MASTER CONSTITUTIONAL LAW OUTLINE PROFESSOR BURRIS

Winter 2006

I. JUDICIAL REVIEW
Article III: Congress Control of Federal Court Jurisdiction (Statutory Restrictions): Where is the right to this control derived?

1. Article III, suggests explicitly that Congress can limit the jurisdictional power of the Supreme
Court.

2. 1 Provides that the federal judicial power shall be vested in one "Supreme Court", and in such
inferior courts as congress shall deem necessary.

3. 2 First sets out the Supreme Courts original jurisdiction. This includes, among other things: (a)

cases arising under the Constitution or the laws of the U.S.(cases posing a federal question); (b) cases of admiralty; (c) cases between two or more states; (d) cases between citizens of different states; and (e) cases between a state or its citizens and a foreign country or foreign citizen. And Second the Supreme Courts appellate jurisdiction (power to review the judgment of a state court) may be regulated and limited as Congress shall provide. However, this review is limited to federal questions decided by the state courts. (may NOT interpret or construe a state law) There are two methods for invoking Supreme Court Appellate Jurisdiction:

a) Appeal - (mandatoryas a matter of right) Appeal is available only as to decisions made

by 3-judge federal district panels that grant or deny injunctive relief.

b) Writ of Certiorari - (discretionary) A case will be heard if 4 justices agree to hear it.

Cases from the highest state courts where the constitutionality of a federal statute, federal treaty, or state statute is called into question can be heard or a state statute which allegedly violates federal law can be heard. Also cases from federal courts of appeals. Marbury v. Madison Role of Marbury: Sets forth the idea that the Supreme Court has the power to determine the constitutionality of an Act of Congress. Article III 2 Cl. 2 Supreme Court has original jurisdiction in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which the State shall be a party. (first sentence) In all other cases, the Supreme Court shall have appellate jurisdiction, with such exceptions and under such regulations, as the Congress shall make. These two principlesthe preeminence of the Constitution and judicial reviewwere not explicitly provided for in the Constitution but are supported by various types of constitutional argument. Marbury can be read as giving the judiciary power of judicial review or as giving the judiciary the ultimate power to interpret the Constitution. Although many have argued that other branches also have the power and duty to interpret the Constitution, the Court increasingly contends that it has the ultimate power to do so. Review of State Court Decisions: S.C. has jurisdiction to review state court decisions regarding federal laws. It can only review cases that raise federal questions. More critical than the principal of judicial review over national legislation is the principle of judicial review over state action.

Lawrence v. Texas ISSUES: Whether Petitioners criminal convictions under the Texas Homosexual Conduct Law violates the Fourteenth Amendment guarantee of equal protection of laws. Whether Petitioners criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment. Whether Bowers v. Hardwick should be overruled RULE: This case showed that a states moral choice is not enough to prohibit certain behavior. However, it is important to remember that States still have freedom to establish policy choices as long as they show purpose of attacking some evil or harm to the population. Martin v. Hunters Lessee FACTS: Hunter sued in Virginia state court to eject Lord Fairfax's heir. Involved the issue of whether a particular Virginia statute conflicted with a federal treaty.

RULE: Supreme Courts Power to Review: S.C. rejected the Virginia Courts view and held that the Court could review the constitutionality of a decision by a states highest court. It is the case and the court that gives the jurisdiction. ******REMEMBER that Justice Story argued that the SC could review state court decision, because the C gives Congress discretion whether to create lower federal courts. However if Congress chose not to establish such tribunals, then the SC would be powerless to hear any cases, except for the few cases w/in its original jurisdiction, because there would be no lower court where to exercise the appellate jurisdiction upon, then there would not be appellate jurisdiction. D. THE EXCEPTIONS CLAUSE - ARTICLE III, SECTION 2, CLAUSE 2: Congresss power to decide: Congress has the general power to decide what types of cases the Supreme Court may hear under their appellate jurisdiction, so long as it doesnt expand the Supreme Courts jurisdiction beyond the federal judicial power.
What is the scope of the powers granted to Congress in regards to the Judiciary? Limitations conferred by constitution: Definitional: Any purported exercise of constitutional power must come within the defined scope of that power. Power to make exceptions of appellate jurisdiction of the SC cannot be used to make exceptions to the Cts original jurisdiction. Structural: purported exercise of power may not violate limitations inherent in the structure of Const., particularly principles embodied in the separation of powers. Congress cannot vacate a decision by the Supreme Court. External: An exercise of const. power may not transgress any external limits or guarantees imposed by the Constitution, such as those found in the Bill of Rights. Ex Parte McCardle: Facts: Case where P sought habeas corpus action in federal circuit court, lost, and then appealed to the S.C. Before decision rendered, Congress passed legislation which repealed the right to allow appeals directly to the Supreme Ct. from courts below. Limitation only: Congress may limit but not deny jurisdiction --- this took place here b/c jurisdiction remained in the lower federal courts for writs of habeas corpus Congress only changes the way Ps case could get to court. Exception defined: means that Congress can only create limitation as in McCardle but could not, hypothetically do away with the entire appellate jurisdiction of the S.C. because this would destroy rather then restrict jurisdiction and be outside Congress power. Congress may not decide the merits of a case under the guise of limiting jurisdiction. Congress does have power under Article 3, sec. 2 clause 2 to pass a law repealing the part of the reconstruction act allowing the SC to hear appeals of habeas corpus. SC has confirmed that Congress does have some control over the SC Appellate jurisdiction Congress may make exceptions & regulations of the appellate jurisdiction of the Supreme Court. 2

 *****Here we discussed before the quiz that Congress cannot expand the original jurisdiction but they could limit the appellate jurisdiction like here!! U.S. v. Klein: Holding: NO, Congress has no express right to limit the executive powers. If the court would have let Congress pass this law it would have been outcome determinative and that is not good!!

JUSTICIABILITY A. Generally: In order for a case to be heard by the federal courts, the plaintiff must get past a series of procedural
obstacles which collectively are called requirements for justiciability. These requirements are: (1) the case must not require the giving of an advisory opinion; (2) the plaintiff must have standing; (3) the case must not be moot; (4) the case must be ripe for decision; and (5) the case must not involve a non-justiciable political question.

B. Advisory Opinions: Constitutional case or controversy requirement: Article III, Section 2 of the Constitution
gives the federal courts jurisdiction only over cases and controversies. The federal courts are therefore prevented from issuing opinions on abstract or hypothetical questions. This means that the federal courts may not give advisory opinions. In other words, the federal courts may not render opinions which answer a legal question when no party is before the court who has suffered or faces specific injury. EXAMPLE: Suppose that both houses of Congress approve a bill, but the President has doubts about the bills constitutionality. The President may NOT go to a federal court and ask the federal court whether the bill is constitutional, so that he may decide to veto it. If the federal court were to give it s opinion about whether the bill was constitutional, at a time when no party who had been or might soon be injured by the unconstitutionality was before the court, this would be an advisory opinion that would violate the constitutional case and controversy requirement. 1. Declaratory judgments sometimes allowed: But Declaratory judgments are sometimes allowed, and are not forbidden by the rule against advisory opinions. A Declaratory Judgment is a judicial decision in which the court is not requested to award damages or an injunction, but is instead requested to state what the legal effect would be of proposed conduct by one or both parties. 2. Requirements for Declaratory judgment: The plaintiff is not entitled to get a declaratory judgment on just any question about what the legal consequence of the particular conduct would be. If the declaratory judgment raises only questions that are very hypothetical or abstract, the federal court is likely to conclude that whats sought here is an illegal advisory opinion, because no specific, concrete controversy exists>>the plaintiff must have standing before he could ask for a Declaratory judgment. Muskrat v. U.S: Congress cannot make the US a defendant in a federal court unless the US truly has an interest adverse to the plaintiff. Moreover, parties who are interested in securing resolution of a constitutional issues from a federal court cannot by their own agreement confer jurisdiction on the court. If the parties are merely curious about a matter but there is no real adversity between the, the bar of the Constitution the case and controversy requirement will require dismissal of the suit.

C. Standing: Probably the most important rule about when the federal courts may hear a case is that they may do so
only when the plaintiff has standing to assert his claim. By this, we mean that the plaintiff must have significant stake in the controversy. I. Elements 1. Injury in fact- Have to have a distinct and culpable injury- you have to I.D. a specific injury to a specific person. a) Must be able to allege specific conduct that the government will exercise its power over. b) The way that the government will exercise its power has to be certain to occur. c) When a question comes up that says a particular ordinance has been passed, look for a standing issue. d) EXAMPLE #1: Non-Economic Harm: This injury in fact requirement is pretty loosely applied. For instance, the harm does not have to be economic in nature.>>A group of people who use a national forest claim that the construction of a recreation area in the forest will violate federal laws. To get standing, the plaintiffs point to the injury to their esthetic and environmental well-being which would result from the construction. Held, this esthetic and environmental injury satisfies the injury in fact requirement, even though the harm is non-economic and in fact very intangible (Sierra Club v. Morton) 3

EXAMPLE #2: Imminent harm: If P has not already suffered the injury in fact, he must show that the future injury is not only probable but concrete and imminent. In other words, a vague sort of harm that may come about in the indefinite future will not suffice.>>>>The Ps challenge a federal regulatory action that they say will endanger certain species abroad. The Ps say that they have in the past, and will in the future, travel abroad to visit the habitats of these species. Held, the Ps lack standing, because the lack of specific information about their future plans means the harm to them is not sufficiently concrete or imminent. (Lujan v. Defenders of Wildlife) 2. Causation or traceability- "But-for the conduct of gov't or law present, the injury would not have occurred". 3. A judicial remedy is available/Redressability- The court is able to fashion a judicial remedy to break the chain of causation. If this element is considered, do an analysis of whether it is a political question. In other words, when the court could provide a remedy>>the court is breaking the chain of causation. It is important to remember that Congresss relief must be one that could not interfere with the legislative or executive powers otherwise there would be also a political question analysis. 4. When does a judicial remedy break the chain of causation? - When there is a substantial likelihood that the judicial remedy will provide relief. II. Taxpayers standing 1. Generally, federal taxpayers do not have standing to challenge expenditures made by congress. EXAMPLE: Suppose that during the Vietnam War, Plaintiff, a federal taxpayer, becomes convinced that, since Congress has never formally declared war, Plaintiffs tax dollars are being used to support an unconstitutional war. If P were to the federal government in federal court to have the war effort enjoined on this ground, the court would not hear his claim, he would be found to lack standing, since a person whose only connection with the controversy is that he is a taxpayer will almost never be deemed to have standing to claim that tax dollars are being used illegally.

e)

Two Prong Test for Federal Taxpayer Standing: Flast v. Cohen (1) Taxpayer must establish a logical link between the status and type of legislative enactment attacked. (2) Taxpayer must establish a nexus between the status and the precise nature of the constitutional infringement alleged. 2. Exception: Flast v. Cohen- taxpayers can sue ONLY if they claim that Congress is violating the taxing and spending clause (the Establishment Clause that deals with religion) a) Congress must show a logical nexus between status of taxpayer and the claim. This can be done in two ways: (1) Statute relies on Congress' powers under the Taxing and Spending Clause instead of an incidental expenditure of tax funds (2) The challenged law does not violate specific constitutional limits imposed on the Taxing and Spending power. It cannot be that the statute just goes beyond the power delegated in Article I 8. 3. What about State and Municipal taxpayers: A State taxpayer probably has federal-court standing to litigate the legality of the states expenditures (though the SC has never said so for sure). A Municipal taxpayer definitely has standing to litigate the legality of his citys expenditures. III. Regular Standing 1. Duke Power- Congress limited the liability of privatized nuclear power plants. Duke Power planned on building a nuclear plant near where the P's lived. This is a Plaintiff friendly case when you want to argue standing. Even though there were too many ifs (the plaintiff needed a license to build, financing, license to operate, the accident itself), however the court ruled in his favor regardless. General Standing Test:

Injury in Fact: distinct and palpable injury Causal Connection: fairly traceable between the claimed injury and the action of the government Redressability: ability of the judiciary to create a remedy which breaks the causal link

Raines v. Byrd: Members of congress lack standing to challenge the constitutionality of a Line Item Veto Act which dilutes their voting power because they lack a personal stake in the outcome of the decision since Congress is an institution and only the institution will be injured, not the individual members. 4

 Third Party Standing:

o o o

IV. Third party standing 1. Generally, a plaintiff is not granted standing if he asserts that the rights of 3 rd parties are being violated. The purpose in not allowing third party standing is that the Supreme Court wants those involved in a dispute to be zealous advocates of their positions. This principle is sometimes called the rule against use of constitutional just tertiijust tertii means rights of third persons in Latin. 2. Exception: A plaintiff may have standing when asserting 3rd party rights when the following elements are met; a) There is a close relationship of the parties that is of sufficient quality to constitute having the same interests (Under common law, husband and wife were the same) b) There is a linkage in terms of rights >>>What this means is that the third partys rights would be diluted if the rights are not asserted by plaintiff on the third partys behalf. c) There is an inability of the 3rd party to assert his or her own rights (person is dead, legal disability, insane or minor). (1) 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 (2) 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. (3) Inability of the third party to assert her own rights: privacy concerns, etc.

Singleton v. Wulff- Doctors were claiming their Medicare patients were being denied of their privacy rights to an abortion under Roe v. Wade by an Iowa statute which did not allow Medicaid to fund non-medical abortions. Issue: Did the doctors have standing? Holding: The court held that they did have standing. Reasoning: The doctor-patient relationship was such that it was inextricably bound. The doctors were the only instruments by which these women could get an abortion, the women couldn't afford the procedure and the doctors were not going to perform the abortion for free. The women were allegedly being shut out from their privacy rights. The doctors were the only ones that could perform the procedure. Therefore, there was a linkage between the rights of the women and the doctors. The court says that they were unable to assert their own rights because if the women were to bring action against Iowa, they would expose themselves to the public and defeating the very rights they allege to be violated. Not Constitutionally based: This rule against the assertion of third-party rights is NOT mandated by the Article III case or controversy requirement. In other words, it is not a rule imposed by the constitution on the federal courts; instead, it is a rule of prudence, a policy decision adopted by the SC. V. Associational Standing to Represent Members An association may have standing to assert the rights of its members if the member who is represented suffered or is in imminent danger of suffering an injury in fact. Warth v. Seldin- Building association did not have standing since its member did not show an actual injury at the time of the lawsuit. It didn't apply for any building permits, etc. Example of how the standing question could shift in the middle of a case: Elk Grove Unified School District v. Newdow: The respondent is an atheist whose daughter participated in the reciting of the Pledge of Allegiance. Because the Pledge contains the word Under God, he views the schools policy as a religious indoctrination of his child that violates the First Amendment of the Constitution. Rationale: Originally, he had third party standing due to the fact that his daughter was a minor who could not bring an action. However, he lost it after Mr. Newdows wife filed an motion to intervene based on a state court order that granted her the exclusive legal custody of the child. Nevertheless, Mr. Newdow was able to get jurisdiction because this particular state order was not affecting his daughter but himself>>>He was able to obtain the injury in fact that is traceable to the cause of action. In other words, the standing status changed from a third party standing to a regular standing. In addition this case is also interesting because it also show how the court dismissed this case even though plaintiff had standing. Abstention Doctrine (Federalism-Inverted Supremacy Clause): The court dismissed this claim under the Domestic Relations Exception>>>Since the cause of action affect the family nucleus is a matter that should be decided by the states and not the federal government. 5

Standing & Mootness Interaction: VII. Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville If you have no ordinance, you cannot litigate it constitutionality Here, the new ordinance fit within the Plaintiffs complaintbecause the underlying gravamen of the complaint was the same. VIII. Exercises on Standing: Fort Lauderdale recently adopted the following ordinance: It shall be unlawful for any person to sell, distribute, or wear a T-shirt with printing or designs on it which link the name of the City of Fort Lauderdale to illegal drug use, illegal sexual conduct, or any profane word or words. Each violation of this ordinance shall be punishable by a fine of not less than $25 nor more than $100. Why do the following individuals, who are all residents of the City of Fort Lauderdale, satisfy or not satisfy the requirements of standing and ripeness doctrines. (1) A T-shirt store owner who does not currently sell or inventory T-shirts which violate the ordinance, but plans to sometime in the future.>>>NO, Too indefinite in the future, no current injury>>There might be a chance to get standing if it talks about a date or time when he will sell T-Shirts. (2) The Fort Lauderdale T-shirt Store Association, a group organized by T-shirt store owners which represents the interests of the T-shirt store industry on the local and state level.>>NO, Plaintiffs have not pleaded the intention. It is not enough that they represent its member, they must also be engaged in some kind of conduct. (3) A person who collects unusual T-shirts as a hobby. She buys unusual T-shirts, but never wears one, or trades or sells one. >>>NO, this person only collects, she is not violating the statute, if for example she would be trading T-Shirts for some kind of value, maybe she will get a chance, difficult though. (4) A person who was threatened with arrest by a police officer for wearing a T-shirt which violated the ordinance, but who was not actually arrested.>>>YES, this person clearly pledges that he would have violated the statute but for the threat he didnt.

D. Mootness: A case is moot if it raised a live controversy at the time the complaint was filed, but events
occurring after the filing have deprived the litigant of an ongoing stake in the controversy. EXAMPLE: P sues D, a state university, claiming that the universitys law school admissions program is racially discriminatory. P is permitted to attend the law school while the case is being litigated. By the time the case arrives at the SC for review, P is in his final year of law school, and the university says that he will be allowed to graduate regardless of how the case is decided. Held, the case is moot. Therefore, the appeal will not be decided. (DeFunis v. Odegaard). >>>Here Burris mentioned that plaintiffs attorney could have kept the controversy alive by either asking for damages or maybe by adding another plaintiff in the incoming class, or even better, by establishing a class action. I. Constitutional Basis: Apparently the rule that the federal courts may not decide moot cases is required by the Constitution. That is, deciding a case when the parties no longer have a live controversy would amount to issuing an advisory opinion, in violation of Article IIIs case or controversy requirement. II. ExceptionsWays of avoiding mootness: Nonetheless, the courts recognize a few situations where a case that would appear to be moot will nonetheless be heard. I. Capable of repetition, yet evading review: For instance, a case will not be treated as moot if the issue it raises is capable of repetition, yet evading review. This doctrine takes care of situations in which, it the case were to be declared moot, a different person might be injured in the same way by the same defendant, and his claim, too, would be mooted before review could be had. EXAMPLE: P, a pregnant woman, attacks the constitutionality of Texas anti-abortion law. She brings the suit as a class action, in which she is the named plaintiff and other pregnant women who want abortions are unnamed members. By the time the cases reaches the SC, P is no longer pregnant. Held, the case should NOT be dismissed as moot. A pregnancy will almost always be over before the usual appellate process is complete. Therefore, if the Court insisted that the named plaintiff who starts the suit must still be pregnant by the time the suit gets to the SC, no plaintiff could ever get to that court. So the constitutionality of the Texas anti-abortion law is capable of repetition, yet evading review. (Roe v. Wade). II. Voluntary cessation by defendant: The case will generally not be treated as moot if the defendant voluntarily ceases the conduct that the plaintiff is complaining about. So if the plaintiff is seeking an injunction, the defendant cant usually get the case dismissed on mootness grounds merely by saying that he has voluntarily stopped the conduct that the plaintiff is trying to get an injunction againstunless the defendant shows that there is no reasonable likelihood that he will return to his old ways, the court will let this action go forward. EXAMPLE: IRS sought access to Church documents in state possession and obtained possession through an IRS summons from state clerk. Church contends tapes were 6

protected by attorney/client privilege. While the churchs appeal was pending, they complied and, copies of the tape were delivered to the IRS. Court of Appeals dismissed their appeal as moot since the tapes had been turned over to the IRS and impossible for the courts to grant any effectual relief. Held, the case is not moot because there is relief that could still be granted. IRS could still forbid to let the Church use the information at all through injunctive relief. (Church of Scientology of California v US) III. Collateral Consequences: Finally, a case will not be moot even if it is mostly decided, if there are still collateral consequences that might be adverse to the defendant. For instance, suppose that a criminal defendant has already served his sentence by the time his attack on the constitutionality of his conviction comes before the federal court. The case will not be moot, because there will probably be future collateral consequences to the defendant from his conviction (e.g. he will lose the right to vote, his reputation or employability will be damaged).

E. Ripeness: You can think of the problem of ripeness as being the opposite of mootness. A case is moot because it
no longer involves an actual controversy. By contrast, a case is not yet ripe (and therefore no yet decidable by a federal court) if it has not yet become sufficiently concrete to be really adjudicated. I. TEST: The Green Fruit Doctrine. A federal court will not hear a case unless the has been harmed or there is an immediate threat or possibility of harm. The threat of harm must be specific. The only real test is substantial certainty in incurring an injury. The government has to have taken a position on it and someone has to have tried to do the thing that they aren't supposed to and then be told not to. Ripeness is not a real problem getting into the federal courts. II. International Longshoreman's and Warehousemen's Union, Local 37 v. Boyd - Alaskan workers were suing because the Immigration Act was to treat aliens domiciled in the Continental US as aliens entering for the first time when they went back to the Continental US. Court said they could not decide the issue because none of the workers had tried to go back yet. Still good law. Burris mentioned that this case would have been ripe if plaintiff could have been able to show an eminent enforcement from INS (an order from the head of INS, but not just a press conference though). In other words>>>Plaintiff here needed more evidence of government action. III. Uncertain enforcement of criminal statute: One common ripeness problem arises where the plaintiff attacks the constitutionality of a statute and says that he has violated the statute, but it is clear that the statute is rarely enforced and probably will not be enforced in this particular situation. Here, the rules are pretty blurrysuffice it to say that if the court believes that it is very unlikely that the statute will be enforced against the plaintiff either for the activity he has already done or similar activity he is likely to do in the future, the court will probably treat the case as being not ripe. EXAMPLE: Connecticut forbids the distribution of contraceptives. Two married couples and a physician challenge the laws constitutionality, and allege that they have violated the law. Held, the case is no ripe, because the statute has been on the books for 80 years with only one reported prosecution, so there does not exist clear threat that the plaintiffs will be prosecuted (Poe v. Ullman).

E. Political Question Doctrine: The final aspect of justiciability is the requirement that the case does not involve the
decision of a political question. This rule is even more vague than the other justiciability rules. The doctrine does not mean that the federal courts will not decide a case that involves politics. It doesnt even mean that courts will refuse to decide cases where political issues are right at the heart of the controversy. Instead, the court will decline to hear a case on political question grounds only if it thinks that the doctrine of separation of powers requires this, or if it thinks that deciding the case would be unwise as a policy matter. 1) TEST: On the surface of any case held to involve a political question at least one of the following formulations must occur: I. A textually demonstrable constitutional commitment of the issue to a co-ordinate political department; (branch) (President and Congress) (veto power, impeachment). This is the commitment to another branch approach. The fact that the case presents an issue which has been committed by the Constitution to another branch of the federal government (e.g. to Congress of to the President instead of the Courts). EXAMPLE: D, a federal judge, claims that the Senate has used improper procedures in convicting him following his impeachment, because the case was heard before a committee of Senators rather than the full Senate (though the full Senate voted, after receiving a transcript of the committee proceedings.) D claims that this violates the Impeachment Clause, which says that the Senate shall have sole Power to try all Impeachments. Held, the case presents a nonjusticiable political question, because the Constitution has given the Senate, not the courts, the power to decide what constitutes a trial. (Nixon v. U.S.) 7

When the Senate acts, that is the final wordotherwise it would leave too much uncertainty in impeachment proceedings ****Important to notice that the same principle probably applies to all aspects of the impeachment process. Thus if the House voted to impeach the President and the Senate voted to convict, the SC would probably refuse to review either of these decisions on commitment to other branches political questions grounds (so that if the President tried to get the Supreme Court to hear his argument that the crime for which he was impeached and convicted was not within the constitutionally-defined category of high crimes and misdemeanors, the Court would probably refuse to consider the merits of this argument.) ****It is rare for a case to be declined on the grounds that it involves a question committed to some other branch of government. **** Look to see if there is a confrontation with co-equal branches of government Two Kinds of Political Questions: 1. Those which the Constitution explicitly gives to Congress or the President for resolution. a. Guarantee Clause Cases (Art. 4, 4) The US shall guarantee to every statea republican form of gov't. b. expulsion of a member of Congress (Art. 1, 5, cl. gives Congress the power to expel one of its members with two-thirds vote, provided that the expulsion is properly done. Expulsion is the removal of a legislator after he has been elected, taken the oath, and taken his seat. c. procedures for impeachment (Art., 3, cl. 6) gives Senate the power to try impeachment and to establish the exact procedures for impeachment cases. 2. Those which a court could hear but are simply too hot to handle. i.e foreign relations, dates and duration of military activities, validity of enactment's (ratification periods). See Baker and Powell below. II. Or a lack of judicially discoverable and manageable standards for resolving it; (Can't look at Constitution.). This is the second major factor. EXAMPLE: Article IV, Section 4 provides that the United States shall guarantee to every state in this union a republican form of government. Some unhappy Rhode Island citizens stage a rebellion. Ultimately, various Rhode Islanders ask the federal courts to decide which of the two competing factions is the lawful government of the State. Held, the Court cannot decide this question, because it presents a political question. There are no criteria by which a court could determine whether a particular government was Republican. (Luther v. Borden). (Foreign affairs) III. Or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (left better for the legislature, creating laws.) IV. Or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government; (Congress's power to control their own procedural processes.) V. Or an unusual need for unquestioning adherence to a political decision already made; (Can't review impeachment of President.) VI. Or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. at 217. (Uniformity in decision-making, one branch has to have sole power in the foreign affairs area.) 2. Baker v Carr: This landmark case established the above test and the so-called one person, one vote principle: any governmental body, whether its a federal one (like Congressional Districts) or a state one (like a state legislature) must be apportioned on a population basis, so that all voters have essentially the same voting power. If a governmental electoral scheme does not comply with this one person, one vote principle, it violates the Equal Protection rights of the under represented voters (Reynolds v. Sims). Burris talked about the dissent of this case and he showed how this case is helpful to evade being struck the case under the political doctrine. Burris mentioned that the Guaranty Clause claim was disguised with a label under the Equal Protection Clause so the claim becomes justiciable. ****Use this argument for reapportionment cases!!! 3. Powell v McCormack - Article 1 Sec 5 gives Congress the power only to judge whether members of Congress meet the qualifications under Art. 1 Sec. 2,and not to set the qualifications or change them. This case is not a political question because it arose under the Constitution. 8

III. FEDERALISM AND FEDERAL POWER GENERALLY A. The Federalist System: We have a federalist system. In other words, the national government and the
state governments co-exist. Therefore, you always have to watch whether some power being asserted by the federal government is in fact allowed under the Constitution, and you must also watch whether some power asserted by the states is limited in favor of the federal power. B. Federal government has limited powers: The most important principle in this whole area is that the federal government is one of limited, enumerated powers. In other words, the three federal branches (Congress, the Executive Branch, and the Federal Courts) can only assert powers specifically granted to them by the United States Constitution. So any time Congress passes a statute, or the President issues, say, an executive order, or the federal courts decide a case, youve got to ask: What is the enumerated, specified power in the U.S. Constitution that gives the particular federal branch the right to do what it has just done? (This is very different from what our Constitution says about the powers of state governments: state governments can do whatever they want as far as the U.S. Constitution is concerned, unless what they are doing is expressly forbidden in the Constitution). NO GENERAL POLICE POWER: The most dramatic illustration of this state/federal difference is the general police power. Each state has a general police power (the ability to regulate solely on the basis that the regulation would enhance the welfare of the citizenry). But there is no general federal police power (no right of the federal government to regulate for the health, safety or general welfare of the citizenry). Instead, each act of federal legislation or regulation must come within one of the very specific, enumerated powers (e.g. the Commerce Clause, the power to Tax and Spend, etc.). NECESSARY AND PROPER CLAUSE: In addition to the very specific powers given to Congress by the Constitution, Congress is given the power to make all laws which shall be necessary and proper for carrying into execution the specific powers. The Necessary and Proper Clause means that if Congress is seeking an objective that is within the specifically enumerated powers, then Congress can use any means that is: (1) rationally related to the objective Congress is trying to achieve; and (2) is not specifically forbidden by the Constitution. Congressional (0r other Federal) action must satisfy two tests to be constitutional: (1) it must fall within some specific grant of power under the Constitution; and (2) it must not violate any specific constitutional provision. C. Mc.Culloch v. State of Maryland: The main issue in this case is the taxing issue of whether Maryland has the authority to impose a tax on the federally chartered bank. Marshall reversed the two issues because he wanted to use this case to establish the power the federal government has under the "necessary and proper" clause. With the use of this clause, Congress may make all laws which shall be necessary and proper for carrying into execution the specific legislative powers granted in the Constitution. However, this clause cannot stand alone. This needs to be linked to another explicit power given to Congress. *****Burris use this case to show how the Court USED the Necessary and Proper Clause(Art. I, Section 8, Clause 18. Here, Marshall used a 3 STEP PROCESS: FIRST, He identified an enumerated power to start his argument. Marshall used the Congresss power to collect taxes since this case was dealing with the incorporation of a bank and banks were known to collect taxes>>>SECOND, Marshall assumed that the power to make loans facilitates commerce.>>>THIRD, Marshall used the Proper and Necessary Clause to show how the means to implement a power granted to Congress. ****Burris always comes back to the McCullochs WAY OF JUDGING WHETHER ANY GRANT OF POWER TO CONGRESS IS LIMITED OR NOT: FOUR STEP ANALYSIS: 1. Does Congress have authority? There has to be a power under the Constitution>>a legitimate state end. 2. Is the means used to implement the authority rational? The regulation must be rationally related to that legitimate end.>>Are the means chosen designed to accomplish the asserted power rational? In McCulloch, for example, the court asked whether having a bank makes it easier for commerce>>they said yes. So, a mere rational relation between the means and the end is all that is required for this step. It is not required that the means used be the best way of achieving that end, or the way which it least affects commerce. 3. Does it violate any shall not provisions or clauses? Look to see for any shall nots>>>look for other limitations in terms of means that are not constitutional. If it contravenes what is expressly provided in the constitution, then its not good. 4. Look for Pretext>>>Inquire the purpose or motive behind the regulation. Look at form over substance. 9

IV. THE COMMERCE CLAUSE A. Generally: Article I, 8 states: Congress shall have the powerto regulate Commerce with foreign nations,
and among the several States, and with the Indian Tribes. This provision has been the authority for a broad array of federal regulation. Over the course of American history, the SC has adopted varying views as to the meaning of the commerce clause and the extent to which Congressional powers under it are limited by the Ten Amendment. Initially in Gibbons v. Ogden, the SC adopted an expansive view of the scope of the commerce clause. From the late nineteenth century until 1937, the Court adopted a much narrower construction of the commerce power and invalidated many federal laws as exceeding the scope of its authority. From 1937 until 1995, not one federal law was declared unconstitutional as exceeding the scope of Congresss commerce power. However, in 1995, in United States v. Lopez, the Supreme Court declared unconstitutional a federal law prohibiting a person from having a firearm within 1,000 feet of a school on the ground that it exceeded the limits of the commerce power. Five years later, in United States v. Morrison, the Court declared unconstitutional as exceeding the scope of the commerce power a provision of the Violence Against Women Act which authorized victims of gender motivated violence to sued their assailants. Throughout these eras, there are three questions the Court is considering. First, what is commerce; is it one stage of business or does it include all aspects of business even life in the United States?. Second, what does among the states mean; is it limited to instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient?. Third, does the Tenth Amendment limit Congress; if Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the Tenth Amendment?

