power of Congress to regulate activities extends only to those activities that substantially affect interstate commerce. The Act neither regulates commercial activity, nor contains a requirement that the possession be connected in any way to interstate commerce. Facts. Congress passed the Act making it a federal crime for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. Lopez (D), a 12th grader, was convicted for carrying a concealed handgun into his high school. The Court of Appeals reversed the lower court on the grounds that the law was outside the scope of the commerce power. Issue. Does the commerce power of Congress extend to activities that have no apparent connection to interstate commerce? Held. No. The Court of Appeals is affirmed. The activity being regulated must substantially affect interstate commerce. There are three broad categories of activity Congress may regulate under the commerce power. First, the channels of interstate commerce. Second, the instrumentalities of interstate commerce. Third, activities having a substantial effect upon interstate commerce. In the instant case, only the third category applies. In order for the statute to be deemed valid, the activity must substantially affect interstate commerce. The Act is a criminal statute, which does not regulate economic activity. In passing the Act, Congress banned possession of a gun that has never traveled in, or affected, interstate commerce. Congress provided no findings in the statute showing possession of guns in schools affected commerce. The federal government argues possessing a firearm could affect the national economy in two ways. First, by imposing high financial costs upon society through insurance. Second, by preventing individuals from traveling into areas where violent crime occurs. Thus, the government concludes, the Act substantially affects interstate commerce. The majority rejected these arguments because under the governments theories, there would be no limits on federal power. The commerce power would extend to any activity that leads to violent crime and any activity related to the economic productivity of individuals. Congress does not have plenary police power. Possession of a gun in a school zone is not an economic activity that affects interstate commerce. Dissent. (Breyer, J) Congress had a rational basis for finding a substantial connection between gun-related school violence and interstate commerce. Evidence exists that gun-related violence interferes with the quality of education in schools and education is related to economic viability. (Souter, J) Congress had a rational basis for its conclusions. Further, gun-related violence around schools is a commercial problem. The majority wrongly believes it can justify its holding by distinguishing between commercial and non-commercial transactions. Concurrence. (Kennedy, J) While the majoritys holding is viable, it should be limited. If not, the holdings of prior Supreme Court of the United States (Supreme Court) cases interpreting the Commerce Clause will be infringed upon. Congress should have the power to regulate all commercial transactions. The Supreme Court should not disturb the essential principles of the commerce power. Further, education has traditionally been an activity regulated by the states. It should not be regulated under the federal commerce power. (Thomas, J) The Supreme Court has departed from the traditional understanding of the Commerce Clause. The Constitution does not support the idea Congress has authority over all activities that substantially affect interstate commerce. The substantial affects test is a departure from the original understanding of the commerce clause. It incorrectly grants Congress a police power. Discussion. When an activity is not directly connected to commerce, the Congressional regulation will usually not be upheld, especially when the activity is traditionally regulated by the states.

Outline p 184
Class- Commerce is the broadest power congress can use. There are also limitations that we see in the Lopez case. Lopez case gives test with three ways to define how and when it is an interstate commercea. Channels of interstate commerce 1. Highway, water, train, air, rail road, internet (amazon is not mean of

interstate commerce but if you order EBOOK then it is because ebook (for its delivery mechanism) cannot be physically delivered and therefore, that would be a mean of commerce). Channels have to be through what goods have to be moving b. Instrumentalities of interstate commerce: 1. Boats, trains, vehicles, persons, things travelling in interstate c. Substantial effect on interstate common question 1. Education effected, police cost, national productivity A and b is kind of factual and makes its case on the face. Usually therefore, c is in dispute. Justice Stevens dissent: Lopez is defining the effect: Now it has to not only substantial but also ECONOMIC. Katzenbach had traveler had effected interstate but this case does not have that jurisdiction but it is under ECONOMIC EFFECT. Class 9/26/2011 Lopez is the biggest case in commerce clause that brought changes. Then comes the case of Morrison. United States v. Morrison- this case compliments Lopez (narrow interpretation continues)
Brief Fact Summary. The Respondent, Morrison (Respondent), was sued under part of the Violence Against Women Act of 1994 (Act), which penalized crimes of violence motivated by gender. Now Respondent argues this section of the Act is beyond the scope of Congress power to regulate commerce. Synopsis of Rule of Law. Intrastate actions must be economic in nature to be viewed in aggregate by courts reviewing a Commerce Clause case. Facts. Christy Brzonkala enrolled at Virginia Tech in the fall of 1994. Shortly after enrolling, she was allegedly repeatedly sexually assaulted by two varsity football players, including Respondent. After the incident Brzonkala suffered severe emotional distress. She twice participated in academic hearings against Respondent and later dropped out of the school. She finally brought suit against the two male students, including the Respondent and the university in Federal District Court. Issue. Is Section: 13981 of the Act a constitutional exercise of Congress commerce power? Held. No. Appeals court ruling affirmed. Applying the three-prong test from Lopez, 514 U.S. 549 (1995), the Supreme Court of the United States (Supreme Court) determined that violence against women does not substantially affect interstate commerce. The Supreme Court further defined the aggregate effects test (see Wickard v. Filburn, 317 U.S. 111 (1942)) by noting that intrastate activities must be considered in the aggregate only if the activities themselves are economic in nature. Dissent. Justice David Souter (J. Souter), dissenting, argued that the aggregate effects of sexual assault are economically felt and therefore proper subject for regulation by the commerce power. Concurrence. Justice Clarence Thomas (J. Thomas) concurs, but reiterates his belief that the Supreme Court should develop a new standard for review of Commerce Clause cases. Discussion. United States v. Morrison makes clear that Lopez is not a speed bump in the Supreme Courts Commerce Clause jurisprudence, but rather a new direction altogether. The Supreme Court is more capable of reining in congressional action as not substantially related to interstate commerce.

She brings violence against womens Act. She could not bring any criminal charges because that was on hand of prosecutor and prosecutor did not charge. Court decided that .. three factors of commerce clause- (this is what you apply for commerce clause) Channel Instrumentality Substantial effect on interstate commerce Court said that this has to have an economic effect. Violence against women costs 3 billion dollars. She drops drop school which effects her economic potential. Her medical bills, if she doesnt leave the house then she might not work. Even stalking effects their work as well. Congress brings the act. The levels of scrutinyInterest Strict Fit deference to congress

Intermediate Rationale basis (Ratio/economic) Legitimate $3 billion rationally related highest

Congress finds cost to violence against women 3 billion dollars. Whereas, congress is supposed to get highest deference, here court does not give the congress any deference. (justice souters dissent on p.192). ASK PROFESSOR ABOUT SCRUTINY Gonzales v. Raich- also narrows the commerce clause.
PROCEDURAL POSTURE: Respondents, claiming a violation of the Commerce Clause, sought injunctive and declaratory relief prohibiting enforcement of the federal Controlled Substances Act (CSA), 21 U.S.C.S. 801 et seq., to the extent it prevented them from possessing, obtaining, or manufacturing cannabis for their personal medical use. A district court denied a motion for a preliminary injunction, but the United States Court of Appeals for the Ninth Circuit reversed. OVERVIEW: Respondents were California residents who suffered from a variety of serious medical conditions and had sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act, Cal. Health & Safety Code 11362.5 (2005). After an investigation, county officials concluded that one respondent's use of marijuana was entirely lawful under California law; nevertheless, federal agents seized and destroyed all six of her cannabis plants. The Court held that the regulation of marijuana under the CSA was squarely within Congress' commerce power because production of marijuana meant for home consumption had a substantial effect on supply and demand in the national market. Given the enforcement difficulties in distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C.S. 801(5), and concerns about diversion into illicit channels, the Court had no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Congress was acting well within its authority of the Commerce Clause, U.S. Const., art. I, 8. OUTCOME: The judgment of the Court of Appeals was vacated. The case was remanded for further proceedings.

Class- It is not like wicker where their grown wheat for own consumption would effect the market. In this case, even though they are growing marijuana for own consumption, but there is actually not any legal marijuana market which is affected. (ask professor if it is not like wicker, how it was found constitutional. On what basis?) IF YOU GET COMMERCE CLAUSE, YOU HAVE GOOD CASES ON BOTH SIDES TO HAVE GOOD ARGUMENT. b. Does the tenth amendment limit congresss authority? The tenth amendment is not a source of power but a reservation. It does not give states authority but States have REMAINDER of authority through this. Tenth amendment is always a check on the federal acts. New York v. United States
Brief Fact Summary. A federal statute required states to either provide for radioactive waste disposal or take title to waste made within the states borders. New York claims the statute is an impermissible violation of state sovereignty. Synopsis of Rule of Law. Congress does not have the power to force states to implement regulations. Facts. Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act). The Act attempted to force states to arrange for the disposal of radioactive waste. The three parts of the Act were: (1) a monetary incentive to encourage states to open their own waste sites; (2) an access incentive, where states without waste sites could be denied access to waste sites in other states; and (3) a take title incentive, where a state that did not arrange for disposal of its waste would be required to take ownership of the waste. Under the take title provision, states would be liable for damages incurred by the waste owner or as a result of failure to have their own waste disposal site. New York claimed the Act violated the Tenth Amendment of the United States Constitution (Constitution), by invading the sovereignty of the state. New York appealed to the Supreme Court of the United States (Supreme Court). Issue. Does Congress have the authority to force a state to adopt a federal regulatory program? Held. No. Judgment affirmed in part and reversed in part. The Tenth Amendment of the Constitution is violated when Congress directs states to regulate in a particular field and in a particular way. The Constitution does not authorize Congress to commandeer the state legislative process by compelling states to enact and enforce a federal regulatory program. The take title provision is Congressional coercion. The monetary and access incentives are a permissible exercise of Congressional spending power. The take title provision gave a state two options. Either the state could (i) take title to the waste and risk whatever liability that followed, or (ii) regulate the disposal according to the congressional mandate. Either way, the

state would be forced to implement the federal regulatory scheme and would be agents of the federal government. If Congress orders states to enact regulations, federal officials can avoid accountability if local citizens disapprove of the regulation. Dissent. Congress is not forcing its will on the states by the regulation of radioactive waste. Instead, through the statute, Congress has ratified a compromise between many states to solve the waste disposal problem. Without this statute, another state would be forced to accept New Yorks radioactive waste.which effects commerce clause and therefore this ACT is constitutional. Concurrence. The Constitution enhances the power of the federal government. The Constitution does not limit the ability of Congress to direct state governments to implement Congressional legislation. Therefore, there is no reason to prevent Congress from commanding states to enforce federal standards for waste disposal. Discussion. The majority strictly adheres to the separation of power between state and federal government. Elected officials must be held accountable for the regulations they order. Court majority finds that Here, tenth amendment stands in the way of commerce clause.

Class- can congress give incentive to states to act?- yes, court can encourage states to act. Printz v. United States
Brief Fact Summary. The federal Brady Act interim provisions required state and local law enforcement officials to temporarily do background checks before selling guns. Two local law enforcement officials challenged the constitutionality of the interim provisions. Synopsis of Rule of Law. Congress may not compel a state or local government to implement federal regulatory programs, even if they are temporary functions. Facts. Congress passed the Brady Handgun Violence Protection Act (the Act). The Act required the Attorney General to establish a national background check system. Until the national system became computerized, interim provisions for background checks were established. Those provisions provided that state and local law enforcement officers must do background checks before issuing permits to buy firearms. Two local law enforcement officers challenged the constitutionality of the Acts interim provisions. Issue. May Congress compel a state or local government to even temporarily implement and administer a federal regulatory program? Held. No. Judgment reversed. In New York v. United States, the Supreme Court of the United States (Supreme Court) held the federal government could not compel the states to enact or administer a federal regulatory program. Thus, the background check provisions of the Act violated this prohibition. Even if there is no policy-making involved, Congress cannot take away a states sovereignty. Federalism mandates states remain independent from the federal government. Dissent. (Stevens, J) The federal commerce power gives Congress the right to regulate handguns. The Necessary and Proper Clause gives Congress the right to implement its regulations by using local officials. Further, since private citizens could be compelled by Congress to assist in identifying people who could not be trusted with handguns, there is no reason why states could not be compelled to perform the same function. (Souter, J) States have an obligation to support federal law, so state officials may be employed to perform national functions. (Breyer, J) There is no reason to interpret the United States Constitution (Constitution) as forbidding state officials from carrying out federal duties. Other countries have successfully had states implement and administer federal laws. Concurrence. (OConnor, J) The majority correctly held that directly compelling state officials to administer a federal regulatory program is unconstitutional. The Supreme Court correctly refrained from deciding whether other easy to perform duties imposed by Congress on states would also be invalid. (Thomas, J) Since Congress does not have the authority to regulate intrastate transfer of firearms they also do not have the authority to require state officials to administer and enforce such regulations.

Class note: in new York case, you cannot tell state what to do. In this case, we find that you cannot use the state resource. Reno v. Condon
Brief Fact Summary. South Carolina brought suit against United States Attorney General Reno, arguing that the Drivers Privacy Protection Act of 1994 (DPPA) violated the Tenth Amendments limitation on the Federal Governments power to regulate the states. Synopsis of Rule of Law. The Tenth Amendment does not prevent the Federal Government from regulating the States as individual entities if it does not ask the States to enforce a federal program. Facts. The DPPA establishes penalties for disclosure or resale of personal information contained in state motor vehicle records. These penalties apply to individuals and state agencies. The Respondent, South Carolinas Attorney General Charlie Condon (Respondent), argued that by requiring States to abide by the federal guidelines, Congress has overstepped the limitations of the Tenth Amendment. Issue. May Congress require State compliance with the DPPA? Held. Yes. Appeals court ruling reversed and remanded. The DPPA does not require the states to regulate their own citizens. Neither does it require the South Carolina legislature to enact any laws or assist in the enforcement of federal statutes regulating private citizens. As the DPPA only restricts state government action, it cannot be said to commandeer state government in violation of the Tenth Amendment. Discussion. The Tenth Amendment limitations on federal power extend only to attempts by the Federal Government to compel legislative or executive action on the part of the States in the regulation of their citizens as part of administering a federal program. In Reno v. Condon, the Supreme Court of the United States illustrates two basic concepts: (i) the supremacy of federal law (Congress may pass laws that affect state action) and (ii) the sovereignty of the individual States (Congress may not pass laws that require the states to expend resources enforcing federal policy).

Class- Reno is a contrast to Printz and new York but in new York and Printz, you cannot tell the

state what to do but In Reno, you can tell the state what NOT to do and that is okay with tenth amendment. Commerce is a broad power. We know how fr it can reach and how tenth amendment restrict. C. THE TAXING AND SPENDING POWER FOR WHAT PURPOSES MAY CONGRESS TAX AND SPEND? United States v. Butler
Brief Fact Summary. Butler, the Respondent (Respondent), seeks judgment that the Agricultural Adjustment Act of 1933 (the Act) is unconstitutional in its scope. Synopsis of Rule of Law. Congress may tax and apportion for the general welfare, but Congress may not use taxation as a means to exercise powers retained by the States. Facts. The Act authorized the setting of limits on the production of certain crops and the imposition of taxes on crops produced in excess of these limits. Respondent alleges that this tax acts as a regulation of crop production, which is a local issue. Issue. May Congress tax crop production in excess of preset limits? Held. No. Appeals court ruling reversed and remanded. The taxing and spending power is broad that is, not limited to the enumerated list of issues in Article I, Section: 8 of the United States Constitution (Constitution). However, the tax in this case was levied to discourage production of crops beyond the limits set by the Act. This is beyond the powers delegated to the Federal Government. Specifically, the regulation of agriculture is, absent a nexus with interstate commerce, delegated to the states. Dissent. Justice Harlan Stone (J. Stone) argues that the Supreme Court of the United States (Supreme Court) has overstepped judicial restraint in declaring the Act unconstitutional. Discussion. United States v. Butlers holding that the taxing and spending power is broad is still good law, however the Supreme Courts view of the Tenth Amendments intersection with the taxing and spending power has subsequently changed. In particular, Butler views the Tenth Amendment as a mere tautology, a view which has changed in subsequent cases.

Class- court says the congress cant regulate. But that is the part is now overruled. But the other part is still valid and which is why we are studying the case. Article I section 8, clause 1. Congress has power to lay tax and to spend but confined by general welfare. To examine general welfare, we apply RATIONAL BASIS VIEW. So, rational basis is applied here to know whether is being general welfare. Bar exam- only taxing and spending is ..for general welfare. But for commerce clause, we only need to use test- channels, instrumentality, substantial effect. You cannot use general welfare (suppose in Morrison case) as a big umbrella for all the cases because you are not actually taxing and spending on that purpose (Morrison case). CONDITIONS ON GRANTS TO STATE GOVERNMENTS South Dakota v. Dole
Brief Fact Summary. Appellant alleges that the federal withholding of a small percentage of highway funds to states allowing public possession or purchase of alcohol by individuals under 21 years is unconstitutional. Synopsis of Rule of Law. Non-coercive financial incentives by Congress are a constitutional exercise of the taxing and spending power. Facts. 23 U.S.C. Section: 158 directs the Secretary of Transportation to withhold a percentage of federal highway funds otherwise available to states that allow the purchase or public possession of alcohol by individuals under 21 years of age. South Dakota allows individuals nineteen and over to purchase beer with up to 3.2% alcohol. As a consequence, the Department of Transportation will withhold approximately 5% of the federal highway funds earmarked for the state. Issue. May Congress withhold funds from states that do not maintain a 21 year old drinking age? Held. Yes. Appeals court ruling affirmed. A withholding of a small amount of funds is not a coercive measure and a proper exercise of taxing and spending power. Dissent. Justices William Brennan and Sandra Day OConnor both dissent on the unrelated ground of the Twenty-first Amendment, which relegates regulation of alcohol sales to the states. Discussion. Congress may put strings on funds disbursed to States, so long as the conditions are explicitly stated.

Class- you get federal spending funds if you pass this act. Can you tell state to regulate and pass law? No, but you can get around that by providing incentives to the state. The health care actwhat if the state dont regulate as fed wants?- lose some funding. States argument is it is so substantial that it is almost compulsion now. If state doesnt follow the healthcare act, they are going to lose a substantial amount of funding. 11th circuit strike it down and also it did not severe.

D. CONGRESSS POWERS UNDER THE POST-CIVIL WAS AMENDMENTS After civil war, three amendments were added to the constitution- Thirteenth amendment- prohibits slavery and involuntary servitude, except as a punishment of a crime and also provides congress shall have the power to enforce this article by appropriate legislation. - Fourteenth- all persons born or naturalized are citizens and no state can abridge the privilieges and immunities of such citizens, nor may states deprive any person of life, liberty or property without due process of law or deny any person of equal protection of the laws. Section 5 of fourteenth amendment states: the congress shall have power to enforce, by appropriate legislation, the provisions of this article. This section allowes congress to pierce the sovereign immunity. Other amendment gives the states sovereign immunity and therefore congress needed this section 5 power to pierce that immunity. What other section of fourteenth amendment gives congress power?- section 1 says that no state shall pass or enforce a law which shall abridge the privileges or immunities of citizens. - Fifteenth- right of vote shall not be denied by united states or states for race, color, or previous conditions. Section two again provides congress has the power These three amendments empower congress to enact civil rights legislations. Two questions arises here- does congress has authority to regulate private conduct or just government actions? Second, what the scope of congress power? 1. whom may congress regulate under the post civil war amendments? 13th amendment protects against private actions FINISH OUTLINE United States v. Morrison Virginia tech girl was raped by tech football players. Court held: remedy must be provided by Virginia, and not by United States. Under section 5 of fourteenth amendment. Two grounds of validity for Morrison- invalid under commerce clause and also invalid under section 5 of fourteenth amendment. Because court says, section 5 applies to states and not on private people. Class- Why Morrison comes back and how is relevant here? If we taxed women, could we passed it under another power then? Did congress try another avenue other than commerce clause? They tried it under 14th amendment section 5- the argument under 14th amendment was nor deny any protection under equal protection and section 5 gives use of commerce clause to protect it. court said it is not. Section 5 of 14th amendment does not allow us to regulate individuals. Two grounds- section 5 of 14th amendment and commerce clause? Morrison failed the commerce clause. To sum up, when we have commerce clause, we have three factors- Substantial economic effect has two parts- aggregate and Cumulative. (you can use cumulative effect to show substantial effect) (aggregation - Gonzales v. Raich and wicker both used aggregate). 10th amendment commandeer state legislation or use state resources. printz and NY cases. In addition to using commerce clause, congress can use taxing and spending. We use rational basis to decide whether congress is regulating for general welfare. Class 9/28/2011 CHAPTER 4- LIMITS ON STATE REGULATORY AND TAXING POWER A. PREEMPTION OF STATE AND LOCAL LAWS 1. Express preemption Lorrillard tobacco co. v. Reilly

Facts: 1998 Mass. and 40 other states settled tobacco claims with manufacturers. MA enacted consumer protection Regs restricting Tobacco Advertising and Sales Practices to stop recruitment of children as new customers. The Regs apply to a broader scope than the settlement and reach Advertising, Sales Practices, and members of tobacco industry not covered by settlement. Restrict outdoor Advertising, Pt of Sale Ads, Retail Sales Transactions, Mail Transactions, promotions, and sampling and labels for cigars. Issue(s): Whether regulations targeting specific cigarette advertising and sales practices violate the 1st Amendment? Holding: Yes, Atty Gen failed to show outdoor ad Regs were no more extensive than necessary to advance ST int. Pt of Sale Reg fail both 3 and 4 prongs. Procedure: Pet, group of tobacco retailers and manufacturers filed suit. D. Ct held Reg valid and enforceable. Ct of App Affirmed in part (do not violate First Amend) and Reversed in Part (St Reg not pre-empted by fed law). U.S.S.Ct. Reversed (State outdoor and Pt of Sale Reg preempted). Remand is inappropriate b.c St had a chance to prove. Rule(s): 1st Rationale: No need to disregard Centrals test, but only the last two steps are at issue here. 3) Relationship btwn St Int and Means identified to advance that interest. 4) Rble Fit btwn the Legiss Ends and the Means Chosen to reach those endsnarrowly tailored to achieve goal. Outdoor Ad Regs.: Ample support for underage use, but the link btwn Reg Ads to combat that use is speculative and remote. There is no Rble Fit b/c broad sweep of the Regs show a lack of consideration for the costs and benefits assocd w/ burden on speech. The ban affects a substl geographical area of the major cities. Outdoor includes ads inside stores if visible from outside. Any size of Advertising is restricted and the term itself include oral statements. Too broad to be considered N/T. Pt of Sale: St goal of preventing minors from use and curb demand by limiting exposure to kids. A 5 ft rule does not advance that Goal b/c kids can look up and not all kids are under 5 ft tall. This Reg is not Reg of communicative Conduct requiring more scrutiny under OBrien b/c MA 5 ft Reg attempts to directly Reg communicative impact of indoor AdsReg is related to expression. Yet, this Reg is not Rble Fit and is invalid. Sales Practice: Reg bar the use of service displays and place product out of reach to all customers. MA Sales Practice Regs hit conduct that may have a communicative element, but MAs reasons are unrelated to the communication of ideas. MA has a Substl Int and restricting the unattended displays of tobacco products is a narrowly tailored means of reaching that goal. Pls A: Central should be discarded and use Strict Scrutiny. Outdoor Regs do not satisfy 3 Pt and State cannot prove link btwn tobacco use and advertising that would alleviate underage use. B/c each cigar brand is unique, customers need to handle and compare the products B4 purchase. Class- Preemption- 1. Fed Govt, 2. State govt On cigarette and smokeless tobacco Fed reg Massachusettscigarettes 1) retail outlet sales no advertising 2) Advertising outdoor on health 3) point of sale- transaction fed gov. is disallowing regulation a. b. 5 feet Massachusetts gives an argument saying it was strictly going to cigarettes and not to every

tobacco related product. Also not about health?? Why fed triumphs over state here? Trying to keep kids, public from under age smoking. It is actually an express preemption which is assumed even though it does not say expressly. Talks about SUPREMACY CLAUSE. Because of the supremacy clause, it is allowed to have own law which trumphs the state law. Conflict is another preemption: if the fed govt doesnt say, state cannot regulate 2. Implied preemption a. Conflicts of preemption Florida lime &avocado growers, inc. v. Paul, Director, dept. of agriculture of California
Brief Fact Summary. A California avocado oil law differed from a Federal avocado law. Florida Lime and Avocado Farmers sued because of the stricter California law precluded them from the Florida markets. Synopsis of Rule of Law. When a state and federal law exist with different standards, as long as they can coexist, the Supreme Court of the United States (Supreme Court) will not decide which one preempts the other one. Facts. Section 792 of Californias Agricultural Code, which gauges the maturity of avocados by oil content, prohibits the transportation or sale in California of avocados which contain less than 8% of oil, by weight excluding the skin and seed. In contrast, Federal marketing orders approved by the Secretary of Agriculture gauge the maturity of avocados grown in Florida by standards, which attribute no significance to the oil content. Therefore, California markets certain Florida avocados which although mature under Federal law do not satisfy Californias requirement of 8% oil. The Appellants, the Florida Lime & Avocado Growers Inc. (Appellants), challenge the California law under the Supremacy Clause of the United States Constitution (Constitution). Issue. When a state statute is different than a federal statute, which should apply? Held. It does not matter because the two laws can co-exist. Discussion. There is no need to look into Congressional intent if compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce. There is no present record, which demonstrates an inevitable collision between the two schemes of regulation, despite the dissimilarity of the standards.