B. Gibbons v Ogden
Relevant Facts: Ogden acquired, by grant of the NY legislature, monopoly rights to operate steamboats between NY and NJ. Gibbons began operating steamboats between NY and NJ in violation of Ogdens monopoly. Gibbons boats were licensed under a federal statute Procedural Posture: Ogden obtained an injunction in a NY court ordering Gibbons to operate boats in NY waters. Issue: Does Congress have authority under Art 1 8:3 to grant Gibbons a license under the power to regulate commerce between several states? Holding: Yes, Congress does have the authority under Art 1 Section 8:3 Result: The SC reversed the New York Courts, concluding that the 1793 federal law authorized Gibbons to operate a ferry in NY waters; thus, the NY granted monopoly was preempted by federal law. Rationale: OVERVIEW: The argument by the defense was that commerce was only limited to traffic and commodities and that navigation was not within the Congress power to regulate. The court rejected this argument and held that navigation was a commodity/instrumentality and therefore under Congress regulation under the Commerce Clause.>>In other words the Court said that traffic was commerce and even more!!! ***A commodity is: a tangible article of trade or commerce!! WALL National Only (Among the states) The National Economy was in The background States Only (inside the state)-internal State Economy was very Important

****Under Gibbons>>>once Congress decided that the matter was within the parameters of the Commerce Clause, then Congress would prevail relying on the Supremacy Clause. So, if a national act was in conflict with a state act (even if the state act had a legitimate state interest), the National Act will prevail. ****The problem under Gibbons is the difficulty of characterizing when interstate commerce (regulated by Congress) starts or ends and becomes intrastate commerce (not regulated by Congress). ****Under Gibbons there is no concurrent jurisdiction when it comes to interstate commerce. It is one or the other.

C. Cases before 1887: After the Civil war, there were a few cases concerning the scope of the commerce power. Interestingly, the cases were not consistent in their definition of the constitutional provision: 1. Cooley v The Board of Wardens - This case basically states that there is a large area of the interstate/foreign commerce that Congress hasn't acted on and therefore the states have the power to regulate it with the federal government. In other words, this case shows concurrent jurisdiction when it comes to interstate commerce. Here there are still exclusive powers for the federal government and
10

exclusive powers for the states, but then a gray area that are concurring powers. This court looked at whether the object being regulated was local or national. The states would have the power to regulate interstate commerce that is of such a local nature as to require different treatment from state to state. However, states cannot regulate interstate commerce that requires a uniform national standard. This is then a national issue and left to Congress to regulate. This courts analysis of balancing between the state interest in regulating local affairs and the national interest in uniformity still appears in many of the Courts decisions today. ****This argument is used when Congress is silent with respect to the specific subject matter under the Commerce Clause. If Congress, for example, has a statute on point>>>then the subject matter is under Congress regulation due to the explicit power vested to Congress under the Constitution in the Commerce Clause. ****Once we realize that Congress is silent>>>States are stuck with the problem>>Then States have to find a bonafide police power (which is reserved to the states). So under this model the States could take control of some interstate commerce as long as if fits within its bonafide police power.>>>right here is where we would start a Dormant Commerce Clause analysis for health and safety issues but not for economic issues. ****Lets not forget that there is also a limit on this police power by the States>>>The limit is that when there is a National Problem that requires uniform solution, Congress could take over the subject matter again and enforce its power under the Commerce Clause. ****Burris said that this case is a little weird>>>Even though navigation should be a National Interest, there was a twist on the part of the states whey they changed this into a safety issue. ****After Cooley>>>Concurrent Jurisdiction. The Economic Aspect shift to the National Government, and the Safety (police power) stayed with the States. Dormant Commerce Clause Argument: National Regulation of Interstate Commerce Takes over only when There is a strong National Interest involved requiring uniform result (Economy) Police Power Commerce Safety is under their Police Power State Regulation of Internal

2. The Daniel Ball: The Daniel Ball was a steamer operating on the Grand River in Michigan. It transported
goods and people between the Grand Rapids and Grand Haven, Michigana purely intrastate route. The Daniel Balls owner did not comply with the United States statutes concerning licensing and safety inspection of steamers operating on the navigable waters of the United States. The United States government brought an in rem action against the Daniel Ball to collect a $500 fine for violation these statutes. ***Burris said that this case gives us the answer to the Gibbons: Navigable waters are channels of commerce. Then, anything that hooks up to a transportation system is within the national power to regulate. Now, if the carrier is no carrying anything, it is still under the national power to regulate because the carrier becomes an instrumentality. The key to national economy is the transportation system>>>and the states, if given too much power, could trump this national interest. ****After the Daniel Ball the Government had a very expanded view of the interstate commerce: National Regulation of Interstate Commerce National Economy is very important Commerce States Regulation of Interstate

D. Commerce Clause Between 1887 and 1937: Apart from the cases above, the Supreme Court had little occasion to consider the scope of the commerce power before the late nineteenth century when Congress began using the commerce clause as the basis for enacting important economic regulations. The Interstate Commerce Act in 1887 and
11

the Sherman Antitrust Act in 1890 ushered in a new era of federal economic and regulatory legislation. They also began a new era of much more activist judicial review. Between the late nineteenth century and 1937, the Court was controlled by conservative Justices deeply committed to laissez-faire economics and strongly opposed to government economic regulations. During this era, the Court espoused a philosophy often termed dual federalism. Dual federalism was the view that the federal and state governments were separate sovereigns, that each had separate zones of authority, and that it was the judicial role to protect the states by interpreting and enforcing the Constitution to protect the zone of activities reserved to the states. Dual federalism was embodied in three important doctrines that the Court developed and followed during this time period. First, the Court narrowly defined the meaning of commerce so as to leave a zone of power to the states. Specifically, the Court held that commerce was one stage of business, distinct from earlier phases such as the CATEGORIES of mining, manufacturing, or production. Under this view, only commerce itself could be regulated by Congress, the others were left for state regulation. Second, the Court restrictively defined among the states as allowing Congress to regulate only when there was a substantial effect on interstate commerce. In all other areas, regulation again was left to the states. An example could be illustrated in the case of ALA Schechter v. US (below). Finally, the Court held that the Tenth Amendment reserved a zone of activities to the states and that even federal laws within the scope of the commerce clause were unconstitutional if they invaded that zone. For example, Hammer v. Dagenhart (below). 1. U.S. v. E.C. Knight Co.: Congress attempted regulation of sugar refineries with a claim that there was a monopoly. In other words, Congress tried to regulate manufacture within the states under their interstate commerce power. The Supreme Court sought that this would be too much. Manufacturing is for the State Only Box. The Supreme Court reasoned that if they agreed to this action by Congress, then the States would have basically no State power. i. Manufacturing: local only ii. Ownership: local only iii. Mining: local iv. Farming: local ****Prior to 1937 if a labeled interstate package crossed interstate borders, the package did not lose its interstate character (Congress regulated) until it was opened. Once it was opened, then the package becomes intrastate and acquires local regulation. 2. Houston, East &West Texas Railway Company v. U.S.: POST 1937: The Supreme Court had been struggling to determine which activities were essentially state sovereign activities. Facts: Interstate Commerce Commission after setting rates for transfers of goods between Shreveport, LA and various points within TX, sought to prevent railroads from settling rates for hauls TOTALLY WITHIN TX which were less per mile than TX to Shreveport rates. The Commissions theory was that Shreveport competed with certain TX cities for shipments from other parts of TX, and that the lower TX intrastate rates were unfairly discriminating against the TX to Shreveport interstate traffic. The railroads argued that it was beyond Congress power to control intrastate traffic rates. Holding: The Court rejected the Railroads challenge and upheld the ICCs right to regulate intrastate charges, at least of interstate carriers. TEST: Congress can protect, advance, promote safety, foster, protect, control and restrain in all matters having such a close and substantial relation to interstate traffic. ****Important>>>to remember that every time you see transportation, it is always seen as under Congress power because it will always be argued that things are being shipped interstate. 3. Champion v. Ames: Lottery Ticket case Facts: Congress passed the Federal Lottery act prohibiting the interstate shipment of lottery tickets. Appellant was accused of violating this statute. Holding: The court held that lottery tickets were subjects of traffic, and therefore, were subjects of commerce, and the regulation of the carriage of such tickets from state to state, at least by independent carriers, is a regulation of commerce among the several states. The Court held that Congress might pass a law having the effect to keep the channels of commerce free from use in the transportation of tickets used in the promotion of lottery schemes. Rationale: Burris said that the potential harm or evil in this case was not carrying the ticket but to sell them while on a train traveling interstate. However the statute here in question does not mention this but mentions transportation. Burris said that the dissent here used the pretext argument under the McCulloch analysis. The dissent attacked the majority opinion by saying that the government grant of power was a pretext to control transportation which is an state interest. 12

Burris made an argument that if the defendant here would have gotten out of the train at destination and sold the tickets there, it could raise an argument that the activity was local and therefore beyond the Congresss reach. On the other hand if the defendant got off the train and immediately jumped into another train, the activity could still be controlled by Congress under the interstate transportation chain. Here, Congress was able to regulate activities within the interstate transportation system. However, the states still had the control of their inherently local activities>>the categories of mining, manufacturing and production. 4. Hammer v. Dagenhart (The Child Labor Case): The Court held that regulation of production was left to the states and therefore a federal law that prohibited shipment in interstate commerce of goods made by child labor was unconstitutional, even thought it was limited to interstate commerce, because it violated the Tenth Amendment. In this case Burris said that the evil was child labor; however, the court did not buy the argument like they did in Champion. 5. ALA Schechter Poultry Corp. v. US: Facts: Defendants were engaged in the business of slaughtering chickens and selling them to retailers. - They bought their fowls from commission men in a market where most of the supply was shipped in from other States, transported them to their slaughterhouses, and there held them for slaughter and local sale to retail dealers and butchers, who in turn sold directly to consumers. - They were indicted for disobeying the requirements of a "Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York," approved by the President under 3 of the National Industrial Recovery Act. - Although the vast majority of poultry sold in NY came from other states Schechter itself bought its chicken within NY and resold its stock exclusively to NY dealers. - Govt argued that Schechter conduct could be reached under the commerce clause b/c 1) His activities were within the stream of commerce of the chicken trade (Swift rationale) 2) Though his activities were local they substantially affected commerce (Shreveport Rationale) Holding: No, Congress has no authority to regulate this Code because it is for local matters and not interstate commerce. Congress cannot delegate its authority without limits. Rationale: Burris mentioned the EZ Knight case to illustrate that during this era slaughtering at a butcher house would be an inherently local activity. Nevertheless, the Court here did not use this approach but started using the DIRECT or INDIRECT SUBSTANTIAL EFFECT TEST on interstate commerce. The Court said that if there was a direct effect on interstate commerce then Congress could regulate it. Since the butchering was done locally and the butchered meat was sold locally>>>it followed that it did not go into interstate commerce>>therefore it did not have a direct effect on interstate commerce so Congress could not regulate. If, for example, the meat would have been sent out of state in interstate commerce then Congress would have been able to regulate it. 6. Carter v. Carter Coal Co.: Court Attacked the Aggregation Principle Facts: The "Bituminous Coal Conservation Act of 1935" declares, with specifications, that the mining and distribution of such coal are so affected with a national public interest and so related to the general welfare that the industry should be regulated. Holding: No, the industry cannot be regulated. Rationale: Burris mentioned that back in the day 95% of the population would consume gas for heating purposes. This was a link instrumental to all economic activity. Nevertheless, the court did not see this economical significance as a substantial effect on interstate commerce among the states. The Court refused to allow the aggregation principle which means that one particular home will not create a substantial effect on commerce, but if we aggregate the rest of the homes in any particular area, the substantial effects become higher and enough to be regulated by Congress under the Commerce Clause. *****It should be noted that the Court was not completely consistent in applying the different principles during this Pre1937 era. The Court was most likely to follow the principles when considering federal economic regulations; the Court was less likely to adhere to them, and most willing to uphold federal laws, when they concerned federal morals regulation. Thus, the Court invalidated federal antitrust laws and employment regulation statutes, but upheld federal laws prohibiting lotteries and regulating sexual behavior. Perhaps a principled distinction between these cases can be articulated or , more likely, the decisions were simply a product of the Courts particular brand of conservatism: economically conservative and aggressive in striking down economic regulations; morally conservative and thus deferential to laws directed at what was perceived as a sin.

E. The Commerce Clause from 1937 to 1995: By 1937, there were enormous pressures for change in the direction of
constitutional law. The decisions in A.L.A. Schecter Poultry Corp. v. United States and Carter v. Carter Coal Co. invalidated two important pieces of New Deal legislation, the National Industrial Recovery Act and the Bituminous Coal 13

Conservation Act of 1935. Simultaneously, the Courts conservative philosophy and its commitment to restrict federal powers manifested itself in similar limits on the taxing and spending power. Many different types of pressures mounted for a dramatic change in constitutional law. The decisions by the Court that was deeply committed to laissez-faire economics were intellectually vulnerable because they seemed based on arbitrary distinctions and were frequently inconsistent. The distinction between commerce and other phases of business made little sense in that mining, manufacturing, and production all had obvious effects on commerce. The distinction between direct and indirect effects on commerce was inherently arbitrary. The decisions of the era finding livestock to be in the stream of interstate commerce, but no chickens; allowing Congress to prohibit lottery tickets from being shipped to interstate commerce, but no goods made child laborwere impossible to reconcile. The economic crisis of the depression made laissez-faire economics seem untenable. Unemployment was widespread and the wages of those with jobs were significantly reduced. Business failure was endemic and production was substantially lessened. The Courts opposition to national economic regulation seemed anachronistic and pernicious in the face of the depression. Not surprisingly, political pressure developed for change. President Franklin Roosevelt won a landslide reelection victory in 1936 and saw this as a strong endorsement for the New Deal programs that the Court was invalidating. Three decisionsNLRB v. Jones & Laughlin Steel Corp. in 1937, United States v. Darby in 1941, and Wickard v. Filburn in 1942overruled the earlier decisions and expansively defined the scope of Congresss commerce power. Indeed, because of these three decisions, from 1937 until 1995 not one federal law was declared unconstitutional as exceeding the scope of Congresss commerce power. 1. NLRB v. Jones & Laughling Steel Corp.: This case involved a constitutional challenge to the National Labor Relations Act, which created a right of employees to bargain collectively, prohibited unfair labor practices such as discrimination against union members, and established the National Labor Relations Board to enforce the law. The law contained detailed findings on the relationship between labor activity and commerce. The Act applied when there was an effect on commerce and, in fact, expressly defined affecting commerce as meaning in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. The Court initially explained how the Jones Corporation was clearly a part of interstate commerce. Burris said that this case DID AWAY with the CATEGORIES of mining, manufacturing producing, as only local activities thus regulated only by the States. Burris said that this case is similar to the EZ Knight case>>but that decision gets reconsidered here. Burris said that this decision overrules the Carter decision. This Court reinstated what was said over 50 years ago in EZ Knight but the Court realized the economic reality of the era. 2. United States v. Darby: Darby involved a challenge to the constitutionality of the Fair Labor Standards Act of 1938. This Act prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage at that time. In upholding the Act, the Court departed from all aspects of the pre-1937 commerce clause doctrines. The Court rejected the view that production was left entirely to state regulation. The Court explained that Congress may control production by regulating shipments in interstate commerce. The Court wrote: While manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of commerce. Perhaps most importantly, the Court expressly overruled Hammer v. Dagenhart (the child labor case) and emphatically rejected the view that the Tenth Amendment limits Congresss powers. The Court said that a law is constitutional so long as it is within the scope of Congresss power; the Tenth Amendment would not be used by the judiciary as a basis for invalidating federal laws. AS LONG AS CONGRESS HAS A RATIONAL BASIS FOR REGULATING COMMERCE AMONG the several states IT IS NOT UNCONSTITUTIONALNECESSARY AND PROPER CLAUSE 3. Wickard v. Filburn: Aggregation Accepted: This decision left no doubts that the pre-1937 commerce clause doctrines had been completely abandoned. Under the Agricultural Adjustment Act, the secretary of agriculture set a quota for wheat production and each farmer was given an allotment. Farmer Filburn owned a small dairy farm in Ohio and grew wheat primarily for home consumption and to feed his livestock. He was fined for growing more bushels of wheat than he was allowed under the Act. Filburn claimed that the federal law could not constitutionally be applied to him because the wheat that he grew for home consumption was not part of interstate commerce. The Court upheld the application of the federal law and ruled against farmer Filburn. The court flatly rejected the limits on the commerce power that were enforced in the earlier era. The Court said that the distinctions which were crucial in the earlier era, between commerce and production, and between direct and indirect effects on commerce, no longer were followed. The Court declared: Once an economic measure of 14

the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be production, nor can consideration of its economic effects be foreclosed by calling them indirect. The court upheld the application of the Agricultural Adjustment Act to home grown wheat because of the cumulative effect (AGGREGATION PRINCIPLE) of that wheat on the national market. Therefore, even though Filburns wheat only had a negligible impact on interstate commerce, Congress could regulate his production because cumulatively home grown wheat had a substantial effect on interstate commerce. ******Taken together, NLRB v. Jones & Laughlin Steel Corp., United States v. Darby, and Wickard v. Filburn expansively defined the scope of Congresss commerce clause power. No longer did the Court distinguish between commerce and other stages of business such as mining, manufacturing, and production; instead, Congress could exercise control over all phases of business. No longer did the Court distinguish between direct and indirect effects on interstate commerce; rather, Congress could regulate any activity that taken cumulatively had an effect on interstate commerce. No longer was the Tenth Amendment a limit on Congressional power; instead, a federal law would be upheld so long as it was within the scope of Congresss power, and the commerce clause was interpreted so broadly that seemingly any law would meet the requirement. *****Important Civil Rights Cases during this era: Among the most important laws ever adopted in American history is the 1964 Civil Rights Act which, in part, prohibits private employment discrimination based on race, gender, or religion, and which forbids discrimination by places of public accommodation such as hotels and restaurants. Congress enacted this legislation under its commerce clause power, and the Supreme Court upheld it on that basis. AGGREGATION PRINCIPLE: you have to look at the collective effect of business/parties doing the same thing, because just one motel/restaurant is not going to affect commerce in general. But taken together, the greatly affect concertaggregate creates a substantial effect on commerce Whether the activity sought to be regulated is commerce which concerns more States than one and has a real and substantial relation to the national interest. 4. Heart of Atlanta Motel Inc. v. United States: The Court upheld the constitutionality of Title II of the Civil Rights Act, which prohibited discrimination by places of public accommodation. The Heart of Atlanta motel was located in downtown Atlanta and had 216 rooms and about 75% of its registered guests from out of state. The court upheld the application of the Act to the motel, which had a policy of refusing to provide accommodations for blacks. Burris said that the Court looked for the evil which was discrimination. Since one particular incident would not substantially affect interstate commerce, then the Court used the aggregation principle to show the harm caused. This is a positive impact case: By lifting the practices>>>enhancement of interstate commerce. It is important to point out that the Court looked at the evidence here and none contested that this Act could have been brought up as a pretext. 5. Katzenbach v. McClung: The Court upheld the application of the same Act as in Heart of Atlanta to a small business: Ollies Barbecue, a family-owned restaurant in Birmingham, Alabama. The Courts recitation of the fact emphasized the interstate connections of the restaurant. For example, 46% of the meat that it purchased annually came from out of state. The Courts decision, however, was not based on the interstate impact of this particular restaurant. Rather, the Court found that Congress rationally had concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. The court concluded that it had found ample evidence that restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered and that many new businesses refrained from establishing there as a result of it.

F. The Commerce Clause after United States v. Lopez: From 1995 until Today!!
Between 1936 and April 26, 1995, The Supreme Court did not find one federal law unconstitutional as exceeding the scope of Congresss commerce power. 1. United States v. Lopez: Alfonso Lopez was a twelfth grade student at Edison High School in San Antonio, TX, in 1992 when he was arrested for carrying a concealed .38 caliber handgun and five bullets. He was charged with violating the Gun-Free School Zones Act on 1990, which made it a federal offense 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. The law defined a school zone as in, or on the grounds of, a public, parochial, or private school or within a distance of 1,000 feet from the grounds of public, parochial, or private 15

school. Lopez was convicted of violating this law and sentenced to six months imprisonment and two years of supervised release. Lopez appealed on the ground that the Act was an unconstitutional exercise of Congresss commerce power. The United States Court of Appeals for the Fifth Circuit found that the law was unconstitutional because there were inadequate findings by Congress as to a sufficient relationship to interstate commerce. The United States Supreme Court affirmed, but on different grounds. The Courts decision was not based on the absence of adequate findings by Congress; rather, the Court concluded that the law was unconstitutional because it was NOT SUBSTANTIALLY RELATED TO INTERSTATE COMMERCE. Chief Justice Rehnquists opinion for the Court began by emphasizing that the Constitution creates a national government of enumerated powers. In other words, THE COURT RETURNED TO THE NOTION THAT ARTICLE I LIMITS CONGRESSS LEGISLATIVE POWERS TO THOSE THAT ARE EXPRESS OR IMPLIED IN THE CONSTITUTION. After reviewing the history of decisions under the commerce clause, the Court defined THREE TYPES OF ACTIVITIES THAT CONGRESS CAN REGULATE UNDER THIS POWER.: First, Congress can regulate the use of channels of interstate commerce. The Court cited Heart of Atlanta Mote, Inc. v. United States, which upheld the federal law prohibiting discrimination by hotels and restaurants as an example of protecting the channels of interstate commerce. Second, the Court said that Congress may legislate to regulate and protect the instrumentalities of interstate commerce. The Court said that this includes the power to regulate persons and things in interstate commerce. The Court here cited several cases which upheld congressional power to regulate the railroads under its commerce power. Finally, the Court said that Congress may regulate those activities having a substantial relation to interstate commerce. Chief Justice Rehnquist said that the prior case law was uncertain as to whether an activity must affect or substantially affect interstate commerce to be regulated under this approach. Chief Justice Rehnquist concluded that the more restrictive interpretation of congressional power was preferable and that the power test requires an analysis of whether the regulated activity substantially affects interstate commerce. The Court concluded that the presence of a gun near a school did not substantially affect interstate commerce and that therefore the federal law was unconstitutional. Chief Justice Rehnquist noted that nothing in the Act limited its application to instances where there was proof that the gun had been part of interstate commerce. The Court specifically rejected the federal governments claim that regulation was justified under the commerce clause because possession of a gun near a school may result in violent crime that can adversely affect interstate commerce. BURRIS ANALYSIS: The substantial effects part of this case is the one that broke the wall between state and government. REMEMBER>>Burris said that when we use this substantial effect part of the analysis we could use the evidence that Congress provides BUT the courts have the ultimate determination whether the particular activity substantially affects interstate commerce. Since the statute itself did not have to do anything with commerce>>>then Burris said that the aggregation principle cannot be used. REMEMBER that when you use the substantial effects test Rehnquist said that the presumption is that the law is unconstitutional until proven is proven otherwise??? Congress may regulate three broad activities: 1. Use of the channels of interstate commerce 2. Protection of the instrumentalities of interstate commerce, or persons of things in interstate commerce, even though the threat may come only from intrastate activities. 3. Those activities that substantially affect interstate commerce; where the economic activity substantially affects interstate commerce, congressional legislation regulating that activity will be sustained. After you find under #3: does Congress have a rational basis for enacting this legislation? 2. United States v. Morrison: This case presented a question as to whether the civil damages provision of the federal Violence Against Women Act is constitutional. The provision authorizes victims of gendermotivated violence to sue for money damages. Congress enacted the Violence Against Women Act based on detailed findings of the inadequacy of state laws in protecting women who are victims of domestic violence and sexual assaults. For example, Congress found that gender motivated violence costs the American economy billions of dollars a year and is a substantial constraint on freedom of travel by women throughout the country. 16

The case was brought by Christy Brzonkala, who allegedly was raped by football players while a freshman at Virginia Tech. The players were not criminally prosecuted and ultimately avoided even sanctions by the university. Brzonkala filed suit against her assailants and the university under the civil damages provision of the Act. The issue before the Court was whether the civil damages provision of the Act could be upheld, either as an exercise of Congresss commerce clause authority or as permissible under Congresss power pursuant to section 5 of the Fourteenth Amendment. The Court held that Congress lacked the authority to adopt the provision under either of these powers. In this case THE COURT REAFFIRMED THE THREE-PART TEST for Congresss commerce clause authority that was articulated in United States v. Lopez. The United States government and plaintiff, Brzonkala, defended the law based on the third part of the test, on the ground that the violence against women has a substantial effect on the national economy. There was a lengthy legislative history of the Act in which Congress found that assaults against women, when looked at cumulatively (aggregation) across the country, have a substantial effect on interstate commerce. The Supreme Court rejected this argument as insufficient to sustain the law. Chief Justice Rehnquist emphasized that Congress was regulating noneconomic activity that has traditionally been dealt with by state laws. BURRIS RATIONALE: Even though Congress showed an economic transaction (commerce) that women were hindered at the market place because of gender-motivated crimes, and thus harming the national economy (among). And that Congress also had empirical evidence, the argument must fail. HERE FOR TO FIND COMMERCE, Court said that this crime was not an economic transaction and therefore it was not part of commerce. The court this is about violence and crime but not commerce. THE COURT ADMITTED THAT THERE WERE COLLATERAL ECONOMICAL EFFECTS. HOWEVER, THE COURT REFUSED TO GO TO THE SECOND TIER OF ANALYSIS (collateral effects to finally get to commerce) Burris said that NOW the courts look at the EVENT ONLY and determined whether it is an economical (commercial) transaction or not. An example of an economic crime would be a BUSINESS FRAUD. NOW HERE TO FIND AMONG: There was no evidence that the kids came from out of state to commit the crime>>therefore no links and no examination to the second tier of analysis. So even if the government had proven commerce, it lacked the evidence to prove among. Burris said that the court also mentioned other instances where there is a category only for the states: Domestic Relationships. 3. Gonzalez v. Radich: Congress is trying to regulate individual consumption of marijuana or regulation of crime through the commerce clause California said no and that you could use it for medicinal purposes Congress Factual Findings that are pertinent a. Illicit market in drugs: trillion dollar market b. Home grown drugs will enter the illicit market (zero evidence/adjudicative facts that its true) i. Congress determined that legislatively that if you grow drugs at home, they will enter the marketplace Court working on how to apply substantial affect test for commerce clause a. Shades of application approach: i. Tangential: substantial affects here are more tangential than Morrison/Lopez 1. Marijuana does involve economic activity Once it is determined that it is within Congress power, then does Congress have a rational basis for enacting this legislation? Yesonce people are able to grow it themselves, it will leak into the normal drug marketplace. ******So AFTER THESE THREE CASES we have NEW CATEGORIES: o Congress could regulate Economic based crimes. But may not regulate non-economic, violent criminal conduct based solely on that conducts aggregated effect on interstate commerce. o Congress may try to convince the Court with evidence, no matter how pretty, but the Court has independent determination as to whether to admit it or not. 17

For Substantial Effects>>The direct and indirect links could be measured in economic terms. o According to Burris these last to cases resemble a back to the future analysis returning back to Gibbon where the economic reality was important. Lopez, Morrison, Radich: How do you harmonize these cases? Primary effect of action must be economic in nature to have a substantial affect on commerce and to be subject to the Congress intervention and if Congress has a rational basis for enacting the legislation. o

BURRIS TEST WHEN WE HAVE COMMERCE CLAUSE QUESTION: IF the facts clearly show both among and commerce under Lopez and Morrison>>>then we have to explain why by applying the rational means test under the McCullochs analysis. But IF , the fact DO NOT clearly show both among and commerce then we have to apply the Substantial Effects test under the Lopezs third part of analysis. In addition we have to determine whether we could AGRREGATE or NOT. Burris also wants a detailed rational relations test on this section as well>>>So we have to look at the factual record, Congresss legislative record, the Courts trial record. ********Things to remember for the Commerce Clause The statutes are presumed to be constitutional and therefore the burden rests with the plaintiff. The plaintiff must show proof that the safety claims are false or an allusion for the court to call this assumption into question. At that point, the burden shifts back to the states, and if they produce no evidence they will lose. Burris wants you to continue through the analysis no matter which way you conclusion comes up at any step (do not stop)!

V. TAXING AND SPENDING POWER

A. Taxing Power: Congress has the power to lay and collect taxes. (Art. I, 8.) This is an independent source of congressional power, so it can be used to reach conduct that might be beyond the other sources of congressional power, like the Commerce Clause. 1. Regulation: Congress can probably regulate under the guise of taxing, so long as theres some real revenue produced. 2. Limits on Taxing Power: There are a few limits which the Constitution places upon the taxing power: i. Direct Taxes: In its initial cases considering these provisions, the Court narrowly defined what is a direct tax and thus accorded that Congress broad authority to impose various kinds of taxes. Direct taxes seemed limited to taxes on real property. The limit on direct taxes is that they have to be allocated among the states in proportion to population. This provision is of little practical importance today. ii. All customs duties and excise taxes must be uniform throughout the US. (EXAMPLE: Congress may not place a $.10 per-gallon federal excise tax on gasoline sales that take place in NJ, and a $.15 per-gallon tax on those that take place in OK). iii. Congress may not tax any exports from any state (EXAMPLE: Congress may not place a tax on all computers which are exported from any state to foreign countries). 3. Two Ways A Tax Can Be Valid: As a Revenue Raising Measure As a Means to achieve a valid Regulatory goal of Congress Commerce Clause Power of Congress Problem: Tort is inextricably bound up with economic activitythe underlying transaction is economic and Congress could regulate it. a. As a Revenue Raising Measure: 1. As long as the purpose of a taxing measure is to raise revenue, it will be upheld, even if the amount of the tax is oppressive or even destructive. Example: Bailey v. Drexel Furniture Co. The Court declared unconstitutional a federal tax on companies that shipped in interstate commerce goods made by child labor. As noted in the Child Labor Case earlier, the Supreme Court had declared unconstitutional a federal law that prohibited the shipment in interstate commerce of goods made by child labor. 18

The Court found that the law violated the Tenth Amendment and usurped prerogatives reserved to the states. Not surprisingly, the Court declared unconstitutional the federal tax which attempted to accomplish the same thing as the earlier federal law which had been invalidated in the Child Labor Case. The Courts based its decision on a distinction between a true tax and a penalty for a violation of a commercial regulation. The Court stated that the taxes could have an incidental regulatory effect, but a tax is unconstitutional when in the extension of the penalizing features of the so called taxit loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment. NOTE: Congress cannot tax to regulate interstate commerce. Burris said that the tax here was primarily regulatory, not a revenue raising measure. Problem: These types of cases give false distinction between taxes that generate revenue and taxes that are penalties. A tax can be both at the same time. It is questionable why Congress cannot use taxes for a regulatory purpose; it is unclear what constitutional principle allows taxes for one purpose and not the other.