Class- it is not conflict enough. So both the law can coexist. Federal also has a minimum and its not a problem with California minimum oil content requirement in avocado. If there was a maximum like fed says 10% and California says 11% then it can be problem. But in the present case, you can meet both requirements. When there is the conflict, the federal regulation rules. This florida lime case, tells us about conflict preemption. b. Preemption because state law impedes the achievement of a federal objective Pacific gas & electric co. v. State Energy resources conservation & development Coomn.
Brief Fact Summary. Federal law that governed the regulation of safety aspects concerning nuclear power plants, did not preempt state law, which effectively placed a moratorium on construction of nuclear power plants within the state. Synopsis of Rule of Law. State law is preempted if it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. However, the Supreme Court of the United States (Supreme Court) will not interfere where there is a permissible and good basis for the state law. Facts. California adopted a law that imposed a moratorium on the certification of nuclear energy plant, until it demonstrated technology or a means of disposal for high-level nuclear waste. The Plaintiff, Pacific Gas & Electric Co. (Plaintiff) sued the Defendant, Californias State Energy Resources Conservation & Development Commission (Defendant) and asserted that state law was preempted by the Federal Atomic Energy Act of 1954 (the Act), and was therefore invalid under the Supremacy Clause of the United States Constitution (Constitution). Issue. Will a state law be preempted if it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress? Held. Yes, a state law placing a moratorium on construction of nuclear power plants does not impede federal laws objectives of developing nuclear energy. Discussion. The Plaintiff contends that the moratorium provision of Californias law is preempted by the Act on three grounds. First, it regulates nuclear plant construction allegedly predicated on safety concerns and thus falls within a field controlled by the federal government. Second, it conflicts with decisions concerning nuclear waste disposal made by Congress. Third, it frustrates the goal of developing nuclear technology as a source of energy. As to the first ground, Congress intended the federal government to have authority to regulate safety with nuclear technology, but that the states retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, cost and other state concerns. The California state law is not preempted on this ground because it is based on safety and not economics. As to the second ground, the state law does not conflict with

federal rulings and regulations, which are aimed at ensuring they are safe. With regard to the third and final ground, the primary purpose of the Act was to promote nuclear power, but that is not supposed to be accomplished at all costs. The state law is not preempted.

Class- this case is not an health issue but has an economic concern. No impeding federal objective. Second part of the hypo (practice exam on 9/28/2011): what was coercive about NY case and what was not coercive about S.D. v. Dole case and how is it related to this case? PREEMPTION When does fed govt trumph the state govt? CLASS 10/03/2011 c. Preemption because federal law occupies the field
Hines, secretary of labor & industry of Pennsylvania v. davidowitz Brief Fact Summary. A state alien registration law was challenged on the ground that the federal alien registration law occupied the field and therefore preempted the state law. Synopsis of Rule of Law. If the federal government exercises superior authority in a particular field and enacts a complete system of regulation, states cannot enact laws which conflict/interfere/curtail or complement, the federal law, or even enforce additional or auxiliary regulations. Facts. In 1939 Pennsylvania passed an Alien Registration Act (the state Act), which required aliens to register annually, provide information and carry a registration card to be shown to police, or they would be criminally prosecuted. The next year, the Federal Alien Registration Act (the Federal Act) provided for a single registration and they did not have to carry a registration card. The Appellees, Davidowitz and other aliens (Appellees), challenged the law as denying equal protection to aliens, and on other constitutional grounds. A federal district court enjoined the enforcement of the state Act. Issue. If the Federal government has exercised superior authority in a particular field can the states enact laws which conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulation? Held. No. The Supreme Court of the United States (Supreme Court) declares that Congress intended for federal government to occupy the field of immigration regulation and not the states. Dissent. Justice Harlan Fiske Stone (J. Stone) did not think Congress made a complete and exclusive registration system for aliens. He felt that the Supreme Court cannot strike down a state law that was immediately concerned with social order and safety of its people. Discussion. The federal government has the power over immigration, naturalization and deportation. When the federal government provides a complete standard for the registration of aliens, the states cannot conflict or interfere with, or enforce additional regulations. Congress wanted one uniform national system.

Class- the type of preemption this is Field preemption. Article 1 section 8 clause 4 Types of preemption: 1. EXPRESS- the difference between express and implied is the text of the language of constitution. Does it textually prohibit? Lorillard Tobacco 2. IMPLIED- Bankruptcy, patents, copyright- these are under constitution and therefore congress can regulate exclusively. a) Conflict- Florida lime and avocado b) Impeding federal objective pacific gas c) Field Preemption- Hines v. Davidowitz. B. THE DORMANT COMMERCE CLAUSE 1. Why a dormant commerce clause?- look for state legislation. If you have state regulation in terms of state regulation, it will be a dormant commerce clause issues and discuss whether the state law is valid. ONLY IF THERE IS STATE REGULATION, THEN GO TO ANALYSIS OF DORMANT COMMERCE CLAUSE. 2. The dormant commerce clause before 1938 3. The contemporary test for the dormant commerce clause (Balancing test)

a) The shift to the balancing approach b) Determining whether a law is discriminatory FACIALLY DISCRIMINATORY LAW City of Philadelphia v. new jersey
Brief Fact Summary. A New Jersey law prohibited the importation of solid or liquid waste that originated or was collected from outside of the State. Private landfill operators challenged the constitutionality of the law. Synopsis of Rule of Law. Where a state regulates non-discriminatorily for the achievement of a legitimate local purpose and thereby affects interstate commerce, the state action is constitutional unless the burdens of such regulation on interstate commerce are clearly excessive relative to the putative local benefits of it. Facts. A New Jersey law prohibited the importation of solid or liquid waste that originated or was collected from outside of the State. The stated purpose of the statute was to protect the quality of the environment of New Jersey. Private landfill operators challenged the constitutionality of the law. The State Supreme Court held that the statute advanced vital environmental objectives. Issue. Did the New Jersey waste importation statute violate the Commerce Clause? Held. Yes. The judgment of the State Supreme Court is reversed. Protectionism measures can be unconstitutional for their means as well as their ends. Whatever the purpose of the statute, it may not be accomplished by discriminating against articles of out-of-state commerce, unless there is some reason, apart from their out-of-state origin, for doing so. On its face, the statute imposes on out-of -state commerce the full burden of conserving the states landfill space. The statute violates the principle of non-discrimination both on its face and by its effect Dissent. Justice William Rehnquist (J. Rehnquist) stated that the Constitution does not require New Jersey to receive and dispose of solid waste from other States when doing so will inexorably increase the health problems of its citizens. Discussion. State actions that are protectionist in nature (i.e., favoring in-state interests at the expense of out-ofstate interests) are generally unconstitutional. In this case, the Supreme Court explains that state statutes need not be proven purposefully protectionist in order to be held unconstitutional. A state statute may also be regarded as unconstitutional protectionist legislation if it is only discriminatory on its face.

CLASS- we are a union. United we live, separate we fall. So the justice is saying, the way New Jersey is saving neighboring cities now, if in future one day New Jersey is in such need, court will protect it so from efforts by one state to isolate itself in the stream of interstate commerce from a problem shared by all. New jersey also could have used alternatives like regulating the waste by separating recyclable wastes, paying extra etc. Hughes v. Oklahoma
Brief Fact Summary. A state law that prohibited the transportation of minnows outside the state violated the Commerce Clause of the United States Constitution (Constitution). Synopsis of Rule of Law. It is a violation of the Commerce Clause for states to enact laws that attempt to conserve natural resources for use by their own residents. Facts. The Plaintiff, Oklahoma (Plaintiff) enacted a statute that provided no person may transport to ship minnows for the sale outside the State which were seined or procured within the waters of this State. The Defendant, William Hughes (Defendant) who operated a Texas commercial minnow business, challenged the law because it violated the Commerce Clause of the Constitution. Issue. Did the Plaintiffs law violate the Commerce Clause? Held. Yes, the Plaintiffs law prohibiting the taking of minnows for sale outside the state violates the Commerce Clause of the Constitution. The Supreme Court of the United States (Supreme Court) disregarded the rule that a state owns all the wildlife within it and has the right to qualify ownership. Now, a states regulation of wild animals should be analyzed in the same manner as a states regulation of natural resources. The rule requires inquiries into (1) whether the statute regulates evenhandedly or discriminates against interstate commerce; (2) whether it serves a legitimate local purpose and (3) whether alternative means could promote the local purpose as well without discriminating against interstate commerce. The Supreme Court determined that the states legitimate interest in conservation was not advanced by the least discriminatory means possible. Discussion. The statute overtly blocks the flow of interstate commerce at the States border, on its face.

Class- Facially discriminatory and causes undue burden. What can be alternative? What can Oklahoma do as alternative? Likewise in this case, like new jersey case, the state can regulate the amount people can take within the state. There can be restriction put as to how many in amount people can take out minnows periodically.

How do you know one statute is discriminatory? it will prevent in staters with out of staters from doing things. First decide whether the law is discriminatory. If it is discriminatory, there is a test from HUGHES CASE. What is the threshold that the state law is not violating? In order to be discriminatory law to be valid, we apply this test- It must be legitimate and it must be necessary. This test takes the word from strict scrutiny and rational basis. Strict scrutiny necessary to achieve a compelling govt interest Intermediate substantially related to an important. Significant govt. interest Rational basis rationally related to legitimate interest Discriminatory state laws- legitimate interest + necessary. If alternatives available, state fails. ^ When statute is in effect or expressly (facially) discriminatory Apply this test ^ Dont just say the rule is discriminatory but do the analysis. For necessary analysis for exam: is it discriminatory? And how and then explain why. 3 step process of identifying discriminatory. 1st step- Is it discriminatory law? By fact or by law or look at how it impacts (geography) 2nd step- What the interest is 3rd step- Identify alternative. Hunt, governor of the state of north carolina v. Washington state apple advertising commn.
Brief Fact Summary. A North Carolina law was challenged by the Plaintiff, the Washington State Apple Advertising Commission (Plaintiff), on the ground that it had a discriminatory impact, which caused it to violate the Commerce Clause of the United States Constitution (Constitution). Synopsis of Rule of Law. A facially neutral state law is unconstitutional and violates the Commerce Clause if it has a discriminatory effect on interstate commerce. Facts. The Defendant, North Carolina (Defendant), enacted a statute requiring all closed apple containers to bear no grade other than an applicable U.S. grade, which is set by the United States Department of Agriculture (USDA). The State of Washington (a huge apple-producing state) had a different grading system, which was superior to the quality set by the USDA. The Plaintiff challenged the statutes constitutionality contending it burdened interstate commerce by altering Washington apples when they got to North Carolina. North Carolina defended their statute asserting they were trying to prevent apple fraud. A district court agreed with the Plaintiff. Issue. Can a facially neutral state law be unconstitutional and in violation of the Commerce Clause if it has a discriminatory effect on interstate commerce? Held. Yes, if a state law has a discriminatory impact, even if it is neutral on its face, it violates the Commerce Clause. Discussion. The statute raises the cost of selling apples in North Carolina, except for North Carolina apple growers. The Washington system is expensive and the industry is competitive, more so than North Carolinas. By prohibiting Washington apples from marketing apples under their states grades, it has a leveling affect, which is unfairly economically advantageous to local apple growers in North Carolina. Because the Washington grade is known for being superior, the Supreme Court of the United States (Supreme Court) contends that North Carolina evened the playing field unfairly and in violation of the Commerce Clause.

Class- the case is not facially discriminatory but facially neutral because the statute was for loal as well as for other state to go by. This case fails the test and has discriminatory effect on states. In hunt, the statute does not give the clue of discrimination. Hunt represents case about associational standing. Theres is third party standing, class action and associational standing. FOR BAR Third party class action assoc. standing Individual who has injury plaintiff is part of 1. Litigation germane b/c obstacles to the would collective group to assoc. purpose be plaintif (among a group 2. Member must have of other plaintiff standing 3. litigation does not require Member participation

West lynn creamery, inc. v. healy, commissioner of Massachusetts dept. of food & agriculture
Brief Fact Summary. A Massachusettss law, which imposed a tax on in-state milk sales, with the proceeds paid to local dairy farmers, was challenged on the ground that it violated the United States Constitutions Commerce Clause. Synopsis of Rule of Law. A state pricing order, which imposes a tax on the sale of local products the proceeds of which are distributed as a subsidy to in-state producers of the product, discriminates against interstate commerce and thus is unconstitutional under the Constitutions Commerce Clause. Facts. Massachusetts enacted a pricing order, which taxed all milk sales in the state, regardless of whether it was produced in or out of state. The proceeds from the tax were then disbursed to Massachusetts dairy farmers only. The Defendants, Healy, Commissioner of Massachusetts Department of Food and Agriculture (Defendant), rationale for this order was to protect local dairy producers. The Plaintiff, West Lynn Creamery (Plaintiff), a milk dealer who purchased out-of-state milk challenged the pricing order. The state courts rejected the challenge. Issue. Does the Massachusetts statute violate the Constitutions Commerce Clause? Held. Yes, the states milk tax subsidy burdens interstate commerce. An assessment scheme that levies on all distribution of a good, but disburses its assets to local producers of the distributed goods only is unconstitutional. States are not allowed to enact tariffs on out of state goods. The system at issue here although, although taking two steps to achieve its goal, is a de facto tariff. Discussion. The pricing order is funded principally from taxes on the sale of milk produced in other states. Massachusetts pricing order does not assist local farmers, but instead burdens interstate commerce. This violates the cardinal principle that a State may not benefit in state economic interests by burdening out-of-state competitors. When a nondiscriminatory tax is coupled with a subsidy to one of the groups hurt by the tax, a States political processes can no longer be relied upon to prevent legislative abuse. This is because one of the in-state interests, which would otherwise lobby against the tax, has been mollified by the subsidy. Prevention of local industry by protecting it from the rigors of interstate competition is the hallmark of the economic protectionism that the Constitutions Commerce Clause prohibits.

Dean milk co. v. city of Madison, Wisconsin

Brief Fact Summary. The City of Madison, Wisconsin passed a law stating that milk had to be supplied from a producer located within twenty-five miles of the city and pasteurized within five miles of the city. Dean Milk sued when they were denied a license to sell their products within Madison because their pasteurization plants were more than five miles away. Synopsis of Rule of Law. Even if a statute is facially non-discriminatory, the court can find that it discriminates in practice by imposing a burden on interstate commerce which outweighs local benefits. Even if the state is acting in self-protection of health and safety within its borders it may not regulate interstate commerce unless such regulation is absolutely necessary to protect such health and safety. The court will often inquire into alternative means that are less restrictive on interstate commerce but allow the state to achieve the same goal. Facts. The City of Madison, Wisconsin had a law stating that milk had to be processed and bottled at an approved pasteurization plant within five miles of the central square of Madison. Another section said the milk had to be produced within a twenty-five mile radius. The purpose of the ordinance was to promote convenient, economical and efficient plant inspection. The plants in the five-mile radius and farms in the twenty-five mile radius were inspected once a month. Dean Milk collected milk from 900 farms outside the twenty-five mile radius, and processed the milk about sixty-five miles away from Madison. They were denied a license to sell their products within Madison because their pasteurization plants were more than five miles away. Issue. Was the Madison statute regulating the sale of milk unconstitutional because it placed too great a burden on interstate commerce and was not the least restrictive means of meeting its safety goal? Held. Justice Clarks opinion: Yes. Supreme Court of Wisconsin judgment reversed as to the five mile radius limitation and vacated and remanded for the twenty five mile limitation. The statute is facially non-discriminatory, so the question is whether the burdens on interstate commerce outweigh the local benefits. The local benefits are sanitary regulation of milk and milk products originating in remote areas. The Court agrees that this is an important purpose for the statute. However, the practical effect is to exclude milk

produced and pasteurized in Illinois, and thus erecting an economic barrier that would protect local industry against competition. Madison is not using the least restrictive means to achieve their safety goal. Reasonable and adequate alternatives are available. The City of Madison could charge companies who wish to import milk the cost of inspecting plants and farms outside the five and twenty five mile radius. Madison may also require milk produced outside the state to conform to the same standards as those enforced in the state. The consequences of allowing Madison to prohibit milk that is not produced locally would invite other localities to do the same and create multiple trade barriers, thus stifling competition. Dissent. Justice Black, Douglas and Minton. The Madison statute would not exclude whole milk from Illinois or anywhere else and thus stifle competition or create trade areas destructive of interstate commerce. Dean Milk could have pasteurized within the defined geographical area. The Madison statute was not protectionist legislation but a good faith attempt to safeguard public health by making adequate sanitation inspection possible. A small burden on trade does not automatically run afoul of the Commerce Clause. The Madison statute should not be invalidated merely because the Court believes that alternative milk inspection methods might also ensure the cleanliness of Deans Illinois milk. Federal courts have traditionally left decisions about bona fide health regulations to the states and the states are subject only to the paramount authority of Congress if it decides to assume control. There is no precedent for striking down a bona fide health law because there are alternatives to safeguard health that would be as good or better than the one chosen. There is evidence in the record that the substitute health measures suggested by the Court would not insure milk safety as effectively as the Madison ordinance. Discussion. Originally, Dormant Commerce Clause decisions only struck down laws that were blatantly discriminatory against out-of-state economic interests. This case, which dealt with a facially neutral statute, placed a greater emphasis on the requirement that a state use the least restrictive means available when creating laws that favor local businesses.

Is it legitimate?- they said it is for health and safety reasons- pasteurized. Necessary?- state said it is necessary because 5 mile radius will make sure it is properly pasteurized and kept cold. In that radius, you could have out of state milk if that is in 5 miles radius. You cannot apply this test and state fails before applying the test There is alternative process available in this case 3 step process on exam- Alternative process Maine v. Taylor & united states
Brief Fact Summary. The Defendant, Taylor (Defendant), in defense of criminal charges, challenged Maines law prohibiting the importation of live baitfish on the ground it violated the Commerce Clause of the United States Constitution (Constitution). Synopsis of Rule of Law. A state statute that affirmatively discriminates against interstate commerce passes vigorous a strict scrutiny test where it attempts to prohibit significant damage to the States environmental wellbeing. Facts. A law in Maine, enacted to protect the States fisheries from parasites and non-native species, prohibited the importation of live baitfish. The Defendant operated a bait business in Maine and imported live bait called golden shiners against federal law. The federal law made it a crime to import, receive or purchase in interstate commerce any fish possessed in violation of State law. The Defendant moved to dismiss the indictment on the ground that Maines statute was an unconstitutional burden on interstate commerce. The District Court dismissed the Defendants motion and the Court of Appeals reversed. Maine intervened to defend the validity of its statute. Issue. Does a state statute that affirmatively discriminates against interstate commerce pass the strict scrutiny test where it attempts to prohibit significant damage to the States environmental well being? Held. Yes, the Supreme Court of the United States (Supreme Court) upholds this patently discriminatory law. State may regulate matters of legitimate public concern even though interstate commerce may be effected. Where a law is discriminatory on its face, the state must show that the law both serves a legitimate local purpose and that the purpose cannot be achieve by available nondiscriminatory means. Here, the Supreme Court determines that Maine chose the least discriminatory means to establish their legitimate objective.

Dissent. Justice John Paul Stevens (J. Stevens) does not like the fact that Maine is the only State that can blatantly discriminate against out of state baitfish. He feels that Maine should have the heavy burden of showing there are no other alternatives. Discussion. Maines statute directly restricts interstate trade by blocking all inward shipments of live baitfish, but this alone does not render it unconstitutional. The environment is a legitimate concern for Maine because importing minnows could ruin Maines fragile fisheries. Therefore, Maine cannot be expected to sit idly by and wait until potentially irreversible environmental damage has occurred or until the scientific community agrees, on what disease organisms are or are not dangerous, before it acts to avoid such consequences.

Class- Alternative is not viable in this case because trying to find microscopic parasite from every small fish is physically impossible. Memorable for one discriminatory law that passes the test. Is commerce is being treated differently because where it is coming from? Then go through the analysis. CLASS- 10/05/2011 DORMANT COMMERCE CLAUSE CONTINUES d. Analysis if a law is deemed non- discriminatory Class- first decide whether there is discrimination? there is a balancing test to figure discrimination. If YES, legitimate (purpose) + necessary (Alternative) If NO, then do balancing test- Burden vs. Benefits Burden on to the state Interstate commerce reputation of growers Burden on interstate commerce. Conclusion: state law unnecessarily or excessively burdens interstate commerce Loren j. Pike v. Bruce church inc.
Brief Fact Summary. The Plaintiff, Bruce Church, Inc. (Plaintiff) challenged a law enacted by the Defendant, state of Arizona (Defendant) that prevented the transportation of uncrated cantaloupes within the State. The Plaintiff sued arguing that the law violated the Commerce Clause of the United States Constitution (Constitution) Synopsis of Rule of Law. Where a state statute regulates even-handedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Facts. An Arizona law requires that all cantaloupes grown in Arizona and offered for sale must be packed in closed standard containers approved by government officials. Loren Pike, the Defendant states official in charge of enforcing the law, issued an order prohibiting the Plaintiff, a cantaloupe farming company, from transporting uncrated cantaloupes from their Arizona ranch to the California packing place. The closest available packing shed to the Defendant state was California and calculated they would suffer $700,000 in losses unless the order was enjoined. The Plaintiff filed suit in district court to enjoin the order on the ground that it was unconstitutional because it violated the Constitutions Commerce Clause. Issue. Can a nondiscriminatory state law violate the dormant Commerce Clause? Held. Yes, the Supreme Court of the United States (Supreme Court) developed a test for determining whether nondiscriminatory state laws violate the dormant commerce clause. Where a nondiscriminatory law effectuates a legitimate local interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits. Where there is a legitimate local interest it must be measured against the burden it composes. Discussion. The purpose of the law in question here was to protect and enhance the reputation of growers within the State, a legitimate State interest. However, the States interest is not worth the Arizona cantaloupe company building and operating a new $200,000 packing plant.

Here the state reputation is very speculative and harder to decide on compensatory damage if we talk tort here. On the other hand, the burden on the company is either $200k to make packing shed or $700k if they cannot which gives us concrete number to decide on. When it is speculative vs. concrete number, it is easier to decide toward the concrete numbered company.

This case is mostly cited for the balancing test. BIBB, director, dept. of public safety of Illinois v. Navajo fright lines, inc
Brief Fact Summary. The Plaintiff, Navajo Freight Lines, Inc. (Plaintiff), a trucking company, challenged the constitutionality of Illinois mudguard law on the ground that it interfered with interstate commerce. Synopsis of Rule of Law. In determining whether a states nondiscriminatory highway safety law violates the dormant Commerce Clause of the United States Constitution (Constitution), the Supreme Court of the United States (Supreme Court) must look to the total effect of the law as a safety measure. If it is too slight, or problematic, so that it does not outweigh the national interest in keeping interstate commerce free from interferences that seriously impede it, then it cannot stand. Facts. The state of Illinois passed a law requiring trucks to have contoured mudguards. In Arkansas, states were required to have straight mudguards, while in all other states either shape was acceptable. The Plaintiff challenged the Illinois law arguing that it violated the Commerce Clause because it unduly burdened interest commerce and enforcement should be enjoined. The District Court found for the Plaintiff and required the Defendants, Bibb and other Illinois officials (Defendants), from enforcing the law. The District Court determined that the cost per truck would range from $4,500 to $45,850 to obtain the mud flaps required in Illinois. Issue. Is this Illinois statute requiring a special mudguard constitutional? Held. Justice William Douglas (J. Douglas) first observed that States have an important interest in providing for the safety of their highways. Moreover, safety measures carry a strong presumption of validity. However, here, the costs of doing business would be greatly increased. The Supreme Court observed that trucks could not enter Illinois and Arkansas without stopping at the border to change their mudguards. Moreover, the Illinois regulation would seriously interfere with interline trucking, which is the changing of trailers between carriers. The Supreme Court also determined that contoured mudguards have no real safety advantages over straight mudguards and in actuality actually caused additional hazards. Discussion. States have the power to regulate their highways, however, these mudguards create operational delays and costs. The statute also seriously interferes with the interline operations of motor carriers. The carriers will not be able to switch cargo that does not allow certain mud flaps. The clearly violates the dormant Commerce Clause.

This is not discriminatory law because it is applicable to all the trucks. So lets do balancing testBurden Benefits Stop, change safety time Rerouting, Switching load Weighing these two sides, we can conclude that the burden is way more than the benefit. Consolidated freightways corp. of Delaware v. Raymond Kassel
Brief Fact Summary. The Plaintiff, Consolidated Freightways Corporation of Delaware (Plaintiff) had 65-foot doubles. However, Iowa enacted a statute banning trucks more than 60 feet long. The Plaintiff sued saying the law violated the Commerce Clause of the United States Constitution (Constitution). Synopsis of Rule of Law. Although state regulations concerning highway safety are important, if the furtherance of safety is marginal or the burden on commerce substantial, the regulations will be declared invalid under the United State Constitutions Commerce Clause. Facts. Iowa enacted a highway safety law limiting the size of trucks to 60 feet. The Plaintiff used 65-foot trucks. Iowa was the only state in the western or midwestern United States to outlaw the use of 65-foot doubles. The Iowa District Court found the statute unconstitutional, concluding there is no valid safety reason for barring 65-foot doubles from Iowas highways Issue. Was Iowas regulation offering only marginal safety benefits an unconstitutional burden on interstate commerce? Held. Yes, Iowas truck-length limitations were unconstitutional because Iowa failed to present persuasive evidence that banning Plaintiffs truck made the roads much safer. The statute compels trucking companies to either route 65-foot doubles around Iora or use the smaller trucks allowed by the Iowa state statute. Dissent. Justice William Rehnquist (J. Rehnquist) dissents because he feels the Supreme Court of the United States (Supreme Court) has overstepped their authority to review state legislation. He felt the Supreme Court intentionally left out the fact that along Iowas route 80, Pennsylvania and New Jersey also ban 65-foot trucks. Discussion. Iowa failed to present persuasive evidence why their law limiting trucks to 60 feet instead of 65 feet was safer. Also, Iowa is not in step with all the surrounding states. Iowas statute creates a burden to the interstate flow of goods by truck because certain trucks cannot pass through Iowa. Since there is no significant safety interest

the law violates the Constitutions Commerce Clause.

Burden

benefits

Switching trucks wear on roads Accidents safety But in this test, benefit should be much higher. When the safety is the issue, and you think how you are going to come back to that, the issue is not the legitimacy of the law but the concern is how to achieve the issue of safety Summery e. Exceptions to the dormant commerce clause i.Congressional approval ii.The market participant exception 1. State engage in the business 2. Participants in the market i. Congressional approval Commerce clause is under congress and when congress approves state to interfere and grant them freedom to legislate, state is free to do that under congresss approval. ii. The market participant exception- state engage in the business, participants in the market

Reeves, inc. v. William Stake

Brief Fact Summary. South Dakota built a state-owned cement plant, which for many years sold to private buyers, but later gave preferences to in-state buyers. The Plaintiff, Reeves Inc., (Plaintiff) a long time buyer sued under the United State Constitutions (Constitution) Commerce Clause. Synopsis of Rule of Law. States that are market participants in the buying and selling of goods, as opposed to market regulator, are not bound by the Constitutions Commerce Clause and can favor their in-state businesses. Facts. South Dakota built and operated a cement plant, which sold to both in and out-of-state buyers for 50 years. Later, South Dakota implemented a policy that gave preference to in state buyers. The Plaintiff was a long time outof-state buyer and sued South Dakota for violated the Constitutions Commerce Clause. Issue. May a State give preference to in-state buyers? Held. Yes, a State acting as a market participant may favor their in-state buyers. There is no indication of a constitutional plan to limit the ability of the state itself to operate freely in the market. Dissent. Justice Lewis Powell (J. Powell) dissents because he thinks this is exactly the type of economic protectionism that the Constitutions Commerce Clause was intended to prevent. Discussion. When a state becomes a market participant, as is the case here because they are selling cement, their commercial activities are not bound by the Commerce Constitutions Clause and may favor in-state interests. The Constitutions Commerce Clause is applicable to State taxes and other regulatory measures that impede interstate commerce.

Is this case discriminatory?- yes. Then is it legitimate(purpose) and necessary(alternative)? It is self protectionist As private citizen, as long as you dont violate any civil rights statute, you can chose to sell your product to anyone you want to or dont want to. Therefore, when state participates in business, it no longer wear the hat of a state, rather it becomes more like private business entity and can chose to decide who to sell and not to. White v. Massachusetts counsil of construction employers South central timber development, inc. v. commissioner, dept. natural of resources of Alaska
Brief Fact Summary. The State of Alaska requires buyers of Alaskan timber to process it in Alaska before they export. Synopsis of Rule of Law. Although state-owned businesses may favor in-state purchasers, they may not attach conditions to the sale of products that will burden interstate commerce.

Facts. As a condition of Alaskan timber purchasing, the buyer had to get it processed in the State. The purpose of the requirement was to protect Alaska timber processors, develop new industries and make a larger profit on their timber resources. The Plaintiff, South-Central Timber Development, Inc (Plaintiff) filed suit seeking an injunction to prevent this requirement as it violated the United State Constitutions (Constitution) Commerce Clause. Alaska claimed it was a market participant and therefore precluded from the strict scrutiny test. The court of appeals determined that Congress had authorized Alaskas processing requirement. Issue. May a State, acting as a market participant, impose a requirement on down-stream market participants without violating the dormant Commerce Clause? Held. No, the market participant exception is limited to the particular market in which the State is a participant. If the state acts as a market participant a state can impose burdens on interstate commerce within the market it is a participant, but allows it to go no further. The Supreme Court of the United States (Supreme Court), for Commerce Clause purposes, defines Market narrowly and precludes a statess exercise of leverage in the market in which it is directly participating in order to regulate a downstream market. Here, the Supreme Court found Alaska to be a direct participant in the timber market, but not in the processing market. Thus, Alaska could not legitimately prefer its own residents in the processing market only in the initial timber market. Dissent. Justice William Rehnquist (J. Rehnquist) dissents because he thinks the line between participant and regulator is a fine line. He felt Alaska was indirectly paying buyers to use Alaskan processors and that there were other ways to accomplish that same result. He therefore, felt it was unfair for the Supreme Court to decide that the Constitutions Commerce Clause barred their chosen path. Discussion. Alaska is more than merely a market participant because they are imposing a requirement on their timber after the sale. A seller, usually has no say over, and no interest in, how the product is to be used after sale. The State may not impose conditions that have a substantial regulatory effect outside of a particular market.

If they are regulating a a regulator, you are then violating dormant commerce clause exception because you cannot wear both hats together of market participant and also as state. Criticism of market participant exception C. THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV, $2 1. Introduction Dont confuse article 4 with 14th amendment because that is not relevant with commerce clause. 2. Analysis under the privileges and immunities clause WHAT ARE THE PRIVILEGES AND IMMUNITIES OF CITIZENSHIP? Toomer v. Witsell
Brief Fact Summary. The Plaintiffs, Toomer and other out-of-state commercial fisherman (Plaintiff), challenged a South Carolina Law that imposed higher license fees to out-of-state boats based than in state boats. The Plaintiffs based their challenge on the Privileges and Immunities Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. If a State violates the Fourteenth Amendments Privileges and Immunities Clause, the Supreme Court of the United States (Supreme Court) must determine whether the law discriminates against citizens of other states and if so, whether there is a substantial reason for the discrimination beyond the mere fact that they are citizens of another state. Facts. South Carolina enacted a statute that imposed a license fee for out of state commercial shrimp boats that was 100 times greater than resident shrimp boats. The Plaintiffs sued saying it was a violation of the Fourteenth Amendments Privileges and Immunities Clause. The Plaintiffs contended that the purpose of the statute was not to conserve shrimp, but to exclude out of state shrimp boats creating a monopoly for South Carolina fishermen. Issue. Does a state law that discriminates against out of state fishermen violate the Fourteenth Amendments Privileges and Immunities Clause where its purpose is to conserve natural resources, but its effect creates a monopoly for residents of the state? Held. Yes, the purpose of the Fourteenth Amendments Privileges and Immunities Clause was to help fuse the Nation, to ensure that people enjoy the same rights in each state. Therefore, the Privileges and Immunities Clause invalidates South Carolinas license fee law. Discussion. Because of the nature of the Privileges and Immunities Clause, a citizen of State A may enjoy substantial equality with citizens of State B. Although it is not absolute, it does bar discrimination against citizens of

other States where no substantial reason for the discrimination exists besides the fact that they are merely citizens of another state. The South Carolina law clearly discriminates against non-residents merely because they are nonresidents of South Carolina. South Carolina contends that the purpose of the law was to protect natural resources, the States shrimp supply. However, the purpose of the Privileges and Immunities Clause is to outlaw classifications based on non-citizenship. Moreover, there was no indication that non-resident fishermen were the source of the problem that the statute was aimed. Therefore, the statute is unconstitutional.

Class- how do we know whether it violates privileges and immunities clause? We find a test regarding that from this case- whether it effects the livelihood of individual. P&I Business Aliens Non discrimination = neutral laws Exceptions Individual Rights Tests livelihood- economic it has to have substantially related or Significant/ important interest (it is intermediate scrutiny) DCC

United building & construction trades council of Camden county v. mayor & council of the city of Camden
Brief Fact Summary. The city of Camden, New Jersey required that at least 40% of employees of contractors and subcontractors working on city construction projects be Camden residents. The Trade Council challenged this as a violation of the Privileges and Immunities Clause. Synopsis of Rule of Law. The Privileges and Immunities Clause in Article IV applies to non-residents who intend to return to their domicile at the end of their journey. Under this clause, a state may not deny essential rights to a resident of another state unless there is a substantial justification for the difference in treatment. The non-resident must be shown as the source of the evil at which the statute is aimed. Facts. The city of Camden, New Jersey passed an ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. The Construction Trades Council challenged the ordinance as a violation of the Privileges and Immunities Clause. The Supreme Court of New Jersey rejected this attack on the ground that the ordinance discriminated on the basis of municipal and not state residence. The Court declined to apply the Privileges and Immunities Clause to a municipal ordinance that had incidental effects upon out-of-state citizens and New Jersey citizens not residing in the locality. Issue. Does the Privileges and Immunities Clause apply to municipal ordinances that limit the employees who can work on public works projects to residents of the city? Held. Justice Rehnquist. Yes. Judgment reversed and the case remanded for a determination of the validity of the ordinance under the appropriate constitutional standard. The United States Supreme Court did not evaluate Camdens justification on the record because there was no trial and no findings of fact. The municipal ordinance is not outside the scope of the Privileges and Immunities Clause just because it is a municipal rather than state law. It is difficult to distinguish municipal from state action in this case because the ordinance would not have gone into effect without express approval by the State Treasurer. The challenge to the municipal law could be interpreted as a challenge to the State Treasurers general power. A municipality is merely a political subdivision of the state from which its authority derives. If a state cannot violate the Privileges and Immunities Clause or the Equal Protection Clause then neither can a city that derives its authority from the state. Therefore, even if there were no state funds involved, the city would still have to comport with the Privileges and Immunities Clause.

The Court has never read the Privileges and Immunities Clause so literally as to apply it only to distinctions based on state citizenship and not those based on municipal residency. The terms citizen and resident are essentially interchangeable for the purposes of analysis under the Privileges and Immunities Clause. Although the Privileges and Immunities Clause only protects those out-of-state residents who would be injured, New Jersey citizens not residing in Camden can depend on the political process for a remedy. The ordinance is not immune from the Privileges and Immunities Clause merely because some in-state residents are similarly disadvantaged. There is a two-step inquiry when there is discrimination against out-of-state residents. As an initial matter, the court must decide whether the ordinance burdens one of those privileges protected by the Privileges and Immunities Clause because not all forms of discrimination are constitutionally suspect. A state must treat residents and nonresidents equally only as to those privileges that bear on the vitality of the Nation as a single entity. The Privileges and Immunities Clause is not absolute and there may be times that states will discriminate against citizens of other states for a substantial reason. The relevant inquiry is whether such reasons do exist and whether the degree of discrimination bears a close relation to them. Nonresidents must somehow be the problem which the statute is aimed at. A states ownership interest in a project or funds is not a controlling factor in determining whether an ordinance can be subject to the Privileges and Immunities Clause. Camden may, without fear of violating the Commerce Clause, pressure private employers engaged in public works projects to hire city residents. But the same exercise of power to bias the employment decisions of private contractors and subcontractors against out-of-state residents may be called to account under the Privileges and Immunities Clause. Dissent. Justice Blackmun. For over a century the meaning of the Privileges and Immunities Clause was settled. Absent some substantial noninvidious justification, a state may not discriminate between its own residents and residents of other States on the basis of state citizenship. The Court casually extended the scope of the Privileges and Immunities Clause by holding it applies to laws that discriminate among state residents on the basis of municipal residence as well. The Privileges and Immunities Clause was not intended to apply to the kind of municipal discrimination presented in this case. The Court did not need to involve itself in this matter because the political process would have protected New Jersey residents from the Camden order, and would have furthered the interests of nonresidents as well. Discussion. The Commerce Clause prevents states from legislation on interstate commerce, which is in Congresss sole discretion. As a market participant in this case, Camden would not have violated the Constitution (Just as Boston didnt in White). The Privileges and Immunities Clause ensures that citizens of one state have the same privileges as citizens of another to promote national unity. It only applies to certain fundamental rights. Here the Court remanded the case so that the New Jersey courts could determine whether such a right was at stake here.

One way to sow livelihood whether you are doing it for your own personal pleasure or for your living. If it for own personal pleasure, the rights are not protected (hunting). Under privileges and immunities clause, you need to show mid level and intermediate interest. CLASS 10/10/11 Supreme court of new Hampshire v. Katherine Piper (TEST)
Brief Fact Summary. The Appellee, Ms. Kathryn A. Piper (Appellee), a nonresident of New Hampshire, desired to practice law in New Hampshire. However, the Appellee could not because the Appellant, the Supreme Court of New Hampshire (Appellant), said only the New Hampshire lawyers were allowed to practice there. The Appellee claimed the decision violated her rights under the Privileges and Immunities Clause of the Fourteenth Amendment of the Constitution (Constitution). Synopsis of Rule of Law. The opportunity to practice law is a fundamental right. There is no substantial reason for denying nonresidents admission to the New Hampshire to and the discrimination does not bear a close relationship to the States objectives. Facts. The Appellee is a resident of Vermont who wanted to practice law in New Hampshire, but could not because New Hampshire would not allow nonresidents to practice law in New Hampshire. Specifically, Rule 42 of the New Hampshire Supreme Court included the prohibition on admission. The Appellee sued the Supreme Court of New Hampshire contending that the rule violated her rights under the Privileges and Immunities Clause of the Fourteenth Amendment of the Constitution. Issue. Is the practice of law a fundamental right and therefore protected by the Fourteenth Amendments Privileges and Immunities Clause? Held. Yes, the practice of law a fundamental right and therefore protected by the Fourteen Amendments Privileges and Immunities Clause. Dissent. Judge William Rehnquist (J. Rehnquist) dissents because he thinks the practice of law does not easily transfer across state lines and is different from other occupations. J. Rehnquist feels the state has a substantial interest in creating its own sets of laws that parallel the states interest. States have an interest in demanding residents practice law in New Hampshire because it makes the pool of lawyers better. New Hampshire has substantial reasons for demanding lawyers be residents and the rule does not violate the Fourteenth Amendments Privileges and

Immunities Clause. Discussion. The practice of law is essential to the economy and is therefore a privilege protected under the Fourteenth Amendments Privileges and Immunities Clause. Out-of-state lawyers are essential to the field because they will be more likely to bring unpopular claims. The opportunity to practice law is a fundamental right. It does not preclude discrimination against nonresidents when: (1) there is a substantial reason for the difference in treatment and (2) the discrimination against non-residents bears a substantial relationship to the States and objective. The Supreme Court of the United States (Supreme Court) concluded there is no evidence to support New Hampshires justification for their rule. New Hampshire neither advances substantial reason for its discrimination against nonresident applicants to the bar, nor demonstrates that the discrimination practiced bears a close relationship to the States objec

Class: Court uses a two prong test here: - There is substantial reason for the difference in treatment - The discrimination practiced against nonresidents bears a substantial relationship to the states objective. P&I DCC Business no yes Aliens no yes Interests Nondiscrimination no yes neutral- pike Local rules v. Bruce church probono Balancing test Exceptions no yes 1.congressional 2.market participation Types indiv. rights unavailable for it unethical Test indiv. Rts. (Livelihood) substantially related Significant/important Gov. interest Effects commerce -burden v. benefit -balancing test applicable because it discriminates -a legitimate gov interest Fed &State fed- is fed law valid? state- DCC exception P&I preemption

FOR EXAM SITUATION (PREEMPTION) Only fed leg Only state leg 1.authority DCC-exceptions commerce P&I taxing & spending (immigration,copyright..) 2.impediments 10th amendment CLASS STARTS on EXECUTIVE POWER & ITS LIMIT p.318 Youngstown Sheet & Tube co. V. Sawyer

Brief Fact Summary. In 1952, after the employees of steel companies threatened to strike, the President of the United States Harry Truman (President Truman) ordered the Secretary of Commerce to seize the Nations steel companies. The steel companies sued. Synopsis of Rule of Law. The Presidents power, if any, to issue an order must stem from an act of Congress or the United States Constitution (Constitution). Facts. In 1951, a labor dispute arose between the United States steel companies and their employees. In 1952, the employees union gave notice of a nationwide strike. Thereupon, fearful that such a work stoppage would jeopardize our national defense, President Truman issued an order directing the Secretary of Commerce to take possession of the nations steel mills. After obeying the orders under protest, the steel companies brought suit in District Court. The District Court issued a temporary restraining order against the government, which the Court of Appeals stayed. Issue. Did President Truman have the authority to order the seizure of the steel mills? Held. No. The judgment of the District Court is affirmed. Justice Hugo Black stated that there was no statute that expressly conferred upon President Truman the power to seize the mills. There are no provisions of the Constitution, or combination of provisions thereof, which gave the President the authority to take possession of property as he did.