Primary Purpose of Tax is to Regulate (unconstitutional tax under taxing power): In the extension of the penalizing features of the so called taxit loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment Here, congress hoped that they would not receive any revenue from this tax because they wanted people to stop using child laborthis is not a tax but a penalty in regulating commerce.
b. Tax as a Means to Achieve a Valid Regulatory Goal of Congress 1. If a Congress can regulate something under its commerce power, it may tax that activity as a means to achieve its permissible regulatory purpose. 2. The theory is that if Congress may regulate or even prohibit an activity under its commerce power, it certainly may employ the less intrusive means of taxing that activity. B. Spending Power: Congress also has the power to pay the debts and provide for the common defense and general welfare of the United States. (Art. I, 8.) This is the spending power. a) Independent Power: This is an independent power, just like the Commerce Power. So Congress could spend to achieve a purely local benefit even one that it couldnt achieve by regulating under the Commerce Power. b) Use of Conditions: Congress may place conditions upon use of its spending power, even if the congressional purpose is in effect to regulate. Remember that is also important to know that the conditions have to be expressly stated and have some relationship to the purpose of the spending program. Conditions upon the doling out of federal funds are usually justified under the Necessary and Proper Clause (which lets Congress use any means to seek an objective falling within the specifically-enumerated powers, as long as the means are rationally related to the objective, and is not specifically forbidden by the Constitution). EXAMPLE: Suppose Congress makes available to the states certain funds that are to be used for improving the states highway systems. Congress provides however, that no state may receive any of these funds unless the state has by statute imposed a speed limit of not higher than 55mph on all state roads. Even without reference to the Commerce Clause, this is a valid use of congressional power. Thats because by the combination of the spending power and the Necessary and Proper Clause, Congress is permitted to impose conditions (even ones motivated solely by regulatory objectives) on the use of federal funds. EXAMPLE: Oklahoma v. Civil Service Commission: Here, the Court upheld a provision of the federal Hatch Act which granted federal funds to state governments on the condition that the states adopt civil service systems and limit the political activities of many categories of government workers. The Court explained that Congress has broad power to set conditions for the receipt of federal funds even as to areas that Congress might otherwise not be able to regulate. The Court stated that while the United States is not concerned with, and has no power to regulate, local 19

political activities as such of state officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed. EXAMPLE: South Dakota v. Dole: A federal law sought to create a 21-year-old drinking age by withholding a portion of federal highway funds from any state government that failed to impose such a drinking age. Specifically, 5% of federal highway funds would be denied to any state that did not create a 21-year-old drinking age. The court approved this condition on federal money. The Court emphasized that the condition imposed by Congress was directly related to one of the main purposes behind federal highway money: creating safe interstate travel. The Court recognized that at some point the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion (Coercion). But the Court said that in this case, the condition of federal highway money was a relatively mild encouragement and was constitutional even if Congress might lack the power to impose a national minimum drinking age directly. The Court concluded by saying that the encouragement of state action in this case was a valid use of the spending power. ****This Case is important because BURRIS said that this Court posed restrictions

to the spending power: 1.) The expenditure must pursue the General Welfare: The purpose here was to build roads for intestate commerce>>>thus safety of interstate travel. 2.) The Conditions associated with the states choices must be clear and meaningful: Clear means expressed and Meaningful means a choice that no state might refuse>>Remember that the State has the burden of proving that the expenditure does not have a meaningful choice. A rational relations test may be used to prove meaningfulness. 3.) Condition has to be related to the federal interest in a particular national program, if not then conditions/expenditure are invalid>>so if the money from the treasury is put aside to built something else and not highways then it would not be related to the safety aspect of interstate travel. 4.) Expenditures could not violate any independent constitutional (bar) requirement. Conditions must not be barred by other independent constitutional provisions
c) General Welfare Clause: Although, as noted above, Congress can provide for the common defense and general welfare of the United States, the reference to general welfare does NOT confer any independent source of congressional power. In other words, no statute is valid solely because Congress is trying to bring about the general welfare. Instead, the phrase for the general welfare describes the circumstances under which Congress may use its taxing and spending power. So if Congress is regulating (rather than taxing and spending), it must find a specific grant of power (like the Commerce Clause), and its not enough that the regulation will promote the general welfare. REMEMBER: The General Welfare Clause is a limitation on the power to tax and spend, NOT a separate source of Congressional power. 1. United States v. Butler: This case concerned the constitutionality of the Agricultural Adjustment Act of 1933, which sought to stabilize production in agriculture by offering subsidies to farmers to limit their crops. By restricting the supply of agricultural products, Congress sought to ensure a fair price and thus encourage agricultural production. Butler declared the Act unconstitutional on the ground that it violated the Tenth Amendment because it regulated production; the regulation of production, according to the Court, was left to the States (remember that this was a case pre-aggregation). This aspect of Butler has never been followed and is considered is sections dealing with the Tenth Amendment. Nevertheless, Butlers discussion of the scope of the taxing and spending powers remains good law. The Court began by noting the debate over the scope of the taxing and spending power goes back to a dispute between James Madison and Alexander Hamilton. Madison took the view that Congress was limited to taxing and spending to carry out the other powers specifically granted in Article I of the Constitution. In contrast, Hamilton took the position that Congress could tax and spend for any purpose that it believed served the GENERAL WELFARE, so long as Congress did not violate another 20

constitutional provision. The Court expressly endorsed Hamiltons position as the correct one. o BURRIS analysis: When there is coercion (when the state have no choice to accept or reject the tax) then it is unconstitutional. Coercion is bad and Congress can not engage in this activity. Here, Burris said that there was no coercion since the farmers had a choice to adhere to the Act or not. o CONGRESS CANNOT USE THE TAXING AND SPENDING POWERS TO USURP OTHER LIMITATIONS ON THEIR POWERS GRANTED BY THE CONSTITUTION 2. Steward Machine Co. v. Davis: This case exemplifies how subsequent cases affirmed Congresss expansive authority under the taxing and spending clauses. In this case the court upheld the constitutionality of the federal unemployment compensation system created by the Social Security Acts old age pension program, which was supported exclusively by federal taxes. Justice Cardozo, writing for the Court, stated: The discretion to decide whether taxing and spending advances the general welfare belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgmentNor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. o BURRISs analysis: Just like in Butler, here no coercion because there was a clause in the Act where a person could opt out. o BURRIS SPENDING ANALYSIS: He said that when we analyze an spending problem we have to first: o (1) the Spending must be for the national welfare (here unemployment was a national problem so it need to be dealt with); o (2) The Spending must be rationally related to the national problem (here we have to analyze what is done with the money taken from the treasury>>>For example if money was taken for the building of roads this would not be rationally related to the national problem of unemployment); and o (3) This Act cannot be coercion>>there has to be a choice.

V. THE TENTH AMENDMENT AND FEDERALISM AS A LIMIT ON CONGRESSIONAL AUTHORITY.

A. Competing Approaches to the Tenth Amendment: The Tenth Amendment states: The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The key question about the Tenth Amendment is whether it is a judicially enforceable limit on Congresss powers; can federal laws be declared unconstitutional as violating this constitutional provision?. Over the course of American history, the Court has been INCONSISTENT in answering this question and has shifted between two different approaches. One approach is that the Tenth Amendment is not a separate constraint on Congress, but rather is simply a reminder that Congress only may legislate if it has authority under the Constitution. Under this approach, a federal law never would be found unconstitutional as violating the Tenth Amendment, but it could be invalidated as exceeding the scope of Congresss powers under Article I of the Constitution or for violating another Constitutional provision. The alternate approach is that the Tenth Amendment protects state sovereignty from federal intrusion. Under this approach, the Tenth Amendment is a key protection of states rights and federalism. The Tenth Amendment reserves a zone of activity to the states for their exclusive control, and federal laws intruding into this zone should be declared unconstitutional by the courts. In the Nineteenth Century, the Court took the former position and held that a federal law was constitutional so long as Congress was acting within the scope of its authority. In the first third of the 20th century until 1937, the Court adopted the latter view and found that the Tenth Amendment reserved to the states control over production and federal laws attempting to regulate production were unconstitutional. From 1937 until the 1990s, the Court shifted back to the former approach. In fact, during this period, there was only one case where a federal law was found to violate the Tenth Amendment and this case was later expressly overruled. In the 1990s, however, the Court has resurrected the Tenth Amendment as a limit on congressional power. B. The Issues Concerning the Tenth Amendment: The dispute over the meaning of the Tenth Amendment concerns two inter-related issues of constitutional policy. First, how important is the protection of state sovereignty and federalism? Second, should it be the role of the judiciary to protect state prerogatives or should this be left to the political process? 21

As to the First Issue: Many Supreme Court decisions protecting federalism say relatively little about the underlying values that are being served. When the Court does speak of the values of federalism, usually three benefits of protecting state governments are identified: (1) Decreasing the likelihood of federal tyranny, (2) Enhancing democratic rule by providing government that is closer to the people, and (3) Allowing states to be laboratories for new ideas. As to the Second Issue: One view is that judicial enforcement of federalism as a limit on Congress is unnecessary because the political process will adequately protect state government interests. But this assumption is questionable. At the time the Constitution was written, states chose senators and thus were directly represented in Congress. But now, with popular elections of senators, why believe that states interests as states are adequately protected in Congress? The assumption must be that the voters, in choosing representatives and senators, weigh heavily the extent to which the individual legislator votes in a manner that serves the interests of the states as an entity. Yet, simple observation of congressional elections shows that the issues are basic ones about the economy, health care, and the personalities of the candidates. The interests of the voters are the focus of attention, not the institutional interests of state and local governments. Indeed, it may well be that the primary constituencies of the national representatives maybe precisely those that advocate an extension of the federal power to the disadvantage of the states.

C. The Tenth Amendment Between 1937 and the 1990s: Between 1937 and the 1990s there was only one case where a federal law was declared unconstitutional as violating the Tenth Amendment and that decision was later expressly overruled. During this era, the Court expressly rejected the view that the Tenth Amendment is an independent limit on the legislative power and instead view it simply as a reminder that Congress may legislate only if there is authority in the Constitution. 1. United States v. Darby: The facts of Darby are mentioned earlier in this outline. The importance of this case for Tenth Amendment purposes is that the Court flatly rejected the claim that the law violated the Tenth Amendment and declared that: The Amendment states but a truism that all is retained which has not been surrendered. The Court made it clear that a law is constitutional so long as it is within the scope of Congresss power; the Tenth Amendment would not be used as a basis for invalidating federal laws. 2. National League of Cities v. Usery: This was the ONLY case between 1937 and the 1990s to deviate from this view and find that a law violated the Tenth Amendment. The Court declared unconstitutional the application of the Fair Labor Standards Act, which required the payment of the minimum wage to state and local employees. The court held that Congress violates the Tenth Amendment when it interferes with traditional state and local government functions. The Court, however, did not attempt to define what such a traditional function is; the Court only held that forcing payment of the minimum wage was unconstitutional. 3. Garcia v. San Antonio: In 1985, the Supreme Court expressly overruled National League of Cities. Garcia, like National League of Cities, focused on whether the application of the Fair Labor Standards Act to state and local governments violated the Tenth Amendment. Justice Blackmun, writing for the Court, offered two reasons for overruling National League of Cities. First, that the National League approach had proved unworkable because any rule of state immunity that looks to the traditional, integral or necessary nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones he dislikes. Second, Justice Blackmun argued that the protection of state prerogatives should be through the political process and not from the judiciary. He went on to say that the political process ensures the laws that unduly burden the States will not be promulgated. D. The Tenth Amendment in the 1990s and beyond: Justice Rehnquist predictions Ill be back came true. So far, since 1991, there have been four Supreme Court cases relying on the Tenth Amendment. 1. New York v. United States: For only the second time in 55 years and the first time since the overruled National League of Cities decision, the Supreme Court invalidated a federal law as violating the Tenth Amendment. Here a federal law, the 1985 Low-Level Radioactive Waste Policy Amendments Act, created a statutory duty for states to provide for the safe disposal of radioactive wastes generated within their borders. The Act provided monetary incentives for states to comply with the law and allowed states to impose a surcharge on radioactive wastes received from other sources. Additionally, and most controversially, to ensure effective state government action, the law provided that states 22

would take title to any wastes within their borders that were not properly disposed of by Jan. 1996, and then would be liable for all damages directly or indirectly incurred. The Supreme Court ruled that Congress, pursuant to its authority under the Commerce Clause, could regulate the disposal of radioactive wastes. However, the Court held that the take title provision of the law was unconstitutional because it gave state governments the choice between either accepting ownership or regulating according to the instructions of Congress (IN OTHERWORDS IT GAVE THE STATES CHOICE BUT TO COMPLY). Justice OConnor, writing for the Court, said that it was impermissible for Congress to impose either option on the states. Forcing the States to accept ownership of radioactive wastes would impermissibly commandeer state governments, and requiring state compliance with federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation. The Court concluded that it was clear that because of the Tenth Amendment and limits on the scope of Congresss power under Article I, the Federal Government may not compel the States to enact or administer a federal regulatory program. The Court explained that allowing Congress to commandeer state governments would undermine government accountability because Congress could make a decision, but the states would take the political heat and be held responsible for a decision that was not theirs. BURRIS Rationale: Congress could choose to say that all states should take title under its Commerce Clause power because of the evils of radioactive waste. BUT Congress CANNOT tell the states to commandeer because Congress would shift the accountability on the State Governments for decisions the State Governments did not make. 2. Printz v. United States: This is the third case in the last decade interpreting the Tenth Amendment. Here, the issue was whether the Brady Handgun Violence Prevention Act violated the Tenth Amendment in requiring that state and local law enforcement officers conduct background checks on prospective handgun purchasers. Justice Scalia, writing for the Court, found the provision unconstitutional. Justice Scalias majority opinion emphasized that Congress was impermissibly commandeering state executive officials to implement a federal mandate. He observed that historically, and particularly in the early years of the United States, Congress had not exercised such a power. Reaffirming New York v. United States, the Court held that Congress violates the Tenth Amendment when it conscripts state governments. In addition to finding the Brady Law unconstitutional on this ground because it compels state officers to act, Justice Scalia said that the law also violates separation of powers. He explained that Constitution vests all executive power in the President and that Congress impermissibly had given the executive authority to implement the law to state and local law enforcement personnel. BURRIS rationale: Here the states try to resurrect the limitations of Government in local activity. REMEMBER that when a state gets paid or has a joint effort with the federal government or the states volunteers>>is a different case because the states would not be forced to do anything so the 10th Amendment argument wont fly. If this law would have been upheld it would have created federal bureaucracy. Not Good!! 3. Jones v. United States: The court considered whether arson of a dwelling violates the federal law that makes arson of property in interstate commerce a federal crime. US Govt argued that the residence was part of interstate commerce in that it had insurance policies and it received utility service. Court interpreted the act to not apply to arson of a dwellingallowing the law to be applied to arson of a residence would raise constitutional doubts as to whether Congress had exceeded he scope of its commerce clause power. 1. To avoid the constitutional issue, the court interpreted the Federal Statute narrowly to not include arson of dwellings. 4. Reno v. Condon: This is the final Tenth Amendment decision thus far. Unlike the other recent cases, here, the Supreme Court rejected a Tenth Amendment challenge and upheld the federal law. The case involved a challenge to the Drivers Privacy Protection Act, a federal law that prohibited states from disclosing personal information gained by departments of motor vehicles, such as home addresses and phone numbers, social security numbers, and medical information. The United States Court of Appeals for the Fourth Circuit declared the law unconstitutional as violating the Tenth Amendment because it commanded the states not to disclose the information. The Supreme Court unanimously reversed in an opinion by CJ Rehnquist. The Court explained that the law was constitutional as an exercise of Congresss commerce clause power because Congress found that many statessell this personal information to individuals and businesses and these sales generate significant revenues for the states. 23

The Court also stressed that the law is not limited to states government, but it also regulates private entities that possess the drivers license information. Perhaps, more importantly, the Court said that the law did not violate the Tenth Amendment because it was a prohibition of CONDUCT, not an affirmative mandate as in New York v. United States and Printz v. United States. REMEMBER: Congress may prohibit state governments from engaging in harmful conduct, particularly if the law applies to private entities as well; but Congress may not impose affirmative duties on state governments.
5. (NOT IN CASEBOOK)United States Term Limits v. Thornton: This is not really a Tenth Amendment case but Burris put it here because a Tenth Amendment defense was raised by the State. Here the State tried to formulate qualifications for their congressional representatives. The State claimed that it was the power of the state to do this relying on the Tenth Amendment. Burris focused on the QUALIFICATION issue and the TIME, PLACE AND MANNER issue that the State brought up. This Court flatly rejected the qualification issue based on the fact that People made the Constitution, and since the Constitution was silent and did not reserve the qualifications to the States>>>then it was for the People to decide NOT the States. As far as the Time, Place and Manner argument>>the Court reject the argument by using the egalitarian principle that it was a-typical for a write-on candidate to win and the fact that the state action would restrict ballot access. So the Court said that Time, Place and Manner was not for the States in this particular state action. ****Burris made an interesting HYPO: Lets say that States, as this court did not hold, have the authority as Time, Place and Manner. The State says that for an incumbent to win he would have to reach 60% or 65% of the votes>>Burris said that this might lead to an Equal Protection problem since the malportion of the votes treats voters vote different. On the other hand, if the State says that a requirement to enter the ballot was for the participant to deposit $ and incumbents have to pay more $ as a deposit>>>these would be an example of dealing with the process>>>in other words the State would be rightly utilizing its power under Time, Place and Manner.

VII. SOVEREIGN IMMUNITY AND THE ELEVENTH AMENDMENT AS A LIMIT ON THE FEDERAL JUDICIAL POWER
A. Generally: A major limit on the federal judicial powerand now on the authority of state courts as wellis the doctrine of sovereign immunity. Sovereign immunity in the federal courts is based on the Supreme Courts interpretation of the Eleventh Amendment. The Eleventh Amendment states, The Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign State. As interpreted, the Eleventh Amendment prohibits suits in federal courts against state governments in law, equity, or admiralty, by a states own citizens, by citizens of another state, or by citizens of foreign countries. Additionally, the SC recently held that sovereign immunity bars suits against state governments in state court without their consent. The Court thus has ruled that there is a broad principle of SOVEREIGN IMMUNITY that applies in both federal and state courts; the Eleventh Amendment is a reflection and embodiment of part of that principle. As Justice Kennedy, writing for the Court in Alden v. Maine, declared: Sovereign immunity derives not from the Eleventh Amendment but from the structure of the original constitution itself. The Eleventh Amendment and sovereign immunity are particularly important in defining the relationship between the federal and state governments and in determining the scope of constitutional protections. An expansive reading of the Eleventh Amendment effectively immunizes the actions of state governments from federal court review, even when a state violates the most fundamental constitutional rights. Hence, the Eleventh Amendment protects state autonomy by immunizing states from suits in federal court, but it provides this independence by risking the ability to enforce basic federal laws. Unwilling, however, to trust state courts completely to uphold and enforce the Constitution and federal laws, the Supreme Court has devised a number of ways to circumvent the broad prohibition of the Eleventh Amendment and to ensure federal court review of allegedly illegal state actions. The case law concerning the Eleventh Amendment often has been conflicting and inconsistent as the Court has struggled to articulate a standard that protects state autonomy while still ensuring state compliance with federal law. Although the Eleventh Amendment has been part of the Constitution for over 190 years, there still is no agreement as to its proper scope. In fact, several different theories have been offered as to the appropriate meaning of the amendment. B. Underlying Policy Issues: On the one hand, supporters of sovereign immunity argue that it was a principle that predates (before) the Constitution and is part of the very structure of that document. They maintain that safeguarding state governments, and particularly their treasuries, is deeply embedded in the Constitution. Supporters maintain 24

that there are adequate other ways of holding state governments accountable, such as suits against state officers and suits by the federal government. Critics of sovereign immunity argue that it is a principle not found in the text of the Constitution or intended by its framers. Opponents of sovereign immunity argue that it wrongly favors government immunity over accountability and is inconsistent with the very notion of a government under the law. People can be deprived of their life, liberty, or property, but be left with no remedy and thus no due process. State governments would be able to violate the Constitution and nowhere be held accountable. C. History of the Ratification of the Eleventh Amendment: Justices and commentators continue to base their arguments about the proper interpretation of the Eleventh Amendment on claims about the history of its ratification. Article III of the Constitution defined the federal judicial power in terms of nine categories of cases and controversies. Two of the clauses of Article III, 2, specifically deal with suits against state governments. These provisions permit suits between a State and citizens of another State and between a Stateand foreignCitizens. These are the clauses that the Eleventh Amendment MODIFIED and these are the provisions that are frequently discussed in interpretation of the Eleventh Amendment. A key matter in dispute is whether the above quoted language of Article III was meant to override the sovereign immunity that kept states from being sued in state courts. As Justice Souter recently observed, the 1787 draft in fact said nothing on the subject and it was this very silence that occasioned some, though apparently not widespread dispute among the framers and others over whether ratification of the Constitution would preclude a state sued in federal court from asserting sovereign immunity as it could have done on any nonfederal matter litigated in its own courts. There is NO RECORD of any debate about this issue or these clauses at the Constitutional Convention. However, at the state ratification conventions the question of suits against state governments in federal court was raised and received a great deal of attention. States had incurred substantial debts, especially during the Revolutionary War, and there was a great fear of suits being brought against the states in federal courts to collect these debts. More generally, the concern was expressed that although sovereign immunity was a defense to state law claims in state court, it would be unavailable if the same matter were raised against a state in a diversity suit in federal court. Thus, at the state ratification conventions there was a debate over whether states could be sued in federal court without their consent. One group argued that the text of Article III clearly made states subject to suit in federal court. In Virginia, George Mason opposed ratification of the constitution and particularly disliked the provisions which made the states liable in federal court. Mason believed that Article IIIs explicit provision for suits against the states would have the effect of abrogating the states sovereign immunity defense. Likewise, Patrick Henry opposed the Constitution at the Virginia convention, in part based on his belief that Article III unmistakably permitted litigation against states in federal court. He labeled incomprehensible the claim that Article III allowed states to be plaintiffs, but not defendants. Henry said there is nothing to warrant such an assertion.What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant. Nor was this view that Article III override state sovereignty and permits suits against unconsenting states in federal court held only in Virginia or only by opponents of ratification. Many of the Constitutions supporters also agreed that Article III permitted states to be sued in federal court. In fact, they argued that this lack of immunity that this lack of immunity was desirable to ensure that states could not escape their liabilities or avoid litigation that was necessary to hold states properly accountable. In sharp contrast many of the supporters of the Constitution argued that Article III did not override state sovereignty and that, notwithstanding its provisions, states could be sued in federal court only if they consented to be a party to the litigation. This recounting of the ratification debates reveals that there was no consensus, even among the Constitutions supporters, about whether state sovereign immunity survived Article III. Yet, the Supreme Court has barred states from being sued by their own citizens, in large part, based on its belief, supported by quotations from Madison and Hamilton, that Article III was not intended to authorize states to be sued without their consent. D. Competing theories of the Eleventh Amendment: Although the Eleventh Amendment is almost 200 years old, there still is no agreement as to what it means or what it prohibits. In fact, several different theories have been developed to interpret it. The theory chosen determines the scope of the Eleventh Amendment and the circumstances under which states may be sued in federal courts. 25

The current Supreme Court is split between two different theories. One theorysupported by a majority comprised of Chief Justice Rehnquist and Justices OConnor, Scalia, Kennedy, and Thomassees the Eleventh Amendment as a restriction on the subject matter jurisdiction of the federal courts that bars all suits against state governments. The competing theorysupported by Justices Stevens, Souter, Ginsburg, and Breyerviews the Eleventh Amendment as restricting the federal courts subject matter jurisdiction only in precluding cases being brought against states that are founded solely on diversity jurisdiction. E. Summary: The Eleventh Amendment specifically bars any federal suit against any one of the states by citizens of another states, or by citizens or subjects of any foreign state. Damage Suits against states: The Eleventh Amendment has been held to bar most types of DAMAGE SUIT against a state. o Plaintiff not a citizen of defendant state: By its own terms the Amendment clearly applies to suit against a state brought by citizens of a different state or foreigners. EXAMPLE: A citizen of MO may not bring a damage suit against the state of IL. Nor may a British subject bring a damage suit against the state of IL. o Suit by citizen of defendant state: The Eleventh Amendment has been interpreted to apply also to bar a damage suit where the plaintiff is a citizen of the defendant state. (Hans v. Louisiana). EXAMPLE: Suppose P is an employee of Delmarva state legislature. He is then fired, in apparent violation of his employment contract. P brings a suit for contract damages against Delmarva, in federal court. This suit would be would be a violation of the Eleventh Amendment as broadly interpreted by the Supreme Court. Suits by other States or Federal Government against the States: The Eleventh Amendment does not bar federal suits brought by one state against another state, or by the federal government against a state. No counties or cities protected: Only the STATE ITSELF, not its subdivisions, such as counties or cities, is protected by the Eleventh Amendment. EXAMPLE: P, a county worker, is fired. He brings a federal suit for contract damages against the county. Since the suit is not against the state per se, the Eleventh Amendment does not apply, even though the county is in essence a subdivision of the state. No bar against injunctions: The Eleventh Amendment essentially bars only suits for DAMAGES. That is, IT DOES NOT BAR most suits for injunctions. For instance, if a private litigant sues a state official to enjoin him from taking acts which would violate the plaintiffs constitutional rights or federal law rights, the Eleventh Amendment does not apply and the suit may proceed (Ex Parte Young). Congress cans override: Congress generally cant change the no federal court suit against the states principle behind the Eleventh Amendment, even if it wants to and expressly says its doing so. (Seminole Tribe v. Florida) EXAMPLE: Congress passes a statute saying any state can be sued in federal court by private citizens for violating, say, federal patent or environmental laws. This statute wont have any effecta federal court still cant hear a private suit against a state for damages for violating the federal law. (Florida Prepaidv. Coll. Sav. Bank). ****There is an exception---If Congress is acting properly pursuant to its remedial powers under the 13th, 14th, or 15th Amendment, it may abrogate the states 11th Amendment immunity. States Sovereign Immunity: The states have a constitutionally-guaranteed sovereign immunity from certain proceedings brought by private parties. o Suits in states own courts: Thus the States have a constitutional sovereign immunity from private damage suits brought against the state in the states own court. This is true even if the suit is based on a Congressional-granted federal right. EXAMPLE: Congress passes a valid statute saying that state employees must receive premium pay for overtime just as private-sector employees do. Employees of Maine sue the state in Maine courts on this right. HELD, the Constitutions structure incorporates the doctrine of sovereign immunity, and the doctrine allows Maine to avoid hearing the employees suit, even if Congress has expressly said that the states must hear such suits. (Alden v. Maine). ****Here Burris talked about how first the court looked at history, then at the Case of Chisholm, then the 11th Amendment fixed the problem>>>Then there is the question of whether the immunity stayed with the states throughout history>>>According to this 26

court>>>Yes>>But Burris said that it proves too much and puts the Government where it cannot hold anyone accountable. o Proceeding before federal administrative agency: Similarly, the states have sovereign immunity from being required to respond to a private complaint before a federal administrative agency. (Federal Maritime Comm. v. So. Car. St. Ports Authority). The main issue in this case was to determine the difference between an administrative tribunal and a regular suit.>>>Burris said that they are very similar; however, when an administrative court and a regular suit have a judgment>>>the main difference is the enforcement of the judgment, but Burris said that even the enforcement could be changed leaving door open for state action. Burris analyzed that a state could be sued by the government or by other states but why can a state be sued by an individual in a maritime case? Burris mentioned that when a states sues another state or when the government sues another state there is a CLASH OF THE SOVEREIGNS; however, when the individual sues the state through a maritime court>>there is NO CLASH OF SOVEREIGNS, and thus the individual will not indirectly present a clash of sovereigns. The Court said that an individual cannot bring an action here because the individual will always look for his or her own interests and will not vindicate the Federal Rights. The Court saw no clash of sovereigns, therefore the individual could not bring the action against the state through the maritime court. Burris said that when that clash of sovereigns exists, then it would be ok for individual to sue. *****Burris put a HYPO: He admitted that ok an administrative tribunal is too similar to a regular trial court; therefore, sovereign immunity will attach and not let an individual bring suit against the state. But, if we change this administrative tribunal to something like a mediation and thus not similar to a regular trial>>>Can the individual force the state to come in>>>According to Burris YEAH>>but there are two problems with mediation: (1) if the parties do not get to an agreement, the parties will have to go to a regular court and sovereign immunity will kick in; and (2) in a mediation the individual cannot force the States to do anything to cooperate, the state would only be required to show up. *****CAVEAT: When the state does something unconstitutional>>then the state could be brought as a party. (e.g. the state discriminates and violates the Fourteenth Amendment).

VII. THE DORMANT COMMERCE CLAUSE

A. Definition: The Dormant Commerce Clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. There is no constitutional provision that expressly declares that states may not burden interstate commerce. Rather, the Supreme Court has inferred this from the grant of power to Congress under Article I, 8, to regulate commerce among the states. If Congress has legislated, the question is whether the federal law preempts the state or local law. Even if Congress has not acted or no preemption is found, the state or local law can be challenged on the ground that it excessively burdens commerce among the states. In other words, even if Congress has not actedeven if its commerce power lies dormantstate and local laws still can be challenged as unduly impeding interstate commerce. The Commerce Clause thus has two distinct functions. One is an authorization for congressional actions. (covered above). The other function of the Commerce Clause is in limiting state and local regulation. This is what we cover here>>>the dormant or negative, Commerce Clause. B. Burris Test for Dormant Commerce Clause Analysis: It has two parts to understand it better. However, both part have to be analyzed simultaneously in every Dormant Commerce Clause Analysis. First Test: 1. The regulation must pursue a legitimate state end; must be an adequate exercise of a police power. a) those designed for the promotion of health, safety and welfare objectives are considered a legitimate state end b) those designed for the furtherance of economic benefits (economic protectionism) are not legitimate state ends when they materially affect interstate commerce 2. The regulation must be rationally related to that legitimate end IS the means chosen designed to accomplish the asserted police power? A mere rational relation between the means and the end is all that is required for this step. It is not require that the means used be the best way of achieving that end, or the way which least affects interstate commerce.

27

3.

The Balancing Test - (Undue Burden) The regulatory burden imposed by the state on interstate commerce and any discrimination against interstate commerce must be outweighed by the states interest in enforcing its regulation. Second Test: Level of Factual Analysis for 1,2 and 3 above.

1) 2)

Look at the Adjudicatory Record: This is like a trial like process. The Government has the Burden of Proof. Once the burden of proof is accomplished. The Burden shifts to the state. If the State does not respond, state loses. This level of factual analysis is the one better off for the government. It is the one where experts on both sides litigate and the best one wins. This is the Proven in fact model. Look at the Legislative Record: Just like Justice Brennan said>>we dont care about what happens at trial. On this part of the factual analysis we must look only at what the legislature is doing and determine whether the legislature have a reasonable interest. Using this approach>>the legislature controls the record. This is advantageous for the state since the state legislature shapes the record. However, if the legislative record is silent then the state would lose because the court will ask for a basis. This is the reasonable to believe model Look at whether the Court could imagine: Here we dont second guess what the legislation is doing. According to this model Congress should be the big check on state regulation, and the Courts should only intervene when there is discrimination or protectionism. The Court basically says: We dont care about the record>>The Court visualizes a set of facts that could support what the state is doing>>if the court believes that the state could do it>>then its ok. This model strives for extreme deference to the state>>where the states sovereign will to shape public policy will win as long as there is no discrimination or protectionism.

3)

*****NOW REMEMBER: That when you are doing the first test, each part of the first test must be analyzed using the 3 different factors levels of analysis. Burris wants you to keep doing the analysis even though you might find that the state fails the test!!! C. Cases: i) Cooley v The Board of Wardens - This case basically states that there is a large area of the interstate/foreign commerce that Congress hasn't acted on and therefore the states have the power to regulate it with the federal government. Here there are still exclusive powers for the federal government and exclusive powers for the states, but then a gray area that are concurring powers. This court looked at whether the object being regulated was local or national. The states would have the power to regulate interstate commerce that is of such a local nature as to require different treatment from state to state. However, states cannot regulate interstate commerce that requires a uniform national standard. This is then a national issue and left to Congress to regulate. This courts analysis of balancing between the state interest in regulating local affairs and the national interest in uniformity still appears in many of the Courts decisions today. ***Burris mentioned this case so we know where the idea of police power came from. The basic idea is that when government is silent on the matter>>then the state could use their police power. ii) South Carolina State Highway Dept. v Barnwell Bros., Inc. - South Carolina prohibited the use of motor trucks and semi-trailer trucks on their highways whose width exceeded 90 inches, and whose weights included loads in excess of 20,000 pounds. The plaintiff tried to prove that this was an undue burden on interstate commerce b/c the drivers now had to unload their trucks onto smaller trucks to carry through South Carolina, or go around the state. This is one case where the state met the burden that was shifted to them. They presented evidence that their roads were too narrow and that there was no room for any errors (hence the width requirement). This court held that the restrictions imposed by the state were within their power. ***Burris said that this would be economical advantageous for the State of SC, there was an economical benefit and this did not deal with health related issues. Burris, however, also said that the Court did not see this as an economical effect, they saw this as a health related issue because the Court was more interested in less accidents. So the state of SC had shown that it had a legitimate end. As far as the rational relation, the court said that the highway maintenance is an inherently activity for the state, so its rational>>Burris mentioned that this case was before the categories so the court was only beginning to recognize the collateral effects. The big problem here was the economic burden and the state had met it because after looking at the legislative record under the factual analysis test, it was not trumped by any adjudicatory record (nothing showed the collateral effects of the regulation). In other words the

28

government could not show that it was an undue burden.***Burris mentioned that if any of the records would have shown some kind of conspiracy>>then SC would have failed to prove their burden of proof. iii) Southern Pacific Co. v State of Arizona - Arizona placed limits on the length of the trains that could pass through the State. The court held this to be unconstitutional because the state could not prove their safety issue. They also mentioned that the trains are completely interstate and the need for national uniformity was great. ***Burris said that here there was a safety issue. The problem was whether the state could proof it had a bonafide safety claim to overcome the second part of the test. They had a legitimate end: Safety. But they needed to know whether it was a bonafide safety claim. The Court use the rational basis test by looking at the adjudicatory record and found that at trial there was evidence of a fact dispute, and the evidence cast a doubt that this was not a bonafide safety claim. Arizona presented arguments that the length of the train was a problem and the slack problem as well. Nevertheless, the court rejected the argument due to the fact that when you do an analysis under the adjudicatory level of factual analysis there has to be strong empirical evidence not just a common sense (like AZ tried to do here). The Court acknowledged that there might have been a dubious safety issue here but AZ did not show enough!!! Therefore>>Since there was no evidence>>the purported claim that the means were rational goes out the window!!! iv) Kassel v Consolidated Freightways Corp. - Iowa is arguing that it is a safety concern for this regulation. The wind, more jackknifes, harder to pass, harder to backup. Also they argue that their road wear is reduced by the smaller trucks and less accidents. We have to look at the exceptions in the bill because then are we really looking at the safety issue? Exceptions are no border cities have to comply, special licenses, industry base, delivery, etc. When you look at the totality of the "legitimate" scheme, the only ones specifically affected are the interstate trucks, because others can fall into one of the exceptions. Each one of the exceptions violates the safety arguments. The truckers gave proof to disqualify the safety concerns while the state provided no evidence of their concerns. What benefit does the state have to weigh against the burden on interstate commerce? The state offers none and therefore they have no legitimate safety concerns. If they had offered evidence to validate the regulations, they would be allowed to do such regulations. The three opinions in this case present the three levels of analysis that can be used by a court (proven in fact, reasonable to believe, can you imagine). ****Burris said that this case deal with the rational basis and the undue burden parts of the first test since the other part was covered (there was a legitimate interest that dealt with safety). To overcome the rational basis analysis Burris focused on the legislative record/reasonable to believe level of factual analysis showed by the state in which they show a safety argument + the wear and tear of the roads>>However, this was not enough since the Trucking Companies presented empirical record by looking at the adjudicative level of factual analysis. This is a stronger record against the states argument. NOW NEXT>>>>Burris analyzed the undue burden or the balancing test>>Burris said that there was nothing to balance under the adjudicatory level of factual analysis>>Burris said that Iowa was only looking to restrict traffic>>>and to have the trucks go around the state>>this is an economical benefit that is not good to overcome the undue burden part of the test. IMPORTANT>>Burris, gave an alternative and also mentioned that the Undue Burden in this case could be shifted and instead of focusing on traffic>>>we could focus on the undue burden on interstate commerce and argue like Renhquist and say that discrimination is to built a wall not to regulate the means because if you could adjust>>you could use the roads. ***IMPORTANT>>>In this case Burris mentioned that when you look at the 3 different levels of factual analysis>>>there is a presumption that the regulation is constitutional unless you present the adjudicatory record and the legislative record; however, when you use the can you imagine level of factual analysis>>>Presumption stays throughout. So, it is better for the states to argue that third can you imagine level of factual analysis. v) Baldwin v G.A.F. Seelig, Inc. - NY is arguing that by competing in the lower price they will skimp on safety measures and the quality of milk will decrease. This is a valid safety interest. Does the burden outweigh the interest? Yes. This law has an extra territorial effect by imposing regulations on the state of Vermont to comply to those in NY. It in essence, it deters purchasing out of state milk and therefore creates a barrier to interstate commerce. This is an example of a protectionist method to protect the local commerce. They are protecting the NY milk producers from out of state price competition. To the extent that NY is requiring them to pay the same price, this is not discriminatory (it is equality to the buyers). However, when we look to the reasoning of why they created the statute it is therefore discriminatory because it is only imposed on out of state milk (not equal to sellers). ****BURRIS said that the court here looked at the regulation and determined that it was not safety related but more for competition and dealing with economics>>when it deals with economics it fails the first part of the test because it would not be a legitimate end. Burris also noticed how the court looked for the three different levels of factual analysis and only found the doomsday scenario (which says that milk is 29

going to run out and become unavailable). Burris said that this can you imagine level of analysis was not enough to overcome the test. vi) Dean Milk Co v City of Madison i)Analysis:

c) The state safety interest was the inspections of the premises w/I the 5mi radius. d) This statute does meet their needs. e) his is unconstitutional b/c there are less burdensome methods to achieve this goal. ii) Geographic based means are normally suspect b/c they are designed to be discriminatory and
protect the local industries. They are designed to isolate that local industry from interstate competition. The state interest is marginal or of little value to weigh against the burdens it produces. ****Burris said that the state conceded parts 1 and 2 of the test>>this is a very risky situation to depend on the third part (the undue burden part). Burris said that when you tackle this UNDUE BURDEN part of the test, you could search whether: (1) there is a less burdensome means available; or (2) you could list other alternatives that would affect commerce among the states but in a lesser degree; or (3) maybe you could find even a more efficient way. The goal is to find discrimination or protectionism for it to fail this part of the test. ****Burris said that the court used its imagination aggressively>>>Burris said that he would have used the adjudicatory factual level of analysis instead to overcome the test. vii) West Lynn Creamer, Inc v Healy - (state taxation of interstate commerce)Mass. is concerned that their farmers were losing the market in that state or going out of business. If we lose all our dairy farmers, somewhere down the road there could be a problem with an adequate supply from relying on the out of state suppliers. Therefore purchasers of milk (milk dealers) make payments on all milk sold in Mass. Then the state will distribute the money to only the Mass. dairy farmers (a subsidy). Therefore they are not regulating the price on the market (like the earlier case). The dealers then brought suit claiming unconstitutionality. The tax individually by itself would be constitutional b/c it is not discriminatoryit is applied equally across the board. However, the subsidy is unconstitutional b/c it is only given to in state producers and therefore allows them to sell their milk at the same price as the out of state milk. This allows them to remain competitive with out of state producers when they normally would not. When you look at the total design of the scheme it is design to achieve a discriminatory result. *****Burris said that the evil targeted by the court was the fact that the Act was linking the assessment and the subsidy together. Even though the assessment was the only problem since it made a prize increase that had to be passed to the consumers>>The Court concluded that this linkage dealt with discrimination. The court did not analyze the assessment and the subsidy separate like the state wanted. Note also that the legitimate end here was to have better quality of air through preservation of the dairy farm which would create open land and less pollution. viii) Henneford v Silas Mason Co - Washington imposed a 2% sales tax and a 2% tax on out of state purchases that are used in the state. You cannot charge a higher use tax than sales tax b/c then you would be imposing a burden on goods brought in from the other states. Those goods are paying the same tax that those purchased in state (theory of compensatory use tax). The equality is how the goods are treated w/I the state of Washington. W/o the credit the effect of the use credit is that you are burdening the commerce from crossing interstate lines. The court is concerned w/ tax stacking in that it will discourage goods from being transported into another state. The court said that there is nothing about this tax scheme that discriminates against commerce. Under part 1 of the test>>it is a fairness issue. ix) H.P. Hood & Sons, Inc v DuMond - NY claims to have an equally balanced supply/demand of the sale of milk and therefore refused to allow the opening of the new plant. The court rejects this as being a legitimate state interest. The people and not the states should control the market. NY also has the health claim to make a linkage of a decline in quality. The court rejects this to. There is no evidence that this would be true and therefore it is merely an economic scheme to protect the local industry. Since there is no legitimate state interestthe analysis is over. This is a classic undue burden so this regulatory scheme fails. Dissent: Argues that this is a legitimate state interest. Once the state reaches equilibrium and does not result in depression. Therefore he would remand this to trial to determine that in fact this is necessary to remain equilibrium. This court should just allow this as a valid state interest. This case stands for the basic principal that economic interest do not count as a legitimate state interest claim. Because this case directly argues that (as opposed to the other cases). BURRIS said that this court rejected the equilibrium/economic competition balance 30

argument because they said that the states sink or swim together>>States cannot be isolated>>this particular states equilibrium might hurt the other states. Burris emphasized that Congress has the power to create submarkets within the US and protect them from competition but the States cannot!! BURRIS started talking about the exception to the Dormant Commerce Clause>>>the market participant exception>>If NY, here, would have entered the market place by, for example, buying all the milk from the producers and therefore regulating the milk prices>>then NY would be OK. x) Pike v. Bruce Church,Inc: Sometimes state and local governments attempt to help their citizens at the expense of out-of-staters by requiring that tasks be performed locally. This case gives an example of a law requiring use of local businesses. Here the court invalidated an Arizona regulation that required cantaloupes grown there to be packed in the state rather than in another state. The court said that it has viewed with particular suspicion state statutes requiring business operations to be performed in the home state that could more efficiently be performed elsewhere. Here, Burris said that even though the state seemed to have a legitimate state objective (fight consumer fraud/not economic)>>>the state did not have enough proof for their rationale. The state did not meet its burden of persuasion. CA labels will not hurt AZ>>because consumers will not be misled about the quality of AZ fruit>>>but because of the label maybe of CA fruit>>>So no harm>>no legitimate state interest. Burris said that even if they had a legitimate state objective>>>there are less burdensome ways of accomplish the state objective and therefore the State would fail the DCC test analysis. Burris said that a good argument for means would be, for example, if the need for the fruits to get processed fast since they could get rotten. Burris said that since the states cannot pass the DCC test>>they still have the alternative to give tax breaks to induce the tasks to be performed locally.***Burris mentioned that the best attack to a DCC is to hit the Undue Burden and offer other less burdensome alternatives!!! ******If the court decides that a particular law is not discriminatory against out-of-staters, then a simple balancing test is used: The court balances the laws burdens on interstate commerce against its benefits. The law will be found unconstitutional if the court decides that the burdens from the law exceed its benefits. The court articulated this test in Pike v. Bruce Church,Inc. xi) Hughes v Oklahoma - OK wants to ban the shipping out of minnows. This differs than the cases we have read so far because it is banning shipping outnot the importing of goods. Argument 1: This is not really a conservation measure b/c they did not limit the in state users, therefore an in state user could deplete your supply. Argument 2: What effect does it have on interstate commerce? Are there alternative means? Yes, the least burdensome means would be for them to impose on those going out, not on where they are sold. ***The State claimed that their legitimate state interest was to preserve the minnow population in the state. The state had a legitimate interest of conservation (pretty much like lobster conservation in FL). However, this court did not accept the states claim that minnows were their property>>Burris said that if the court did then it would have qualified the state as a market participant. In order to analyze the second part of the test (whether the state regulation is rational?) Burris said that we have to analyze whether the regulation will further the economic interest>>>Conservation? Burris said that this court used the can you imagine approach of factual level analysis but if you are a lawyer against the statute you would look at the adjudicatory level of factual analysis and offer proof. Burris also said that for the next part of the test (undue burden) we have to look at whether the regulation is discriminatory or protectionist. *****Rehnquist dissent talks about that this was constitutional due to the fact that its evenhanded because exports impacts in-state & out-of-staters equally>>The Court rejected this argument because the in-staters are more likely to consume and therefore is not evenhanded. Burris said that Rehnquist is a big advocate for big federal government>>>so if the states could control and regulate then it would give the government the opportunity to rationalize and regulate. xii) Reeves v Stake - MARKET PARTICIPANT EXCEPTION: The court did not do the normal dormant commerce clause analysis. This court stated that if the state was a market participant the dormant commerce clause does not apply. They can do anything that they want to in this exception. However, the court did say that when the state tries to extend beyond the market that they are participants, then that is regulatory and therefore unconstitutional. They are not forbidding the resale of the cement to out-of-state marketsthis follows that this is not regulatory in nature. When will we say that the market participants cannot exclude everyone. When it is a natural resource (natural monopoly) b/c there is an inability to compete. There they are not market participants they are market regulators. They then would be trying to preserve the natural resource for their local market and creates an inability to compete. ****Burris rationale>>>Here the people of South Dakota are the tax payers>>they act as market participants because they took the risk involved with the investment. Since they took the risk they could keep the prices 31

moderate and more than anything be ahead of the access line for any benefits. Burris said that it is absolutely rational that when good times hit they, as taxpayers, could get preferences. The same goes in bad times>>the taxpayers will stay in the state they will not go anywhere unless they move out of the state. Burris said that the state of SD could restrict who they sell to as long as they dont regulate. ****The whole idea is that if you are a market maker>>>and you act rationally you are OK!!! Even to raise the prices would be rational (but here they didnt). ****The market participant exception provides that a state may favor its own citizens in dealing with government-owned business and in receiving benefits from governmental programs. In other words, if the state is literally a participant in the market, such as with a state-owned business, and not a regulator, the dormant commerce clause does not apply. Discrimination against out-of-staters is allowed that otherwise would be impermissible. However, it must be emphasized that even though the laws will be permissible under the dormant commerce clause, the laws might be vulnerable to other constitutional challenges such as based on the privileges and immunities clause of Article IV or equal protection. xiii) South-Central Timber Development v Wunnicke LIMIT ON THE MARKET PARTICIPANT EXCEPTION: This was regulatory in nature and therefore unconstitutional. The market participatory exception was being used to achieve regulatory results. The fully integrated state run market - the court has not ruled on this yet. Could they then be discriminatory and serve locals first? Yes, but only in the market they are participating. Be careful when determining the "market" they are in. ****The Court has imposed one important limit on the scope of the market participant exception: State businesses may favor in state-purchasers, but they may not attach conditions to a sale that discriminate against interstate commerce. In this particular case, the Court declared unconstitutional an Alaska law that required that purchasers of state-owned timber have the timber processed in Alaska before it is shipped out of state. The Court said that the limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The State may not impose conditions, whether by statute, regulation or contract, that has a substantial regulatory effect outside of the particular market. The court drew a distinction between the ability of a state to prefer its own citizens in the initial disposition of goods when it is a market participant and a States attachment of restriction on dispositions subsequent to the goods coming to rest in private hands. ****Burris approach>>Alaska put itself in a market-participant position, and at the same time try to regulate another. Burris gave an interesting hypo: What about if AL decided to get into the business of processing timber>>here in AL there would be no risk involved because AL has a unique resource and everyone goes to AL for timber>>they dont face the risk of losing the investment. So>>when it comes to natural resources in this example>>AL would not be able to regulate trees but could be a market participant in processing as long as they dont have any attached conditions that affect interstate commerce!!!

VIII. PRIVILEGES AND IMMUNITIES

A. Introduction: Article IV, 2, states: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. The Supreme Court has interpreted this provision as limiting the ability of a state to discriminate against out-of-staters with regard to fundamental rights or important economic activities. Most cases under the Privileges and Immunities Clause involve challenges to state and local laws that discriminate against out-ofstaters with regard to their ability to earn a livelihood. Such discrimination will be allowed only if it is substantially related to achieving a substantial state interest. Discrimination against citizens of other states is a prerequisite for application of the privileges and immunities clause. The Supreme Court long has held that the term citizen in the privileges and immunities clause is limited to individuals who are United States citizens. Thus, corporations cannot sue under the privileges and immunities clause because, by definition, they are not citizens. Nor can aliens sue under the privileges and immunities clause. B. Relationship to the Dormant Commerce Clause: The dormant commerce clause and the privilege and immunities clause overlap: Both can be used to challenge state and local laws that discriminate against out-of-staters. In fact, the Supreme Court has spoken of the mutually reinforcing relationship between the dormant commerce clause and the privileges and immunities clause. There are, however, some key differences. First, the privileges and immunities clause can be used only if there is discrimination against out-of-staters. The dormant commerce clause can be used to challenge state and local laws that burden interstate commerce regardless of whether they discriminate against out-of-staters. However, under the dormant commerce clause, laws that discriminate are much more likely to be invalidated. Second, corporations and aliens can sue under the dormant commerce clause, but not the privileges and immunities clause. The privilege and immunities clause is expressly limited to citizens, whereas no such limitation exists with regard to the dormant commerce clause. 32

Third, there are two exceptions to the dormant commerce clause that do not apply to the privileges and immunities clause. If Congress approves state laws, then they do not violate the dormant commerce clause; if Congress has acted, its commerce power is no longer dormant. But congressional approval does not excuse a law that violates the privileges and immunities clause. Also, there is a market participant exception to the dormant commerce clause which allows states to favor their own citizens in receiving benefits from government programs and in dealing with government-owned businesses. No such exception exists for the privileges and immunities clause. C. Relationship to other Constitutional Provisions: The privileges and immunities clause of Article IV should be distinguished from another constitutional provision that uses similar language: the privileges and immunities clause of the Fourteenth Amendment. The Fourteenth Amendment declares that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. The Supreme Court has given this clause an extremely narrow construction, though. Although the privileges and immunities clause of the Fourteenth Amendment has rarely been used, the privileges and immunities clause of Article IV remains an important tool for challenging discriminatory state and local legislation. Also, it should be remembered that discriminatory laws can be challenged under the dormant commerce clause and the equal protection clause as well as via the privileges and immunities clause. D. Court applies Privileges and Immunities Clause in two contexts: Examining the cases concerning the privileges and immunities clause reveals that the Court primarily has applied it in two contexts: (1) when a state is discriminating against out-of-staters with regard to constitutional rights and (2) when a state is discriminating against out-of-staters with regard to important economic activities. The latter almost always arises in the context of a state discriminating against out-of-staters with regard to their ability to earn a livelihood. The Court has refused to apply the privileges and immunities clause in situations where the discrimination against out-of-staters has involved neither constitutional rights nor important economic activities. Constitutional Rights: The rights enumerated in the Bill of Rights seem the most obvious and the most basic privileges and immunities of citizenship. However, generally, there is no need to use the privileges and immunities clause to protect constitutionally guaranteed rights. If a state were to prevent out-of-staters from engaging in religious worship, for example, a challenge certainly could be brought under the privileges and immunities clause. But, in reality, the suit would be brought under the First Amendment as applied to the states through the Fourteenth Amendment. Although such cases arise only relatively rarely, the privileges and immunities clause can be used to challenge state and local laws that discriminate against out-of-staters with regard to the exercise of constitutional rights. EXAMPLE: In Doe v. Bolton, the Supreme Court concluded that a state could not limit the ability of out-ofstaters to obtain abortions in the state. Doe establishes that a state cannot discriminate against out-of-staters with regard to access to the constitutionally protected right to abortion. But it also goes further than just preventing discrimination concerning constitutional rights; it expressly says that a state cannot discriminate against out-of-staters with regard to access to medical care, even though there is no constitutional right to medical care. Important Economic Activities: The vast majority of cases under the privileges and immunities clause involve states discriminating against out-of-staters with regard to their ability to earn their livelihood. The Court has found a violation of the privileges and immunities clause if a state excludes out-of-staters from practicing a trade or profession, or charges a discriminatory licensing fee, or mandates that a preference be given to instaters for employment. The most extreme form of discrimination is where the state completely bars out-of-staters from engaging in a particular trade or profession in the state. In Supreme Court of New Hampshire v. Piper, the court invalidated a New Hampshire law which required residence in the state in order to be admitted to the bar. The Court explained that the practice of law is a privilege and immunity protected under this clause. The Court said that activities of lawyers play an important part in commercial intercourse. Even is a state is not excluding out-of-staters, it is denying a privilege and immunity of citizenship if it charges out-of-staters more for a licensing fee than it charges in-staters. An early case demonstrating this was Ward v. Maryland, which invalidated a Maryland law that required non-residents to pay $300 per year for a license to trade in goods not manufactured in Maryland, while resident traders had to pay a smaller fee ranging from $12 to $150. Similarly, in Toomer v. Witsell, the Court declared unconstitutional a South Carolina law that required nonresidents to pay a license fee of $2,500 for each commercial shrimp boat, but residents only had to pay a fee of $25.27. The court said that one of the privileges which the clause guarantees to citizens of state A is that of doing business in state B on terms of substantial equality with citizens of that state. Another type of impermissible discrimination is where a state requires that its residents be given a preference in employment. In Hicklin v. Orbeck, the Supreme Court unanimously declared unconstitutional an Alaska law 33

that required that Alaska residents be given priority in hiring for jobs on oil and gas projects. Under the Local Hire Under State Leases law, Alaska required that preference be given to Alaska residents over nonresidents in employment on all oil and gas leases. The Court found that this discrimination against nonresidents cannot withstand scrutiny under the Privileges and Immunities Clause. E. Burris Test: 1. First Burris said that there has to be a fundamental right according to the Constitution: To determine the fundamental right>>>We look first at the Constitution itself; second we could look at the Supreme Court to find their interpretation of a particular fundamental right if they are not in the text of the Constitution; and third, we look also at the states constitution because these rights are also fundamental within the states. EXAMPLES: any lawful occupation, emergency medical care, voting, right to travel between the states, right to private employment, right to professional licensing, economic rights and rights arising out of the relationship between the individual and the national govt. (1st Amendment individual rights). EXAMPLE OF NO RIGHT: University education and beyond, any thing recreation such as fishing, hunting, Disney World vacation, any non-emergency medical care. 2. Second Burris said that the state must provide that there is a problem and that the non-residents are the source of the problem. This is a three part analysis: a. States have to prove that there is a substantial reason for differential treatment. The Court will look at the ADJUDICATORY RECORD to see if the state satisfies this prong with substantial reasons. So, for example, the state shows no empirical evidence>>>the state loses its case. For example if the state uses the can you imagine level of factual analysis they are in bad shape. b. There must be a close and substantial relationship to the state objective. For example in Hicklin, the state said that lawyers need to be ethical>>this will be enough to pass. c. There has to be proof that there are no less restrictive ways to achieve that end.

IX. PREEMPTION A. Congressional Preemption and Consent: This is pretty much when Congress does take action in a particular
area of Commerce. Congress can preempt the states from affecting commerce. There are two ways of doing this: Through Conflict Preemption or Through Field Preemption. It is important to remember that Congress may consent to state action that would otherwise violate the Commerce Clause. Congress may even allow a state to discriminate against out-of-staters. ****It is important to remember that when federal and state legislation conflict, the Supremacy Clause of course holds that the federal law prevails. B. Definitions: Conflict Preemption If it is impossible to comply with both regulatory schemes there is direct conflict, thus, the federal regulatory scheme wins. Or, if there is no direct conflict, if the compliance with the states regulatory scheme possesses an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Field Preemption When congress explicitly states that they are regulating the entire filed and the states can do nothing in this field. Or, if the court can look at the statute and determine that there is no room for any state to act in this way without conflicting with the federal law. C. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n Issue: Whether two provisions of CA Warren-Alquist Act, which condition the construction of nuclear plants on findings by the State Energy Resources Conservation and Development Commission that adequate storage facilities and means of disposal are available for nuclear waste, are preempted by the Atomic Energy Act of 1954?

34

Test to determine if Congress preempts State law: Expressly stated in Congresss legislation Congresss intentions State & Federal Law clash (impossible to comply with both)

State law is an obstacle to carrying out Fed. Law *****Here Burris mentioned that the Court applied the field preemption analysis>>>they first looked at what the Government did with the act and realized that the governments goal under this act was to promote safety. Then Burris said that once the safety regulation issue was resolved then the government does not care what the states do as long as they stay away from the regulation they have been preempted from (so the States could not argue any safety regulation since the government had preempted them). Burris said that for the state to win they would have to show any other cost-effective, economical and not related to safety reason otherwise they would lose. The minute the state tries to accomplish something they have been preempted from doing (in this case safety regulation) they will lose. Silkwood v. Kerr-McGee Corporation Facts: State authorized punitive damages arising out of the escape of plutonium from a federally licensed nuclear facility. Issue: Is award of punitive damages inconsistent with Congresss intent of the Atomic Energy Act? Holding: Apply four step test: Atomic energy Act did not state that Congress was to have sole authority in this field. Congresss only intent was to regulate safety in construction. It is possible to comply with both the fed. and state laws.

State law poses no obstacle. ****Here, Burris said that there was another safety issue preempted by government. So, like above, the states could not regulate anything they have been preempted from regulating. Here the states tried regulating punitive damages>>>and as we know punitive damages are related to safety. However, this turned out bad for the government>>why? Because this was a TORT case and this law would only be bad if it contradicted the federal government and it did not. Since this was a tort case it was not shown how the punitive damages will affect the federal regulation.

X. SEPARATION OF POWERS : Congress and its delegation powers.

A. The Rise of the Administrative State: Article I of the Constitution vests the legislative power in Congress. Although federal agencies and departments have existed in some form since the beginning of American history, it is only in the last century that Congress has routinely delegated its legislative power to executive agencies. The creation of the Interstate Commerce Commission in 1887 ushered in a new era for the federal government: the creation of federal administrative agencies with broad powers. Over the course of next century, a vast array of federal agencies have been created, such as the Federal Communication Commission, the Securities and Exchange Commission, the Food and Drug Administration, the Environmental Protection Agency, the Nuclear Regulatory Commission, and countless more. The Constitution does not expressly mention such agencies and, in fact, in many ways they are in tension with basic constitutional principles. Virtually all of these agencies possess rule-making power, and these rules have the force of law. This seems in conflict with the notion that Congress alone possesses the federal legislative power. Yet, for many reasons, Congress has delegated broad legislative power to administrative agencies. In many areas, the need for complex regulation seems better handled in a specialized agency than in Congress. Also, the sheer quantity of regulations exceeds the capacity of Congress. Additionally, there is political dimension: Expansive delegation of 35

legislative power to administrative agencies allows Congress to act, but avoid the political heat that specific regulations might endanger. Administrative agencies, however, do not possess only the legislative power. They also have the executive power to enforce the regulations that they have promulgated and the judicial power to adjudicate violations of their rules. Many agencies employ administrative law judges who hear cases brought by agency officials against those accused of violating the agencys regulations. In other words, federal agencies possess the legislative power to make rules, the executive power to enforce them, and the judicial power to adjudicate them. This combination of functions in a single agency seems in conflict with elemental concepts of separation of powers. B. The Non-delegation Doctrine: One solution to these constitutional problems posed by administrative agencies is the nondelegation doctrine: the principle that Congress may not delegate its legislative power to administrative agencies. The nondelegation doctrine forces a politically accountable Congress to make the policy choices, rather than leave this to unelected administrative officials. The height of the Courts enforcement of the nondelegation doctrine was in the mid-1930s in two decisions that invalidated New Deal legislation. The National Industrial Recovery Act authorized the president to approve codes of fair competition developed by boards of various industries. In Panama Refining Co. v. Ryan, in 1935, the Court declared unconstitutional a provision of the National Industrial Recovery Act that authorized the President to prohibit the shipment in interstate commerce of oil produced in excess of state-imposed quotas. The Court concluded that the law was an impermissible delegation of legislative power to the president, and the Court emphasized the lack of any standards in the Act to limit the presidents discretion. In Schecter Poultry Corp. v. United States, also in 1935, the Court declared unconstitutional a regulation adopted under the National Industrial Recovery Act. Pursuant to this law, the president approved a Live Poultry Code for NYC. In part, the Code was designed to ensure quality poultry by preventing sellers from requiring buyers to purchase the entire coop of chickens, including sick ones. The Code also regulated employment by requiring collective bargaining prohibiting child labor, and establishing a 40-hour workweek and a minimum wage. The Court declared the regulation unconstitutional as exceeding the scope of Congresss commerce power. The Court also found the regulation unconstitutional as an impermissible delegation of legislative power. The Court declared that Congress is not permitted to abdicate or to transfer to others the essential legislative function with which it is thus vested. C. The Demise of the Non-Delegation Doctrine: In the more than 60 years since Panama Oil and Schechter, not a single federal law has been declared an impermissible delegation of legislative power. Although these decisions have not been expressly overruled, they never have been followed either. All delegations, no matter how broad, have been upheld. Although the Court says that when Congress delegates its legislative power it must provide criteria intelligible principlesto guide the agencys exercise of discretion, all delegations, even without any criteria, have been upheld. Undoubtedly, this reflects a judicial judgment that broad delegations are necessary in the complex world of the late twentieth century and that the judiciary is ill-equipped to draw meaningful lines. In recent years, the SC has continued to reject challenges to federal statutes on the ground that they impermissibly delegate legislative power. In Mistretta v. United States, the Court approved a broad delegation of power to the United States Sentencing Commission to promulgate sentencing guidelines to determine the punishments for those convicted of federal crimes. The Sentencing Commission is composed of seven members appointed by the President, at least three of whom must be federal judges. Organizationally, the commission is a part of the judicial branch of government. By an 8 to 1 margin, with only Justice Scalia dissenting, the Court upheld the law and rejected the claim that it was an impermissible delegation of legislative power to the judicial branch of government. Justice Blackmun, writing for the Court, stated that Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary. Justice Scalia, in dissent, argued that the commission was given broad discretion to make value judgments and policy assessments in creating the Sentencing Guidelines. Although he recognized that judicial limits on the delegation of legislative power are problematic, he said that he power to make law cannot be exercised by anyone other than Congress, except in conjunction with the lawful exercise of executive or judicial power. Scalia contended that the commissions authority to promulgate sentencing guidelines was an unconstitutional delegation of legislative power to a judicial agency. Scalia urged for the resurrection on the nondelegation doctrine. So, a successful challenge to a federal law as an impermissible delegation of legislative power seems unlikely. No such challenge has succeeded in over 60 years despite countless expansive delegations of legislative power. Still, there is the possibility that the Supreme Court might find a statute so devoid of intelligible principles as to be unconstitutional. A Courts refusal to enforce a nondelegation doctrine can be criticized as undermining government accountability as political decisions are made by unelected administrative officials and as undermining the basic philosophy of separation of powers embodied in the Constitution. On the other hand, the broad delegations can be 36

defended as essential in a complex world requiring technical and detailed regulations that probably exceed the scope and ability of Congress. ****BURRIS intelligible test: Congress must identify who is going to be exercising the authority. Congress CANNOT give fundamental powers>>By doing this, Congress could only give a subset which establishes a range of policy choices that are available as a solution. Congress must identify the policy goals. Congress must identify specific factors that the institution should consider in developing a solution to the problem. The institution could not operate out of this range. Congress has to decide what institutions make the choices, so that the court may decide if the agency acted within is powers. ****In other words, Congress, by satisfying the test, cannot delegate power and could have a discretion to make policy choices but they have to be narrow. D. The Legislative Veto: In light of the demise of the nondelegation doctrine, the issue arises as to how the power of administrative agencies will be checked and controlled. Congress, of course, could enact a law overturning an agencys rule, but requiring legislative action obviously limits the circumstances in which Congress can or will exercise its checking function. Therefore, in the 1930s, not coincidentally corresponding to the time of great growth in federal administrative agencies, Congress created the legislative veto as a check on the actions of administrative agencies. Congress included in statutes provisions authorizing Congress or one of its houses or committees to overturn an agencys action by doing something less than adopting a new law. A typical form of a legislative veto provision authorized Congress to overturn an agencys decision by a resolution of one house of Congress. Legislative vetoes also took the form of overturning agency rules by resolution of both houses of Congress or even by action of a congressional committee. E. The Unconstitutionality of the Legislative Veto: In Immigration and Naturalization Service (INS) v. Chadha, the SC declared unconstitutional the legislative veto. Chadha was an East Indian who had been born in Kenya and had a British passport. After his visa expired, Chadha was ordered to show cause as to why he should be allowed to remain in the United States. An immigration judge ruled in favor of Chadha and ordered that his deportation be stayed. However, the House of Representatives adopted a resolution overturning this decision and thereby ordering Chadhas deportation. Federal law gave either house of Congress the authority to overturn an INS decision to suspend deportation. Representative Eilberg, chair of the House Judiciary Subcommittee on Immigration, Citizenship, and International Law, introduced a resolution opposing the granting of citizenship to six individuals, including Chadha, on the ground that they did not meet the statutory requirements, particularly as it relates to hardship (BURRIS emphasized on the fact that there was no evidence presented by the committee as reasons why these people should leave). The SC declared this legislative veto to be unconstitutional. Chief Justice Burgers opinion for the majority can be described as a syllogism. The major premise of the syllogism is that Congress may legislate only if there is BICAMERALISM, passage by both the House and the Senate, and PRESENTMENT, giving the bill to the president to sign or veto. Burgers opinion recited the constitutional provisions requiring bicameralism and presentment and quoted from the Federalists Papers as to the importance of these procedural requirements. The minor premise of the syllogism was that the legislative veto was legislation without bicameralism and presentment. Chief Justice Burger declared that the action was essentially legislative in purpose and effect. The effect of the legislative veto was to alter the legal rights, duties, and relations of persons, including the Attorney General, Executive Branch officials and Chadha. Accordingly, the Court concluded that it was legislation and that it did not fit into any of the limited situations under the Constitution where one branch of Congress can act alone. Thus, the conclusion followed, as it always does with a syllogism: The legislative veto is unconstitutional. Chief Justice Burger expressly rejected the position that the legislative veto was necessary to ensure adequate checks and balances. Justice White wrote a strong dissenting opinion that emphasized the need for the legislative veto as a check on the broad delegations of legislative power. He explained that although the legislative veto was not contemplated by the framers of the constitution, nor were the expansive delegations found in countless statutes creating administrative agencies. While Chief Justice Burgers majority opinion was highly formalistic, Justice Whites dissent was functional. Burger emphasized the formal structure prescribed in the Constitution for adopting laws and dismissed the functional concern that the legislative veto was essential to check administrative power. White, in contrast, stressed the fact that over 200 federal laws contained legislative vetoes reflecting Congresss judgment that this was an essential tool for checking the exercise of delegated powers. Indeed, White lamented that the majority in Chadha invalidated in one fell swoop provisions in more laws enacted by Congress than the Court had cumulatively invalidated in its history. 37

*****BURRIS said that in this case the check was abused>>>that Congress has the plenary power over immigration matters, so in this case Congress would be reasserting its own powers>>>the problem is that here they only reasserted their power through one house of Congress and not both. What we get from this case is that whenever Congress wants to reassert its own powers Congress has to do it bicamerally by passing a statute!! FOLLOW THE NORMAL PROCESS!!! ****BURRIS also mentioned that Congress, after delegating a power, could always take it back because they have the authority to take back anything they have given away. ****BURRIS also mentioned that if by any reason Congress is abusing its power>>then the check is the political process through people and democracy. IMPORTANT: Whenever Congress exercises power on house or senate>>it has to be done through the normal process which is different from quasi legislation. F. Other Checks on Administrative Powers: Although Chadha invalidated an important means of congressional control of agency discretion, others certainly remain. For example, Congress can overturn agency decisions so long as there is bicameralism and presentment. Additionally, of course, Congress controls the purse strings of administrative agencies, and there undoubtedly are informal political checks, such as through oversight committees. Another political check on agency power comes from the power of the president to appoint agency members, often subject to Senate approval.