Dissent. Chief Justice Fred Vinson (J. Vinson) argued that we must consider the context in which the Presidents powers were exercised a national exigency. The Presidents power to seize the steel mills derives from his duty to executive legislative programs the success of which depends upon the continued production of steel. Concurrence. Justice Felix Frankfurter (J. Frankfurter) stated that Congress could not have more emphatically expressed its will that the executive seizure was not authorized than it did in the Taft Hartley Act of 1947. Justice Robert Jackson (J. Jackson) said that when the President takes actions inconsistent with the will of Congress, his powers are at their lowest level. Then, he can only rely on his own constitutional powers minus any powers given to Congress on the same matter. (Justice Douglas) The branch of government with the power to pay for a seizure is the only one that can authorize one -Congress. If we authorized the Presidents act, we would be expanding his powers under Article Two. Discussion. This case calls into question the extent and the source(s) of the emergency powers of the President, if any, under the Constitution.

President sent out two notifications to congress but there was no response from them. President pres pres pres 1. Commander in chief +congress @congress - congress Theatre of war =/ possession of highest zone of lowest private property. twilight 2. National catastrophe 3. Congressional acquiescence Court said court actually rejected that idea in 1947 through Taft Hartley Act. Justice Jackson concurrence is very important in this case. He talks about three instances when congress can do it. THE SCOPE OF INHERENT POWER: THE ISSUE OF EXECUTIVE PRIVILEGE United States v. Richard M. Nixon, president of the United States
Brief Fact Summary. The Plaintiff, the President of the United States Richard Nixon (Plaintiff) refused to turn over tapes of his secretly recorded conversations that had been subpoenaed to assist in the prosecution of individuals in the Watergate break-in. Synopsis of Rule of Law. Conversations between the President of the United States (the President) and his advisors are generally privileged, but that privilege is no absolute. Facts. In the famous Watergate scandal, several of the Plaintiffs associates were indicted on charges of conspiracy and obstruction of justice, though the Plaintiff was not indicted himself. The district court issued a subpoena ordering the Plaintiff to produce the tape recordings of his conversations with his advisors in one of the criminal cases that had ensued. The Plaintiff brought this motion to quash the subpoena on the grounds of executive privilege and separation of powers. The district court denied the Plaintiffs motion to quash and the Supreme Court of the United States (Supreme Court) granted review. Issue. Are the Presidents confidential conversations with his advisors/associates subject to an absolute privilege? Held. No, there is no absolute privilege. Discussion. The Plaintiff argues that all private conversations between himself and his advisors/associates are absolutely privileged, claiming that his advisors may fear to speak candidly if they know that the conversations may later be used against them in a court of law. The court agreed that the Presidents communications to his advisors are subject to general claims of confidentiality. However, the Supreme Court said this was based on public policy grounds. The Plaintiff also raised a separation of powers argument, which the Supreme Court rejected. Our government consists of three interdependent and coequal branches. While the Supreme Court recognizes a need for a strong Presidential privilege, that privilege must be weighed against the fair administration of justice. Withholding information in a criminal trial will cut deeply into the guarantee of due process and gravely impair the basic function of the courts. Weighing the countervailing arguments against each other, the Presidents generalized interest in confidentiality cannot prevail over the fundamental demands of the criminal justice system.

Court recognizes the privilege of confidentiality president has but it is not enough for this case. Court gives reasons- due process of the criminal judicial process that is involved in this case. Cheney case on p. 333 Cheney case distinguished because it is a civil case and not a criminal case. B. THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER

William J. Clinton, President of the United States v. City of New York

Synopsis of Rule of Law. The Line Item Veto Power is unconstitutional. Facts. The Line Item Veto Act of 1996 (the Act) gave the President of the United States (the President) the power to veto (cancel) provisions of certain spending and taxing bills after they had been signed into law. The Act sets out procedures the President must follow, including a procedure where the President must notify Congress of the cancellation and Congress can veto the Presidents cancellation with a majority vote. The Defendant used the Line Item Veto power to cancel an item of spending that would benefit only New York and also to cancel a tax break to farmers cooperatives. It is undisputed that the Defendant complied with the Act, that Congress properly enacted the Act and that the spending and taxing issues in this case fall within the Act. Issue. May Congress grant the President the authority to cancel parts of legislation after they have been enacted as law? Held. No, the Line Item Veto is unconstitutional because the repeal of statutes, no less than enactment, must conform with Article I [INS v. Chadha (1983).] Dissent. Justice Stephen Breyer (J. Breyer) wrote the opinion and feels the majority is flawed because it assumes that the Defendant has been granted the authority to repeal or amend laws. Congress did not attempt to give the President the true power to veto portions of already enacted laws. The Defendant simply followed the Act as handed down by Congress. Concurrence. Justice Anthony Kennedy (J. Kennedy) felt there was a separation of powers problem. Our very liberty is at stake when one or more of the branches seek to transgress the separation of powers: concentration of power in the hands of a single branch is a threat to liberty. Discussion. The Presidents role in lawmaking is limited to initiating, influencing and vetoing legislation. The Presidents Line Item Veto power differs from that of a constitutional veto. The constitutional veto takes place before the bill becomes law, whereas the statutory Line Item Veto takes place after the bill becomes law. Therefore, it is a repeal rather than a veto. Historically, it has been established that a President must approve an entire bill or veto it in toto. Here constitutional silence on the Presidents power to repeal or amend duly enacted statutes is equivalent to an express prohibition.

By taking a pen through the lines, he is making new law and court says it cannot happen without the approval. After a bill has been passed, presidents line veto is unconstitutional CLASS 10/12/2011 Congress cannot waive the right of privilege and immunity clause because it is given to people by the constitution. C. THE CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE 1. The non-delegation doctrine and its demise Whitman v. American Trucking Assn., Inc.
Brief Fact Summary. The Environmental Protection Agency (EPA) revised ozone air quality standards. Synopsis of Rule of Law. When conferring decisionmaking authority upon agencies, Congress must lay down an intelligible principle to which the person or body authorized to act is directed to conform. Facts. The EPA revised national ambient air quality standards (NAAQS) under the Section:109(b)(1) of the Clean Air Act (CAA). The changes affected ozone. Several states challenged the new promulgated rules. Issue. Whether Section:109(b)(1) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the Environmental Protection Agency (EPA). Held. No. The Supreme Court of the United States first took into consideration the approach that the Constitution required. Based on Art. I of the Constitution, Congress has all legislative powers, but the Constitution does not permit delegation of those powers. Under previous decisions, therefore, when Congress confers decisionmaking authority upon agencies Congress must lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform. Strictly interpreting the language of Section: 109(b)(1), the Supreme Court read the statute as requiring the EPA to set air quality standards at the level that is requisitethat is, not lower or higher than is necessaryto protect the public health with an adequate margin of safety, and so concluded that the scope provided by Congress for the EPA was well within the outer limits of our nondelegation precedents. Concurrence. Justice Thomas concurred agreed with the Court, but nonetheless expressed his concern that the intelligible principle doctrine serves to prevent all cessions of legislative power, and that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than legislative. Justice Scalia, joined Justice Souter, believed that the Court should simply admit that agency rulemaking authority is legislative power. Discussion. Statutes need not provide a determinate criterion for saying how much of a regulated harm is too much to avoid delegating legislative power.

This court did not find violation of non-delegation doctrine. In a delegation challenge, the

constitutional question is whether the statute has delegated legislative power to the agency. Article I section 1, of the constitution vests all legislative powers being herein granted..in a congress of the United States. This text permits no delegation of those powers. Law Maker Congress -> Executive branch (Law enforcer) EPA = making law FTC, FDA, FAA, SEC, CIA, secretary of commerce, Cabinet, Defense Dept.

In this case, what was the clear & intelligible principle? - Clear and ambiant air quality. Criteria for safety and public health.= REQUISITE Requisite here means sufficient but not more than necessary. 2. THE LEGISLATIVE VETO AND ITS DEMISE

Immigration & naturalization Service v. Jagdish Rai Chadha

Brief Fact Summary. The Plaintiffs, Chadha and others (Plaintiffs), challenged a federal statute, which purported to authorize one House of Congress, by resolution, to invalidate the decision of the Attorney General of the United States (Attorney General) to allow a specific deportable illegal immigrant to remain in the United States. Synopsis of Rule of Law. Legislative action is not legitimate unless there is bicameral approval and presentment to the President of the United States. Facts. Chadha was an alien who was lawfully admitted into the United States on a non-immigrant student visa. Chadha overstayed his visa and the Defendant, the Immigration and Naturalization Service (Defendant), began deportation proceedings. The Immigration judge found that Chadha met the requirements set out in the Immigration and Nationality Act (the Act) for suspension of deportation. Under the Act, the Attorney General reported the suspension of deportation to Congress. However, the House of Representatives passed a resolution that Chadha did not meet the statutory requirements for suspension of deportation. Neither the Senate nor the President reviewed the decision. Chadha filed a petition with the Defendant and the Defendant agreed that the statute was unconstitutional. The court of appeals held that the separation of powers doctrine was violated by the Issue. Is the one-house legislative veto unconstitutional, even when authorized by a properly enacted statute? Held. Yes, the legislative veto is unconstitutional. Congress delegated the Attorney general the power to determine, whether a particular deportable alien could remain in the United States. The United States Constitution (Constitution) does not permit Congress to then delegate the same authority to one House of Congress. Since the action of deciding whether to deport a given alien is legislative, it is subject to both the bicameralism and presentment requirements of Article 1 of the Constitution. Bicameralism and presentment were built into the Constitution to act as a check on each branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. Dissent. Justice Byron White (J. White) found that the legislative veto in the Act is one of approximately 200 statutes, in which Congress has reserved a legislative veto to ensure accountability of the executive and independent agencies. J. White also argues that the concept of a legislative veto, is not the type of action that bicameralism and presentment applies. Only bills and their equivalent are subject to bicameralism and presentment. Here, Congresss initial delegation to the Attorney General of the deportation decision was done with bicameralism and presentment. Thus, since Congress did not write a new law when allowing one House of Congress to override the Attorney Generals decision, then bicameralism and presentment were not necessary. Concurrence. Justice Lewis Powell (J. Powell) thought the case should have been decided on a narrower separation of powers ground. The House impermissibly assumed a judicial function when reviewing the INSs decision over Chadhas depor tation. Discussion. Nearly every legislative act, in order to have force and effect must be considered and passed by both houses of Congress and then presented to the President for his signature. The framers of the Constitution found bicameralism and presentment to be essential. A question to consider is whether Congress was taking legislative action. The Act allows one house of Congress to deport an alien who would otherwise be granted permanent residency. This is legislative in character. However, Congress previously made a deliberate choice to delegate authority to the executive branch to determine which deportable aliens will be allowed to stay in the United States. The structure of the Constitution allows one house to make a unicameral decision in only four instances, none of which are present here. Bicameralism keeps the people free from the arbitrary exercise of governmental power. The one-house legislative veto is unconstitutional.

EXCEPTION There are provisions in constitution by which one house may act alone with the unreviewable force of law, not subject to the presidents veto:

a. The house of representatives alone was given the power to initiate impeachments. Art1$2cl6. b. The senate alone was given the power to conduct trails following impeachment on charges initiated by the house and to convict following trial. Art 1 $3 cl5. c. The senate alone was given final unreviewable power to approve or to disapprove presidential appointments. Art II $2 cl2 d. The senate alone was given inreviewable power to ratify treaties negotiated by the president. Art II $2 cl 2 And the legislative veto was not under these one of the exceptions authorizing one house to act alone, and constitution is equally clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Article I. Legislative veto is unconstitutional. The presentment clause to president Bicameralism 3 CHECKING ADMINISTRATIVE POWER

THE APPOINTMENT POWER Alexia Morrison, independent Counsel v. Theodore B. Olson

Brief Fact Summary. An Independent Counsel was appointed by the Special Division of the D.C. Circuit Court of Appeals, to investigate a high-ranking government official. The official responded by claiming that the appointment of an Independent Counsel was unconstitutional. Synopsis of Rule of Law. Since the Independent Counsel is an inferior officer, a law giving judges the authority to appoint an Independent Counsel did not violate the United States Constitution (Constitution). Facts. The Ethics in Government Act (the Act) created the position of independent counsel to investigate highranking officials for federal criminal violations. If the Attorney General receives information that a government official may have violated federal law, he is required by the Act to make a preliminary investigation and report to the Special Division (three judges) of the D.C. Circuit Court of Appeals. If further investigation is needed, the Special Division must appoint an independent counsel to investigate further and prosecute if necessary. The Independent Counsel can only be removed by the Attorney General for good cause or it terminates when all investigations and prosecutions are complete. The Appellees, Theodore B. Olson, Edward C. Schmults and Carol E. Dinkins (Defendants), was the subject of an investigation by the Independent Counsel and Appellant, Alexia Morrison (Appellant). The Court of Appeals held the Act was unconstitutional. Issue. Does the Constitution require that the President of the United States (President) exercise sole and exclusive control over the appointment of all executive officers? Held. No. The President does not have exclusive authority to appoint executive officers. Since the Petitioner is subject to removal by a higher executive branch official and since her office is restricted in jurisdiction, tenure and authorized duties, it is clear that she is an inferior officer and not a principle officer. On its face, the Appointments Clause of the Constitution does not provide a limit on interbranch appointments. To the contrary, Congress is granted great leeway when determining where to vest the power to appoint inferior officials. Dissent. Justice Antonin Scalia (J. Scalia) dissents because he feels criminal investigations and prosecutions are executive functions. He feels the decision deprives the President of a purely executive function, thereby substantially affecting the balance of powers. Discussion. The Appointments Clause, Art II, Section: 2, cl. 2 of the Constitution, divides the executive officers into (1) principle and (2) inferior officers. The President appoints principle officers with advice and consent of the Senate, while the appointment of inferior officers can be done by the heads of departments and the Courts. The Supreme Court of the United States (Supreme Court) decided that the position of Independent Counsel is an inferior officer because (1) he or she is always subject to removal by the President; (2) he or she can only perform certain, limited duties proscribed by the Act; (3) the office is limited in jurisdiction granted by the Special Division and (4) his or her office is limited in tenure.

Appointment clause Two aspects of the appointment power Principal- president +Senate- article II section 2- ambassadors, public ministers, consuls Inferior- appointed by congress How do we decide one person is inferior officer and not principal? 4 criteria- Subject to removal by superior - Limited duties

Limited duties Limited tenure.

THE REMOVAL POWER The impeachment of Andrew Johnson Myers v. United States Humphreys v. United States Quasi judicial and quasi legislative How do we know? quasi judicial makes determination of violations. Quasi legislative= policy, standards, requirements. Neutral, independent It is neutral and independent but has 7 years of limit in the position and president cannot remove unless he is inefficient, neglect of duty. It is independent and 7 year limit because they need the experience of the job. Post master position does not fall in that position? Wiener v. United StatesIt is judicial. Adjudicating- any particular circumstance. Class did not go much on this case because it is similar to the previous case. Bowsher v. Synar Congress may not make the decision to fire but limit president removal. So congress may not vest removal in itself. Limits the presidents removal power because it has to be for Good Cause. Morrison v. Olson D SEPERATION OF POWERS AND FOREIGN POLICY 1. Are foreign policy and domestic affairs different? United States v. Curtiss-Wright Export Corp.
Brief Fact Summary. The Defendant, Curtiss-Wright (Defendant), a weapons manufacturer, was convicted of selling arms to warring nations in South America in violation of an Executive Order that was made pursuant to a Joint Resolution of Congress. Synopsis of Rule of Law. The non-delegation doctrine does not bar Congress from delegating great authority and discretion to the President of the United States (the President) in the conduct of foreign affairs. Facts. Congress passed a Joint Resolution authorizing the President to ban the sales of arms to countries involved in the border dispute between Bolivia and Paraguay. The President immediately made an Executive Order banning such sales. The Defendant was indicted for conspiracy to sell fifteen machine guns to Bolivia in violation of the Joint Resolution and the Executive Order. Issue. May Congress delegate law-making authority to the President in matters of foreign affairs? Held. Yes, the President has broad authority to conduct foreign affairs. Discussion. There is a fundamental difference in the role of government in foreign affairs and domestic affairs. The federal government has both constitutional and inherent authority to conduct foreign affairs as it sees fit. The President is the United States sole representative to foreign nations. In order to achieve the United States foreign policy aims, the President is better able than Congress to judge conditions that exist in foreign nations and is afforded substantial discretion and wide latititude in those decisions. The President has confidential information as well as consular, diplomatic and foreign affairs officers to help in his decision

Notes on Curtiss-Wright Now president has broad power in foreign policy and court avoid to answer any question regarding foreign policy under the political question doctrine. 2. Tresties and Executive agreements Dames & Moore v. Regan, Secretary of the treasury
Brief Fact Summary. The President of the United States, Jimmy Carter (President Carter), ordered the dismissal of

pending litigation against the government of Iran in United States Courts and forced the claims into arbitration pursuant to an executive agreement. Synopsis of Rule of Law. The President of the United States has the power to settle claims by United States Citizens against foreign governments, even without the consent of the United States Citizens whose claims are being compromised. Facts. On November 4, 1979, the United States Embassy in Iran and United States diplomats were held hostage so President Carter froze all Iranian assets in the United States. In January 1981, President Carter signed an executive agreement containing a provision terminating all legal proceedings against the Iranian government in the United States Courts and requiring United States citizens to arbitrate all claims against Iran. President Carter did so under the International Emergency Economic Powers Act (IEEPA). The Plaintiff, Dames and Moore (Plaintiff) brought suit claiming that the executive agreement was unconstitutional and beyond the Presidents power. Issue. Does the President of the United States have authority to settle claims of United States citizens brought against foreign nations? Held. Yes. An Executive Agreement has the same force and effect as a treaty and can alter the rights of the United States Citizens. The President of the United States does not have the plenary power to settle claims against foreign governments through an Executive Agreement. However, where Congress is seen to assent to the presidents action, then the president can settle such claims. Here, although what President Carter did under the IEEPA was not specifically sanctioned, Congress gave the president substantial powers to seize and handle foreign assets, so President Carters actions were appropriate. Discussion. The President of the United States does have the right to terminate legal proceedings and settle claims of United States Citizens against foreign governments. In this countrys history, there has been a longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate. In 1949, in fact, Congress created a procedure to implement future settlement agreements. The Supreme Court of the United States decision was narrow in that the President of the United States does not necessarily possess plenary power to settle claims. However, the President of the United States does have the power to settle claims where, as in this case, settlement was necessary to resolve a major foreign policy dispute and Congress has acquiesced in the Presidents actions.