XI. SEPARATION OF POWERS II: The President and his powers.

A. President cant make the laws: The most important single separation of powers principle is that the President cannot make the laws. All he can do is to carry out the laws made by Congress. EXAMPLE: During the Korean war, Pres. Truman wants to avert a strike in the nations steel mills. He therefore issues an executive order directing the Secretary of Commerce to seize the mills and operate them under federal direction. The president does not ask Congress to approve the seizure. Held, the seizure order is an unconstitutional exercise of the lawmaking authority reserved to Congress. (Youngstown Sheet &Tube v. Sawyer). ****This case deals with the Presidents inherent powers under the Constitution. The Constitution talks about the powers of the president in Article II: The executive power shall be vested in a President of the United States. Article II then enumerates specific powers of the president. ****Burris said in this case that once we have a domestic policy, Congress has to act affirmatively to claim its power. Here, though, Congress had hearings but did not go through the normal process (mentioned in Chadha)>>>>so it could be presumed that Congress has not done anything or has failed to Act. ****Burris said that under these particular facts, the President should have shown the necessity for the use of his foreign affairs powers for the protection of National Defense. However, the Court saw this as a domestic matter since the mills were not within the war-zone. 1. Line Item Veto: The principle that the President cant make laws means that the President cant be given a line item veto. That is, if Congress tries to give the President the right to veto individual portions of a statute (the Presentment Clause says that bills are enacted into law by being passed by both Houses, then being presented to the President and signed by him) [Clinton v. City of NY]. BURRIS said that in this case the President, by getting a line item veto, was getting too much power. But Congress could tell the President to spend X amount of $ because Congress could trigger the provision and keep control of what is going on. This case showed that the President guided the determination to cancel the particular provision of the statute>>this is gross power and that is bad because it would be uncontrolled by Congress. 2. Congress acquiescence: But the scope of the Presidents powers may beat least somewhat expanded by Congress acquiescence to his exercise of the power. This congressional acquiescence will never be dispositive, but in a close case, the fact that Congress acquiesced in the Presidents conduct may be enough to tip the balance, and to convince the Court that the President is merely carrying out the laws rather than making them. 3. Implied Powers: Recall that Congress powers are somewhat expanded by the Necessary and Proper clauseCongress can pass any laws reasonably related to the exercise of any enumerated power. Theres no comparable Necessary and Proper clause for the President. But the effect is the same, because of inherent vagueness of the phrase shall take care that the laws are faithfully executed The Constitution does specifically enumerate some of the Presidents powers (e.g. pardon power, the commander-in-chief power, etc.) But this specific list is not supposed to be exclusive. Instead of giving a complete list of the Presidents powers (as is done for Congress), the Constitution gives the President this general executive or law carrying out power. Consequently so long as the 38

Presidents act seems reasonably related to carrying out the laws made by Congress, the Court wont strike that act merely because it doesnt fall within any narrow, enumerated Presidential power. B. Declaring and Waging War: Another key separation of powers principle is that ONLY Congress and NOT the President, can declare war. The President can commit our armed forces to repel a sudden attack, but he cannot fight a long-term engagement without congressional declaration of war. C. Treaties and Executive Agreements: The President has the power to enter into a treaty with foreign nations, but only if two-thirds of the Senate approves. Additionally, the Court has held that the Constitution implicitly gives the President, as an adjunct of his foreign affairs power, the right to enter into an executive agreement with a foreign nation, without first getting express Congressional consent. D. Appointment and Removal of Executive Personnel: The President, not Congress, is given the power to appoint federal executive officers. That is the Appointments Clause. 1. General Scheme: More specifically, the scheme is that only the President, not Congress, may appoint principal. i.e. high-level federal officers. Congress cannot appoint inferior, i.e., lower-level federal officials either, but it may say which of the three other entitiesthe President, the Courts, or the Cabinet may appoint these lower officials. *** BURRIS said that a Principal officer is a policy maker, and that the Inferior officer is one that could be regulated by Congress as far as their terms and removals>>these Inferior officers implement policy. 2. Congress cant appoint federal executives: The most important thing to remember is that Congress has not power to directly appoint federal executive officers. EXAMPLE: Congress establishes the Federal Election Commission, which enforces federal campaign laws. The Commission has power to bring civil actions against violators. The statute establishing the Commission allows Congress to appoint a majority of the Commissions members. Held, the tasks performed by the Commission are primarily executive, and its members are officers of the United States. Therefore, the member must be appointed by the President, not Congress. [Buckley v. Valeo]. 3. Removal of Federal Executives: The power to remove federal executive officers basically rests with the President. The President may remove any executive appointee without cause. The only exceptions are that the President must have cause in order to remove: (1) an officer who is appointed pursuant to a statute specifying the length of the term of office; or (2) an officer who performs a judicial or quasi-judicial function. EXAMPLE: The President may remove an ambassador at any time; without cause. 4. Removal by Congress: Conversely, Congress may not remove an executive officer. This is true whether the officer is a principal or inferior one. [Bowsher v. Synar]. However, Congress can to some extent LIMIT the power of the President to remove an officer, if Congress specifies a term of office and then provides that removal is allowable only for cause. EXAMPLE: Congress may say that the Special Prosecutoran executive officermay only be removed by the Executive Branch for good cause or other inability to perform his duties. [Morrison v. Olson]. 5. Impeachment: Separately, Congress may remove any executive officer by impeachment. So, Congress can remove any officer of the U.S. (President, Vice President, Cabinet members, federal judges, etc.) by impeachment. The House must vote by a majority to impeach (which is like an indictment). Then, the Senate conducts the trial; a two-thirds vote of the Senators present is required to convict. Conviction can be for treason, bribery, and other high crimes and misdemeanors. Probably only serious crimes, and serious noncriminal abuses of power, fall within the phrase high crimes and misdemeanors. E. Removal of Federal Judges: Federal judges cannot be removed by either Congress or the President. Article III provides that federal judges shall hold their office during good behavior. This has been held to mean that so long as a judge does not act improperly, she may not be removed from office. The only way to remove a sitting federal judge is by formal impeachment proceedings, as noted above. However, the above life tenure rule applies only to garden-variety federal judges who hold their positions directly under Article III. Congress is always free to establish what are essentially administrative judgeships, and as to these, lifetime tenure is not constitutionally required. F. Executive Immunity: There is no executive branch immunity expressly written into the Constitution. But Courts have recognized an implied executive immunity based on separation of powers concepts. Absolute for President: The President has absolute immunity from civil liability for his OFFICIAL acts. [Nixon v. Fitzgerald] (There is no immunity for the Presidents UNOFFICIAL acts, including those he committed before taking office. [Clinton v. Jones])

39

Qualified for others: But all other federal officials, including presidential aides, receive only qualified immunity for their official acts. (They lose this immunity if they violate a clearly established right, whether intentionally or negligently.) [Harlow v. Fitzgerald]

G. Executive Privilege: Presidents have a qualified right to refuse to disclose confidential information relating to their performance of their duties under Article II. This is called executive privilege. This privilege exists in situations where the president (1) calls officers for advice and (2) Military matters need to be sealed from everyone. Burris said that executive privilege has its limits!!! These are the steps that need to be taken before executive privilege becomes an issue. 1. Civil or criminal action is brought and there is a subpoena requesting the President to testify or turn over documents, tapes or other materials. 2. President opposes such production and asserts the privilege. 3. Judge then has to decide if the evidence is relevant for the case at hand. If the evidence is irrelevant, no requirement for disclosure. 4. If evidence is relevant, then court will conduct IN CAMERA proceeding. This is a separate proceeding to determine if there is a valid national security claim. In Camera (non-public) Proceedings 1. If at the In Camera Proceeding, the court finds that there is a valid national security claim, then executive privilege will be absolute in criminal and civil trials. What are valid national security claims? Military and diplomatic 2. If at the In Camera Proceeding the court finds that the assertion of executive privilege is only confidential information, the court conducts a balancing analysis. 3. If the case concerns a "core function" of the judiciary or Congress, then the claim of executive privilege must give way. Judicial core functions

(1) Try criminal proceedings. (2) Traditional common law causes of action.
Congressional core functions (1) Impeachment proceedings (2) Confirmation hearings Cases 1. United States v. Nixon- FACTS: At the criminal trial of 7 of Nixon's associates, a subpoena was issued ordering Nixon to turn over certain tapes and materials generated during his Presidency. Nixon asserted executive privilege. The materials were relevant because the associates' guilt or innocence depended upon what was contained in the tapes. At the in camera proceeding, the district court determined that there was no valid national security claim for withholding the information because the claim was that subordinates. In addition, the information was needed to adjudicate a criminal trial, which is a core function of the judiciary. Therefore, the claim of executive privilege had to give way to adjudicating a criminal proceeding. If there is no core function involved, then the claim of executive privilege will remain valid. The claim of executive privilege goes with the office, not with the person. Therefore, a former President can assert executive privilege, but the court will still have to engage in a balancing analysis and a former president's claim will be given less weight then he had while he was in office. 2. Nixon v. Administrator of General Services- Congress passed act that gave GSA control over presidential materials and was to make regulations to ensure public access. Archivist was to determine which documents were necessary for national security. Nixon claimed that the act violated his claim of executive privilege and was unconstitutional. In this case, the archivist was to determine which materials were related to national security issues, so those materials were protected. As far as confidential information, the court determined that an ex-president's claim of executive privilege will be balanced with the public's need to know, historical and archival 40

purposes, restoring public confidence in the political process and importance of the materials for pending or future civil or criminal litigation. Nixon argued that the act was really a bill of attainder or an ex post facto law. **Not a bill of attainder because the act applied to all future Presidents. **Not an ex post facto because it wasn't trying to punish Nixon for past actions.

XII. FOREIGN AFFAIRS

1.

Generally

1. Congress and President have broad foreign affairs powers that are not explicitly granted in the

constitution, but are given to them because of the United States' status as a sovereign nation (extra constitutionality).

2. Needs to be evaluated under three levels: To what extent are these "extra constitutional" powers
limited?

a) States have NO POWER in foreign affairs. (1) Missouri v. Holland- Act implemented treaty made with Canada that prohibited the
taking of migratory birds. Regulations dealing with birds are considered to be local commerce. Congress' regulation would normally violate the constitution as regulating intrastate commerce. However, since Congress was exercising its "extra constitutional" powers in foreign affairs, Congress was not subject to the same constraints. ***Burris mentioned that Structural Federalism argument will only work for internal matter not here!!!

b) Congress may make delegations that would otherwise be unconstititional in Foreign

affair

(1) U.S. v. Curtis-Wright Export- Congress passed a Joint resolution authorizing the

President to place an embargo on the sale of arms to countries involved in armed conflict in South America. The President issued a proclamation proclaiming an embargo. Court held that the delegation was perfectly constitutional because the government's powers to deal in foreign affairs are not grounded in the constitution. ****Burris tied this case with the last one emphasizing the fact that when we deal with International Relations-Foreign Affairs, there is a need of flexibility. He also said that not all the powers in the foreign relations area are enumerated in the Constitution>>Nevertheless there is a BROAD interpretation>>Whatever other nations can do>>the US can do because of the Extra-Constitutional Power. *** The Court indicated that the normal constraints on broad delegation of legislative powers do not apply in the foreign arena since the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. He reasoned that upon our separation from Great Britain, the powers of external sovereignty passed directly from the Crown to the US, since foreign affairs powers are necessary concomitants of nationality. The Constitution, however, allocates only the powers previously lodged in the separate 41

states. While this declaration of inherent foreign affairs powers, operating independently of the Constitution, represents a questionable interpretation of history, it has never been rejected by the Court and has, on occasion, been embraced. In Curtiss-Wright, The Court argued for executive primacy in the exercise of foreign relations powers, both constitutional and extra-constitutional. While this presidential power must be exercised consistent with the Constitution, the President acts as the sole organ of the Federal Government in the field of international relations. Curtiss-Wrights claim for executive primacy appears to rest primarily on the respective capabilities of the branches and the teachings of history. The Presidents abilities to acquire information, maintain secrecy and respond quickly to events was specifically cited by Justice Sutherland as necessitating executive discretion in foreign affairs independent of congressional authorization. Certainly, the historical expansion of presidential foreign affair powers vis--vis Congress cannot be denied.

c) Separation of Powers issues when operating in the realm of foreign affairs.

***** When the President acts pursuant to authorization from Congress, as he did in CurtissWright, his authority is maximized; when he acts contrary to the will of Congress, his power is at its lowest ebb.

(1) When the President is asserting his authority when dealing in foreign affairs. (a) Highest Ebb of constitutional authority--President and Congress act
together in concurrency. Presidential action is always going to be declared constitutional.

(b) Twilight Zone-- President acts alone without explicit authorization from

Congress. President will usually win unless he goes beyond the scope of the authority granted in the Constitution (violating any of the shall not provisions or a basic fundamental struture of authority provided in the constitution)

(c) Lowest Ebb-- President acts in contrast to Congress' explicit mandate

(some members of Congress in disagreement without any type of explicit disagreement and past explicit disagreement is not enough) Court looks at the powers enumerated in the constitution and determine whose position corresponds to those powers. That determines whose position is supreme.

(d) When using these classifications, it is important to look at who has the
power under the Constitution!

(2) Other Powers: Congress has power to regulate foreign commerce. (a) Congress has power to declare war. (b) Seizure of private property (c) President is commander in chief. (d) President is chief ambassador.
Example If Clinton decides to bomb Iraq and Congress explicitly states it disagrees w/ this decision, Clinton will still be able to do so because he is the commander-in-chief of the armed forces.

42

3. Cases for Foreign Affairs a) Youngstown Sheet & Tube v. Sawyer- President Truman ordered the seizure of most of
the nation's steel mills. Truman argued that a steel strike would jeopardize the safety and effectiveness of troops in the Korean war. The court held that Truman's argument proved too much in the grant of executive authority in that he was interfering with the exclusively Congressional function of seizing property.

b) Dames and Moore v. Regan- President gave orders that terminated all litigation between

the U.S. and Iranian citizens and set up an International Claims Tribunal to settle any claims that might exist, nullified attachments against Iranian assets and ordered the transfer of all Iranian assets. Congress had not acted on the issue and deferred to the judgment of the President. Court said that President in acting under his foreign affairs powers did not violate a core function of the judiciary because the claims that were taken away from the judiciary were not core functions of the judiciary. In addition, if a party felt that he/she was insufficiently compensated by the International Tribunal, then they could bring action against the U.S. government. ***Burris said that the Court was silent therefore this was a twilight zone case. 4. Treaties and Foreign Affairs Self-executing-- treaties that do not need Congressional implementation to be enacted. If there are two self-executing treaties and there is an issue as to which treaty takes precedence "the last in time, first in right" (whichever treaty is newer is going to be the one that takes precedence). Whitney v. Robertson *****Burris said that the House need not to be involved in the ratification of a self-executing treaty since a treaty is another way of making laws (besides from making statutes). A treaty only involves the President and the Senate, not the House. Non-self-executing-- Congress must pass statutes to implement the treaty. If Congress passes a treaty, that takes precedence over any executive agreements.***Here, Burris said that since the law is created with the need of statute to implement the treaty>>the House has to get involved.

XIII. CONGRESS POWER TO REGULATE IMMIGRATION AND NATURALIZATION A. Generally

1. Article I, 8, cl. 4 gives Congress the power to establish a uniform, national rule of naturalization. By using this power, congress can determine the process by which a person gains or loses citizenship. In addition, Congress has the power to regulate immigration and to set the terms and conditions for deportation. 2. The law only has to be rationally related to achieving a legitimate governmental interest. B. Constitutional Protections do not apply to "Statutory Citizens". 1. Statutory Citizens are those citizens that have not been born or naturalized in the United States, but meet the statutory requirements for residence. 2. Constitutional citizens--14th Amendment "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States". These citizens are afforded all constitutional protections. C. Revocation of Citizenship 1. Congress may impose conditions on citizenship, but it cannot revoke a person's citizenship absent a voluntary renouncement of that person's citizenship. 2. There need to be some affirmative steps made by the citizen for there to be a renouncement of citizenship. Write a letter disavowing your citizenship. Take acts inconsistent with your citizenship.-- moving to another country is not enough. If you vote in an election in another country. Run for office in another country. D. Cases: Hamdi v. Rumsfeld: Petitioners, a citizen-detainee and his father, petitioned for a writ of habeas corpus under 28 U.S.C.S. 2241. The U.S. Court of Appeals for the Fourth Circuit ordered the petition dismissed, finding that the 43

citizen-detainee's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. Certiorari was granted. The U.S. Supreme Court issued its decision in a plurality opinion. The citizen-detainee was born in the United States, detained in Afghanistan during the United States' military action against the Taliban regime, and transferred to the United States. Pursuant to a government official's declaration, the Government contended that the citizen-detainee was an enemy combatant. Aside from unspecified screening processes and military interrogations, the citizen-detainee received no due process. The Court determined that the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorized the detention of individuals in the citizen-detainee's circumstances and that the AUMF satisfied 18 U.S.C.S. 4001(a)'s requirement that a detention be "pursuant to an Act of Congress." However, under the Mathews analysis, the Court determined that the citizen-detainee, seeking to challenge his classification as an enemy combatant, was entitled to receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. The Court rejected the Government's assertion that separation of powers principles mandated a heavily circumscribed role for the courts in such circumstances. The SC vacated the appellate courts judgment and remanded the case for further proceedings. ***Burris said that the question here dealt with Due Process?>>How long is this person going to stay incommunicado. Also what kind of hearing should this person get? Burris said that the type of hearing depends on the interest at issue. In this particular case the interest at issue was the depravation of liberty for a long time (as long as the war on terror will last). The Main issue here was whether Congress could preclude jurisdiction? Burris said that in this case: (1) if Congress had given authorization for the detention, then there would be no question for the court, and there would be no habeas corpus granted, but (2) if Congress did not authorize the detention (which was incommunicado with constant interrogation), the defendant would be entitled to a hearing to rebut. Burris also mentioned that if the defendant proves that he was NOT and enemy combatant he should be released. But if the defendant would have been charged with any crime in the battle field would be a different scenario. ****Remember that generally, the President is the one who decides when hostilities cease!!! Crosby v. National Foreign Trade Council: Petitioner state officials sought a writ of certiorari challenging court of appeals' judgment affirming injunctive relief in favor of respondent foreign trade council, arguing Mass. Gen. Laws ch. 7, 22G-22M, 40F1/2 (1997) (Burma Law), neither unconstitutionally infringed on federal foreign affairs or commerce powers nor was preempted by the Foreign Operations, Export Financing, and Related Programs Appropriations Act (Act), 570, 110 Stat. 3009-166 to 3009-167 (1997) (enacted by the Omnibus Consolidated Appropriations Act, 101(c), 110 Stat. 3009-121 to 3009-172) (1997). The court found the Burma Law was an obstacle to the accomplishment of Congress' objectives under the Act. It undermined the intended purpose and natural effect of delegation of discretion to the President to control economic sanctions against Burma, the limitation of sanctions under the Act, and the directive to the President to diplomatically develop a comprehensive, multilateral strategy towards Burma. The court noted representations by the executive branch and formal diplomatic protests demonstrated the Burma Law stood in the way of Congress's diplomatic objectives. The judgment was affirmed. ****Burris mentioned that States cannot have an independent foreign relations power>>this will create the Supremacy Clause to kick in>>and a Preemption Conflict would arise. However, Burris emphasized that Congress could authorize states to pursuit foreign policy and there is no problem with that. EXAMPLE: Is South Florida has an ordinance against Cubans, the State of FL would be preempted from having its own separate foreign policy!! Goldwater v. Carter: The Supreme Court dismissed a challenge to President Carters unilateral termination of the 1954 treaty with Taiwan, ruling that the case was not justiciable. Of the six Justices who voted to dismiss the case, four concluded that the issue of how a treaty may be abrogated poses a political question, another Justice found that the challenge was not ripe, and the sixth Justice did not disclose his reasoning. The issue thus remains an open one, to be resolved by the political branches themselves until such time as the Court may choose to resolve it. ***This case deals with the political question doctrine and foreign affairs. Burris said that the President has authority for treaties and nobody else. The Court said pretty much if Congress does not like what the President is doing, then impeach him!! Galvan v. Press, Officer in Charge, Immigration and Naturalization Service: The Court affirmed a judgment ordering petitioner to be deported; the classification by Congress, providing for deportation of any alien who was a member of the Communist Party (Party), was not so baseless as to be violative of due process and therefore beyond the power of Congress over the admission and deportation of aliens. It was not germane that petitioner, at the time he willingly joined the Party, was unaware of the Party's purpose. ***This case deals with Immigration and Naturalization issues. Burris mentioned that Congress has plenary (ABSOLUTE) power in this area. Individual rights of aliens are not the same as rights of the citizens. For example, Congress may decide, for any reason, to kick out all the legal aliens out of the country. Then Burris talked about whether this particular law was an ex-post facto law (a criminal law could only be made prospectively and not retroactively), Burris said that this case did not show an ex-post facto law because this was not a criminal act but only a punishment and not a criminal sentence. 44

Individual Rights do not trump Congress immigration power Normally rights trump powers but here powers may trump rights This is the exception rather than the rule Conceptually the immigration statutes can discriminate when deciding who to allow into the United States.

Vance v. Terrazas: The Court reversed and remanded the judgment below which held that Congress had no power to legislate the evidentiary standard contained in 8 U.S.C.S. 1481(c), and that the Constitution required that proof that a citizen renounced allegiance and relinquished United States citizenship be not merely by a preponderance of the evidence, but by clear, convincing and unequivocal evidence. The Court held that in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of the evidence. The Court further held that when one of the statutory expatriating acts is proved, it is constitutional to presume it to have been a voluntary act until and unless proved otherwise by the actor. The Court determined that if he succeeded, there could be no expatriation, but if he failed, the question remained whether on all the evidence the government had satisfied its burden of proof that the expatriating act was performed with the necessary intent to relinquish citizenship. ***Here, Burris talked about how preponderance of the evidence is needed in order expatriate someone.

XIV. STATE ACTION

The Constitutions protections of individual liberties and its requirements for equal protection apply only to the government. Private conduct generally does not have to comply with the Constitution. This is often referred to as the state action doctrine, although state action is something of a misnomer. The Constitution applies to government at all levelsfederal, state, and localand to the actions of government officers at all levels. The Constitution, however, generally does no apply to private entities or actors. In 1879, not long after the ratification of the Fourteenth Amendment, the SC declared that the provisions of the Fourteenth Amendment all have reference to State action exclusively, and not to any action of private individuals. The Civil Rights Cases, in 1883, are generally credited with mandating the requirement for state action. The Civil Rights Act of 1875 provided that all persons were entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement. The law specifically prohibited discrimination based on race and color or on the basis of any previous condition of servitude. In other words, the law prohibited private race discrimination and provided both criminal and civil penalties. The SC declared the law unconstitutional. The Court ruled that the Fourteenth Amendment applies just to state and local government actions, not to private conduct. Justice Bradley, writing for the Court, said that the Fourteenth Amendment is prohibitory upon the statesIndividual invasion of individual rights is not the subject matter of the Amendment. The Court explained that private action was governed by state law and not by the US Constitution. The Court therefore concluded that Congress under 5 of the Fourteenth Amendment could not regulate private conduct but, rather, only could legislate against wrongs by state governments. The Court also ruled that Congress could not adopt the law pursuant to its authority under 2 of the Thirteenth Amendment because the refusal to serve a person was no more than an ordinary civil injury and not a badge of slavery. This restrictive interpretation of Congresss powers under the Thirteenth Amendment has been overruled in later cases, and it is now clearly established that Congress has broad power under this provision to prohibit racial discrimination. However, recently in United States v. Morrison, the SC reaffirmed the holding in the Civil Rights Cases that Congress lacks the power under 5 of the Fourteenth Amendment to regulate private conduct. The central holding of the Civil Rights Casesthat the Fourteenth Amendment applies only to the government, not to private conductremains the law and is a central principle of constitutional law. ****Where a private actor takes on the appearance or function of a public entity, the public has an interest in the functioning activity!!! ****There are EXCEPTIONS though!!>>>There are two exceptions to the state action doctrine. One is the public functions exception, which says that a private entity must comply with the Constitution if its is performing a task that has been traditionally, exclusively done by the government. The other is the entanglement exception, which says that private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct.

A. There are two ways that a private individual's actions can be found to be state action. 1. TEST: Traditional state function The first exception to the state action doctrine is often termed the

public functions exception. The current formulation of the public functions exception was articulated in Jackson v. Metropolitan Edison Co., (discussed below). In that case the court ruled that a government-owned utility must provide notice and a hearing before cutting off service. The argument was that a private utility, with a state granted monopoly, performs a public function and should also 45

have to provide due process. But the court rejected this argument and explained that running a utility is not traditionally the exclusive prerogative of the State and therefore the Constitution was inapplicable. In other words, since there long have been private utility companies, running a utility is not regarded as a public function to which the Constitution always applies. a) Leading case is Marsh v. AlabamaManagement of Private Property: This case was one of the first ones to apply the public functions exception. The SC ruled that running a city is a public function, and therefore it must be done in compliance with the Constitution. The Courts explanation was broad. The Court said that the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the constitutional and statutory rights of those who use it. This could justify applying the Constitution to all businesses and places of public accommodation that open their doors for use by the public in general. The Court further concluded that private property rights of the company did not justify the States permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties. (1) FACTS: Jehovah's witnesses trying to pass out pamphlets in town owned by a private company. (2) MAIN RATIONALE: People living in company-owned towns are free citizens of their State and country, just as residents of municipalities; and there is no more reason for depriving them of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen. (3) Burris said that once you are operating your business as a public entity>>then the individual rights kick in as individuals. Burris emphasized the fact that this little town had its own police force to implement their rules. In other words, the private entity was using the police powers (just like the government) thus there is no way that they could be private. EXAMPLE: Disney World. b) Hudgens v. National Labor Relations Board (1) FACTS: Members of union picketed in from of employer's store. Shopping center manager threatened to have them arrested if they didn't leave. They said that the conduct of the manager violated the NLRA. (2) MAIN RATIONALE: The only thing that is unique about shopping centers is that people go there to shop. They back away from Marsh v. Alabama here. Shopping centers are not the equivalent of company towns. They generally can be converted. c) CAVEAT: If you are calling the police on someone and you are the owner of a shopping mall or other public place, don't say: "Come get this crazy religious nut!!" Say, " Officer, we have a trespasser." One way you will be okay, the other way you will be violating 1st amendment. You can't use State power to enforce private choices. d) OTHER SITUATIONS: Another example of the public function exception is the white primary cases where the SC ruled that holding an election for government office is a public function that must meet the constitutional requirement for equal protection. Early in this century, Texas law excluded blacks from participating in political primary elections. The TX statute provided that in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of TX. The SC declared this unconstitutional in Nixon v. Herndon. Texas then revised its law to provide that the partys State Executive Committee could prescribe qualifications for voting in political primary elections. When this was used to exclude blacks from voting in these elections, the SC again declared this unconstitutional in Nixon v. Condon. These cases are the paradigm instance of the public functions exception, but also an example from which it is difficult to generalize. Running an election is a task that has been traditionally, exclusively done by the government. TX decided to stop doing so precisely to facilitate discrimination. Perhaps these cases are most useful as a precedent if the government ever would choose to stop performing a traditional task so as to avoid the Constitution. EXAMPLE, if the government were to rely on contracts with private prisons in order to avoid constitutional constraints, the White Primary Cases indicate that delegations to avoid the Constitution will not succeed. Another example where the public functions exception might be applied is when a private entity is managing or regulating schools. Education long has been a province of the government, and there is a strong argument that private entity is performing a public function when it educates children. The problem, though, is that Jackson narrowly defines public function, and it seems impossible to say that running or regulating schools is a task that has traditionally been done exclusively by the government. Not surprisingly, the Court has refused to apply the public functions exception in this area. 46

In Rendell-Baker v. Kohn, the SC held that there was no state action when a private school that received almost all of its funding from the government fired a teacher because of her speech. The Court said that the question is not whether the school performs a public function, but rather the question is whether the function performed has been traditionally the exclusive prerogative of the State. The Court recognized that providing special education was an important social function, but said that there was not state action because such private schools long have existed. In National Collegiate Athletic Association v. Tarkanian, the Court concluded that the NCAA was a private entity and that it therefore did not have to provide due process before it suspended the basketball coach at a state university. The Court said that although fostering and regulating collegiate athletics is a critical function, by no means is it a traditional, let alone an exclusive, state function. The Tarkanian Court relied, in part, on the earlier decision in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, where the Court declared: Neither the conduct nor the coordination of amateur sports has been a traditional government function.. In the Olympic Committee case, the SC found that the US Olympic Committee did not perform a public function and therefore did not violate the Constitution when it prevented a group from calling its activities the Gay Olympic Games. But in Brentwood Academy v. Tennessee Secondary School Athletic Association, the Court found that a private entity regulating high school athletics was a state actor based on the governments entwinement with its activities. The Court expressly distinguished NCAA v. Tarkanian, which is obviously similar in that it involved an entity regulating interscholastic sports, albeit at the college level. Justice Souter said that the difference is that Tarkanian involved an entity, the NCAA, that operates in all states whereas Brentwood was concerned with an entity operating only in one state. Since it was difficult to see the NCAA, not as a collective membership, but as surrogate for the one state, the court held the organizations connection with NV too insubstantial to ground a state action claim. In contrast, the TN Secondary School Athletic Association obviously was just in one state.