3. War Powers War Powers Resolutions War powers resolution came as a result of Vietnam War. (a) of section 1541
1541. Purpose and policy (a) Congressional declaration It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. (b) Congressional legislative power under necessary and proper clause Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer hereof. (c) Presidential executive power as Commander-in-Chief; limitation The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. 1542. Consultation; initial and regular consultations The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations. 1543. Reporting requirement (a) Written report; time of submission; circumstances necessitating submission; information reported In the absence of a declaration of war, in any case in which United States Armed Forces are introduced (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a

foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth (A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement. (b) Other information reported The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad. (c) Periodic reports; semiannual requirement Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months. 1544. Congressional action (a) Transmittal of report and referral to Congressional committees; joint request for convening Congress Each report submitted pursuant to section 1543 (a)(1) of this title shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section. (b) Termination of use of United States Armed Forces; exceptions; extension period Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. (c) Concurrent resolution for removal by President of United States Armed Forces Notwithstanding subsection (b) of this section, at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

Boumediene v. Bush

Chapter 3 review Judicial power Standing discussion Ripeness/mootness Political question Generalized grievances Congressional control

legislative branch commerce taxing and spending 10th amendment last three are about states

States dcc P&I market participant congressional approval

Executive power concurrence by justice jackson Youngstown case (steel case)

steel case- what is the theatre of war- doesnt extend to domestic private property. Theatre of war doesnt extend to domestic private power and that is the limitation on executive power Nixon case- recognizes executive privilege. But due process triumphs executive privilege. In Paula Jones and Clinton case- it wasnt immune because it happened before he took his office. Also it was a civil case. Nixon is a criminal case and that is the differential issue. Cheney case- Cheneys documents were privileged because there was no due process clause issue. When may president and congress argue to cede? (Give up power) Presentment- > to protect people Congress has enumerated authority to regulate interstate commerce. Congress may by itself give up their power of interstate commerce in some areas and leave it on the state- dormant commerce. Then court said congress may not delegate its power. But later on, since congress doesnt have all expertise, they are allowed to delegate powers depending on the expertise needed. Delegation of legislative powers- we have got to have clear and intelligible standard (Whitmanwhen can congress delegate its power) INS v. Chadha-once delegation happens, how do you retract? Once delegation happens, The congress needs to pass legislation to withdraw any delegation. P 251- the court finds four areas where there is exception and house may act alone. Appointment (dont put appoint powers on removal) Removal 1. Principal or inferior officer how does limiting president 2. If principal officer (named in constitution) removal affect ART II duties President+senate approval (carrying out law) How do you determine inferior officer? Morrison v. olson Morrison v. olson | Reports superior |------------------|---------------------| Limited jurisdiction Meyers judicial legislative Limited tenure purely exec. Determine/ make 3. If inferior officer may not limit decide a case policy or Congress rests- on president, or courts or removal can limit removal rule dept. head- To appoint , to decide expertise can limit continuity removal independence

class 10/19/2011 Boumedine v. U.S. MCA 1. No writ those in Guantanamo 2. Aliens proceed under CSRT and DRT= determination of enemy combatant status- if yes, enemy combatant continue to be detained. If no, release. 3. D.C cir. Ct. has exclusive jurisdiction appeals to review CSRT In Hamdan case, there was preclusion of Habeas corpus and court said law doesnt apply to pending cases. Rasul case- statutory habeas corpus applies to Guantanamo bay detainees. Congress with MCA amendment said that it applies for pending cases during Hamden. With Rasul, congress acted by removing with statutory habeas. Procedures in MCADetainees exculpatory evidence

No attorney- only helps to gather the information to present to CSRT Hearsay evidence comes in No access to witness/evidence presumption of validity Since CSRT is confined to the record in appeal to DC circuit court, they were not able to bring new evidence while they had been detained for 2-6 years. Are they entitled to writ when they are in Guantanamo bay? U.S. foreign sovereignty lease between Cuba. Cuba retains sovereignty but there is U.S. control and jurisdiction. Class 10/24/2011 Class goes back to page 248 and discussed the 14th amendment and congresss power to pierce state sovereignty through its section 5 power. Amendment 10 Literally prohibit federal action Through 14th amendment , prohibits states due process, P& I incorporated. Except grand jury indictment- 5th amendment Jury trial civil cases- 7th amendment 8th amendment excessive fines 14th amendment Literally prohibit states Through 5th amendment due process , prohibits fed gov (reverse incorporation) CHAPTER 5- The structure of constitutions protection of civil rights and civil liberties A. INTRODUCTION B. THE APPLICATION OF THE BILL OF RIGHTS TO THE STATES 1. The rejection of application before the civil war Barron v. Mayor & City Council of Baltimore 2. False start in applying bill of rights to statesprivilege and immunity clause Slaughter house cases Saenz v. Roe
Brief Fact Summary. California passed a law that awarded less welfare benefits to residents who lived in California for less than 12 months than it paid other residents. Synopsis of Rule of Law. Under the Privileges and Immunities Clause of the United States Constitution (Constitution), a State must provide the same benefits to new residents as it does to other residents. Facts. California enacted a law limiting the welfare benefits for citizens who lived in California for less than 12 months. The welfare family would be paid the amount they received in their last state of residence. The Respondents, Brenda Roe and Anna Doe (Respondents) recently moved to California and challenged the law on equal protection grounds. The district court preliminarily enjoined implementation of the statute and the court of appeals affirmed. Issue. Does a statute providing lower benefits to families who have lived in California for less than 12 months violate the Privileges and Immunities Clause of the Constitution? Held. Yes, the Supreme Court of the United States (Supreme Court) applies the Constitutions Fourteenth Amendment Privileges and Immunities Clause for nearly the first history. The Supreme Court determined that durational residency requirements violate the right to travel by denying a newly-arrived citizen the same privileges and immunities enjoyed by other citizens in the same state, and are therefore subject to strict scrutiny. The states legitimate interest in saving money provides no justification for its diction to discriminate among equally eligible citizens. Dissent. Justice William Rehnquist (J. Rehnquist). J. Rehnquist does not like the fact that the Privileges and Immunities Clause of the Constitution has only been applied once before and was overruled five years later. J. Rehnquist felt that California;s law was a good faith residency requirement. Dissent. Justice Clarence Thomas (J. Thomas). J. Thomas thinks the majority applies a meaning to the Privileges and Immunities Clause of the Constitution that the framers did not intend. The Slaughter-House Cases, he contends, drained the

Privileges and Immunities Clause of any meaning. J. Thomas fears the Fourteenth Amendment Privileges and Immunities Clause will be a new tool for inventing rights. Discussion. The Fourteenth Amendment of the Constitution reads: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall enforce any law which shall abridge the privileges and immunities of the citizens of the United States. The right to equal benefits is protected throughout the states of the United States. It has been understood that the Privileges and Immunities clause protects the right to travel. The Supreme Court did not think rational basis test or intermediate scrutiny applied here. The right to travel includes a citizens right to be treated equally after residing in a new state.

If this was about discrimination against out of staters, then it would be under Article 4. But this case is actually about how long the person is in the state of California- someone already instater so it is under 14th amendment. This case talks about the right to travel under 14th amendment. We as a union have the travel to state to state- not international travel. Frequent case will be on article 4 regarding how states discriminates against out of staters and gives privileges to instaters over outstaters. Article 4 and fourteenth amendment both applies only to FUNDAMENTAL RIGHTS. Education is not fundamental rights. 3. the incorporation of bill of rights into due process clause of fourteenth DEBATE OVER INCORPORATION C. THE APPLICATION OF THE BILL OF RIGHTS AND THE CONSTITUTION TO PRIVATE CONDUCT 1. The requirement of State action The civil rights cases: United States v. Stanley Civil rights Act of 1964 is different and the Act prohibits private discrimination. STALEY case still applies to civil rights cases. I can never sue private institution under the constitution but can sue private entity under the Act. Always look for a STATUTE first as a lawyer. 2. The exception to the state action doctrine a. The public functions exception- traditionally and exclusively performed by government. b. The entanglement exception a. The public functions exception Marsh v. Alabama Exceptions to state action doctrine 1. Public function- traditionally and exclusively concluded/engaged by government. 2. Entanglement: if government authorizes, facilitates, or encouragement, it becomes state action. Subsidies (Norwood) Decision not influenced by state regulation (Yaretsky case) Jackson v. Metropolitan Edison co.
Brief Fact Summary. The Respondent, Metropolitan Edison Co. (Respondent), a private utilities company was held not to be a state actor and therefore, the Petitioner, Catherine Jackson (Petitioner), was not entitled to continuous electrical service nor did the companys termination of electrical services constitute a deprivation of her property without procedural due process. Synopsis of Rule of Law. A private company that does not have specific authorization by the state to act, is not acting on behalf of the state.

Facts. The Petitioner brought a federal civil rights action under 42 U.S.C. Section:1983 against the Respondent, a private company subject to extensive state regulation because it held a certificate public convenience from the Pennsylvania Public Utilities Commission (PPUC) empowering it to deliver electricity to a specific area. Petitioner sought damages and injunctive relief against Respondent for terminating her electrical service for alleged nonpayment, claiming she had not been afforded notice, hearing and an opportunity to pay amount due. She claimed that under state law, she was entitled to reasonably continuous electrical service and that the Respondents termination constituted state action without procedural due process. The lower courts dismissed her claim. Issue. Whether Respondents termination of Petitioners electricity constituted state action? Held. No. Judgment of the lower state courts affirmed. Although Respondent had a monopoly, that fact is not determinative in considering whether Respondents termination of service constituted state action. Approval by a state utility commission of such a request from a regulated utility, where the PPUC has not put its weight on the side of the proposed practice by ordering it, does not transform a practice initiated by the utility and approved by the PPUC into state action. All of Petitioners arguments taken together show no more than that the Respondent was a heavily regulated private utility, enjoying a partial monopoly and that it elected to terminate service to Petitioner in a manner which the PPUC found permissible under state law. Dissent. The states involvement with the utility company was sufficient enough to satisfy state action. Discussion. This case shows that the public function doctrine is not to be read broadly.

ELECTIONS Terry v. Adams Brief Fact Summary. The Defendant, the Jaybird Democratic Association (Defendant), excluded members based on race. The Defendant was held to be engaging in state action for purposes of the Fifteenth Amendment of the United States Constitution (Constitution) because the Defendant had control over the ultimate outcome of the election. Synopsis of Rule of Law. A private political party that controls the outcome of elections is engaging in state action, thereby making it subject to the Fifteenth Amendment of the Constitution. Facts. The Defendant is a very successful Texas political organization that operated a lot like a political party. The Defendants members are all white. The Defendant Association held preprimaries and for more than fifty years, the Defendants county -wide candidates had invariably been nominated in the Democratic primaries and elected to office. The President of the Defendant Association admitted that the purpose of the party was to exclude blacks from voting and to escape the Fifteenth Amendments command that everyone could vote, regardless of race. The Defendant argues that its association is a private club because it was not governed by state laws and did not utilize state elective machinery or funds. Moreover, the Defendant argued that the Fifteenth Amendment constitutional challenge does not apply to their self-governing voluntary club. The Plaintiffs, a group of Negro voters (Plaintiffs), brought a class action to determine their rights under the Fifteenth Amendment of the Constitution. Issue. Does a private, successful, political association have to follow the Fifteenth Amendment? Held. Yes, a private organizations primary election constitutes a public function. Discussion. For a state to allow what the Defendant wants is to defeat the purpose of the Fifteenth Amendment. It is immaterial that the State does not control the Defendant Association because their candidates are always successful. The Defendants primary is the only part of the election that determines who governs the county, which strips blacks of their right to vote for elected officials if they cannot join. 1. Public function: traditionally and exclusively reserved to the government In Jackson the question was, is public service equals to state actions? court decided it is not a state action.

PRIVATE PROPERTY USED FOR PUBLIC PURPSOES Evans v. Newton Brief Fact Summary. A provision of a will left by a Senator Augustus Bacon (the Senator) conveyed a park to Macon, Georgia to be used by whites only. The provision was challenged under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. Operating a park is a public function and therefore, the owner is subject to the Fourteenth Amendment of the Constitution. Facts. Upon his death, the senator devised land to Macon, Georgia that was to be used as a park for whites only. The city was named trustee, and a Board of Managers was created under the trust to administer the park. The park was eventually opened by the city and Negroes were allowed to use it. The City argued they could not enforce segregation in a public park. The Defendants, individual Managers from the Board of Managers (Defendants) sued to remove the city as trustee so as to effectuate the Senators will. The city resigned as the trustee and a state court appointed private trustees to continue the exclusion of Negroes from the park. The Plaintiffs, a group of Negroes (Plaintiffs), intervened alleging violations of the Fourteenth Amendment of the Constitutions Equal protection clause. Issue. Is operating a park a public function and therefore subjected to the Fourteenth Amendment of the Constitution? Held. Yes, black people cannot be excluded because operating a park is a public function. Discussion. For years, the city used this park as a tax exemption. Therefore it was a public park. Just because the Senator gave money to private people to make it whites-only, does not mean the city can become untwined. Where tradition of municipal control becomes firmly established, substituting private trustees will not move the park from the public to private sector. Parks provide a municipal service that serves an entire community. Mass recreation is clearly in the public domain. Hudgens v. National labor relations board Brief Fact Summary. Striking union members picketed in front of a retail store that was located within a shopping mall. The general manager of the mall threatened the picketers with arrest for trespassing if they would not leave. Synopsis of Rule of Law. A private shopping mall is not the functional equivalent of a town and, therefore, not a state actor subject to the requirements of the First Amendment of the United States Constitution (Constitution). Facts. Butler Shoe Co. warehouse workers went on strike and decided to picket the nine retail locations in Atlanta. One of those stores was located within the North DeKalb Shopping Center, owned by the Petitioner, Hudgens (Petitioner). After the picketers had been marching for about half an hour, the general manager of the shopping center threatened to have the strikers arrested if they did not leave. Issue. Can a private shopping mall prohibit picketing of its tenants by members of the public? Held. Yes. Because a shopping mall is not the functional equivalent of a town, it may restrict First Amendment rights based solely on the content of the speech. Discussion. The majority overrules the holding of Logan Valley and reasserts the holding of Lloyd. A mall may look like and function as a small town would, yet it does not have all of the attributes of a town. So, it is not restricted by the prohibition on content-based speech review that a state actor would be under in the same circumstances. b. The entanglement exception JUDICIAL AND LAW ENFORCEMENT ACTIONS Shelley v. Kramer Brief Fact Summary. Neighborhood in St. Louis Missouri consisting of thirty nine property

owners, signed an agreement prohibiting use or occupancy of the properties by any person not of the Caucasian race. Petitioners, Shelleys, were African-American couple who purchased the deed with no knowledge of the restrictive agreement. Synopsis of Rule of Law. Judicial enforcement of a restrictive covenant based on race would deny the petitioners Equal Protection of the laws under the 14th Amendment. Facts. Restrictive covenant banned use or occupancy by Negroes or Mongolians for fifty years. Shelleys, petitioners, were unaware of the restrictive covenant at the time of purchase. The lived in the home for two months before the neighbors brought suit. Trial Court enforced the covenant and required Shelleys to vacate property within 90 days and the Supreme Court of Missouri affirmated. Issue. Are state court orders and decisions in an official capacity actions of the state for purpose of the Fourteenth Amendment? Would enforcement of the restrictive covenant by a state court deny the petitioners Equal Protection in violation of the Constitution? Can the neighbors voluntarily enforce such a covenant without a court order or state action? Held. Court states it has long been established that actions of court in official capacity are actions of the state for purposes of the Fourteenth amendment. In granting judicial enforcement of restrictive agreements in theses cases the States have denied petitioners equal protection. The Court noted that property rights particularly were among the basic objectives sought to by the framers of the Fourteenth amendment. A states decision that denied property ownership because of race was a denial of equal protection. The restrictive agreements standing alone did not violate the 14th amendment and could be adhered to voluntarily. It was the state action of enforcement that was unconstitutional. Discussion. Judicial action is state action. Although the court found the agreement could be adhered to voluntarily today it would probably violate the Fair Housing Act which was enacted in 1968 because it makes it unlawful to refuse to sell, rent etc. on the basis of race, sex, national origin etc. Section 5 of 14th amendment does not authorize congress to control private action. In Morrison case- Is it constitutional under commerce clause? Is it constitutional under 14th amendment? No for both questions. She did not have a statute. Only thing she could do is transform defendants action into state action. She could always sue civilly for the physical injury and mental. But she could not sue for her violation of rights. Putting Lugar case in the context- the question is whether there is state action when a person is privately acting? Using the help of law officer makes it state action. Example: peremptory challenges GOVERNMENT REGULATION Burton v. Wilmington parking authority Brief Fact Summary. The Appellant, Burton (Appellant), brought an action under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution), claiming he was discriminated against because the Appellees, the Wilmington Parking Authority and the Eagle Coffee Shoppe, Inc. (Appellees), refused to serve him in their restaurant based solely on the Appellants race. The Appellant claims there is state action sufficient to bring a Fourteenth Amendment claim, as the Eagle Coffee Shoppe, Inc. leased its restaurant space from the City and the restaurant was attached to the Wilmington Parking Authority a City owned parking garage. Synopsis of Rule of Law. There is significant state involvement to permit an action under the Fourteenth Amendment of the Constitution when a state leases public property to a private actor

who then discriminates against nonwhites Facts. The City of Wilmington created the Wilmington Parking Authority to construct parking and commercial facilities. The Wilmington Parking Authority leased a spot attached to the facility to a commercial tenant who opened a restaurant. The lease contained no requirements that the restaurant serve the general public on a nondiscriminatory basis. This action was commenced because the restaurant refused to serve the Appellant solely because he was a Negro. The Appellant sued under the Equal Protection Clause of the Fourteenth Amendment of the Constitution. The Supreme Court of the United States (Supreme Court) found the building where the restaurant was located was publicly owned and dedicated to public use in performance of the States essential government functions. Issue. Whether there was state action significant enough to permit an action under the Equal Protection Clause of the Fourteenth Amendment of the constitution. If so, whether the action was discriminatory under the Equal Protection Clause of the Fourteenth Amendment of the Constitution. Held. Reversed. The exclusion of the Appellant was a discriminatory state action in violation of the Fourteenth Amendment of the Constitution. Dissent. Before deciding this case, it should be sent back to the state court for clarification of its decision. Concurrence. In concurrence with the majoritys opinion, the concurring justice reached the same conclusion differently. Discussion. State action is a prerequisite to the assertion of rights contained in the first eight amendments and the fourteenth amendment. State action will be found when a private actor has acted if (1) the state has delegated a traditional state function to a private entity or (2) because the state has become entangled with a private entity or because the state has approved, encouraged or facilitated private conduct. In Burton, there was significant state involvement, as the state owned the public parking facility, to trigger a state action under the Fourteenth Amendment of the Constitution. Symbiotic relation- what if government subcontracted for a building that are not employee but private entity. State action cannot always be broadly appliedly subcontructor Moose lodge no. 107 v. Irvis Brief Fact Summary. The Appellee, Irvis (Appellee), brought suit against the Appellants, Moose Lodge No. 107 (Moose Lodge) a private club and the State liquor board (Appellants) alleging discrimination under the Fourteenth Amendment of the United States Constitution (Constitution) because of the clubs policies against non-whites. Synopsis of Rule of Law. The granting of a liquor license to a private club that discriminated against non-whites does not significantly involve the state as to constitute a state action. Facts. Moose Lodge is a local branch of a national fraternal organization. Lodge policy restricts membership to whites and prohibits member from bringing black guests to the lodge dining room and bar. The Appellee, a black, was refused service because of his race. The Appellee filed an Equal Protection Action naming against the Appellants. The Appellee claimed because the State Liquor board had issued Moose Lodge a license that authorized the sale of alcoholic beverages on its premises, the refusal of service was a state action. The trial court granted an injunction restricting the Appellants liquor license until they stopped discriminating. The Supreme Court of the United States (Supreme Court) stated there needs to be significant state involvement with invidious discrimination in order for there to be a state action. Issue. Whether the State liquor boards issuance of a liquor license to a private club located on private property constitutes significant state involvement, thus, permitting an action under the Fourteenth Amendment of the Constitution? Held. Reversed. Issuance of a state liquor license to a private club does not constitute significant state involvement. The State played no part in establishing or enforcing the membership or guest polices of the club that it licenses to serve liquor. The State does not discriminate against

minority groups in its ability to obtain a liquor license themselves. The state does not in any way encourage racial discrimination, nor, is it a partner or a joint venture with Appellant. Dissent. The fact that the quota for obtaining liquor licenses in Pennsylvania is now full and no more club licenses may be obtained, restricts the ability of blacks to obtain liquor, for liquor is commercially available only at private clubs for a significant portion of each week. The State could allow this permit to go to a club who meets racially neutral qualifications. When the club obtained its liquor license, the State became an active participant in the operation of the club. Discussion. State action is a prerequisite to the assertion of rights contained in the first eight amendments of the Constitution and the Fourteenth Amendment of the Constitution. State action will be found when a private actor has acted if (1) the state has delegated a traditional state function to a private entity or (2) because the state has become entangled with a private entity or because the state has approved, encouraged or facilitated private conduct. In this case the majority of the Supreme Court found the issuance of a liquor license to a club that discriminates against non-whites does not significantly involve the state enough to constitute a state action. This case was distinguished by the court from previous case. In this case, court decided the action was completely private. Moose lodge was on private land, membership can be acquired only by invitation of other members or board. Court says, Moose lodge try to stay as private as could. It has set of criteria to become member. Dissent thought it was more of state action because of the liquor license which is very highly regulated by the state. Liquor license is very scarce and it continues as long as the owner regulates the place accordingly. This case does not have symbiotic relation as Burton case even though the government benefits from the money it gets for the license. If the license was free, the argument would be much easier. Capitalism- Lodge feels they are going to lose the business if black people become their government and therefore they are allowed to have such discriminatory action- capitalism. GOVERNMENT SUBSIDIES Norwood v. Harrison Brief Fact Summary. The Appellants, Delores Norwood and others (Appellants), are the parents of four schoolchildren who are challenging the state of Mississippis textbook lending program. They claim that the program encourages discrimination by providing textbooks to the children who attend private, segregated schools. Synopsis of Rule of Law. The Equal Protection Clause of the United States Constitution (Constitution) is violated when a state provides aide to students of private, segregated schools because it encourages continued racial discrimination. Facts. The number of private schools in Mississippi has increased over the years since mandatory desegregation. The state of Mississippi has a 33 year-old program that provides free textbooks to all students in both public and private schools. Since the program began, the number of all white private schools greatly increased. The Appellees, Harrison and other (Appellees), claim that the state must provide assistance to private schools that is equivalent to assistance provided to public schools. The Appellants filed a class action on behalf of all the students in Mississippi to enjoin the textbook lending program. The Appellants argued that by supplying the textbooks to the segregated private schools, the state was directly supporting segregated education, in violation of the students constitutional rights to fully desegregated schools. The district could found that the lending program did not violate the Constitution. Issue. Does a state funded program that benefits both public and private school students equally, violate the Fourteenth Amendment of the Constitution simply because some of the private schools have racially discriminatory admissions practices? Held. Yes. The Supreme Court of the United States (Supreme Court) first observed that in the past, the Supreme Court had enjoined state tuition grants to students attending racially

discriminatory private schools. The Supreme Court found that the textbook lending program was analogous to those tuition grants. A textbook lending program is a form of tangible, financial assistance, which benefits the private schools and supports the discrimination exercised by those schools. Even though the intent of the program was not to discriminate, but to help children in the state, the effect of the assistance results in discrimination and is, therefore, a violation of the Equal Protection Clause of the Constitution. The Supreme Court stated A States constitutional obligation requires it to steer clear, not only of operating the dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination. Discussion. The aide provided by the state is a vital component of education and necessary for the private schools to carry out their goals. By supplying these basic instruments, the government is endorsing the practice of segregation. Equal Protection violations will result when either the effect or the intention of the state action is discrimination. Rendell-Baker v. Kohn Brief Fact Summary. The Petitioner, Rendell-Baker (Petitioner), brings suit because she was fired from her position as a school counselor in retaliation for her opinion of administrative policy. Five others were later fired after they voiced their intention to form a union. Synopsis of Rule of Law. Private conduct is not state action simply because the private entity serves a public function. Facts. The school in this case provides education to students that have difficulty adhering to the traditional curriculum of the public school districts. The Respondent, Kohn (Respondent), is the administrative director of the privately owned school who accepts students with drug, alcohol, or behavioral problems from local public high schools. Students are referred to the school under Massachusetts Acts of 1972 and the school districts pay the tuition for the referred students. These public funds accounted for 90+% of the schools operating budget. In 1977, Petitioner was fired by Respondent for her role in a student-staff council tasked with making hiring decisions. In the spring of 1978, five other teachers were fired for writing a letter to the schools board of directors supporting Respondents dismissal. The students responded by picketing the home of the president of the board and were threatened with suspension. A local paper was made aware of the situation and the 5 teachers told the president they were going to form a union. Issue. Is a private schools dismissal of its staff considered state action when the majority of its students tuition is provided by the state? Held. No. The decision to discharge the Petitioners was not compelled or influenced by any state regulation. Although the general operations of the school were regulated by the state, specific personnel matters were left to the school. The most intrusive regulation by the state was that it had the power to approve those hired as vocational counselors. Dissent. Because the school receives almost all of its funds from the state and is heavily regulated, a close nexus exists between the school and the state. So, the schools action must be considered state action. This analysis relies on the previous decisions that define a symbiotic relationship and the entanglement between the state and a private actor. Discussion. Just by providing funding to the school and general operating regulations the state is not running the school. The school is a private entity similar to a corporate contractor that relies on numerous governmental contracts for business. The actions of the school are not an extension of the state as it makes independent management decisions. There was facilitation because books cost them much less. If the government provide subsidy, the subsidy becomes state of facilitation. What is one factor court uses to find state action from Norwood? In norwood government was providing Provision of school with non traditional students Private schools performing a public function because