2.

State involvement - If the state is heavily involved in the activities of the private actor. (Symbiotic approach). The other major exception to the state action doctrine is termed entanglement exception. Under this exemption, the Constitution applies if the government affirmatively authorizes, encourages, or facilitates private conduct that violates the constitution. Either the government must cease its involvement with the private actor or the private entity must comply with the Constitution. The entanglement exception cases have arisen primarily in four areas: judicial and law enforcement actions, government licensing and regulation, government subsidies, and voter initiatives permitting discrimination. a) Four ways private actor can be involved. (1) The state commands or requires the private person's action. (2) The state encourages the private party's actions. (3) The state and the private actor have a symbiotic or mutually beneficial relationship. (a) TEST For Symbiotic Relationship. (i) Advertising and representation. (Public) Signs, etc. (ii) State benefits through the lease agreement. (Private.) (a) Flat rate won't work. (b) Percentage based on profits better. (iii) Anytime you have a private entity leasing state property, you want to show that the policy benefits the state and the way it is portrayed to the public makes them think it is a state run institution. (4) The state is entangled with the private actor. b) Burton v. Wilmington Parking Authority (1) FACTS: Parking garage owned by state agency. Customers from restaurant used the garage. (2) MAIN RATIONALE: State benefited from the discrimination of the restaurant, since lease was based on percentage. (3) BURTON FACTORS (Symbiotic) - more than just one thing needed (a) Based % on gross or net receipts. Flat rate doesn't work. (b) They advertised as a state building. (c) Other lease terms seem to involve the state in the operation. (Cleaning ladies.) c) Shelley v. Kramer (Judicial and Law Enforcement Action) 47

(1) FACTS: Homeowners were attempting to enforce racially restrictive covenants in the courts. (2) MAIN RATIONALE: Stands for the general proposition that you can not invoke the state to

d)

exercise its power on anything that it couldn't do under the Constitution. (Enforce racially restrictive covenants). So Courts cannot enforce racially restrictive covenants!!! (3) Burris said that this was the ENDORSEMENT situation where a covenant is being enforced by the Courts. Burris said that this case encourages people to take the law into their own hands. FOR EXAMPLE: If you cannot invoke the police, you might just want to try the correct the problem yourself. (4) Here Burris said that we could compel the state action by looking at the legislative. (5) This is the most famous illustration of judicial and law enforcement action. Here, the SC held that Courts cannot enforce racially restrictive covenants. The issue here was whether courts could enforce contracts whereby members of a neighborhood agreed not to sell their property to blacks. The argument was that private contractual agreements need not to comply with the Constitution and that Court enforcement was simply implementing private choices. The SC disagreed and held that courts may not enforce racially restrictive covenants. The Court explained that court enforcement has the government, through its judicial branch, facilitating discrimination. The participation of the state consists in the enforcement of the restrictions. The Court thus concluded that the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment. It is government-employed judges enforcing the contract law of the state, which does not forbid racial discrimination, that implements discrimination by enforcing a racially restrictive covenant. Evans v. Newton: PARK CASE (1) Here, the SC held that a city could not avoid desegregating a park in turning its control over to a private entity. The park had been created in Macon, GA, by a testamentary trust in the will of Senator Bacon, which required that it be used only by white persons. The city was designated as the trustee and operator of the park. Rather than desegregate the park, the city resigned as trustee and sought to turn the park over private control. The Supreme Court held that running the park was a public function and that it had to comply with the Constitution even if managed by a private entity (2) MAIN RATIONALE: The Court found that the private trustees couldn't enforce it either because the municipal control of the park was firmly established and you can't escape it just because you turn it over to someone else.

e) Evans v. Abney: Park Case II (1) FACTS: (See Evans v. Newton above). Because the grantor's intent could not be upheld, the

(2) (3) (4)

(5)

trust was terminated and a reversion was created. The petitioners argued that the state cannot terminate the trust because that is the state using its power to discriminate. (See Shelley v. Kramer.) MAIN RATIONALE: The Court said that it is not discriminating and distinguished Shelley on the grounds that they were not enforcing a private scheme of discrimination, they were merely nullifying it. They used state intestate law and so it wasn't necessarily agreeing with the law. NOTE: Burris does not agree with this. He says that this case is inconsistent with Shelley. Here, Burris showed that this case should have been a winner. The case had the symbiotic relationship (every park has a sign according to Burris) and the city benefits by the use of the park by the Caucasians. However, the case got remanded because it was a reverter action. In addition, Burris mentioned that the endorsement of the park itself is important>>and their main argument is that the park would have never existed without this covenant. This case signifies a shift by the court in this area. Post 1970, the likelihood that you are going to persuade the court that you have de facto legislation is less likely. They would much rather say that if you want to outlaw conduct, then pass a statute. (Change from Warren Court to Burger Court.)

d) Moose Lodge No. 107 v. Irvis: Private Clubs (1) FACTS: The Lodge had denied service to a black man. He said that since the state had given the
club liquor licenses, the act of licensing was sufficient to render state action. Goes to entanglement with the state.

48

(2) MAIN RATIONALE: Court rejected this claim. They said that the mere holding of a license does

b)

c)

not by itself demonstrate that you are a state actor, they said you would have to have extensive regulation as well. They did, however, strike down one aspect of the statute that held if you had a private liquor license, then you had to enforce the rules of your private club. (Would that go to commanding or forcing the state to do something?) They basically said you have to put the pieces of the puzzle together and they weren't here. (3) Burris said that this case reflects the modern trend of how the Courts are more reluctant to use state action doctrine to bring private people in. Here, this was a private restaurant-bar, so it would not fall under the Civil Rights Cases. (4) The Court applied the SYMBIOTIC RELATIONSHIP test>>the Liquor license was the sign and there were economic benefits associated. (5) The Court in this case trivialized the importance of the symbol (not noticeable) and said that this is not a situation were the state gets an economic benefit, and if it does it would be minimal. The Court said that this was like the park case with a little affect on citizens. The Court also said that this case is like the Shopping Mall case where if passed as state action will drag everyone in and will create the possibility of a multiple amount of lawsuits. Jackson v. Metropolitan Edison Company: Private Monopoly Power (1) FACTS: claimed that her electric service should not have been turned off w/o a hearing. The state authorized this particular type of way to cut off power. (2) MAIN RATIONALE: The Court rejects this because there was no specific proof of endorsement. The Court said that the state had not really granted a monopoly since it was a "natural" one. The Court seems to reject the analysis they set forth in the Moose Lodge No. 107 v. Irvis. All the pieces of the puzzle are here, i.e. intense regulation of a monopoly, yet they still rejected to hold them as state actors. (3) NOTE: Burris does not agree with this decision either. Flagg Brothers, Inc. v. Brooks: Self-Help Statutes (1) The Supreme Court held that a private creditors self-help repossession did not constitute state action, and thus due process was not required prior to the sale of her belongings. After an individual was evicted from her home, the sheriff arranged for storage of her possessions at a warehouse. The warehouse demanded that she pay the storage fees or it would sell her property. The customer claimed a right to due process before the sale, but the SC concluded that since the warehouse company was privately owned, the Constitution did not apply. The customers primary contention was that the state of NY delegated to the company a power traditionally reserved to the state. The customer argued that resolving disputes is a traditional function of government and that the government had delegated this task to the creditor by giving it the authority to sell the goods to pay the debt. The SC expressly rejected this argument and said that there were many ways in which the dispute could have been resolved: The debtor could have sought a waiver of the creditors rights to sell her goods; the debtor could have sought to replevy her goods under state law; the debtor had a statutory damages action available for violations of the law. The SC said that in light of all these opinions, it could not be said that the government delegated to the creditor an exclusive prerogative of the sovereign. (2) Remember that here the SC said that resolution of private disputes is a function traditionally reserved to the states. However, it is not exclusively reserved to it. Resolution of this dispute under the statute was not the only way. There were other remedies not invoked.

XV. DUE PROCESS CLAUSE

A. Introduction: This part of the outline deals with rights guaranteed to individuals by the Constitution. There are two general principles that are crucial to remember. First, practically all of the individual rights conferred by the Constitution upon individuals protect only against government action. They do not protect a person against acts by other private individuals. EXAMPLE: Suppose P is a woman whos two months pregnant, and none of the private hospitals in her state will perform an abortion. Ps substantive due process right to an abortion has not been violated, because the government has not interfered with that right, the private hospitals did!! ***The only exception to the government action only rule is the Thirteenth Amendments ban on slavery, which does apply to private conduct.

49

The other general principle to remember is the central role of the Fourteenth Amendments Due Process Clause. Many of the important individual guarantees are given by the Bill of Rights (the first ten amendments). For Instance, the First Amendment rights of free expression and freedom of religion fall into this category. But the Bill of Rights does not directly apply to the states. However, the Fourteenth Amendments Due Process Clause (which does apply to the states) has been interpreted to make nearly all of the Bill of Rights guarantees applicable to the statesthese individual guarantees are incorporated into the Bill of Rights. B. The Fourteenth Amendment: Section I of the 14th Amendment provides, in full, that: All persons born or naturalized in the United States, and subject to the jurisdiction hereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protections of the laws. Three Rights: So, in one sentence we have three major rights: (1) the right to due process; (2) the right to equal protection; and (3) the right to the privileges and immunities of national citizenship. The Bill of Rights and the States: One of the major functions of the 14th Amendments Due Process Clause is to make the Bill of Rights applicable to the States. o The Bill of Rights is NOT directly applicable to the States. The SC held early in 1833 that the Bill of Rights limited only the federal government, not state or municipal governments. o But enactment of the 14th Amendment in 1868 effectively changed this. The 14 th Amendment directly imposes on the states (and local governments as well) the requirement that they do not deprive anyone of life, liberty or property without due process. Nearly all the guarantees of the Bill of Rights have been interpreted by the SC s being so important that if a state denies these rights, it has in effect taken away an aspect of liberty. o The SC has never said that due process requires the states to honor the Bill of Rights as a whole. Instead, the Court uses an approach called selective incorporation. Under this approach, each right in the Bill of Rights is examined to see whether it is of fundamental importance. If so, that right is selectively incorporated into the meaning of due process under the 14th Amendment. o By now, nearly all rights contained in the Bill of Rights have been incorporated, one by one, into the meaning of due process (and thus made applicable to the states). The only major Bill of Rights guarantees NOT incorporated are: (1) Grand Jury: The 5th Amendments right not to be subject to a criminal trial without a grand jury indictment (so that a state may begin proceedings by an information, as some states do); and (2) Right to Jury in Civil Cases: The 7th Amendments right to jury trial in civil cases. o Once a given Bill of Rights guarantee is made applicable to the states, the scope of that guarantee is interpreted the SAME WAY for the states as for the federal government. The Court has rejected the notion that the 14th Amendment applies to the states only a watered-downversion of the individual guarantees of the Bill of Rights. [Malloy v. Hogan]. EXAMPLE: The 4th Amendment right not to be subject to an unreasonable search or seizure is interpreted the same way whether the case involves federal or state policethus if on a given set of facts the FBI would be found to have violated the 4 th Amendment, so would local police. C. The Federal Due Process Clause: Well generally be discussing the 14th Amendments due process clause, which binds the states. But keep in mind that there is also a due process clause in the 5 th Amendment that is binding only on federal government. Both clauses have been interpreted the same way, so that any state action that would be forbidden by the 14th Amendment Due Process Clause is also forbidden to the Federal Government via the 5 th Amendment Due Process Clause. EXAMPLE: For instance, exactly the same limits apply to federal and state regulations that impair the right to have an abortion.

XV. SUBSTANTIVE DUE PROCESS

A. Generally: There are two quite different functions that the Due Process Clause serves. Most obviously, it imposes certain procedural requirements on governments when they impair life, liberty, or property. (this is Procedural Due Process discussed in section XVI of this outline). But the Due Process Clause also limits the substantive power of the states to regulate certain areas of human life. This substantive component of the Due Process Clause derives mainly from the interpretation of the term libertycertain types of state limits on human conduct have been held to so unreasonably interfere with important human rights that they amount to an unreasonable (and unconstitutional) denial of liberty.

50

B. Fundamental v. Non-Fundamental Rights: There is an absolutely critical distinction that you must make right at the outset, when you are analyzing a substantive due process problem. Thats the distinction between fundamental and non-fundamental rights. If a right or value is found to be non-fundamental, then the state action that impairs that right only has to meet the easy mere rationality test. In other words, it just has to be the case that the state is pursuing a legitimate governmental objective, and is doing so with a means that is rationally related to that objective. TIP: Nearly all ECONOMIC regulation (and most SOCIAL WELFARE) will turn out to implicate only nonfundamental rights, and will almost certainly be upheld under this easy-to-satisfy mere rationality standard. So anytime you cant find a fundamental right being impaired, you should presume that the measure does not violate substantive due process. But if a state or federal government is impairing a fundamental right, then its a different ball game entirely: here, the court uses strict scrutiny. Only if the governmental action is necessary to achieve a compelling governmental objective, will the government avoid violating substantive due process. C. Significance of Distinction: So 95% of the battle in analyzing a substantive due process problem is deciding whether the right in question is fundamental or not. Once you know that, you pretty much know how the case will come outif the right is not fundamental, theres almost certainly no substantive due process problem; if the right is fundamental, then strict scrutiny will almost certainly result in the measure being invalidated. D. Cases and Tests that will help to determine whether a right is Fundamental: Fundamental rights include: Right to Travel; Right to Privacy; Right to Vote; and All First Amendment Rights. Palko v. Connecticut: Defendant appealed a judgment that affirmed the death sentence imposed on the ground that Conn. Gen. Stat. 6494, which allowed the State to appeal in a criminal case, violated U.S. Const. amend. XIV because it allowed defendant to be tried twice and thus subjected him to double jeopardy in violation of U.S. Const. amend. V. The United States Supreme Court affirmed, holding that not all U.S. Const. amend. V rights were applicable to the states through U.S. Const. amend. XIV, and the state could choose not to adopt a right if it was not of the very essence of a scheme of ordered liberty, and its abolishment would not violate a principle of justice so rooted in the traditions and conscience of the American people as to be ranked as fundamental. The Court ruled that the state statute did not deny petitioner due process of law because allowing a retrial did not violate fundamental principles of liberty and justice where it was only done to ensure a trial free from substantial legal error. ***Burris developed a test under Palko to determine whether a right is fundamental: Court looks to see 1) Whether you can imagine societies committed to a fair system of justice to exist w/o this right? Look for a worldwide viewpoint - Ordered Liberty must be necessary for justice and it is a fair judicial system when we dont have to worry about this particular issue. - Court looks to the history of representative governments 2) Fundamental right - Do you need this right to prevent against sham proceeding? (example: conviction is gotten by torturing defendant or coerced through psychological torture) Here court held this was not a sham but there was an error in law that would have entitled defendant to a new trial and thus must afford state a new trial. An example of a sham process would be the coercion example above or for example if the bad process is repetitive over and over and the defendant has no chance to win his case. 3) can you draw a parallel to show a court this is sham proceeding? If you can then you get your right. You must look for sham proceedings or coercion. ***BURRIS said that this particular test is used when we have a general claim under Substantive Due Process Rights. These are rights not found in the Constitution. Duncan v. Louisiana: Defendant was charged with simple battery, a misdemeanor punishable by a maximum of two years imprisonment and a $ 300 fine. Defendant sought trial by jury, but because the Louisiana Constitution grants jury trials only in cases in which capital punishment or imprisonment at hard labor may be imposed, the trial court denied the request. Defendant was convicted and sentenced to serve 60 days in the parish prison and pay a fine of $ 150. After the state supreme court denied his petition for a writ of certiorari, defendant sought review in the federal court. The Court held that a crime punishable by two years in prison was a serious crime and not a petty offense. Consequently, defendant was entitled to a jury trial and the trial court erred in denying it. In so ruling, the Court opined that the right to trial by jury guaranteed defendants in criminal cases in federal courts by the U.S. Const. art. III and by the Sixth Amendment was also guaranteed by the Fourteenth Amendment to defendants tried in state courts. ***HERE Burris applied a different test to determine a fundamental right. First, this new test is similar to the Palko test, however, this one focuses in American History unlike Palko that focuses in World History: The test is: 1. Function of the right your are asking for: In this case we would ask what is the function of the jury?>>>A jury is a check on the judge and the prosecutors. 51

2. Look at system through a historical perspective: Look at the constitution>>> Historical looks at jury trial right in United States are found all over the constitution (Article III) and bill of rights. 3. Survey Says!!!>>Here you look particularly at what other states are doing>>In this particular case you will look at whether an extension to jury trials had been conceded in other states. Here, it was found that no other states had followed LA>>so it would not be disruptive to the Federal System. But, for example, if the survey said that 49 states would be affected then it would be a different story and defendant would lose). ***Burris pointed out that in this case no empirical evidence, no crazy judges were found to support the courts conclusion!!! ***Burris mentioned that when we are faced with a substantive due process problem that deals with the Bill of Rights we have to use the Duncan Test. In other words, when rights are found in the constitution, we use Duncan. E. Substantive Due Process and Fundamental Rights: In Meyer v. Nebraska, in 1923, the SC declared unconstitutional a state law that prohibited the teaching in school of any language except English. The Court broadly defined the term liberty in the due process clause to protect basic aspects of family autonomy. The Court said: Without doubt, liberty denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Since Meyer, the Court has expressly held that certain aspects of family autonomy are fundamental rights and that government interference will be allowed only if strict scrutiny is met. These liberties include the right to marry, the right to custody of ones children, the right to keep the family together, and the right to control the upbringing of ones children. None of these rights, of course, is absolute. But the government must meet the heavy burden of strict scrutiny in order to satisfy and infringement of any of these rights. 1. The Right to Procreate: The SC has held that the right to procreate is a fundamental right, and therefore government imposed involuntary sterilization must meet strict scrutiny. Initially, the Court rejected this position and in Buck v. Bell upheld the ability of the government to involuntarily sterilize the mentally retarded. In Buck, the SC stated that it was constitutional for the State of Virginia to sterilize Carrie Buck, an 18-year old woman, pursuant to a law that provided for the involuntary sterilization of the mentally retarded who were in state institutions. ***Burris mentioned that here a liberty interest was at issue and the government needs justification for their actions. The state showed that since this was for inmates only it would create a burden on the state if these inmates kept having kids. The state would have to support them. 2. The Right of the Parents in the care, custody and control of their children: In Troxel. V Granville, there was a Washington State Statute that permitted any person to petition a court for visitation rights to see a child. The court could grant the petition as long as it found that it was the best interest of the child. Here, grandparents used the statute to get greater visitation rights to their grandchildren after their son had died and the mother of the children wouldnt allow them to visit for a short time. Grandparents, by using the statute, were able to acquire greater visitation. The parents of the children suedthey claimed that it was a violation of their Due Process Right to decide the visitation rights, so long as the mother was a fit custodial parent. The Court agreed with the parents. It is important to point out that the Court found that there was a liberty interest involved here, perhaps the oldest fundamental liberty interest recognized by the Court>>The interest of parents in care, custody and control of their children. So, there is a fundamental right to raise children. 3. IMPORTANT: Equally important is to recognize that there is also a fundamental right to live together as a family; a right to refuse unwanted medical treatment if your are a competent adult; also a right to marry; a right to get divorced; and a right to child rearing. F. Substantive Due Process and Economic and Social-Welfare Regulations: In this section we talk about economic liberties. Some constitutional rights can be grouped together under the category of economic liberties. Economic liberties generally refer to constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess, and convey property. For example, the Contracts Clause found in Article 1, 10 of the Constitution provides that no state shall pass any law impairing the obligation of contracts. Also, several constitutional provisions protect property rights. The Fifth Amendments Taking Clause states nor shall private property be taken for public use without just compensation. The Fifth and Fourteenth Amendments, respectively, provide that neither the federal nor state governments can take a persons property (or life or liberty) without due process of law. At times, the Court also has used the due process clause to protect other economic liberties such as freedom of contract, freedom to pursue a livelihood, and freedom to practice a trade or profession. The framers obviously were concerned about protecting economic rights and thus included in the Constitution provisions such as the contracts clause and the takings clause. The SCs protection of economic liberties has varied enormously over time. In the early nineteenth century and continuing until 1937, the Court found that freedom of Contract was a basic right under the liberty and property provisions of the due process clause. During this period of 52

constitutional history, sometimes referred as the Lochner era, the Court aggressively protected economic rights under the due process clause. Many state laws, such as minimum wage and maximum hour statutes, were declared unconstitutional as violating the Fourteenth Amendment by impermissibly interfering with freedom of contract. The Contracts clause was not used often during this era; the protection of freedom of contracts under the due process clause made the contracts clause superfluous. Freedom of contracts under the due process clause limited the governments ability both to impair existing contracts and to regulate the content of future contracts; the contracts clause has always been confined to the former. It is extremely important to know that during this same era the Court used federalism to limit the ability of Congress to regulate the economy. From the late nineteenth century until 1937, the Court narrowly defined the scope of Congresss powers under the Commerce Clause, and it also found that the Tenth Amendment reserved a zone of authority exclusively to the states. In other words, if a state adopted a minimum wage or a maximum wage hour law, it likely would have been invalidated for violating the due process clause of the Fourteenth Amendment. But if the Federal Government adopted the same law, it would have been declared unconstitutional as exceeding the scope of Congresss powers or as violating states rights and the Tenth Amendment. After 1937, the law changed dramatically, and the Court adopted a policy of great deference to government economic regulations. No longer did the Court protect freedom of contract under the liberty of the due process clause. Nor did the Court impose limits on Congresss ability to regulate the economy based on federalism or on narrow definitions of federal power.

(1) Prove it in fact-Adjudicatory Level of Factual Analysis (a) Lochner v. New York - The Court required Prove it In Fact. (i) FACTS: In 1905, the SC declared unconstitutional a NY law that set the maximum

hours that bakers could work. The NY law provided that no bakery employee shall work more than sixty hours in any one week, or more than ten hours in any one day. The SC declared the law unconstitutional as violating the due process clause of the 14th Amendment because it interfered with freedom of contract and because it did not serve a valid police purpose. (ii) RATIONALE: First, the Court stated that freedom of contract is a basic right protected as liberty and property rights under the due process clause of the 14 th Amendment. The Court expressly declared that the general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14 th Amendmentthe right to purchase or sell labor is part of the liberty protected by this Amendment. Second, the Court said that the government could interfere with freedom of contract only to serve a valid police purpose: that is to protect the public safety, public health, or public morals. Third, the Court said that it was the judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it served a police purpose. The Court saw the maximum hour law as interfering with the freedom of contract because it prevented bakery owners and bakers from contracting for as many hours of work as they wished. The court rejected the argument that maximum hours law served a police purpose. The Court declared: there is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state, interfering with their independence of judgment and of action. They are in no sense wards of the StateA law like the one before us involves neither the safety, the morals, nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act. So, protecting the health of bakers was not a sufficient justification to allow the state to interfere with freedom of contract. In addition, the Court emphasized that limiting hours of work for bakers had not relationship to public health. The Court said: clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a weekThe law provides for the inspection of premises where the bakery is being carried on, with regard to furnishing proper wash-rooms and water-closets, with regard to providing proper drainage, plumbing, and painting. (iii) LOCHNER TEST: (a) There has to be a very close fit between the statute and its objectives. It had to have a real and substantial relationship between the statute and the goals which it was to serve. (Bakers could have been protected by less restrictive measures like more frequent inspections, required bathrooms, etc.) 53

(b) Has to be an acceptable objective (Health and safety is okay, but readjustment
of economic power or economic resources is not).

(c) Burris said if this Lochner rationale prevailed today, there would be a lot of (d)

unconstitutional stuff going on. Remember that here the burden of proof rests on the State to show that their law is not unconstitutional

(2) Reasonable to believeLegislative Level of Factual Analysis (a) Muller v. Oregon The Court upheld a maximum hours law for women. Muller is

(b)

(c) (d)

especially famous because attorney, and later SC Justice, Louis Brandeis wrote a detailed brief purporting to document that womens reproductive health required limiting nondomestic work. After Lochner held that there had to be proof that a law was closely related to advancing the public health, public safety, or public morals, attorneys began filing detailed briefs, filled with social science data, seeking to show the need for the law. The Court upheld the maximum hours law for women because there was widespread belief that womens physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil. The Court said that regulating the hours worked by women was justified because of womens physical structure and the performance of maternal functions. (i) Their role is to provide for the home. (ii) Introduce Brandeis briefing where you go outside of the record and you look at larger social and economic data and you establish the effects of working outside of the home on women. Bunting v. Oregon - factory workers Brandeis brief technique. Here the Court upheld a maximum hour law for manufacturing jobs. The State established a ten-hour workday for those involved in the manufacturing positions. (i) Was there information that made it reasonable to believe that there is a legitimate governmental interest? If so, okay. (ii) You Can: (a) Bring in your experts. (b) You could also provide socio-econmoic data. (c) Show that this is the industry standard. They don't change the test, just going to change the level of analysis. Remember that at this level of analysis, the burden shifts to the person attacking the statute to show that the law is unconstitutional.

(3) Can you imagine? Modern approach (a) Nebbia v. New York - Nebbia signals the end of the Lochner era. They rob substantive (b)

due process of its teeth. Facts: The SC upheld a NY law that set prices for milk. On the one hand, this can be viewed as a narrow decision based on strong evidence of the importance of milk and legislative finding that the evils in the marketcould not be expected to right themselves through the ordinary play of the forces of supply and demand, owing to the peculiar and uncontrollable factors affecting the industry. Although the Lochner court had invalidated some price controls, it had upheld others in businesses that it deemed to affect the public interest. Nebbia might be seen as a limited ruling following those cases. Yet, the language of the Courts opinion in Nebbia was broader than that; the Court seemed to question the basic premises of the Lochner era. The Court said, for example, but neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harmThis Court from the early days has affirmed that the power to promote the general welfare is inherent in government. The Court went even further in declaring a need for judicial deference to legislative choices. In other words, here the Court appeared to question the premises of the Lochner era that the government only could regulate to achieve a police purpose and that the court needed to review laws aggressively to ensure that they truly served a police purpose. (i) Court sustained a New York regulatory scheme for fixing milk prices. 54

(4)

due process required only that the law shall not be unreasonable, arbitrary or capricious and that the means selected shall have a real and substantial relation to the object sought to be attained. (iii) A state was free to adopt whatever economic policy that may be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. This was essentially the test of Lochner. (c) MODERN TEST: (i) There is a presumption of constitutionality unless the legislature has acted in an arbitrary and irrational way. (ii) If the state statute regulates a purely economic matter (falls within the states police power) all that is required is that the means chosen be rationally related to a legitimate governmental objective (iii) This is a can you image analysis NOTES: (a) Today it is very easy for state economic regulations to survive substantive due process attacks. Since 1937, the Court has not struck down an economic regulation for violating substantive due process. (b) An economic statute has to meet only two easily-satisfied requirements to be in conformity with substantive due process: (1) The state must be pursuing a legitimate state objective. But virtually any health, safety, or general welfare goal comes within the states police power and is thus legitimate and (2) There must be a minimal rational relation between the means chosen by the legislature and the state objective. To put it in another way, the Court will presume that the statute is constitutional unless the legislature has acted in a completely in a completely arbitrary, capricious or unreasonable way. (c) Outside the economic area, the SAME rule applies as long as NO fundamental right is being affected: the state must merely be pursuing a legitimate state objective by rational means. So most social welfare legislation merely has to meet this very easy standard. (d) Remember that fundamental rights (rights that relate to sex, marriage, child-bearing and child-rearing) follow a different way of analysis. Remember also that these fundamental rights are mostly non-economic in nature with maybe the sole exception of the right to practice a profession.

(ii) The court did not explicitly reject the Lochner philosophy, But they noted that the

(5) The End of Lochnerism: Since 1937, not one law has been declared unconstitutional by the

SC as violating economic substantive due process. Ultimately, the question is whether this is appropriate judicial deference to legislative choices in regulating the economy or whether it is judicial abdication of an important role in protecting economic liberties. Are the decisions since 1937 an overreaction to the Lochner era decisions? Or do the decisions reflect a properly limited judicial role in scrutinizing economic regulations? Answering these normative questions requires consideration of whether there should be constitutional protection of economic rights, such as freedom of contract and a right to practice a trade or profession. Also, there must be consideration of the proper judicial role and whether there are reasons why the judiciary should be especially deferential to legislatures in this area. The bottom line is that since 1937 economic substantive due process has been unavailable to challenge government economic and social welfare laws and regulations. Protection of economic rights, since 1937, such that it has been, has come under two specific constitutional provisions, the contracts clause of Article 1 10, and the takings clause of the Fifth Amendment.