Blum v. Yaretsky Brief Fact Summary. The Respondent, Yaretsky (Respondent), is a Medicaid recipient who was transferred from a nursing home to a lower level of care in a health related facility after case review by the nursing homes utilization review committee. Respondent alleges that this transfer was done in violation of his rights and federal law under the Due Process Clause of the 14th Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. Private entity decisions are not converted to state action simply because the state reacts to the decision. Facts. Medicaid recipients have nursing home stays paid for by the City of New York if they meet specific eligibility criteria. Federal regulations require each nursing facility to establish a utilization review committee (URC) of physicians who periodically review patient cases for appropriate patient placement. The URC may decide that a patient does not need the intensive level of care found in the nursing home and transfer the patient to a lower level of care. In 1975 the URC decided that Respondent should be transferred to a health related facility providing a reduced level of care. Respondent was transferred without notice or benefit of administrative hearing to challenge the decision. Issue. Did the decision by a nursing home committee to transfer a Medicaid patient to another facility violate his Due Process rights under the Constitution? Held. No. The decision was based on independent medical judgment made by private parties. The fact that the state responded by adjusting the benefits does not make the state responsible for the decision to transfer the patient. There is no indication that these decisions were influenced by the states obligations to adjust payment accordingly. Dissent. The majority oversimplified the problem by mischaracterizing the facts. The state is heavily involved in the placement of the patients, as this is just a legislative means of cost containment. The state encourages these medical judgments to help achieve its legislative goals. So, the state and the nursing homes are closely intertwined and interdependent for their financial survival. Discussion. The majority provides a nice review of the three axioms for determining when there is state action by a private entity. They are as follows: Being subject to state regulation does not convert a private action into state action, A state is responsible for a private decision only when it has exercised coercive power or has provided significant encouragement of the decision, or The private entity has exercised powers that are traditionally the exclusive prerogative of the state. Court said, respondents could file for the due process but they cannot claim due process because the decision was not made by any government official but by medical doctors. The argument can be that government actually gained and benefitted by not having to pay as much as it used to. Plaintiff says, the government is allowing the violation of due process by adjusting the monthly payment accordingly. INITIATIVES ENCOURAGING VIOLATIONS OF RIGHTS Reitman v. Mulkey Brief Fact Summary. Respondents Mr. and Mrs. Mulkey attempted to rent an apartment owned by Petitioner Reitman. Respondents allege that Petitioner refused to rent to them solely based on their racial status. Respondents then filed suit to demand an injunction to allow them to rent the apartment and for damages as a result of the discrimination. Synopsis of Rule of Law. State action can be invoked if a state law significantly encourages and involves the State in private discrimination. Facts. The Respondents are husband and wife, and sued under Section:51 and Section:52 of the

California Civil Code, which prohibit discrimination in housing decisions based on an individuals racial status, alleging that Petitioner refused to rent them an apartment solely based on their racial status. Respondents demanded an injunction and damages as a result of this discrimination. Petitioners filed a motion for summary judgment on the grounds that section 51 and 52 have been invalidated by proposition 14, later Art. I Section: 26 of the California Constitution, which banned fair housing measures in the State of California. The trial court granted the motion, and the California Supreme Court reversed on the grounds that Art. I Section: 26 denied equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution. Issue. Whether Art. I, Section: 26 of the California Constitution denies to any person the equal protection of the laws within the meaning of the Fourteenth Amendment of the Constitution of the United States? Held. Yes. This provision does not just repeal an existing law forbidding private racial discriminations, but Art. I Section: 26 of the California Constitution does more, it was intended to authorize, and does in fact authorize racial discrimination in the housing market. The right to discriminate became one of the basic policies of the State. The Court agrees with the California Supreme Court that this section significantly encourages and involves the State in private discriminations. The Court further agrees with the California Supreme Court in this case that section 26 changed the status of the law from one that restricted discriminatory practices to one that through its authorization in this section makes the state a partner in the act of discrimination. It is this authorization and partnership in discrimination that rises to the level of state action under the Fourteenth Amendment, because those who discriminate can now do so under express constitutional authority. Dissent. The holding of the Court handicaps progress in the field of racial concerns. The dissent also feels that the Court is shortsighted in believing that the State of California authorizing discrimination through the enactment of section 26, and instead sees the section as an attempt to retain state neutrality. The dissent further believes that the state action required to bring the Fourteenth Amendment into operation must be affirmative and purposeful, actively fostering discrimination. The enactment of section 26 does not fall into this area, and therefore disagrees with the opinion of the majority. Concurrence. Agrees with the decision of the Court but would like to see the real estate brokerage business, like the telephone companies and hotel business, be made to require service to all without discrimination. This is conditioned by the demands of the Equal Protection Clause of the Fourteenth Amendment. Discussion. The Supreme Court, in deciding this case, has provided another instance in which state action can be said to occur. If a regulation explicitly allows discrimination then, with this holding, the state is said to have partnered with any private party that in fact discriminates with this authorization. In these cases the private party can be held to have performed state action, and must provide the guarantees purported in the Fourteenth Amendment. While the majority holds that if the regulation allows discrimination, the dissent prefers a regime that finds state action only if the state actively fosters discrimination. In analyzing a case concerning state law, it is helpful to think of the case in terms of a spectrum of state action, and see where, in respect to the current law in this field, the fact pattern lies on this spectrum. Private people endorsing the action against the equal protection- how is that a state action? Class 10/31/2011

ENTWINMENT
It is hard to say entanglement in this case because it does not have as much contribution to call it entanglement. Brentwood Academy v. Tennessee Secondary School Athletic Assn. Brief Fact Summary. A Tennessee Athletic Association, a private association made up of

mostly public schools, is sued by a private school for suspending the private school from competition. Synopsis of Rule of Law. A private organization can be considered a state actor if there is sufficient entwinement between the state and the organization, such as here where the majority of members are public schools, and the leadership and governing body is made up of public school officials acting within their official capacity. Facts. Tennessee Secondary School Athletic Association is a not-for-profit membership corporation organized to regulate interscholastic sport among private and public high school in Tennessee. Even though no school is forced to join, 84% of the membership comes from public schools, which is almost all of the states public schools. There is no other authority regulating athletic competition, and a schools team can only play against the team of another member school. The association has a legislative arm, and a control board, and the voting membership is limited to high school principals, assistant principals and superintendents elected b y the member schools. Member schools pay dues, but the bulk of the funding comes from the member teams athletic tournaments, many held at public arenas rented by the association. Ever since the association was incorporated, Tennessees State Board of Education has acknowledged the associations functions in providing standards, rules and regulations for interscholastic competition. It even adopted a rule expressly designating the association as the organization to supervise and regulate athletics. Brentwood sued the academy when, in 1997, the board of control found that Brentwood violated a rule prohibiting undue influence in recruiting athletes, and placed the athletic program on probation for four years, making them ineligible to compete in playoffs for two years, and imposed a $3000 fine. At the time the penalties were imposed all voting members were public school administrators. Issue. Does a statewide athletic association, incorporated to regulate competition among public and private secondary schools, engage in state action? Held. Yes. The association should be treated as state activity because of the entwinement of state school officials in the structure of the association. Dissent. (Thomas) The dissent feels that you can not find state action based on entwinement alone, for there to be a state actor, but rather, the private actor needs to be performing a public function, created coerced or encouraged by the government or acting in a symbiotic relationship with the government. The dissent focuses on the fact that schools are not required to join, the state does not fund the association, nor does it offer discounts to use state venues, does not provide a tax exemption and no TN law authorizes the association. In addition, the stat has never had any involvement in the particular action being taken by the association in this case. Moreover, the association does not nothing traditionally or exclusively reserved for the state. Discussion. The Constitution usually applies to only state actors, but there are certain instances where private organizations must be treated as state actors. State action may be found if, and only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself. The court does not look to one factor, but a totality of the circumstances when determining if there is such a close nexus. Here, since 84% of the membership is made up of public school, which are not private actors, and each school is required to send an administrator of its school, and the governing body is made up of those individuals acting within their official capacity as state employees, there is no recognizable Associationwithout the public school officials. In addition, these school officials not only make up membership, but also control the association, making the separation between the association and the public schools indistinguishable. 1. Public function 2. Entanglement- authorizes, encourages, subsidies. a. Subsidies= Yes- Norwood, no- Rendell baker v. Kohn, Blum v. yarsetsky b. Involve judicial resources= Shelley v. Kramer CHAPTER 7 EQUAL PROTECTION

A. INTRODUCTION 1. Constitutional provisions concerning equal protection 2. A framework for eqal protection analysis Question 1- what is the classification? Question 2- what is the appropriate level of scrutiny? In any level of scrutiny, there are two levels of reviews. Anytime you are grouping/classifying people, there will be certain level of reviews. Applies to interest fit alternatives deference to burden Fatal Rational economic legitimate rationally government plaintiff Basis social | related highest Welfare Animus age sexual orientation AB Just one step forward to the goal is okay (A-, B) Romer v. Evans Brief Fact Summary. Colorado voters adopted Amendment two to their State Constitution, precluding the government from adopting measures that would protect homosexuals from discrimination. The state trial court enjoined enforcement of the act. Synopsis of Rule of Law. A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Facts. Amendment two was added to Colorados state constitution by a statewide referendum. It prohibited the state or local government from adopting measures that would protect homosexuals as a class from discrimination. The Respondents, Evans and others (Respondents), argued that Amendment two did nothing more than deny homosexuals special rights. The stated purpose of the amendment was to prevent the deterioration of the sexual morality favored by most Coloradans. The state trial court permanently enjoined enforcement Amendment two. The Colorado Supreme Court affirmed on the trials courts decision. Issue. Did Amendment two violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution)? Held. Yes. The judgment of the Supreme Court of Colorado is affirmed. Justice Anthony Kennedy stated that Amendment two relegates homosexuals to a solitary class and withdraws from them, but no others, legal protections arising from discrimination. Its reach includes the States public accommodation laws, as well as laws prohibiting discrimination in the housing, insurance and education markets. A law making it more difficult for one group of citizens to seek assistance from the government than another is a denial of the Equal Protection of the laws in the most literal sense (i.e. the means do not fit whatever ends sufficiently to pass rational basis review). Moreover, the means of Amendment two are so broad in relation to its ends (to prevent the deterioration of sexual morality) that we cannot credit them. The Supreme Court of the United States (Supreme Court) is left with the conclusion that Amendment two constitutes a classification for its own sake. Class legislation is obnoxious to the Fourteenth Amendment. (i.e., the ends are illegitimate). Dissent. Justice Antonin Scalia (J. Scalia) states that the majority in this opinion is essentially saying that one who is accorded equal treatment under the laws, but cannot as readily achieve preferential treatment is one who is not accorded equal treatment and that this line of reasoning is silly. J. Scalia also adds that discrimination of the basis of sexual orientation is subject to rational basis review. He cites Bowers v. Hardwick (upholding the criminal law of a State prohibiting homosexual conduct) for this proposition and says that since Amendment 2 was designed to prevent the gradual decline of sexual morality favored by most Coloradans, Amendment 2 is an appropriate means to a legitimate ends and therefore constitutional.

Discussion. At the time this case was decided (Bowers v. Hardwick), making homosexual conduct criminal, was still good law. As such, one would think that Bowers would be sufficient to establish the ends of Amendment two as rational. The Supreme Court has invalidated Amendment two under rational basis review, however. This case, thus, gives rise to the inference that the Supreme Court in fact applies a higher standard of review than rational basis for cases involving discrimination based on sexual orientation.

Must it be the actual purpose or is a conceivable purpose enough?United states railroad retirement board v. Fritz Brief Fact Summary. The retirement fund for railroad employees originally provided a windfall for those who were eligible for social security and railroad benefits. But, in 1974, Congress determined that the system would be bankrupt by 1981 if it continued to pay the windfall. Therefore, legislation was enacted to reduce the costs and make the program financially viable. Synopsis of Rule of Law. Congress needs just a rational basis for its social and economic legislation. Facts. The original railroad retirement fund allowed workers who had worked for the railroad at some point in their careers to receive a pension, plus social security, plus a pension available from another employer. This created a windfall payment to retired railroad workers. In 1974, Congress became concerned that the system would be bankrupt if payments continued in this manner. So, it enacted the Railroad Retirement Act of 1974 that classified all railroad workers based on years of service and retirement status. Some of these individuals were allowed to continue to receive windfall payments, while others were limited to the lesser amount of the retirement fund or social security. Held. No. Congress could properly determine that those who had acquired entitlement to the retirement benefits while still employed in the railroad industry had a greater equitable claim to those benefits than those who became eligible only once they qualified for social security benefits. The current connection test is not arbitrary and has been used before. Dissent. Agrees that the proper test is the rational basis test, but insists that the actual original reason for the classification must be presented. It is improper to simply accept the reasons now provided by government attorneys. Discussion. The majority shows that extreme deference is given to the legislature when analyzing social or economic acts. Any classification is presumed valid as long as there is some plausible reason for the act. The legislature never has to state the reasoning for a law under the rational basis test. Issue. Was the classification of railroad workers by Congress arbitrary and irrational resulting in a violation of the Equal Protection Clause of the United States Constitution (Constitution)? Held. No. Congress could properly determine that those who had acquired entitlement to the retirement benefits while still employed in the railroad industry had a greater equitable claim to those benefits than those who became eligible only once they qualified for social security benefits. The current connection test is not arbitrary and has been used before. Dissent. Agrees that the proper test is the rational basis test, but insists that the actual original reason for the classification must be presented. It is improper to simply accept the reasons now provided by government attorneys. Discussion. The majority shows that extreme deference is given to the legislature when analyzing social or economic acts. Any classification is presumed valid as long as there is some plausible reason for the act. The legislature never has to state the reasoning for a law under the rational basis test. Always compare with Romer case because the court gives very conceivable purpose in Romer. 3. The requirement for a reasonable relationship

TOLERANCE FOR UNDERINCLUSIVENESS UNDER RATIONAL REVIEW The law doesnt include as many people as it could to achieve its purpose. Railway express agency, inc. v. New York Brief Fact Summary. The Appellant, Railway Express Agency (Appellant), sells advertising space on the side of its trucks. The Appellee, New York (Appellee), recently passed a law forbidding advertising vehicles when the advertisements were not related to the business of the vehicle. Synopsis of Rule of Law. Even a law that appears to be too narrowly drawn will survive rational basis review because complete deference is given to the state for its reasoning. Facts. Appellant operates about 1,900 delivery trucks in New York City. To increase revenue, Appellant sold the use of the sides of the truck as advertising billboards to its clients. Appellee passed a law specifically prohibiting such advertising unless it was connected to the business of the vehicle. Issue. By classifying the types of advertisements on vehicles, has the Appellee violated the Equal Protection Clause of the United States Constitution (Constitution)? Held. No. This classification has a relation to the purpose for which it was made and does not contain the kind of discrimination against which the Equal Protection Clause of the Constitution protects. Concurrence. The burden of showing unreasonableness should always be on the person questioning the regulation. Discussion. The majority describes this law as being narrowly construed to target a particular group of advertisers. This classification is proper because the law is on an evolutionary path and may be refined later to include a larger population of advertisers and vehicle operators. Class- 11/2/2011 Last class we talked about rational basis. For rational basis, the standard is very minimal. It is not fatal that the govt has an alternative. Also, govt can take only one step forward at a time. Legitimate Safety rationally related alternatives not fatal Underinclusive- not fatal Railway express Overinclusiveness Drug testing Randomly $, less precise

Fraud- animus(Moreno) Overinclusive b/c eligible independently other fraud protections exist BIASES (Cleburne) Negative attitude by others X Junior high harassment X Flood plan X Safety size X Court did not find any of these Is viable and finds it Animus Targeting one group. Heart of the Matter, you targeted the group and 14th amendment doesnt allow that.

DECIDING LEVEL OF SCRUTINY 1. Immutable characteristics 2. Political power of the group 3. The history of discrimination RATIONAL BASIS 1. Sexual orientation 2. Disability 3. (govt put age in a different group because its inevitable that everyone will age and if there is a law against it, eventually everyone will suffer the discrimination) TOLERANCE FOR OVERINCLUSIVENESS UNDER RATIONALBASIS REVIEW New York transit authority v. Beazer Brief Fact Summary. A New York City Transit Authority rule barred the employment of persons who use narcotics. The Transit Authority applied the rule to all persons taking methadone a drug widely used in the treatment of heroine addiction. Synopsis of Rule of Law. State legislation does not violate the Equal Protection Clause of the United States Constitution (Constitution) merely because the classifications that it makes are imperfect. Facts. A New York City Transit Authority rule barred the employment of persons who use narcotics. The Transit Authority applied the rule to persons taking methadone a drug widely used in the treatment of heroine addiction. The District Court concluded that there were substantial numbers of methadone users who were just as employable as members of the general public and that the Transit Authority could have determined which users were not employable by resort to normal personnel screening procedures. Issue. Where a substantial number of methadone users were capable of performing jobs at the Transit Authority, does the Constitution permit the Transit Authority to make a blanket exclusion of all users from all jobs at the Transit Authority? Held. Yes. The Court of Appeals, affirming the District Court, is reversed. Justice John Paul Stevens stated that the assumptions upon which the Transit Authoritys rule are based concern matters of personnel policy that do not implicate the concerns the Equal Protection Clause of the Constitution are intended to protect. The Transit Authoritys rule serves the general objectives of safety and efficiency. The rule is not directed against any class of persons characterized by some unpopular trait. Therefore, it does not create the likelihood of bias on the part of the ruling majority. Dissent. Justice Byron White (J. White) said that the Transit Authority uses a rule that classifies fully employable methadone users as dispositively different from the general population without any justification. With the irrationality and invidiousness of the rule uncovered, it must fall as it violates the Equal Protection Clause of the Constitution. Discussion. This case calls into question what it means to treat two people equally under the Equal Protection Clause of the Constitution. What happens when providing equal treatment to two people will not result in equal treatment because the two people are not similarly situated? The relevant difference requirement holds that treating people differently can only be justified on the basis of differences between people relevant to the purpose of a rule. Even if you say it is overinclusive and includes people more than needed, the court is not going to invalidate the law. It can also be underclusive yet it will not fail the rational basis test. You can never when it is legitimate

CASES WHERE LAWS ARE DEEMED ARBITRARY AND UNREASONABLE U.S. Dept of Agriculture v. Moreno Brief Fact Summary. An amendment to the Food Stamp Act prevented households made up of unrelated individuals from participating in the program. A class action suit was brought, and the District Court found a Due Process violation. Synopsis of Rule of Law. The amendment was not rationally related to a legitimate governmental interest, therefore it violated the Due Process Clause. Facts. The Food Stamp Act of 1964 (Act) was established to alleviate hunger and malnutrition among the more needy segments of society. Eligibility was determined on a household rather than individual basis. The household pays for stamps to provide an adequate diet at a reduced rate based upon its size and cumulative income. The Government redeems the stamps at face value from stores, thereby paying the difference. The Act initially defined household as group of related or non-related individuals, who are not residents of an institution or boarding house, but living as one economic unit sharing common cooking facilities for whom food is customarily purchased in common. In 1971 Congress redefined the term household to include only related individuals. The Secretary of Agriculture subsequently promulgated regulations rendering households whose members are not all related ineligible. Appellees consist of several groups of individuals who allege that they have been excluded solely because the persons in each group are not all related to each other. The appellees instituted a class action seeking declaratory and injunctive relief against the enforcement of the amendment to the Act and its implementing regulations. They contend, and the District Court held, that the provision creates an irrational classification in violation of the equal protection component of the Due Process Clause of the Fifth Amendment. Issue. Did the District Court err in finding the Acts amendment that households be related unconstitutional? Held. The amendment to the Act violates the Due Process clause of the Fifth Amendment. The challenged statutory classification of households of related versus unrelated persons is clearly irrelevant to the stated purposes of the Act. If it is to be sustained, the challenged classification must rationally further some legitimate government interest. The legislative history that exists suggests it is intended to prevent hippies and hippie communes from participating in the food stamp program. The equal protection clause does not allow that a constitutional desire to harm a politically unpopular group can constitute a legitimate governmental interest. The Government maintains that the classification is rationally related to the legitimate interest in minimizing fraud in the administration of the food stamp program. It claims that in adopting the amendment Congress may have thought that: 1) households with one or more unrelated members are more likely than fully related households to contain individuals who abuse the program by fraudulently failing to report sources of income or by voluntarily remaining poor; and 2) such households are relatively unstable, thereby increasing the difficulty of detecting such abuses. Even if these wholly unsubstantiated assumptions were accepted as rational, this Court would not agree with the Governments conclusion that the denial of essential federal food assistance to all otherwise eligible household containing unrelated members constitutes a rational effort to deal with these concerns. The Act itself contains provisions specifically aimed at fraud. The classification at issue is not only imprecise, it is wholly without any rational basis. Dissent. This Courts role should be limited to rational basis analysis. Related households provide a guarantee that unrelated households do not, that the household exists for some purpose other than to collect federal food stamps. Concurrence. Many peripheral rights associated with freedom of association are exercised not necessarily in assemblies that congregate in halls or auditoriums but in discrete individual actions such as parents placing a child in the school of their choice. The unrelated person

provision was not aimed at the maintenance of normal family ties. It penalizes persons or families who have brought under their roof an unrelated needy person. I cannot say the provision has no rational relation to the prevention of fraud, but because we deal with the right of association, the Act must be narrowly drawn. Discussion. The majority finds the amendment to violate the Due Process clause, while the concurrence finds a constitutional violation based upon freedom of association. The dissent would find a rational relation to a legitimate state interest in the amendment. if govt finds it animus, the law will not be upheld because in this case, this law was targeting only hippies without any finding that hippies were fraud like there was a finding that 25% used of methodone user actually go back to drugs. City of Cleburne , Texas v. Cleburne Living Center, Inc. TIME OF FEAR B. CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN Strict scrutiny- race Compelling interest Narrowly tailored 1. Race discrimination and slavery before thirteenth and fourteenth amendments

Dred Scott v. Sandford Brief Fact Summary. A slave sought his freedom under the Missouri Compromise. Synopsis of Rule of Law. Slaves are not citizens under the United States Constitution. Facts. Dred Scott (Plaintiff) was a slave living in the slave state of Missouri. His owner took him to Illinois and then to Minnesota, which were both free states under the Missouri Compromise. Plaintiff and his owner returned to Missouri, and Plaintiff was sold to Sanford (Defendant). Plaintiff sued Defendant for his freedom, claiming to be a citizen of Missouri, based on having obtained freedom by domicile for a long period in a free state. Issue. Can a slave be considered a citizen and as such become entitled to all the rights, privileges and immunities granted to citizens under the United States Constitution? Held. No. Slaves were not intended to be included under the word citizens in the Constitution. At the time the Constitution was written, slaves were considered an inferior and subordinate class. No state can introduce a new member into the political community created by the Constitution. The Declaration of Independence clearly never intended to include slaves. The Constitution never intended to confer on slaves or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen. Plaintiff is clearly not a citizen and not entitled to sue. An act of Congress, which deprives a citizen of his property merely because he brought his property into a particular part of the United States does not comport with due process of law. The right of property in a slave is distinctly and expressly affirmed in the Constitution. An act of Congress, which prohibits a citizen from owning slaves in any territory in the United States is void. So, Plaintiff did not become free by going into a state, which prohibited slavery. Discussion. This case is remembered for the decision that blacks were not citizens, but merely property. It is also remembered for voiding the Missouri Compromise.