G. The Contracts Clause Since 1934:

a) Home Building Loan Association v Blaisdale: this case was argued in the same year as Nebbia. Here, the
SC upheld the constitutionality of a Minnesota law that prevented the foreclosure of homeowners mortgages for a two-year period. Although mortgage holders had a right under the contract to foreclose when homeowners failed to make timely payments, the state adopted an emergency measure in response to the depression preventing foreclosures from 1933 until 1935. The Court expressly rejected the argument that the law impaired the obligations of contracts in violation of Article I, 10 (the Contracts Clause). Even though the 55

case focused on the contracts clause and not substantive due process, it indicates the Courts increasing willingness by 1934 to defer to government economic regulations. Burris developed a new test with this case when it deals with impairment of contracts: A state may interfere with a contract only if the following elements are met: 1. there is an emergency economic situation -- there has to be evidence that a vicious cycle exists (Great Depression). If there is something that the parties could have guarded against when making the contract, there is no emergency situation (high inflation, recessions). 2. When the state is tinkering with the contract, we have to find out if the state is substantially impairing a contractual relationship. Is the state is exercising one of its police powers (health, safety, and general welfare).>>legitimate state interest 3. Whether it is reasonable what the state is doing to achieve its goal? Can place a temporary restriction on foreclosures but CANNOT abolish foreclosure as a remedy because foreclosure is what lenders rely in agreeing to provide a mortgage to someone. ****This is very similar to a rational basis review!!!

b) Allied Structural Steel Co. v. Spannaus: This is the only case since 1934 where the SC has declared unconstitutional a state law that interfered with private contracts. Here, an Illinois company operated an office in Minnesota and provided a pension plan for its employees. The terms of the plan provided that the company could, at any time, amend the plan or terminate the plan and distribute the assets to the employees. Employees were entitled to collect under the plan if they worked for the company until they reached age 65 and if the plan was in effect at that time. Minnesota adopted a Private Pension Benefits Protection Act that required employers to pay a pension funding charge if they terminated a pension plan or closed a Minnesota office. The charge was to ensure that pensions would be available for individuals when they reached retirement age. Allied Structural Steel closed its Minnesota facility and was assessed a $185,000 fee. The Court found that the Minnesota law violated the Contracts Clause. Justice Potter Stewart, writing for the Court, began by declaring that the Contract Clause remains part of the Constitution. It is not a dead letter. The Court found that the Minnesota statute was a substantial impairment of the obligation of contracts. The Court reasoned that the employer had a contract with its employees that permitted the termination of the contract at any point. The state, by forcing the company to make pension payments, was essentially abrogating this provision. The Court said that the law was unconstitutional because it was not narrowly tailored emergency legislation like that in Blaisdell. Justice Stewart stated: This law can hardly be characterized, like the law at issue in the Blaisdell case, as one enacted to protect a broad society interest rather than a narrow class. This legislation, imposing a sudden, totally unanticipated, and substantial retroactive obligation upon the company to its employees, was not enacted to deal with a situation remotely approaching the broad and desperate economic conditions of the early 1930sIf the Contract Clause means anything at all, it means that Minnesota could not constitutionally do what it tried to do to the company in this case. The Court decision here can be QUESTIONED on many levels. First, was there a substantial impairment of a contract? Justice Brennan, in dissent, argued that the Act does not relieve either the employer or his employees of any existing contractual obligation. Rather, the Act creates an additional, supplemental duty of the employer, no different in kind from myriad duties created by a wide variety of legislative measures which defeat settled expectations but which have nonetheless been sustained by this Court. Second, was the Court using more than the rational basis test? Protecting pensions and ensuring income for people at retirement is surely a legitimate government purpose, and the law seems a reasonable way to achieve these goals. Therefore, it seems that the Court was applying heightened scrutiny that is not usually used in evaluating government regulation of private contracts. (BURRIS agrees with this idea that it was in fact a legitimate government interest!!! Because Allied Structural Steel has not been followed by the SC in the last two decades, it is difficult to know whether it is an anomaly or whether it is a precedent that might someday be used to revitalize the contracts clause. Thus far, the contracts clause cases since Allied Structural Steel have distinguished Allied Structural Steel and have refused to find a violation of the contracts clause. *****After this case Burris mentioned that to overcome a contracts clause attack, the state will have to do several things to prevail: 1. The state will have to show a significant problem and not just a hypothetical problem. 2. The state will have to tinker with the contract on the edges. 3. The state will have to limit the time frame and tie it to the scope of the emergency. 4. The state will have to respect the original obligations. ***Burris:state will have to use the least burdensome ways to defeat unconstitutionality!!! H. Privileges and Immunities of National Citizenship under the Fourteenth Amendment: The Right to Travel: The Fourteenth Amendment has its own Privileges and Immunities Clause: No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.
56

***National Rights ONLY: But this clause is very narrowly interpreted: It only protects the individual from state interference with his rights of national citizenship. The most important of these rights of national citizenship are: (1) the right to travel from state to state (which is also protected by the Equal Protection Clause); and (2) the right to vote in national eclections. Saenz v. Roe: Here the SC used the Privileges or Immunities Clause of the Fourteenth Amendment as the basis for protecting the right to travel. The Court declared unconstitutional a California law that restricted a new residents welfare benefits to the level of the state where the person moved from for the first year of residence. Justice Stevens, writing for the Court, reviewed the history of the Courts protection of the right to travel. He noted that the right to travel protects the right of a citizen of one State to enter and to leave another State; the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State; and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of the state. He said that the third aspect of travel, the right of new residents to be treated the same as longer residents of the state, is protected by the privileges or immunities clause of the Fourteenth Amendment. Justice Stevens was explicit that this aspect of the right to travel is protected as a fundamental right. He wrote: That newly arrived citizens have two political capacities, one state and one federal, adds special force to their claim that they have the same rights as others who share their citizenship. Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have domiciled in the State for less than a year. This and other cases show that the right to travel within the US is a fundamental right. There are many reasons why it is regarded as a basic liberty. In part, the justification is historical: Ever since the Articles of Confederation, the right to free movement among the States has been acknowledged as a basic liberty. The right to travel is closely related to the policies underlying the commerce clause and particularly the dormant commerce clause, which prevents states from burdening interstate commerce, and the privileges and immunities clause of Article IV, which prevents states from discriminating against out-of-staters with regard to basic liberties. All of these constitutional protections concern ensuring the free flow of goods and services throughout the US and the full access of every person to the markets of every state. In addition, there is a political significance to the right to travel as well; it is the right to relocate to a place with a different political climate and environment. The SC has articulated and applied the right to travel primarily in evaluating laws that impose durational residency requirements. A durational residency requirement is where a person must live in the jurisdiction for a specified amount of time in order to receive a benefit. Prominent examples involve waiting periods required for receipt of welfare benefits (as HERE), voting and divorces. The SC has recognized that durational residency requirements discourage interstate travel, and especially migration. The Court, therefore, has said that strict scrutiny should be applied in this area. (i.e. a compelling state interest must be involved). ****Burris said that the Court in this case did not use the privileges and immunities clause of Article IV because the right to travel was not a fundamental right yet!! ****Burris said that this compelling state interest is hard to prove. He said that if the state claims that it will save money will not be enough to satisfy the strict scrutiny in this area of law.

XVI. PROCEDURAL DUE PROCESS

A. Introduction: We turn now to the other main aspect of the 14 th Amendments Due Process Clause: this is the requirement that the state act with adequate or fair procedures when it deprives a person of life, liberty or property. Here, the emphasis is on the particular case presented by the particular personhas the government handled this particular situation fairly? Our discussion is divided into two main questions: (1) Has the individuals life, liberty or property been taken?; and if so, (2) what process was due to him prior to this taking? Life, Liberty or Property: The most important single thing to remember about procedural due process is that there cannot be a procedural due process problem unless the government is taking a persons life, liberty or property. EXAMPLE: A city hires for an opening on it police force. The city can be as arbitrary and random as it wants, because an applicant for a job has no liberty or property interest in obtaining the job. Therefore, the city doesnt have to give the applicant a hearing, a statement of reasons why she didnt get the job, a systematic test of her credentials, or any other aspect of procedural fairness. Distinction between substance and procedure: Always distinguish between substantive due process and procedural due process. Procedural due process applies ONLY where individual determinations are made: EXAMPLE: Suppose a state passes a law that says that no person with child support may marry. This statute raises an issue of substantive due processunless this means of enforcing child support payment is necessary to achieve a compelling state interest, the state may not use that method at all, against anyone. Separately, 57

even if this ban on marriage could pass this substantive due process hurdle, the state still must use adequate procedures before enforcing the ban against a particular person. For instance, the state must probably provide a person with notice that the ban will be applied, and a hearing at which he can show that the ban shouldnt apply to him because, for instance, he is fully paid up. The obligation to use fair procedures always applies one case at a time, and governs the application of government action to a particular person in a particular situation. B. Liberty: Remember that liberty is one of the things the government cannot take without procedural due process. What is liberty for due process purposes? Physical Liberty: This liberty interest is violated if you are imprisoned, or even if you are placed in some other situation where you do not have physical freedom of movement (e.g., juvenile and/or civil commitment). Intangible Rights: Also, a person has a liberty interest in being able to do certain intangible things not related to physical freedom of movement. There is no complete catalog of what interests fall within this intangible aspect of liberty. Some examples are: (1) the right to drive; (2) the right to practice ones profession; (3) the right to raise ones family. On the other hand ones interest in having a good reputation is not liberty (so the state can call you a crook without giving you due processPaul v. Davis) C. Property: The government also cant take property without procedural due process. PROPERTY includes a wide range of significant, legally-recognized proprietary interests. The key concept in defining property today is entitlement. When the government recognizes that an individual is legally entitled to a benefit, it thereby creates an expectancy that the benefit will not be arbitrarily terminated. A property interest is created. But note that entitlement applies only to presently enjoyed rights or interests; due process does not protect the person applying for benefits (as in Roth below). In Board of Regents v. Roth, a teacher employed by Wisconsin State University was not rehired and contended that the failure to provide a hearing in connection with the nonrenewal denied due process. The SC found that there was no property interest because under the contract the teacher could not have a reasonable expectation that he would be rehired. The Court explained that the important fact in this case is that the contract specifically provided that the employment was to terminate on June 30. They did not provide for contract renewal absent sufficient cause. Indeed, they made no provisions for renewal whatsoever. In other words, Roth defined property not based on the importance of the job to the individual, but rather based on the expectation of continued employment. 1. Entitlement is created either through a contract, or 2. Entitlement is created through a statute, or 3. Entitlement is created through the parties conduct and the conduct transforms into a mutual expectation. **In this case, Burris showed that there was a unilateral expectation by Roth, not a mutual expectations since the Regents did not do anything!!!, So here Roth lost for failing to have a property entitlement!! In a companion case to Roth, Perry v. Silverman, the Court made it clear that it was defining property based on a reasonable expectation to continued receipt of a benefit. Sinderman was a professor at Odessa Junior College, and although the college did not have a tenure system, its faculty guide stated that it wishes the faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory and as long as he displays a cooperative attitude. The Court said that the absence of a formal tenure system was not dispositive in deciding whether there was a property interest. The Court explained that the teacher had raised a genuine issue as to his interest in continued employment, which though not secured by a formal contractual tenure provision, was secured by a no less binding understanding fostered by the college administration. Conventional Property: This is Personal and Real Property. The Government cannot impose a monetary fine against a person, or declare a persons car forfeited, without complying with procedural due process. o Debt Collection: Certain kinds of debt collection devices involve property. For instance, if the state lets private creditors attach a persons bank account prior to trial (which means that the owner cant get at the funds), even that temporary blockage is a taking of property. Similarly, if the state lets a private creditor garnish a persons wages, thats a taking of property. On the other hand, if the state simply passes a law that lets creditors use self-help to repossess goods, there is no governmental taking of property when the creditor repossesses. REMEMBER that the due process requirement applies ONLY where it is government that does, or at least is involved in, the taking of life, liberty or property). Government Benefits: These benefits may or may not constitute property rights. Generally, if one is just applying for benefits and hasnt yet been receiving them, one does not have a property interest in those benefits. EXAMPLE: If P applies for welfare, and has never gotten it before, the government does not have to comply with procedural due process when it turns P down. Therefore, the government does not have to give P a statement of reasons, a hearing, etc.) o Already getting benefits: But if a person has already been getting the benefits, its probably the case that hes got a property interest in continuing to get them, so that the government cannot 58

terminate those benefits without giving him procedural due process. [Godberg v. Kelly]. But state law can change even thisfor instance, if the state statute governing welfare benefits says that the benefits may be cut off at any time, you probably dont have a property interest in continuing to get those benefits, so you have no claim to due process.) Government Employment: A government job is similar to government benefits. o Applicant: If you are just applying for the job, you clearly do not have a property interest in it. o Already have a job: But if you already have a job, the court looks to state law to determine whether you had a property interest in the job. Ordinary at will: Ordinarily, under state law a job is terminable at will; if so, the jobholder has no property right to it, so he may be fired without due process. Legitimate claim of entitlement: Entitlement could be created by statute, by contract or by mutual expectation. This mutual expectation is seen in the Sindermann case. D. Life: Here, the government is making a decision that is going to make you cease to exist as a life form Example: you are a polio victim and are in an iron lung and govt refuses to pay for it, you could die - Primarily deals with govt programs, medical care, etc.. We did not talk much about Life!! - Burris mentioned a social safety net when dealing with cases that involve for example welfare benefits, because without these benefits, there is no other social safety net>>in the worse case scenario, the individual will die and therefore, his life interests will be involved!!. So creates a life interest. - In Goldberg v. Kelly we could see an example of a life interest at stake because this case was concerned with benefit programs that provide food, shelter and clothing. - Remember when we deal with a life interest we are entitled to a pre-decision hearing. E. What Process is Due?: If a persons interest in property or liberty is being impaired, then she is entitled to due process. Then the question becomes what procedures does the person get? Burris talked about that if a person has not constitutional protected interest, then the case goes out the door. However, when a person establishes the entitlement of a personal right, therefore creating a factual dispute, then the person is entitled to notice and a fair hearing as part of the due process of law. So the minimum deprivation hearing will have: Notice: o Notice must be timely for the individual to get a chance to dispute. o Notice must be adequate for the individual to have a meaningful opportunity to understand and respond. Fair Hearing: o It must be done by a impartial decision maker. (someone who is not involved in the investigatory process; a person that cannot prejudge or a person that does not have a monetary interest. o Opportunity to be Heard: Evidence, Be able to present witnesses, Be able to present arguments, Be able to cross-examine, Be able to hire a lawyer. o Decision must be based on the record. IMPORTANT: Burris said that if a person is given the minimum hearing, and, for example, it takes the person too long to respond>>then the process is not good anymore. Burris said that States are open to give more process because they have the discretion to do so. Mathews v. Eldridge: In this case, the Court articulated a balancing test for deciding what procedures are required when there has been a deprivation of life, liberty, or property and due process is required. The Court in Mathews articulated four factors that should be balanced: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3) the Govt's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Steps to Take for BURRIS: Step 1. What is protected under due process (burden is on person attacking agency process) 1. Life: must demonstrate that government is making a decision that will result in the end of your biological life 2. Liberty: free speech, bill of rights, privacy interest 3. Property: dirt/personal property/real property/jobs, contract, mutual expectation test (must have state action before this argument works) ***HERE BURRIS said to look at the individual and to see the adjudicatory record to find out the importance of the interest to the individual. 59

Step 2 What process are you entitled to? Substantial risk of erroneous decision. (burden is on person attacking agency process.) a. must show that there is a substantial risk of erroneous decision making under the current process being used-difficult to prove. b. the more the Court believes that the additional procedures will lead to better, less erroneous decisions, the more likely it is that the Court will require them. ***BURRIS said that in this section the person attacking could use the legislative record to develop a theory that looks at the risks systematically, institutionally but not at the very particular case, but to a larger scale by looking to the system as a whole. EXAMPLE: Look for a social safety net when Life interests are involved. Burris also said that here the person attacking could bring unbiased professional opinion as a source of reliable information. Burris said that here also, since we look at the legislative record, we could look at the agencies audition records or hunt for published information>>the idea is to gather the agencys own records against them systematically (this is hard though). Step 3. Alternative Process Available (burden is on person attacking agency process) a. Must prove that the alternative process is necessary in order to cure #2. This is needed to reduce the risk of erroneous decision making-difficult to prove. b. Here BURRIS said that the attacker must first (1) show that there is an error and provide for an alternative to fix it (through a responsive substitute process) and second (2) the attacker has to show that evidence that this alternative procedure will work (Burris said that this could be gathered also sometimes by looking at the Agencys own records for solutions) Step 4. Administrative and Fiscal Costs?Cost and Administrative inconvenience a. burden is on agency process b. If #1-3 is proven, then the agency must prove why they should win a. the agency can claim that is too expensive>>the more expensive the procedures will be, the less likely it is that the Court will require them. b. BURRIS said that this pretty much works as the Agencys affirmative defense. Here ASK DAVID about the emergency exception that provides no hearing!!

XVII. THE TAKING CLAUSE

A. Generally: Both, the federal government and the states have the power of eminent domainthe authority to take private property when necessary for government activities. However, the Constitution contains an important limit on this power: The Fifth Amendment states nor shall private property be taken for public use without just compensation. This was the first provision of the Bill of Rights to be applied to the States through the Fourteenth Amendment. B. Overview of the Issues: Analysis under the takings clause can be divided into four questions. First, is there a taking? There are two basic ways of finding a taking. A possessory taking occurs when the government confiscates or physically occupies property. Alternatively, a regulatory taking is when government regulation leaves no reasonable economically viable use of property. Second, is it property? Obviously, only if the object of the taking is property does the Fifth Amendment provision apply. Generally, the Court has relied on other sources of law, usually state law, in deciding whether there is a property interest. Third, if there is a taking of property, the next question becomes: Is the taking for public use? If the taking is not for public use, the government must give the property back. However, the Court has very broadly defined public use so that almost any taking will meet the requirement. The Court has said that a taking is for public use so long as it is rationally related to a conceivable public purposein other words, so long as it meets the rational basis test. Fourth, assuming that it is a taking for public use, the final question becomes: Is just compensation paid? The key is that just compensation is measured in terms of the loss to the owner; the gain to the taker is irrelevant. C. Taking vs. Regulation: The government (whether its federal or state) must pay for any property that it takes. On the other hand, if it merely regulates property under its police power, then it does not need to pay (even if the owners use of his property, or its value, is substantially diminished). BURRIS Test for Taking: 1. Does the interference change or alter the current use of the land in some significant way? 2. Plaintiff must make a prima facie showing of deprivation of every economic use. Burden shifts to the govt to show that there is a viable alternative economic use for the property. 60

A. Eminent Domain--The power of eminent domain is the power of a govt to force the owner of real or personal property to transfer that property to the govt. B. The taking must be for a public use. Public use is any use that advances a legitimate power of the govt and accrues to the benefit of the general public. C. Physical occupation or invasion of property will be considered a taking 1. Govt action that effectively takes an easement of a private party's airspace will be treated as a taking. Case example: US v Causby- The court found a taking when army planes flew over Causby's chicken farm, making the chickens too nervous to lay eggs. The govt had taken as easement of air space, for which it was required to pay compensation. a. There would not be a taking if the property could still be used for a residence. In this case, the planes were so loud the owners were not able to sleep, therefore the house could not even be used as a residence either. D. Denial of all economically beneficial use of the property constitutes a taking Land use ordinances: Usually the problem of distinguishing between a compensable taking and a noncompensable regulation occurs in the context of land-use regulation. For a land use regulation to avoid being a taking, it must satisfy two requirements; (1) it must substantially advance legitimate state interests; and (2) it must not deny an owner economically viable use of his land. The First requirement that the regulation must substantially advance legitimate state interests means that there must be a fairly tight fit between the means chosen and the objective being pursued. But theres a wide range of legitimate state interestsmaintaining a residential feeling through zoning; preserving landmarks; and protecting the environment are examples of legitimate governmental interests. The Second requirement for a regulation is that it must not deny an owner economically viable use of his land. Few land use regulations are likely to be found to deny the owner all economically viable use of his land. For instance, if a particular 3-story building is made a landmark, the fact that the owner cant tear down the building to build a skyscraper doesnt deprive him of all economically viable use. But if the state were to deny the owner the right to build any dwelling on the land, this would probably constitute a denial of all economical viable use. 1. EXAMPLE: The state of South Carolina, in order to protect against coastal erosion, prohibits landowners from building any permanent habitable structure at all on certain parcels. P owns 2 vacant parcels (for which he paid $1 million), on which the building ban applies. Held, by the Supreme Court, if this regulation indeed prevents P from making any economically viable use of the parcels (something for the state court to decide on remand), there has been a taking for which the state must pay compensation, even if the state was just trying to protect the health and safety of its citizens. [Lucas v. South Carolina Coastal Council]. Here, Even though the state gave Lucas an alternative use, allowing him to picnic or camp was not economically meaningful. NOTE 1: Most zoning, environmental laws and landmark-preservation laws will satisfy these two above mentioned requirements, and thus not be characterized as takings, but merely noncompensable regulation. NOTE 2: If a land-use law merely temporarily prevents all economically viable use of a parcel, this will not necessarily constitute a takingall surrounding circumstances must be considered to determine whether the interference with use is significant enough to constitute a taking. For instance, a 2-or3-year moratorium on development of a particular parcel, until a permanent land-use scheme can be enacted by government, might not constitute a taking even though for that period an affected owner cant make any economically viable use of her parcel. [Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency]. When related to a legitimate govt interest, they can do this. (ie. raise house because of a new law, Hurricane Andrew) They are not taking away the beneficial use of the property. When the state comes out and cuts your citrus trees down, it is regarded as a taking. You care entitled to compensation.

E. The court has ruled that a govt imposing conditions on the granting of building permits constitutes a taking. 1. If a state imposes the condition of requiring a dedication of land before it grants a building permit for a piece of land, then the following elements have to be met. (Balance between the individual burden v. public use). 61

a. There has to be a legitimate reason for denying the permit. This is a nexus between a legitimate state interest and the condition at issue. b. The govt has to show a reasonable relationship between the conditions on the permit and the public benefit. Is there a rough proportionality to the impact of the proposed development. Govt has the burden of proof, to show the nexus, the govt will have to bring in the expert engineers. 2. Case: Dolan v Tigard- Dolan wanted an extension on her store and increase the size of the parking lot. The proposed extension was on her property. She requested a building permit and was told that she was required to dedicate portions of her land for a public greenway to reduce the possibility of flooding and for a bike, pedestrian pathway to reduce the hardships caused by the increased traffic from the expansion of her store. a. There was no showing that the donating of the greenway would reduce flooding and that a bike pedestrian pathway would reduce increased traffic. The court found that this was a taking because you can not put a condition on a building permit unless there is a legitimate reason. NOTE: ROUGH PORTIONALITY: The govt must make some individualized determination that the land sought to be extracted is related in nature and in extent to the proposed development impact. If the state merely regulates property use in a manner consistent with the states police power, then no compensation is due even though the owners use of his property or even its value has been substantially diminished. REMEMBER: One important principle that emerges from the cases that deal with taking issues is that government regulation is a taking if it leaves no reasonable economically viable use of the property; on the other hand, government regulation is not a taking simply because it decreases the value of a persons property so long as it leaves reasonable economically viable uses. Also crucial in evaluating whether there is a regulatory taking is the relationship of the governments actions to the property owners expectations. For example, people who purchase property knowing of common law legal regulations cannot subsequently claim that those regulations are a taking. In Lucas, for example, the SC said that the state of South Carolina only could avoid its regulation being deemed as taking if it could identify background principles of nuisance and property law that prohibit the uses the owner now intends in the circumstances in which the property is presently found. HOWEVER, it appears that the Court is drawing a distinction between common law rules that existed prior to purchase and other regulations. The Court recently ruled that the latter may be challenged even if they were already in place at the time of purchase. EXAMPLE: In Palazzolo v. Rhode Island, the Court held that a property owner could bring a takings claim as to regulations and laws that were in place at the time the property was acquired. Palazzolo formed a company to purchase and develop coastal property in RI. After several proposals for development were rejected by the state, the corporation stopped functioning and ultimately was dissolved under the states law. Palazzolo was deemed the owner under the terms of this law. Subsequently he presented additional proposals for development, which were denied by the Coastal Commission. He sued claiming a taking because the government was preventing all development of his property. The RI Supreme Court rejected his argument, in part, because the rules were already in place at the time Palazzolo acquired the property. The Supreme Court rejected this argument and reversed. The Court said that if it accepted such an argument, then the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. ***Burris said that society changers. The statement in Lucas that takings challenges are limited by the preexisting law does not reconcile with the language in Palazzolo. It is possible that Palazzolo is implicitly overruling Lucass statement. More likely, the Court is drawing a distinction between challenges to common law rules, which cannot be brought if they were in place when the property was acquired, and takings claims as to regulations and statutes, which can be made even if they were then when the owner obtained the property.

XVIII. EQUAL PROTECTION

A. Introduction: The Constitution as originally drafted and ratified had no provisions ensuring equal protection of the laws. This, of course, is not surprising for a document written for a society where blacks were enslaved and where women were routinely discriminated against. After the Civil War, widespread discrimination against former slaves led 62

to the passage of the Fourteenth Amendment, which provides in part: No state shalldeny to any person within its jurisdiction the equal protection of the law. The promise of this provision went unrealized for almost a century as the SC rarely found any state or local action to violate the equal protection clause until the mid-1950s. Brown v. Board of Education, in 1954, ushered in the modern era of equal protection jurisprudence. Since Brown, the SC has relied on the equal protection clause as a key provision for combating invidious discrimination and for safeguarding fundamental rights. B. Application to the Federal Government: There remains no provision in the Constitution that says that the federal government cannot deny equal protection of the laws. However, in Bolling v. Sharpe, a comparison case to Brown v. Board of Education that concerned the segregation of the District of Columbia public schools, the Court held that Equal Protection applies to the federal government though the due process clause of the Fifth Amendment. Obviously, it would be unacceptable to allow the federal government to discriminate on race or gender in a manner prohibited the states by the Fourteenth Amendment. To avoid this embarrassment, the Court interpreted the Fifth Amendment as including an implicit requirement for equal protection. The Court simply declared that discrimination may be so unjustifiable as to be violative of due process. It is now well settled that the requirements of equal protection are the same whether the challenge is to the federal government under the Fifth Amendment or to state and local actions under the Fourteenth Amendment. The SC has expressly declared that Equal Protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. But technically, equal protection applies to the federal government though judicial interpretation of the due process clause of the Fifth Amendment and to state and local governments through the Fourteenth Amendment. C. A Framework for Equal Protection Analysis: All equal protection cases pose the same basic question: Is the governments classification justified by a sufficient purpose? Many government laws draw a distinction among people and thus are potentially susceptible to an equal protection challenge. For example, those under age 16 might claim to be discriminated against by the age requirement for obtaining a drivers license, and those denied government benefits might argue that they are discriminated against by eligibility guidelines. If these laws, or any governmental actions, are challenged based on equal protection, the issue is whether the government can identify a sufficiently important objective for its discrimination. What is a sufficient justification depends entirely on the type of discrimination. For instance, the SC has declared that it is extremely suspicious of race discrimination and therefore the government may use racial classifications only if it proves that they are necessary to achieve a compelling government purpose. This is known as the strict scrutiny. In contrast, a 14 year-old who claimed that the denial of a drivers license violated equal protection would prevail only by proving that the law was not rationally related to a legitimate government purpose. This is known as rational basis review. To be more specific, all equal protection issues can be broken down into three questions: What is the classification? What level of scrutiny should be applied? Does the particular government action meet the level of scrutiny? What is the Classification? : How is the government drawing a distinction among people? Equal protection analysis must begin by identifying how the government is distinguishing among people. Sometimes this is clear; sometimes it is the focus of the litigation. There are two basic ways of establishing a classification. One is where the classification exists on the face of the law, that is, where the law in its very terms draws a distinction among people based on a particular characteristic. For example, a law that prohibits blacks from serving on juries is an obvious facial racial discrimination. A law that says that only those 16 and older can have drivers licenses is obviously an age classification. Alternatively, sometimes laws are facially neutral, but there is a discriminatory impact to the law or discriminatory effects from its administration. For instance, a law that requires that all police officers be at least 510 tall and 150 pounds is, on its face, only a height and weight classification. Statistics, however, show that 40% of men, but only 2% of women, will meet the requirement. The result is that the law has a discriminatory impact against women in hiring for the police force. The SC has made it clear that discriminatory impact is insufficient to prove a racial or gender classification. If a law is facially neutral, demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law (DE FACTO DISCRIMINATION). Thus, women challenging the height and weight requirements for the police force must show that the governments purpose was to discriminate based on gender. In other words, there are two alternative ways of proving the existence of a classification: showing that it exists on the face of the law or demonstrating that a facially neutral law has a discriminatory impact and a discriminatory purpose. ****VERY IMPORTANT FOR DEFACTO: 63

Discriminatory Application: In some instances, a law that appears to be neutral on its face will be applied in a different manner to different classes of persons. If the persons challenging the governmental action can prove that the government officials applying the law had a discriminatory purpose (and used discriminatory standards based on traits such as race or gender), the law will be invalidated: A law prohibited operating a laundry in wooden buildings, but gave a government agency discretion to grant exemptions. It was shown that most such laundries were owned by people of Chinese descent, but the agency granted exceptions only to non-Asian applicants. The law was deemed to involve racial or national origin classification and was invalidated as applied. [Yick Wo v. Hopkins] Laws allow attorneys to move to strike potential jurors from a jury either for cause or without cause (a peremptory). In either case, there is an equal protection violation when it is proved that an attorney excluded a person from a jury on account of the persons race or sex. [See Batson v. Kentucky]. Note that because striking potential jurors from a jury significantly involves the state, even attorneys representing private parties are prohibited from discriminatory strikes. Discriminatory Motive: Sometimes a government action will appear to be neutral on its face and in its application, but will have disproportionate impact on a particular class of persons (such as a racial minority or women). Such a law will be found to involve a classification (and be subject to the level of scrutiny appropriate to that classification) ONLY if a court finds that the lawmaking body enacted or maintained the law for a discriminatory purpose. In such cases, the court should admit into evidence statistical proof that the law has a disproportionate impact on one class of persons. However, mere statistical evidence will rarely be sufficient in itself to prove that the government had a discriminatory purpose in passing a law. Statistical evidence may be combined with other evidence of legislative or administrative intent to show that a law or regulation is the product of a discriminatory purpose. EXAMPLE 1: A police department used results from a written test as a criterion for hiring police officers. Members of identifiable racial minorities consistently got low scores on the test, although there was no proof that the test was written or otherwise employed for the purpose of disadvantaging minority applicants. Because of the absence of nonstatistical proof of discriminatory purpose, there was no equal protection violation. [Washington v. Davis] EXAMPLE 2: A state law gave preference in the hiring and promotion of civil service employees to persons who were honorably discharged from the US military. The foreseeable and actual impact of this law was to disadvantage the female population of job applicants, because the majority of veterans are men. Because there was no proof (other than statistical impact of the law) that the legislature enacted the law for the purpose of hurting women (as opposed to the purpose of aiding veterans), the law was upheld. (Burris said that this is a good way to avoid defacto!!) EXAMPLE 3: A statistical study showing that black defendants in capital cases are much more likely to receive the death penalty than are white defendants in a state will not in itself establish that a particular black defendant was denied equal protection by being sentenced to death for murder in that state. The statistical study is insufficient to prove purposeful discrimination. [McCleskey v. Kemp]. ****Burris mentioned that we get to a DEFACTO situation we must prove: 1. Desparate impact 2. Intent: Some factors will be considered for the court in determining if there is a discriminatory intent behind a facially neutral law. The IMPACT of the official action whether it bears more heavily on one race than the other. Sometimes a clear PATTERN, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. The HISTORICAL background of the decision, particularly if it reveals a series of official actions taken for invidious purposes. Departures from the normal PROCEDURAL sequence. The Legislative or administrative history may be highly relevant, especially where there are contemporary STATEMENTS by members of the decision making body, minutes of meetings, or reports. What is the Appropiate Level of Scrutiny? : Once the classification is identified, the next step in analysis is to identify the level of scrutiny applied. The Supreme Court has made it clear that different levels of scrutiny will be applied depending on the type of discrimination. 1. Rational Basis Review (Mere Rationality Review) : This is the easiest to satisfy standard of review. It applies to statutes that: (1) are not based on a suspect classification; (2) do not involve a quasisuspect category that the Court has implicitly recognized (principally gender and illegitimacy); and (3) dont impair a fundamental right. Almost every economic regulation will be reviewed under this easy-to64

satisfy standard. (This is similar to the ease with which economic regulation passes muster under the substantive due process clause). Under this easiest mere rationality standard, the Court asks only whether it is conceivable that the classification bears a rational relationship to an end of government which is not prohibited by the Constitution. So where mere rationality review is applied, the classification must satisfy two easy tests: (1) government must be pursuing a legitimate governmental interest; and (2) there must be a rational relation between the classification and that objective. Furthermore, its not necessary that the court believe that these two requirements are satisfied; its enough that its conceivable that they are satisfied. 2. Strict Scrutiny: At the other end of the spectrum, the Court will give strict scrutiny to any statute which is based on a suspect classification or which impairs a fundamental right. A classification based on race or national origin are classic examples of a suspect class; the right to vote is an example of a fundamental right. Where strict scrutiny is invoked, the classification will be upheld only if it is necessary (narrowly tailored) to promote a compelling governmental interest. Thus not only must the objective be an extremely important one, but the fit between the means and the end must be extremely tight. This strict scrutiny test is the same as for substantive due process when a fundamental right (e.g. the right of privacy) is involved. 3. Intermediate Scrutiny/Middle-Level Review: In a few contexts, the Court uses intermediate scrutiny, more probing than mere rationality but less demanding than strict scrutiny. This middle level is mainly used for cases involving classifications based on gender and illegitimacy. This middle-level test is usually stated as follows: the means chosen by the legislature (i.e. classification) must be substantially related to an important governmental interest. So the legislative objective must be important (but not necessarily compelling, as for strict scrutiny), and means and end must be substantially related (easier to satisfy than the almost perfect necessary fit between means and end in strict scrutiny situations.) Does the Government Action Meet the Level of Scrutiny?: The level of scrutiny is the rule of law that is applied to the particular government action being challenged as denying equal protection. In evaluating the constitutionality of a law, the Court evaluates both the laws ends and its means. For strict scrutiny the end must be deemed compelling for the law to be upheld; for intermediate scrutiny the end has to be regarded as important; and for the rational basis test there just has to be a legitimate purpose. In evaluating the relationship of the means of the particular law to the end, the SC often focuses on the degree to which a law is underinclusive and/or overinclusive. A law in underinclusive if it does not apply to individuals who are similar to those to whom the law applies. For example, a law that excludes those under age 16 from having drivers licenses is somewhat underinclusive because some younger drivers undoubtedly have the physical ability and the emotional maturity to be effective drivers. A law is overinclusive if it applies to those who need not be included if it applies to those who need not be included in order for the government to achieve its purpose. In other words, the law unnecessarily applies to a group of people. For example, the governments decision to evacuate and intern all Japanese-Americans on the West Coast during WWII was radically overinclusive. Although the governments purported interest was in preventing espionage, individuals were evacuated and interned without any determination of their threat. Obviously, the law was enormously overinclusive because it harmed a large number of people unnecessarily. A law can be both underinclusive and overinclusive. The decision to evacuate Japanes-Americans during WWII was certainly both. If the goal was to isolate those who were a threat to security, interning only Japanese-Americans was underinclusive in that it did not identify those other races who posed a danger. At the same time, as explained above, the federal governments action was extremely overinclusive because few, if any, Japanese-Americans posed any threat. The fact that a law is underinclusive and/or overinclusive does not mean that it is sure to be invalidated. Quite the contrary, virtually all laws are underinclusive, overinclusive, or both. The court has recognized that laws often are underinclusive because the government may choose to proceed one step at a time. But underinclusiveness and overinclusiveness are used by courts in evaluating the fit between the governments means and its ends. For example, if strict scrutiny is used, a relatively close fit is required; in fact, the government will have to show that the means is necessarythe least restrictive alternativeto achieve the goal. Under intermediate scrutiny a closer fit, less underinclusiveness or overinclusiveness, will be required than under the rational basis test.