THE POST-CIVIL WAR AMENDMENTS

Justice applied strict scrutiny- must be compelling interest and narrowly construed. Though it was rounding up only the Japanese, yet court hold it up. Court said they are concerned about national security. The it is war, the burden is heavier on the country. 2. Strict scrutiny for discrimination based on race and national origin 3. Proving the existence of a race or national origin classification RACE-,SSPECIFIC CLASSIFICATIONS THAT DISADVANTAGE RACIAL MINORITIES Korematsu v. United States Brief Fact Summary. During World War II, a military commander ordered all persons of Japanese descent to evacuate the West Coast. The Petitioner, Korematsu (Petitioner), a United States citizen of Japanese descent, was convicted for failing to comply with the order. Synopsis of Rule of Law. Legal restrictions that curtail the civil rights of a single racial group are subject to the most rigid scrutiny. But, pressing public necessity may sometimes justify such restrictions. Facts. President of the United States Franklin Roosevelt (President Roosevelt) issued an executive order authorizing military commanders to prescribe military areas from which any or all persons may be excluded. Thereupon, a military commander ordered all persons of Japanese descent, whether or not they were United States citizens, to leave their homes on the West Coast and to report to Assembly Centers. The Petitioner, a United States citizen of unchallenged loyalty, but of Japanese descent, was convicted under a federal law making it an offense to fail to comply with such military orders. Issue. Was it within the power of Congress and the Executive to exclude persons of Japanese ancestry from the West Coast at the time that they were excluded? Held. Yes. At the time the exclusion was ordered, it was justified. Justice Hugo Black stated that although the exclusion order imposed hardships upon a large number of American citizens, hardships are part of war. When, under conditions of warfare, our shores are threatened by hostile forces, the power to protect them must be commensurate with the threatened danger. Dissent. Justice Frank Murphy (J. Murphy) argued that the exclusion at issue here goes over the brink of constitutional power and falls into the abyss of racism. Although we must extend great deference to the judgments of the military, it is essential that there be definite limits to military discretion. Moreover, the military order is not reasonably related to the dangers it seeks to prevent. Justice Robert Jackson (J. Jackson) stated he would not distort the United States Constitution (Constitution) to approve everything the military may deem expedient. Discussion. Ironically, this case establishes the strict scrutiny standard of review, thereby leading to the invalidation of much race-based discrimination in the future. RACIAL CLASSIFICATIONS BURDENING BOTH WHITES AND MINORITIES Loving v. Virginia Brief Fact Summary. The state of Virginia enacted laws making it a felony for a white person to intermarry with a black person or the reverse. The constitutionality of the statutes was called into question. Synopsis of Rule of Law. Restricting the freedom to marry solely on the basis of race violates the central meaning of the Equal Protection Clause. Facts. The state of Virginia enacted laws making it a felony for a white person to intermarry with a black person or a black person to intermarry with a white person. The Supreme Court of Appeals of Virginia held that the statutes served the legitimate state purpose of preserving the

racial integrity of its citizens. The State argued that because its miscegenation statutes punished both white and black participants in an interracial marriage equally, they cannot be said to constitute invidious discrimination based on race and, therefore, the statutes commanded mere rational basis review. Issue. Was rational basis the proper standard of review by which to evaluate the constitutionality of the statutes? Were the Virginia miscegenation statutes constitutional under the Equal Protection Clause? Held. No and No. The mere fact that a statute is one of equal application does not mean that the statute is exempt from strict scrutiny review. The statutes were clearly drawn upon race-based distinctions. The legality of certain behavior turned on the races of the people engaging in it. Equal Protection requires, at least, that classifications based on race be subject to the most rigid scrutiny. The Equal Protection Clause of the United States Constitution (Constitution) prohibits classifications drawn by any statute that constitutes arbitrary and invidious discrimination. The fact that Virginia bans only interracial marriages involving whites is proof that the miscegenation statutes exist for no purposes independent of those based on arbitrary and invidious racial discrimination. Concurrence. Justice Potter Stewart (J. Stewart) argued it is not possible for a state law to be valid, which makes the criminality of an act depend upon the race of the actor. Discussion. The key to this case is articulated in J. Stewarts concurrence. The miscegenation statute was improper because it made the legal consequences of an action turn on the races of the persons participating in it. Class- In karamatsu, it was much clearer and court applied strict scrutiny but in this case, it is not so clear. Listen to how court explains- they said there is no classification is going on here. State sticking to white supremacy saying the inter racial marriage will ruin the white race. Federal court said, since the law is applied equally, there is no discrimination. Palmore v. Sidoti Brief Fact Summary. Respondent petitioned the court for a modification of a previous child custody judgment based on changed conditions after the Caucasian mother married an AfricanAmerican man. The trial court awarded custody to the respondent. Synopsis of Rule of Law. The Fourteenth Amendment does not permit the consideration of potential effects do to racial prejudice against mixed-race families in child custody determinations. Facts. Petitioner Linda Palmore and respondent Anthony Sidoti, both Caucasians, were divorced in 1980 in Florida, with the mother being awarded custody of their daughter. In 1981 the father filed a petition to modify the prior judgment because of changed conditions, based on the childs mother cohabitating with a Negro, Clarence Palmore, Jr., whom she married two months earlier. The father also made several allegations that the mother had not properly cared for the child. The court noted no issue as to either partys devotion to the child, adequacy of housing facilities, or respectability of the new spouse of either parent. The court counselor made an earlier report in another case involving the social consequences of an interracial marriage. The court found likewise in this case the wife had chosen for herself and for her child a life-style unacceptable to her father and to society. The court found the best interests of the child would be served by awarding custody to the fath er, because of the environmental pressures that would be placed on the child that are not of the childs own choice. Issue. Did the court err by divesting a natural mother of the custody of her infant child because of her remarriage to a person of a different race? Held. The effects of racial prejudice cannot justify a racial classification removing an infant child from the custody of its natural mother who was found to be an appropriate person to have such custody. The court based its decision solely on the issue of race, without a focus on the parental

qualifications of the natural mother or her present husband. This raises important federal concerns arising from the Constitutions commitment to eradicating discrimination based on race. The court stated the childs welfare was the controlling factor, but made no effort to place its holding on any ground other than race. A core purpose of the Fourteenth Amendment was to do away with all governmentally-imposed discrimination based on race. To pass constitutional muster, racial classifications must be justified by a compelling governmental interest. The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest under the Equal Protection Clause. It would ignore reality to suggest that racial prejudices do not exist, but the possible injury they might inflict are not permissible considerations for removal of an infant child from the custody of its natural mother. The law cannot give private biases effect, either directly or indirectly. Discussion. The Court acknowledged the potential social stigmatization of growing up in a mixed-race family, but found that such considerations are not permissible considerations under Fourth Amendment law LAWS REQUIRING SEPERATION OF THE RACES Plessy v. Ferguson Brief Fact Summary. A Louisiana statute required railroad companies to provide separate, but equal accommodations for its Black and White passengers. The Plaintiff, Plessy (Plaintiff), was prosecuted under the statute after he refused to leave the section of a train reserved for whites. Synopsis of Rule of Law. A law, which authorizes or requires the separation of the two races on public conveyances, is consistent with the Fourteenth Amendment of the United States Constitution (Constitution) unless the law is unreasonable. Facts. A Louisiana statute required railroad companies to provide separate, but equal accommodations for its Black and White passengers. An exception was made for nurses attending to the children of the other race. Plaintiff, who was seven-eighths white, was prosecuted under the statute after he refused to leave the section of a train reserved for whites. The alleged purpose of the statute was to preserve public peace and good order and to promote the comfort of the people. Issue. Was the statute requiring separate, but equal accommodations on railroad transportation consistent with the Equal Protection Clause of the Fourteenth Amendment of the Constitution? Held. Yes. The State Supreme Court is affirmed. Justice Henry Brown (J. Brown) stated that although the Fourteenth Amendment of the Constitution was designed to enforce the equality between the races, it was not intended to abolish distinctions based on color, or to enforce a commingling of the races in a way unsatisfactory to either. Laws requiring the separation of the races do not imply the inferiority of either. If the law stamps the colored race with a badge of inferiority, it is because the colored race chooses to put that construction upon it. Therefore, the statute constitutes a valid exercise of the States police powers. The Fourteenth Amendment of the Constitution does, however, require that the exercise of a States police powers be reasonable. Laws enacted in good faith, for the promotion of the public good and not for the annoyance or oppression of another race are reasonable. As such, the statute was reasonable. Dissent. Justice John Harlan (J. Harlan) said that everyone knows that the purpose of the statute was to exclude the colored people from coaches occupied by whites. The Constitution is colorblind. It neither knows nor tolerates classes among citizens. Discussion. This case marks the beginning of the separate but equal doctrine. It is later overturned by Brown v. Board of Education. Class 11/29/2011

Plessy v. Ferguson Brief Fact Summary. A Louisiana statute required railroad companies to provide separate, but equal accommodations for its Black and White passengers. The Plaintiff, Plessy (Plaintiff), was prosecuted under the statute after he refused to leave the section of a train reserved for whites. Synopsis of Rule of Law. A law, which authorizes or requires the separation of the two races on public conveyances, is consistent with the Fourteenth Amendment of the United States Constitution (Constitution) unless the law is unreasonable. Facts. A Louisiana statute required railroad companies to provide separate, but equal accommodations for its Black and White passengers. An exception was made for nurses attending to the children of the other race. Plaintiff, who was seven-eighths white, was prosecuted under the statute after he refused to leave the section of a train reserved for whites. The alleged purpose of the statute was to preserve public peace and good order and to promote the comfort of the people. Issue. Was the statute requiring separate, but equal accommodations on railroad transportation consistent with the Equal Protection Clause of the Fourteenth Amendment of the Constitution? Held. Yes. The State Supreme Court is affirmed. Justice Henry Brown (J. Brown) stated that although the Fourteenth Amendment of the Constitution was designed to enforce the equality between the races, it was not intended to abolish distinctions based on color, or to enforce a commingling of the races in a way unsatisfactory to either. Laws requiring the separation of the races do not imply the inferiority of either. If the law stamps the colored race with a badge of inferiority, it is because the colored race chooses to put that construction upon it. Therefore, the statute constitutes a valid exercise of the States police powers. The Fourteenth Amendment of the Constitution does, however, require that the exercise of a States police powers be reasonable. Laws enacted in good faith, for the promotion of the public good and not for the annoyance or oppression of another race are reasonable. As such, the statute was reasonable. Dissent. Justice John Harlan (J. Harlan) said that everyone knows that the purpose of the statute was to exclude the colored people from coaches occupied by whites. The Constitution is colorblind. It neither knows nor tolerates classes among citizens. Discussion. This case marks the beginning of the separate but equal doctrine. It is later overturned by Brown v. Board of Education. Dissent Harlan brought the idea that constitution is color blind. THE INITIAL ATTACK ON SEPARATE BUT EQUAL Brown v. Board of Education Brief Fact Summary. Black children were denied admission to schools attended by white children under laws that permitted or required segregation by race. The children sued. Synopsis of Rule of Law. Separate but equal educational facilities are inherently unequal. Facts. The Plaintiffs, various black children (Plaintiffs), were denied admission to schools attended by white children under laws that permitted or required segregation by race. Plaintiffs sued, seeking admission to public schools in their communities on a nonsegregated basis. Issue. Do separate but equal laws in the area of public education deprive black children of the equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution (Constitution)? Held. Yes. Chief Justice Earl Warren (J. Warren) stated that even if the tangible factors of segregated schools are equal, to separate black children from others of similar age and qualifications solely on the basis of race, generates a feeling of inferiority with respect to their status in the

community and may affect their hearts and minds in a way unlikely to ever be undone. Discussion. The Supreme Court of the United States (Supreme Court) is relying on the same rationale to invalidate the segregation laws here that it did in Sweatt v. Painter (ordering the admission of a black student to the University of Texas Law School, despite the fact that a parallel black facility was available). The rationale is that its the intangible factors that make segregation laws in the area of public education inherently unequal. Whether stigma or the perception of stigma alone is sufficient injury to invalidate a law supported by a valid, neutral purpose is an open question. THE INVALIDATION OF SEGREGATION IN OTHER CONTEXTS c. b. facially neutral laws with a discriminatory impact or with discriminatory administration THE REQUIREMENT FOR PROOF OF A DISCRIMINATORY PURPOSE Washington v. Davis Brief Fact Summary. The Petitioner, Washington (Petitioner), a black man failed the written test to become a Washington, D.C. police recruit. He claims that the test was racially biased and cited the relatively low number of black cops on the force as evidence. Synopsis of Rule of Law. A rule that is neutral on its face and rationally related to a legitimate state interest is constitutional even though it may impact a race disproportionately. Facts. Washington, D.C. required each police officer applicant to submit to a round of testing including physical tests and a written personnel test, Test 21. In order to enter the 17-week training course an applicant had to achieve 40 out of 80 on Test 21. Petitioner took Test 21 in 1970 and failed it. He claims that this test is racially biased because the majority of black applicants who took it failed. Issue. Does an employment test that results in a higher failure rate amongst black candidates deprive them of their Equal Protection rights? Held. No. The test is administered generally to all applicants and is used to determine the level of verbal skills the candidate has. Disproportionate impact is not the sole indicator of invidious racial discrimination. Dissent. Every other court presented with this same issue has found in the opposite. The test needs to be proven that it is an indicator of future job performance. Discussion. The majority focuses on the use of the test as a means of qualifying candidates for the job. The validity of the test was never determined or discussed as a possibility of a design flaw. Instead, it is treated as requirement that measures initial competence. Is there a classification? - Neutral- applies to all - Discriminatory impact+ discriminatory purpose In this case court says that it does not rule against law that does not seem to be discriminatory. But once the plaintiff is able to show that there is discrimination. Question is, does knowledge of discriminatory impact show discriminatory purpose? Knowledge of discriminatory impact shows government has discriminatory purpose. He could have argued civil rights case or an equal protection claim. Strict scrutiny is for discriminatory laws. Strict scrutiny is not applicable here because it is a neutral law. Your first step would be to show that this law has infact discriminatory impact and then you can apply strict scrutiny test. McClesky v. Kemp Brief Fact Summary. McCleskey (Defendant) was sentenced to death for his role in an armed robbery, which resulted in the murder of a police officer. He challenged his sentence on the ground that it was imposed because he was black. Defendant provided statistical evidence that blacks disproportionately received death sentences when the murder victim was white.

Synopsis of Rule of Law. Statistical evidence showing that one racial group receives a disproportionate amount of death sentences, as opposed to other groups, is not sufficient to challenge a state death penalty statute under the Equal Protection Clause of the Fourteenth Amendment. A defendant must prove the presence of racial discrimination in his own case. Discretion allows a jury to be influenced by racial prejudice, but it does not violate the Eighth Amendment since juror discretion frequently works to the defendants benefit. Facts. Defendant, who was sentenced to death for the murder of a police officer, challenged the constitutionality of his sentence, citing a study performed by Professor David C. Baldus (Baldus Study). This study purported to show that black defendants were more likely to receive capital punishment than white defendants, particularly when the victim was white. Defendant alleged that this proved his sentence was the result of unconstitutional racial discrimination under the Fourteenth Amendment. He further claimed that the Georgia death penalty statute violated the Eighth Amendment by giving the jury too much discretion in deciding upon a death sentence, such that racial bias could influence their decision. Issue. Did the Georgia death penalty statute racially discriminate against Defendant in violation of the Equal Protection Clause of the Fourteenth Amendment? Does the Georgia death penalty statute violate the Eighth Amendment by giving juries so much discretion in reaching their decision on punishment that racial discrimination may be a potential factor in their deliberations? Held. No. The Baldus Study provided by defendant does not demonstrate that racial discrimination was a factor in defendant, himself, receiving the death penalty. The study does not support an inference that the jury, in his own case, acted with purposeful racial discrimination a threshold showing for proof of an Equal Protection violation. No. The Baldus Study does not demonstrate a constitutionally significant risk of racial discrimination effecting a jurys decision to impose the death penalty. Discretion in the criminal justice system is not in and of itself an Eight Amendment violation, particularly in light of the fact that in many instances discretion works to the benefit of the criminal defendant. Moreover, insomuch as the Eighth Amendment applies to all punishments, if defendant prevailed on these grounds, courts would soon be faced with similar claims for every other type of penalty. The disproportionate sentencing alleged with respect to race could also be expanded to discrepancies in sentencing in relation to other minority groups, or gender, or facial characteristics. The basis on which defendant challenges his sentence, statistical comparisons, lacks any limiting principle. Dissent. (Justice Brennan.) Defendant need only demonstrate that there was a risk that his sentence was imposed as a result of racial prejudice. The Baldus Study adequately demonstrates that risk by showing that more likely than not a black defendant will receive a death sentence as compared to a white defendant. (Justice Blackmun.) The Baldus Study demonstrates a clear pattern of differential treatment in imposing the death penalty on the basis of race. Defendant has met his burden of showing a prima facie case of purposeful discrimination, and the burden should have shifted to the state to disprove that allegation. (Justice Stevens.) The majoritys concern, that allowing Defendants claim to prevail would sound the death knell for any death penalty statute in Georgia is unfounded. The Baldus Study indicates the existence of certain categories of extremely serious crimes, when death is imposed by juries regardless of the race of the defendant or the victim. Narrowing the class of deatheligible offenses to just those categories would allow Georgia to have a non-discriminatory capital punishment statute City of Mobile v. Bolden Brief Fact Summary. Each of Mobile, Alabamas City Commissioners was elected under an atlarge voting scheme. No black had ever been elected to the Commission. The Appellees, Bolden and others (Appellees), challenged the constitutionality of the at-large system. Synopsis of Rule of Law. At-large electoral schemes are invalid only if their purpose is

invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. Facts. Mobile Alabama was governed by a City Commission consisting of three commissioners. Each of the three commissioners was elected by the residents of the city at-large. Although Mobile has a substantial black population, no black has ever been elected to the Commission. The Appellees challenged the at-large system on Equal Protection grounds. Issue. Did the at-large electoral system of mobile unconstitutionally dilute the voting strength of blacks? Held. No. Justice Potter Stewart (J. Stewart) stated that the right to equal participation in the electoral process is aimed not for the protection of any political group. Moreover, J. Stewart said the evidence here fell short of that required to show that the Appellant, the City of Mobile (Appellant), operated a voting system with the intent to racially discriminate. Dissent. Justice William Brennan (J. Brennan) stated that proof of discriminatory impact should be sufficient in these types of cases to make out an Equal Protection case. Appellees have met their burden in this regard. Justice Byron White (J. White) said the findings of the District Court amply support an inference of purposeful discrimination. Justice Thurgood Marshall (J. Marshall) stated that the burden of proof should have shifted to the Appellant to show they refused to modify their districting scheme, despite, not because of, the severe discriminatory effects. This case is analytically the same as the voter dilution cases. Concurrence. Justice Harry Blackmun (J. Blackmun) concurred in the Supreme Court of the United States (Supreme Court) judgment of reversal because he believed the relief given by the District Court, changing the form of the Citys government to a mayor-council system, was inappropriate. Justice John Paul Stevens (J. Stevens) said this case does not belong in the category of cases calling for strict scrutiny. (J. Stevens) also said this case draws into question a political structure that treats all individuals as equals, but adversely affects the political strength of a racially identifiable group. Discussion. The key to this case is that there is a difference, in the eyes of the Supreme Court, between diluting the voting strength of minorities as individuals and diluting the voting strength of minorities as a group. This case involves the latter. Palmer v. Thomson Brief Fact Summary. Jackson, Mississippi operated public swimming pools, but kept them segregated until it eventually closed or sold them all. Synopsis of Rule of Law. An official governmental action that denies access to public facilities to all citizens does not violate the Equal Protections Clause of the United States Constitution (Constitution). Facts. The city maintained segregated swimming pools while it desegregated the zoo, public golf courses and parks. The city decided to close all pools instead of desegregating them. Some of the black citizens then filed suit to force the city to reopen the pools as desegregated facilities. Issue. Is this closing of swimming pools state action that denies Equal Protection to the black citizens in the community? Held. No. A city may choose to close pools for any reason. The Supreme Court of the United States (Constitution) has never held an act unconstitutional solely because of the motivations of the men who voted for it. Dissent. A state may not avoid integration by eliminating all of its public services such as school, parks or pools. It may not close facilities for the purpose of perpetuating or installing apartheid. Discussion. The decision to close the pools affected all citizens equally and though it may have been racially motivated, no one group was more disadvantaged than another as a result. Court said, EVERYONE is excluded from using the pool and not just discriminated against any one race.

HOW IS A DISCRIMINATORY PURPOSE PROVEN PERSONNEL ADMINISTRATOR OF MASSACHUSSETTS V. FEENEY Brief Fact Summary. The Respondent, Feeney (Respondent), challenges the Petitioner, Personnel Administration of Massachusettss (Petitioner), rule that provides a hiring preference to military veterans. Synopsis of Rule of Law. A gender neutral statute that adversely impacts one gender does not violate the Equal Protection Clause of the United States Constitution (Constitution) if it does not have a discriminatory purpose and it does not actually classify one gender. Facts. Respondent claims that by having a hiring preference for veterans over non- veterans for civil service positions, the Petitioner is discriminating against women. The District Court found that this practice has a severe impact on job opportunities for women, since most of the veterans are men. Issue. Does the hiring practice that favors veterans violate the Equal Protection Clause of the United States Constitution? Held. No. The benefit of this act was offered to any person who was a veteran. The law is a preference for veterans of either sex over non-veterans of either sex. It was not designed to favor men over women. Discussion. This statute was designed to reward and help veterans reenter society after their service. At the time only 1% of the veterans were women. So, it appeared that this legislation was meant for men only. But, in its application and by definition a veteran is gender neutral. Supreme Court said, even though there is a discriminatory impact, and it is verifiable yet the answer is not so clear cut because there is no discriminatory purpose behind the law. The law allows benefit to both male and female veterans equally. The incidental effect of the law is not the main intention here. Foreseeability is not enough to invalidate a law It can be argued that in knowing that the law has negative and discriminatory impact on women and yet continuing with the law is discriminatory act. Village of Arlington Heights v. Metropolitan housing development corp. Brief Fact Summary. The Metropolitan Housing Development Corporation (Respondent) applied to the Village of Arlington Heights (Petitioner) for rezoning of a 15 acre parcel from single-family residential to multi-family residential, intending to build federally subsidized low to moderate income housing. The request was denied and Respondent sued for injunctive and declaratory relief, claiming that the effect of the denial of rezoning was discriminatory in nature and thus violative of the Fourteenth Amendment and the Fair Housing Act of 1968, 42 U.S.C. Section:3601, et. seq. Synopsis of Rule of Law. Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. Facts. Respondent applied to Petitioner for rezoning of a 15 acre parcel from single-family residential to multi-family residential, intending to build federally subsidized low to moderate income housing. The request was denied and Respondent sued for injunctive and declaratory relief, claiming that the effect of the denial of rezoning was discriminatory in nature and thus violative of the Fourteenth Amendment and the Fair Housing Act of 1968, 42 U.S.C. Section:3601, et. seq. Arlington Heights is a suburb of Chicago, which is predominately white (the 1970 census showed that only 27 of the citys 64,000 residents were black). The city is mostly zoned for single-family detached housing. The Clerics of St. Viator (the Order) owns an 80-acre parcel of land surrounded by single-family housing. In 1970, the Order decided to devote some of its land to low and moderate income housing, and found that the most expedient way to accomplish this goal was to work through a nonprofit developer experienced in federal housing subsidies under Section:236 of the National Housing Act, 12 U.S.C. Section:1715z-1. The sale was contingent on Respondents securing of zoning clearances from the Petitioner and Section:236 housing assistance from the government. Respondent hired an

architect and began the project, which was to be known as Lincoln Green, and was to include 20 two-story buildings with a total of 190 units. Respondent filed a petition for rezoning with the Village Plan Commission along with materials regarding the proposal, including the requirement under Section:236 that an affirmative marketing plan be designed to assure that a subsidized development is racially integrated. The Commission held three public hearings after which it recommended to the Petitioners Board of Trustees that the application of Respondent be denied due to the fact that the Commission felt that low income housing would be unsuitable in the proposed location. The Board of Trustees then denied the rezoning application. Then, Respondent f iled suit against the Petitioner, seeking injunctive and declaratory relief. The federal district court found for the Petitioner, but the court of appeals reversed and found for Respondent. The Petitioner appealed. Issue. Was the denial of the rezoning application unconstitutionally or statutorily discriminatory? Held. The Court found that the Respondents failed to meet their burden of proving that discriminatory purpose was a motivating factor in the Petitioners decision, but the court of appeals did not decide whether the Respondents have stated a claim under the Fair Housing Act. Reversed and Remanded. The Court cited its prior decision in Washington v. Davis, 426 U.S.. 229 (1976), which stood for the rule that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause of the Fourteenth Amendment. Determining whether discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence as may be available. The impact of the official decision may provide an important starting point. In this case the Court found that the decision to deny rezoning was based on a desire by the Petitioner to maintain the area as single-family residential housing, and not for discriminatory motive. The burden of proof is on the plaintiff in these cases to prove that discriminatory purpose was a motivating factor in the decision. The case was remanded to determine whether the Respondents had stated a claim of discrimination under the Fair Housing Act statute. Discussion. In cases without some evidence of racially discriminatory intent, the mere fact that the decision of a governmental agency affects race will not be enough to show a violation of the Fourteenth Amendments Due Process Clause. Zoning is neutral and has discriminatory purpose. Since the case was facially neutral, the plaintiff has the burden to prove the law discriminatory. Discriminatory purpose 1. Effect 2. Historical background 3. Departures 4. Legislative and administrative history Class 11/14/2011 Richmond v. j.a. croson (we did not this in reading assignment) City has to set aside 30% quota for minority from the contract and it was invalidated. If you cite quota, government will invalidate it. Quota is the line. Strict scrutiny applies to race discrimination even when you are singling them out to give them certain advantage. As long as law singles out a group whether for good or bad, court will apply strict scrutiny- you have to have compelling purpose and it has to be narrowly tailored. Court found that atleast in croson, we knew we are trying to have a law to benefit citizen, you need to show government had acted badly in the past and government trying to correct their past discrimination to mediate- it does not has to be compelling reason other when government had past bad act correcting. If you are in race classification law to invalidate, you should mention the QUOTA and its not narrowly tailored. And if you want to upheld the law, cite Grutter and show

that it is narrowly tailored and compelling reason. THE USE OF RACE TO BENEFIT MINORITIES IN COLLEGE AND UNIVERSITY ADMISSIONS Grutter v. Bollinger Brief Fact Summary. A white law school applicant challenges a law schools use of race as a factor in the admissions process. Synopsis of Rule of Law. Schools may consider race as a part of the admissions process as long as it is only one factor in an individualized process. Facts. Petitioner, Barbara Grutter, applied for admission to University of Michigan Law School in 1997 with an undergraduate GPA of 3.8 and an LSAT of 161. She was denied. Petitioner, who is white, is challenging the law schools use of race as a factor in the admissions process. Issue. Did the University of Michigans use of racial preferences in the admissions process violate the Equal Protection Clause or Title VI of the Civil Rights Act of 1964? Held. No. The law school in this case was conducting highly individualized reviews of each applicant, and Justice OConnor determined that race was only one of many factors considered to determine the applicants eligibility. Schools have a compelling interest in having diverse student bodies, and Discussion. Grutters companion case, Gratz v. Bollinger, challenged Michigans undergraduate admissions policies. The Court struck down this policy, however, finding that it gave an overall advantage to minority students. Sunset provision. Must show it has previously engaged in discriminatory act (not societal discriminatory act) to upheld the new law to negate that previous discriminatory act. If you say quota- it will definitely be negated. Quota is not narrowly tailored If you mention critical mass (grutter)- it might be upheld but need to show how it is narrowly tailored (given that critical mass is usually narrowly tailored). - Diversity enhances education - Breaks down racial stereotypes Justice Scalia dissenting says, this is not sufficient as compelling purpose. This is something we should have already learned during the kinder garten and law school is not the place for such education- is the law school going backward? Critical mass example- now that there are 3 female justices in the supreme court, they can address the female gender issue without feeling isolated but if there was only one, it would not be critical mass. Page 849- Bakke case Justice Oconnor on page 865, gives law school 25 years where they should not be needing the classification anymore afterward. Her reason is school should not need any more racial justification because in 25 years the critical mass should be achieved by then. Does it mean we dont need diversification after 25 years? Dissent points out other alternative (remember narrowly tailored means theres no alternative) Gratz v. Bollinger Facts: 2 White residents of MI applied to the U of M and were denied admission by the Universitys Office of Undergraduate Admissions-OUA. The OUA Counselors used the schools guidelines in rendering the decisions. OUA relies on a number of factors, including race. Students representing racial minority groups are considered underrepresented minorities and OUA admits almost every qualified applicant from this classification. In 1995 and 96 applicants were subject to different admission outcomes based on race or ethnic status. Gratzs racial and academic score placed her w/i a category calling for postponed decision, but a minority applicant w/ same academic score required admission. 1997 OUA changed policies where applicants recd points which disfavored Hammacher over a similarly situated racial minority. 1999-2000 underrepresented minorities were automatically awarded 20 out of 150 points, plus ARC review.

Issue(s): Whether the U of Ms use of racial preferences in undergraduate admission violates the E P Cl of the 14th? Holding: Yes, b/c the Us use of race in its current freshman admission policy is not narrowly tailored to achieve respondents asserted compelling state interest in Diversity, the policy violates E P Cl of 14th as well as Title VI 42 U.S.C. 1981. Procedure: On Cross Summ J, D Ct upheld OUA guidelines and granted Pet students motion regarding undergraduate admission program from 1995-1998; granted Resp motion re: program from 1999-2000. On Interlocutory Ct App, en banc, heard the case but did not issue decision yet. US S.Ct Reversed portion of decision upholding Responds Summary. Rule(s): 14th Rationale: The admission Policy has not individualized considerations when every minority applicant is given 1/5 of the total points required and non-minorities are not given the same amount. The only individualized consideration given is the factual review by ARC to determine whether an applicant is an underrepresented minority. An award of 20pt makes race a decisive factor. PROBLEMS: An extremely talented artistic student would get 5 pt max; program is not consistent w/ Harvards selection processnot dependent on race, but associated with it. OUA doesnt consider different backgrounds, experiences, and characteristics of students; and Flagging by ARC would never result in a non-minority with excellent academics being reviewed. Pets A: 1) Court only sanctioned the use of racial classifications to remedy i/d discrimination, but Resp never based their case on that restricted use; 2) Diversity employing racial preferences is too open-ended, ill-defined, and indefinite to constitute a compelling state interest capable of supporting narrowly tailored means; and 3) Even if Us interest is compelling, D Ct C: that the use of race is narrowly tailored is wrong b/c the guidelines do not resemble Bakkes permissible use of race or ethnicity. Resps A: Us current admission program is narrowly tailored and avoid the problems U of C program that was rejected in Bakkeset aside pool of seats using numeric ratio based on race. Here, OUA relies on an individualized set of considerations for admission which is reviewed by ARC. The sheer volume of applications and the applicants information make it impractical for the school to use the system upheld in Grutter. Grutter passes the narrowly tailored and compelling purpose but Gratz fails the test because it was not narrowly tailored. Questions for race or minority- strict scrutiny. WHEN IS IT DISCRIMINATION? Geduldig v. Aiello Brief Fact Summary. California operated a disability insurance system that paid benefits to employees of private employers when workers compensation did not cover certain disabilities that prevented those employees from working. However, many pregnancy related disabilities were excluded from coverage because of expenses to the program. Synopsis of Rule of Law. Underinclusive legislation is appropriate under the Equal Protection Clause, so long as the line drawn by the State is rationally supportable. Facts. California operated a disability insurance system that supplemented workers compensation, in that it provided for payments for disabilities not covered by workers compensation. The list of disabilities paid for by the State of California was not exhaustive. Among those disabilities not paid for were certain pregnancy related conditions. Suit was brought challenging the system as an unconstitutional gender-based classification. Issue. Does the exclusion of the pregnancy-related conditions violate the Fourteenth Amendments Equal Protection Clause? Held. No. Appeals Court ruling affirmed. The list of conditions covered by the disability insurance system is not exclusive. Furthermore,

there are conditions not covered by the system that affect both men and women. The excluded conditions do not affect women alone. The savings given the program by the exclusion of such conditions benefit both men and women. That is, inclusion of the excluded conditions would result in lesser amounts of funding for all other conditions. Dissent. Justice William Brennan (J. Brennan) argues that by disallowing payments related to pregnancy, the State inevitably discriminates against women. Discussion. The majority reaches its conclusions through viewing the problem as one of underinclusive legislation, while the dissent focuses on the inevitable connection of the unfunded conditions with a single sex. 1. Is there a classification? There is male centric disabilities for which they will always receive benefit and women will never, nonetheless, women are excluded from pregnancy related disabilities. But the court still doesnt find there is classification. o The plaintiff has the burden to show there is a classification o If yes- apply the chart even if benign (benefits group) o If no classification-> o Rational basis test,

Chart Burden

interest

fitness

under/over Inclusive or Alternatives

deference to govt lowest govt

Strictnarrowly tailored Race National origin Alienage- some state Intermediate important of substantially related gender significant legitimacy birth

fatal

Rational basis legitimate rationally related Commerce Wealth Social- economic Age Disability Alienage- if self govt or Democratic process, discretion (troopers, police, teachers) If theres a state law regarding above category then it will Be rational basis but any law other then these troopers then Strict scrutiny will be applied. Fed gov- alinage (agencies are not considered) If its state law, generally it will go to strict scrutiny other than These catagories. Gender classification benefiting women

Michael m not fatal sometimes fatal not fatal

middle

govt

highest plaintiff

Michael M. v. Superior court of Sonoma county Brief Fact Summary. The Petitioner, Michael M. (Petitioner), was charged with statutory rape in California and now alleges that the States statute discriminates unconstitutionally against men only. Synopsis of Rule of Law. A state may provide for punishment only for males to equalize deterrents to teenage pregnancy. Facts. The Petitioner, at the time of the complaint, was a 17-year-old male who had sexual intercourse with a 16-year-old female. Because Californias statute only criminalized such behavior in males, the female involved was not charged with any crime. The Petitioner now alleges that this disparity in the statutory rape laws is in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Issue. Does the California statutory rape statute violate principles of Equal Protection? Held. No. Appeals Court ruling affirmed. Justice William Rehnquist (J. Rehnquist) does not specifically refer to the application of intermediate scrutiny. However, J. Rehnquist gives great deference to the fact that the States alleged objective was to deter teenage pregnancies. The majority states that a state may attack the stated objective directly by prohibiting the conduct only of males. The reasoning behind this assertion is that females already have significant deterrence to abstain from the behavior, namely pregnancy itself and its attendant difficulties. Dissent. Justice William Brennan (J. Brennan) applies intermediate scrutiny to achieve the opposite result from the majority. J. Brennan concedes that preventing teenage pregnancy is an important objective. However, J. Brennan argues that California still bears the burden of demonstrating that the gender-based statute is more effective at decreasing teenage pregnancies than a gender-neutral statute. More importantly, the State cannot show that a gender-neutral statute would be less effective than the gender-based statute. Justice John Paul Stevens (J. Stevens) dissents, arguing that since both parties are equally guilty of the conduct, it is perversely partial for the State to only punish a single party. Discussion. It is hard to square the majoritys decision with the holding in Orr v. Orr, 440 U.S. 268 (1979), that says where compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies, the State cannot classify by gender. It is difficult to understand why this should be so in a remedial statute, but not a criminal statute. E. ALIENAGE CLASSIFICATIONS

1. strict scrutiny as general rule Graham v. Richardson Brief Fact Summary. Arizona required State residents to be a United States citizen or a resident of the United States for at least fifteen years to be eligible for welfare benefits. Synopsis of Rule of Law. Restrictions based on alienage are generally subject to strict scrutiny. Facts. The Respondent, Richardson (Respondent), was denied welfare benefits solely on the basis of being a resident alien who has resided for less than fifteen years in the country. The Respondent alleges that the residency requirement of the Arizona welfare statutes is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Issue. May Arizona distinguish between resident aliens and citizens under the Fourteenth Amendment of the Constitution? Held. No. Court of Appeals ruling affirmed. Justice Harry Blackmun (J. Blackmun) also notes that a person for the purposes of the Fourteenth Amendment encompasses both resident aliens and citizens, thereby affording legal aliens equal protection of the laws. J. Blackmun, writing for the Supreme Court of the Untied States (Supreme Court), declares that restrictions based on alienage are akin to classifications based on race or nationality, in that they are subject to strict scrutiny.

The Supreme Court concludes that the States desire to preserve limited welfare benefits for its own citizens is not a compelling government interest for purposes of strict scrutiny, and thus the statute is unconstitutional. Discussion. The important holding of Richardson is that aliens are entitled to Fourteenth Amendment protection and that in general, statutes based on alienage are subject to strict scrutiny. 2. alienage classification related to self government and the democratic process

Foley v. Connelie (rational basis) Brief Fact Summary. New York State law prohibited non-citizens from being appointed state policemen. The Appellant, Edmund Foley (Appellant), was refused the opportunity to sit for the state police exam on the basis of his alien status. Synopsis of Rule of Law. When a state acts within its constitutional prerogatives, its classifications based on alienage are subject only to rational basis scrutiny. Facts. New York law prohibited non-citizens from becoming state police officers. When the Appellant was denied the opportunity to sit for the state police exam because of his resident alien status, he sued, alleging denial of equal protection. Issue. May a State discriminate between aliens and citizens in comprising its police force? Held. Yes, as long as there is a rational basis for such distinction. Appeals Court ruling affirmed. Chief Justice Warren Burger (J. Burger) wrote for the majority that strict scrutiny in all areas where alien status is used restrictively would obliterate all distinctions between citizens and aliens. J. Burger notes that a State may deny the right to vote, run for office, or sit on juries to non-citizens, as these are at the heart of our political institutions. The police power, as well, is an extension of the political life of the community. For the same reason that non-citizens do not sit in trial over citizens, the state has an interest in not allowing non-citizens to invade the privacy of citizens and to allow non-citizens to exercise the discretionary powers of police officers against citizens. Dissent. Justice Thurgood Marshall (J. Marshall) argues that loosening of the level of review in the present case is inappropriate. He argues that the position of police officer does not require policy-making and as such, is not incompatible with integrity of the political process. Discussion. The majority changes the standard of review in certain situations, namely where the State is legislating within its constitutional prerogative. Strict scrutiny is no longer appropriate, but rather rational basis. Ambach v. Norwick Brief Fact Summary. The Respondents, Norwick and Dachinger, are resident aliens denied teaching certificates by the State of New York solely on the grounds of their lack of United States citizenship. Synopsis of Rule of Law. Education, like the police power, represents a fundamental obligation of [state] government, and thus allows rational distinctions based on alienage. Facts. New York education statutes forbid the certification of any perspective teacher who is eligible for United States citizenship, but refuses to seek naturalization. The Respondents both are foreign citizens eligible to seek naturalization who have refused to do so. Their refusal to seek naturalization is the sole requirement for certification as a teacher that they have not met. They brought suit, alleging that the requirement denies to them equal protection of laws. Issue. May the State deny teaching certification on the basis of alienage without violating the Fourteenth Amendments Equal Protection Clause? Held. Yes. Appeals Court ruling reversed and remanded. Justice Lewis Powell (J. Powell) argues that the unequivocal bond that citizenship establishes makes it a rational distinguishing trait for the purposes of a state exercising its governmental

functions. This he compares to the police power discussed in Foley, 435 U.S. 291 (1978). In particular, J. Powell notes that a teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizens social responsibilities. An oath of allegiance, he feels, is not a suitable substitute for citizenship itself. Dissent. Justice Harry Blackmun (J. Blackmun) argues that the New York Statutes in question are irrational. In particular, he believes that the statute takes educational opportunities away from students. Discussion. Norwick extends the rational basis test to more tangential areas of government function. Under the majoritys reasoning in Norwick, there is no clear horizon to a States ability to discriminate against legal aliens as government employees. The Supreme Court of the United States (Supreme Court) argues that hiring support staff would not raise a legitimate state interest in discrimination. The majority says that the horizon is the ability to influence policy. However, the dissent argues that a teacher is not in such a position, as indeed the dissent in Foley had argued about police. 4. Undocumented aliens and equal protection

Pyler v. Doe
Brief Fact Summary. In 1975 the Texas legislature passed a law withholding funds for the education of children of illegal aliens. This law also authorized local school districts to deny entry in the public schools of the state to these children. Synopsis of Rule of Law. In order for a state to constitutionally deny a discrete group of individuals the rights it offers to others, this denial must be justified by showing a legitimate state interest. Facts. In May 1975, the Texas legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not legally admitted into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not legally admitted to the country. Issue. Whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens? Held. No. If the State is to deny a discrete group of children the free public education it offers to others residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. The state does not adequately show such an interest in this case. The state must show that its classification of a subject class has been precisely tailored to serve a compelling governmental interest. The Court finds it difficult to understand the states goals in limiting the education of children of illegal immigrants. Whatever these interests may be they are insubstantial when looking at the costs of not educating these children for the State and the Nation. Dissent. Finds sound policy arguments against the Texas legislatures choice, and therefore this law is not unconstitutional. By rendering this decision the Court is compensating for the inaction of Congress, and it is not the duty of the Court to make up for the ineffectiveness of the political branches of government. Concurrence. The facts of this case shows the wisdom of rejecting a rigidified approach to equal protection analysis, and employing an approach that allows for varying levels of scrutiny depending on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. When the State provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with the Equal Protection Clause. Denial of an education is the analogue of denial of the right to vote, placing these children at a permanent disadvantage similar to disenfranchisement. The States denial of education to these children bears no substantial relation to any substantial state interest. It is hard to argue that anyone benefits from the creation of a subclass of illiterate persons, many of whom will remain in the State, adding to the problems and costs of both State and National Governments attendant upon unemployment, welfare, and crime. Discussion. This case is very similar to San Antonio Independent School District v. Rodriguez. In this case the Court, like in Rodriguez, uses the rational relationship test to determine the constitutionality of a

state law impacting education. Unlike Rodriquez, the Court in this case feels that the cost of allowing this law, i.e. a large illiterate group of children, outweighs the benefits provided to the State through this law. The concurrences in this case argue for a different approach to reach the same conclusion, while the dissent feels that the Court should universally withhold judgment in those cases that are meant for the political branches of govern