D. Analyzing the 3 different way of review: I Rational Basis Review: Railway Express Agency, Inc. v. People of State of New York: This is an example of how the court used the rational basis review. At the least, the government has a legitimate purpose if it advances a traditional police purpose: protecting safety, public health, or public morals. This case is an example of how a law was found constitutional as 65

promoting public safety. The SC upheld a law that prohibited the operation of an advertising vehicle, but created an exception for business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner and not used mainly for advertising. The Court concluded that the law had the legitimate purpose of enhancing traffic safety because the city might perceive that the prohibited advertisement could be more distracting. ****Burris used this case to show that at this time freedom of speech was not a fundamental right; so therefore, this case was properly allocated with the rational basis review. ****Burris showed that the government did not show any data and therefore Burris made us aware that at this level (rational basis), the court will use the Can You Imagine level of factual analysis. ****This case was also important for Burris because he was able to show how despite the fact that a regular advertisement (covered by the exception) could also be distractive to traffic safety (the main evil), the court could only address a subpart of the evil and not the whole evil when it deals with equal protection problems. ****In addition, Burris also showed how most advertisements ARE NOT distractive and thus do not cause this harm (create the evil); however, under this statute they will not be allowed. In other words Burris showed that at this level of scrutiny, the court will uphold law that are both over and under inclusive. Burris mentioned that at this level courts permit gross underinclusiveness because they could pick chunks of the evil; and that the court will also permit overinclusiveness as long as there is some marginal direction of furthering the identified governmental interest. ****Remember that the only way for the attacker to the statute to win is to prove that the statute is arbitrary or capricious. Federal Communications Commission v. Beach Communications, Inc: In this case the Court reaffirmed that any conceivable legislative purpose (applying Can you Imagine level of factual analysis) is sufficient and even went so far as to say that those attacking the rationality of the legislative classification have the burden to negate every conceivable basis which might support it. The case involved a challenge to a provision of the Federal Cable Communications Policy Act that created an exemption to certain regulations for cable television facilities that serve one or more buildings under common ownership or operation. The Court said: Because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislation.A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. ****Burris made us read this case just to show that under rational basis review is almost impossible for the government to lose. Rational Basis Review Test: The end to be obtained by the discriminating law must evidence a means that is rationally related to a legitimate governmental interest. Level of Factual Analysis: Can you Imagine? Remember that it will take very little for the government to prove the validity of their law under the rational basis review. In most cases if the government has some reasons, it would be good enough. There are many ways under this Can you Imagine level of factual analysis for the government, that is allegedly discriminating against a class, to prove that they are not discriminating. Also, this level of scrutiny is proper in relation to the type of class that come under review because those who bring an action are not a suspect class (not a typical victim of governmental discrimination, they are not a class based upon gender, race, or any other attribute that is foreseeable a victim, or historically a victim). Remember as well that the party attacking has the burden of proof and persuasion!!!! EXAMPLE: Suppose that Muni City Council, in order to cope with a budget deficit, increases the fares on all cityoperated buses from $1 to $2. Statistical evidence shows that 80% of people who ride the Muni bus system on a typical day have incomes below the city-wide median. At the same time the City Council increases the bus fares, it refuses to raise the annual automobile inspection fee; car owners on average have higher-than-median incomes. P, a bus passenger, sues Muni, arguing that it is a violation of his equal protection rights for the city to increase bus fares for the poor while not increasing inspection fees for the affluent. HERE a court, would apply the mere rationality standard to this regulation, because poverty is not a suspect class, and no fundamental right is at issue. Since the City Council could rationally have believed (imagined) that Munis deficit would be better handled by raising bus fares, and because the Council could rationally have decided to tackle its deficit problem one phase at a time, the constitutional challenge will almost certainly lose. ****One thing this mere rationality standard means is that the legitimate state objective part of the test is satisfied even if the statutes defenders come up with merely a hypothetical objective that the legislature might have been pursuing. The government does not have to show that the objective its pointing to was the one that actually motivated the legislature. 66

Non-Suspect Classes: 1. Age: Classification based on Age. EXAMPLE: Suppose that a state requires all state troopers over 50 to retire, in order to preserve a physically fit police force. Because age is not a suspect or quasi-suspect classification, the mere rationality test will be used. Because there is some slight overall relation between age and fitness, this requirement is satisfied, so the retirement rule does not violate equal protection. [Mass. Board of Retirement v. Murgia] 2. Wealth : Classification based on Wealth: EXAMPLE: Suppose that a state provides that no low-income housing project may be built in any community unless a majority of the voters approve it in a particular referendum. A resident who would like to live in the low-income housing that would be built if allowed challenges the statute on equal protection grounds. Even if P shows that the statute was motivated by a desire to discriminate against the poor, Ps constitutional challenge will probably fail. Because wealth is not a suspect or quasi-suspect class, the court will use mere rationality review, and will uphold the statute if it finds that the legislature could reasonably have believed that its nature might help achieve some legitimate state objective, perhaps letting communities avoid the greater governmental cost that arguably accompanies concentration of low-income residents. 3. Mental Condition: Classifications based on mental illness or mental retardation. EXAMPLE: A city makes it harder for group homes for the mentally retarded to achieve zoning permission than for other group living arrangements to do so. This classification, based upon mental status, will not be treated as suspect or quasi-suspect, and will thus be subject only to mere rationality review. (However, such a zoning procedure was found to violate even mere rationality, in [City of Cleburne v. Cleburne Living Center]***This case is important because here Burris described how a Court will take three factors in consideration to determine a SUSPECT CLASS>>>TEST: a. There has to be an IMMUTABLE CHARACTERISTIC: A physical characteristic that cannot be changed. For example Race and National Origin but not Wealth because you could win the lottery and be rich or either lose all your money and be poor. b. There has to be a DISCRETE AND INSULAR GROUP: They are treated different by people when they look at them>>stereotyping. c. The group has to be POLITICAL POWERLESS: Because if you have a political power you are not a suspect class. ***HERE Burris mentioned that if a particular group does NOT meet ANY of these 3 characteristic, then the review will be rational basis review. ***ON THE OTHER HAND, if the group comes short of meeting the 3 characteristics (e.g. meet one or two) then the review will be rational basis with bite review. 4. Sexual Orientation: Classifications based on sexual orientation. Thus states face only mere-rationality review if they treat homosexuals differently from heterosexuals. ***Mere Rationality with Bite: But the Court now seems to review antigay legislation a bit more skeptically than most legislation not involving a semi-suspect or suspect class, even though gays still dont have suspect or semi-suspect status. EXAMPLE: Colorado amends its Constitution to prohibit any state or local law that protects homosexuals against discrimination on the basis of their sexual orientation or conduct. Held, this amendment violates gays equal protection rightsits not even minimally rational, and is motivated solely by animus towards gays [Romer v. Evans]. II. Rational Basis With Bite Review: 3 ways go get here: 1. When you do a De-Facto analysis and you come up short 2. When you do a Suspect-Class analysis and you come up short 3. When you do a Substantive Due Process analysis and you come up short to get the fundamental right. *****Under this test>> we have to find whether the end to be obtained by the alleged discriminatory law gives evidence of a rationally related governmental interest (is the same as a regular rational relation review but the only thing that changes is the level of factual analysis). *****Here, the levels of factual analysis are: LEGISLATIVE RECORD AND ADJUDICATORY RECORD BUT WHAT IS ALSO IMPORTANT IS THAT THE BURDEN OF PERSUASION SHIFTS TO THE GOVERNMENT!!! *****Burris mentioned that under this test, the individual attacking the discriminatory law might get a chance to win. ****Those bringing suit against the government that are put in this newer class have some evidence of animus. So the government will have somewhat harder time proving they did not discriminate. The government will have a harder time because when the victim is in this class the government does not have the luxury of the court using their imagination to somehow rationalize the discrimination. The discrimination will have to be rationalized by either the legislative record or the adjudicatory record. EXAMPLE: If there is a law that requires men not to be bald, the government will have to show that this is necessary. *****Here the court might not allow over or under inclusiveness. 67

III. Strict Scrutiny: At the other end of the spectrum, we apply strict scrutiny for any classification that involves a suspect class. Race and National Origin: There are only three suspect classes generally recognized by the Supreme Court: (1) race; (2) national origin; and (3) for some purposes, alienage. So be on the lookout for a classification based on race, national origin or alienage. For other classifications you can safely assume that they are not suspect. Two requirements: Strict Scrutiny will only be applied where the differential treatment of the class is purposeful/intentional and it is invidious. 1. Purposeful: One of the most important things to remember about strict scrutiny of suspect classification is that this strict scrutiny will only be applied where the differential treatment of the class is INTENTIONAL on the part of the government. If the government enacts a statute or regulation that merely has the unintended incidental effect of burdening, say, African Americans worse than whites, the court will NOT use strict scrutiny [Washington v. Davis]. EXAMPLE: Suppose a city gives a standardized test to all applicants for the local police force. The city and the test designers do not intend to make it harder for African Americans than for whites to pass the test. But it turns out that a lot fewer African Americans pass than whites, even though the applicant pools otherwise seem identical. This differential will NOT trigger strict scrutiny, because the government did not intend to treat African Americans differently from whites. ****CIRCUMSTANTIAL EVIDENCE: However, remember that an intent to classify based on a suspect class can be proven by circumstantial evidence, no just direct, evidence. For instance, if a particular police force picks new officers based on a personal interview conducted by the police chief, and over five years it turns out that only 1% of African American applicants receive jobs but 25% of whites do (and there is no apparent objective difference in the black versus the white applicant pools), this statistical disparity could furnish circumstantial evidence of purposeful discrimination, which would then allow a court to apply strict scrutiny to the selection procedures. 2. Invidious: In addition to the requirement that the discrimination be purposeful, it must also be individuous, i.e. based on prejudice or tending to denigrate the disfavored class. This requirement is what has caused race, national origin, and (for some purposes) alienage to be the only suspect classesthese involve the ONLY MINORITIES AGAINST WHOM POPULAR PREJUDICE IS SUFFICIENTLY DEEP. The reason is that we give close scrutiny to governmental action that disadvantages very unpopular minorities because ordinarily, groups will protect themselves through use of the political process, but: (1) these particular groups dont usually have very much political power, because the past discrimination against them has included keeping them out of the voting system; and (2) even if the minority votes in proportion to its numbers, the majority is very likely to vote as a block against it, because of the minoritys extreme unpopularity. IMPORTANT: Even if a classification involves a group that has frequently been discriminated against, the classifications defenders may argue that their particular use of the classification is NOT INVIDIOUS because its not intended to disadvantage the class. Affirmative Action is one example where this argument might be raised. Another context in which the requirement that the discrimination be invidious arises is the separate but equal situation; in this context, the defenders of the classification claim that although both classes are treated differently, the unpopular class is being treated no worse. In general, the Court now seems to hold that discrimination based on race or national origin is per se individuous; for instance, the argument that the races are being treated separate but equally will almost never serve as a successful defense to an Equal Protection problem. EXAMPLE: Virginia forbids interracial marriage. It claims that blacks arent disfavored, because whites are blocked from marrying blacks just as much as blacks are blocked from marrying whites. Held, the statutes legislative history shows that it was enacted to protect the racial purity of whites, so the classification is invidious and violates Equal Protection. [Loving v. Virginia]. Strict Scrutiny Test: The end to be obtained by the racially discriminating law must be compelling, and the means used to obtain the governmental objective must be necessary and narrowly tailored. Factual Analysis: Adjudicatory Record>>Prove in Fact ***Those that bring a lawsuit against the government that are put in this class have a long history of discrimination. Therefore the BURDEN will be on the government to prove that they did not discriminate. All the government will have at their disposal to prove that they did not discriminate is what is in the adjudicatory record. The Court will not imagine a reason, and the Court will not even look at the legislative record. There is a PRESUMPTION that laws turning on these type of characteristics are UNCONSTITUTIONAL. **Necessary Prong: No purposeful racial or ethnic classification has survived strict scrutiny since 1944. Sometimes, this is because the state cannot show that it is pursuing a compelling objective. But more often, its because the means chosen is not shown to be necessary to achieve that compelling objective. A means is only necessary for achieving the particular objective if there are NO LESS DISCRIMINATORY ALTERNATIVES that will accomplish the goal as well, or 68

almost as well. EXAMPLE: Suppose Pearl Harbor occurred today, and the U.S. government once again put any citizen of Japanese ancestry into an interment camp. Presumably this would not be a necessary means of dealing with the danger of treason or sabotage, because less discriminatory alternatives like frequent document inspections and/or loyalty oaths would be almost as effective as virtual imprisonment. ***Remember that when we talk about a Compelling state interest is when we deal with a government interest with the purpose of REMEDY PAST DISCRIMINATION. But also be aware that the discrimination must be done by the governmental or state institution that is being sued and not any other institution. Race-Conscious Affirmative Action: If you see a question in which government is trying to help racial or ethnic minorities by giving them some sort of preference, you should immediately think equal protection and you should think strict scrutiny. 1. Public entity: Be sure to remember that there can only be a violation of equal protection if there is state action, that is, action by the federal government or by a state or municipality. In general, the use of affirmative action by private entities DOES NOT raise any constitutional issue (except perhaps where a judge orders a private employer to implement a race-conscious plan). But any time you have a fact pattern in which a police department, school district, public university, or other governmental entity seems to be intentionally preferring one racial group over another, thats when you know you have a potential equal protection problem. 2. Strict Scrutiny: It is now the case that ANY affirmative action program that classifies on the basis of race will be strictly scrutinized. [Richmond v. Croson]. So a race-conscious affirmative action plan, whether its in the area of employment, college admission, voting rights or anywhere else, must be adopted for the purpose of furthering some compelling governmental interest, and the racial classification must be necessary to achieve that compelling governmental interest. 3. Past discrimination: Since race-conscious affirmative action plan will have to be in pursuit of a compelling governmental interest, probably the only interest that could ever qualify is the government interest in redressing past discrimination. So if the government is merely trying to get a balanced work force, to get racial diversity in a university, to make African Americans more economically successful, or any other objective that is not closely tied to undoing clear past discrimination, you should immediately be able to say that the government interest is NOT compelling, and the measure flunks the strict scrutiny test. 4. Clear Evidence: Even if the governments trying to redress past discrimination, theres got to be clear evidence that this discrimination in fact occurred. So redressing past discrimination by society as a whole will NOT suffice. There must be past discrimination closely related to the problem, typically discrimination by the government. 5. Quotas: One device that is especially vulnerable to EP attack is the racially-based quota. A racially-based quota is an inflexible number of admissions slots, dollar amounts, or other goodies set aside for minorities. For instance, its a quota if the state says that of all new hires in the police department must be African American, or if it says that 20% of all seats in the public universitys law school class will be set aside for African Americans and Hispanics. Probably virtually all racially-based quotas will be struck down even where the government is trying to eradicate the effects of past discriminationthe Court will probably say that a quota is not necessary to remedy discrimination, because more flexible goals can do the job. 6. Congress: It does not make any (or at least much) difference that the affirmative action program was enacted by Congress rather than by a state or local government. Here, too, the Court will apply strict scrutiny if the program is race-conscious [Adarand Constructors, Inc. v. Pena]. 7. IMPORTANT: For the government to be able to show that a race-neutral process-mechanism will not work in any scenario the government will have to show the Court how other communities have tried and failed>>>Burris said that there is no need to show something futile but is good enough if they could provide data or expert opinion. Burris said if this work STILL the government CANNOT go to quotas>>they will have to go to a POINT SYSTEM which awards diversity points. However, if this point system still does not work>>then the majority of members of the court say that OK to go to quotas, the minority of the court, though, is still against quotas. Burris mentioned that quotas will only be used when there is institutional resistance to the dismantling of discriminatory practices>>He said that this will be the only remedy for contemporary discrimination where a company resists!!! 8. Some issues dealing with Affirmative Action: a. Preferential admissions: Any scheme which gives a preference to one racial group for admission to a public university has to be strictly scrutinized. However, such preferences will not necessarily be invalidated as the result of this strict scrutiny. Here are what seem to be the main rules governing affirmative action in public-university admissions, as the result of the twin landmark 2003 cases of Grutter v. Bollinger and Gratz v. Bollinger: i. Race-conscious admissions measures will receive strict scrutiny, and thus must be narrowly-tailored to achieve a compelling objective; ii. The pursuit of diversity in the student body can be a compelling objective. 69

iii. A one-student-at-a-time (individualized)evaluation in which the students race is merely one factor among various ones considered is sufficiently narrowly tailored; but iv. Mechanical approaches resembling quotas, such as automatically awarding an applicant a fixed number of points towards admission based on his race, are not narrowly-tailored and therefore violate equal protection. 1. EXAMPLE 1: VALID: The Univ. of Michigan Law School evaluates each applicants entire file, weighing such variables as undergraduate GPA, LSAT scores, and the contribution the applicant will make to diversity in the student body. The school treats as a major plus factor an applicants membership in one of three historically-discriminated against groups, blacks, Hispanics, and Native Americans. The school does so to create a critical mass of these minority students, so that they will participate without feeling isolated. Held, this form of affirmative-action is constitutional. The interest in a diverse student body is a compelling one, and the approach herein that it relies on an individualized, non-mechanical evaluation of each applicantis narrowly tailored to achieve that interest. [Grutter v. Bollinger]. 2. EXAMPLE 2: NOT VALID: The Univ. of Michigan undergraduate college awards premeasured points to applicants for various attributes (e.g. up to 5 points for being an outstanding artist or student leader). Every black or Hispanic applicant automatically gets 20 points for diversity. 100 points are needed for admission. The extra 20 points for minority-group status has the effect that virtually every minimally qualified black or Hispanic applicant is admitted, whereas many well-qualified non-minority applicants are rejected. Held, this form of affirmative action is unconstitutional, because it is not narrowly-tailored to the achievement of the compelling interest in student body diversity. The scheme here is a mechanical one that is equivalent to a quota, not an individualized evaluation scheme like the one approved in Grutter. And the fact that near-misses can be flagged for individualized review does not save the scheme. [Gratz v. Bollinger]. b. Minority set-asides: Minority set-asides, by which some percentage of publicly-funded contracts are reserved for minority-owned businesses, will be subjected to scrutiny and generally struck down. Thats true whether the set-aside is enacted by Congress or by a state/local government. c. Employment: Anytime a public employer gives an intentional preference to one reacial group, strict scrutiny will probably be called for. i. Layoffs: If the employer intentionally prefers blacks over whites when it administers layoffs, that preference will almost certainly be unconstitutional. [Wygant v. Jackson Bd. Of Ed.] ii. Hiring: A racial preference in hiring is almost as hard to justify (though it might pass muster if that particular public employer had clearly discriminated against African Americans in the past, and there seemed to be no way short of a racial preference in hiring to redress that past discrimination). iii. Promotions: A race-based scheme of awarding promotions to cure past discrimination (so that African Americans eventually get promoted to the levels that they would have been at had there not been any discrimination in the first place) is the easiest way to justify, since it damages the expectations of whites the least. But even this will have to justify strict scrutiny. TEST TO DETERMINE NARROWLY TAILORED: INDIVIDUALIZED DECISION METHOD YOU DONT QUANTIFY THE BONUS YOU ARE GOING TO GIVE YOU DELIVERETELY DONT LET SOMEONE ADVANCE FORWARD TO SOMEONE WHO HAS BEEN AWARDED THE POINTS IV. Intermediate Scrutiny: TEST: Where we apply the middle level/intermediate standard, the government objective must be important( is there a health or safety interest) and the means must be substantially related to that objective. Level of Factual Analysis: Legislative Record>>Reasonable to Believe. ***REMEMBER>>here the government cannot use stereotyping as justification of their discrimination. One important respect in which mid-level review differs from mere rationality review concerns the state objectives that the Court will consider. Recall that in the case of the easy mere rationality review, the Court will consider virtually any objective that might have conceivably motivated the legislature, regardless of whether theres evidence that that objective was in fact in the legislatures mind. BUT with intermediate-level review, the Court will NOT hypothesize objectives; it will consider only those objectives that are shown to have actually motivated the legislature. 70

There are two main types of classifications that get middle-level review: (1) gender; and (2) illegitimacy. We also consider alienage here, because it has aspects of both strict scrutiny and mere rationality, so its kind of a hybrid. 1. Gender: The most important single rule to remember in the entire area of middle-level scrutiny is that sexbased classifications get middle-level review. [Craig v. Boren]. So if government intentionally classifies on the basis of sex, its got to show that its pursuing an important objective, and that the sex-based classification scheme is substantially related to that objective. EXAMPLE: City sets the mandatory retirement age for male public school teachers at 65, and for female teachers at 62. Because this classification is based upon gender, it must satisfy middle-level review: City must show that its sex-based classification is substantially related to the achievement of an important governmental objective. In this case, it is unlikely that City can make this showing. a. Benign as well as invidious: The same standard of review is used whether the sex-based classification is invidious (intended to harm women) or benign (intended to help women, or even intended to redress past discrimination against them). b. Male or Female Plaintiff: This means that where government classifies based on sex, the scheme can be attacked either by a male or by a female, and either gender will get the benefit of mid-level review. EXAMPLE: Oklahoma forbids the sale of low-alcohol beer to males under the age of 21, and to females under the age of 18. Held, this statute violates the equal protection rights of males aged 18 to 20, because it is not substantially related to the achievement of important governmental objectives. [Craig v. Boren]. ****Burris gave us this case to show us that this case could have been solve under rational basis review because it dealt with safety (a legitimate governmental objective); however the court decided to give this case heightened scrutiny due to the fact that under rational basis review, over and under exclusiveness is permitted which will create an impossibility for this type of case to be held unconstitutional. ****Burris also showed that this law was unconstitutional because there were other ways of achieving the governmental interest, for example, by stressing the DUI laws. c. Purpose: Sex-based classifications will only be subjected to middle-level review if the legislature has intentionally discriminated against one sex in favor of the other. (This is similar to the requirement for strict scrutiny in race-based cases.) If, as the result of some governmental act, one sex happens to suffer an unintended burden greater than the other sex suffers, thats not enough for middle-level review. EXAMPLE: Massachusetts gives an absolute preference to veterans for civil service jobs. It happens that 98% of veterans are male. Held, this preference does not have to satisfy mid-level review because the unfavorable impact on women was not intended by the legislature. Therefore, the preference does not violate equal protection, since it satisfies the easier mere rationality standard. [Personnel Admin. Of Mass. V. Feeney]. d. Stereotypes: Be on the lookout for stereotypes: if the legislature has made a sex-based classification that seems to reinforce stereotypes about the proper place of women, it probably cannot survive mid-level review. EXAMPLE: Virginia maintains Virginia Military Institute as an all-male college, because of the states view that only men can handle the schools harsh, militaristic method of producing citizen soldiers. Held, this sex-based scheme does not satisfy mid-level review because it stems from traditional ways of thinking about gender roles; there are clearly some women who are qualified for and would benefit from the VMI approach, and these women may not be deprived of the opportunity to attend VMI. [U.S. v. Virginia]. e. Michael M. Case: Here Burris told us that even though the court always uses the legislative record under intermediate scrutiny, this case shows a situation where there was no legislative record for production, therefore, the Court had no other choice but to use its imagination as their level of analysis. Affirmative Action Benefiting Women: Classification benefiting women that are designed to remedy past discrimination against women will generally be upheld: EXAMPLES: Social Security and tax exemptions that entitle women to greater benefits to make up for past discrimination in the workplace are valid. [Califano v. Webster] A Navy rule granting female officers longer tenure than males before mandatory discharge for nonproduction is valid to make up for past discrimination against females in the Navy. [Schlessinger v. Ballard] Intentional Discrimination Against Men: Intentional discrimination against men generally is invalid. However, a number of laws have been held valid as being substantially related to an important governmental interest. INVALID DISCRIMINATION: The following have been held invalid under the Equal Protection Clause: 1. Denial to admit males to a state university or nursing school [Mississippi University for Women v. Hogan] 2. Law that provides that only wives are eligible for alimony [Orr v. Orr] 71

3. Law that permits unwed mother but not unwed father to stop adoption of offspring. [Caban v. Mohammed] 4. Law providing a higher minimum drinking age for men than for women. [Craig v. Boren] VALID DISCRIMINATION: The following have been upheld under the Equal Protection Clause despite their discriminatory intent. 1. Law punishing males but not females for statutory rape (sexual intercourse with a minor) [Michael M. v. Superior Court] The classification was found to be substantially related to important interest of preventing pregnancy of minors. 2. Male only draft registration. [Rostker v. Goldberg]classification was found to be substantially related to important interest of preparing combat troops. 3. A law granting automatic United States citizenship to nonmarital children born abroad to American mothers, but requiring American fathers of children born abroad to take specific steps to establish paternity in order to make such children United States citizen. [Nguyen v. INS]Promotes the important governmental interest of avoiding proof of paternity, which are more, which are more difficult to resolve for fathers. E. Legitimacy Classifications: Distinctions drawn between legitimate and illegitimate children are also reviewed under the intermediate scrutiny standard. Such classifications must be substantially related to an important governmental objective. No Punitive Purpose: When the Court examines a classification based on illegitimacy, it gives greater attention to the purpose behind the distinction. It will not uphold discriminatory legislation intended to punish the offspring of illicit relationship. a. Inheritance from Father: A state statute cannot absolutely exclude illegitimate children from inheriting from their intestate fathers. [Trimble v. Gordon] b. NOTE: However, to promote efficient disposition of property at death (an important government interest), a state can require that the paternity of the father be proved before his death, since the requirement is substantially related to the important interest. [Lalli v. Lalli] c. Statute of Limitations on Paternity suits may be discriminatory: The SC struck down a state statute that required illegitimate children to bring paternity suits within six years of their birth while allowing legitimate children to seek support from parents at any time. The Court found that the law was not related to the state interest of preventing stale fraudulent claims. [Clark v. Jeter] Immigration Preference to Legitimate ChildrenPermissible: Due to the plenary power over immigration, the Court upheld a federal law granting immigration preferences to legitimate children. [Fiallo v. Bell] F. Alienage Classifications: Federal Classifications: The standard for review of federal government classifications based on alienage is not clear, but they never seem to be subject to strict scrutiny. Because of Congresss plenary power over aliens, these classifications are valid if they are not arbitrary and unreasonable. Thus, federal Medicare regulations could establish a five-year residency requirement for benefits that eliminated many resident aliens. [Mathews v. Diaz] State and Local Classifications: State/local laws are subject to strict scrutiny if based on alienage. A compelling state interest must be shown to justify disparate treatment. For example, a state law requiring US citizenship for welfare benefits, civil service jobs, or a license to practice law will be struck down because there is no compelling interest justifying the requirement. EXCEPTION: Participation in Self-Government Process: If a law discriminates against alien participation in the functioning of the state government, the rational basis test is applied. EXAMPLES: 1. A state cannot require a notary public to be a citizen. A notarys responsibilities are essentially clerical and do not fall within the exception for positions related to participation in the governmental process, and there is no compelling government interest justifying such requirement. [Bernal v. Fainter] 2. A state can validly refuse to hire aliens as police officers and teachers and for all other positions that have a direct effect on the functioning of government. [Ambach v. Norwick]; [Cabell v. Chavez-Salido]. Undocumented Aliens: 1. Punitive Laws Against Illegal Alien Adults: The SC has not held that undocumented (illegal) aliens are a suspect classification. Thus, a state law that denies benefits to (or imposes burdens on) persons who are in the US without the permission of the federal government might be upheld under the rational basis test as long as the law was not totally arbitrary. 2. Education Rights of Alien Children: In Plyler v. Doe, the Court held that a state denied equal protection to undocumented alien children when it denied them state supported primary or secondary education. However, the SC upheld a state statute that permitted a school district to deny tuition-free education to any child (whether or not he was a US citizen) who lived apart from his parent or lawful guardian if the childs presence 72

in the school district was for the primary purpose of attending school in the district. The state does not have to consider such a child to be a bona fide resident of the school district. [Martinez v. Bynum]

XIX. PRIVACY RIGHTS: Certain Fundamental rights are protected under the Constitution. If they are denied to
everyone, it is a substantive due process problem. If they are denied to some individuals but not to others, it is an equal protection problem. The applicable standard in either case is strict scrutiny. Thus, to be valid the governmental action must be necessary to protect a compelling interest. Various privacy rights, including marriage, sexual relations, abortion, and childrearing, are fundamental rights. Thus, regulations affecting these rights are reviewed under the strict scrutiny standard and will be upheld only if they are necessary to a compelling governmental interest. 1. Marriage: The right of a male and female to enter into (and probably, to dissolve) a marriage relationship is a fundamental right. Although not all cases examining marriage regulations clearly use the compelling interest standard, a law prohibiting a class of adults from marrying is likely to be invalidated unless the government can demonstrate that the law is narrowly tailored to promote a compelling or overriding, at least, important interest. NOTE>>The Court has indicated that there is a marital zone of privacy (see Griswold v. Connecticut), so it will grant broader protection to private sexual relations between married persons than it does concerning nonmarried persons. Special Test in Prisoners Rights Cases: A statute or regulation that restricts the constitutional rights of prison inmates will be upheld as long as the statute or regulation is reasonably related to legitimate penological interests. EXAMPLE: Even under this lenient standard, a prison regulation that prohibited an adult prisoner from establishing a legal marriage relationship with another adult unless the prison superintendent approved the marriage was held invalid, because the regulation was not reasonably related to any asserted penological interest. [Turner v. Safley] 2. Use of Contraceptives: A statute cannot prohibit distribution of nonmedical contraceptives to adults except through licensed pharmacists, nor prohibit sales of such contraceptives to persons under 16 who do not have approval of a licensed physician. [Carey v. Population Services International]. 3. Abortion: The SC has held that the right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the state. [Roe v. Wade]. However, because the Court has held that the states have a compelling interest in protecting the health of both the woman and the fetus that may become a child, it is difficult to apply the normal strict scrutiny analysis to abortion regulations (since the two compelling interests may conflict with each other and with the womans privacy rights). Moreover, the SC has actively been changing the rules regarding abortions and the Justices have not come to agreement on any applicable standard. In the Courts latest announcement, the plurality opinion adopted two rules: a pre-viability rule and a post-viability rule. a. Pre-Viability RuleNo Undue Burdens: Before viability (i.e. a realistic possibility of maintaining the fetuss life outside the womb), a state may adopt regulations protecting the mothers health and the life of the fetus only if the regulation DOES NOT IMPOSE AN UNDUE BURDEN or substantial obstacle to the womans right to have an abortion. The Court has not specifically defined what will constitute an undue burden, stating that a state can adopt a statute designed to persuade a woman to choose childbirth over abortion as long as the statute is reasonably related to that purpose and does not put a substantial obstacle or an undue burden simply because it has the incidental effect of making it more difficult or more expensive to obtain an abortion. [Planned Parenthood of Southeastern Pennsylvania v. Casey] i. Informed ConsentNo undue burden: States can require abortions to be performed by licensed physicians, and it is not an undue burden to require the physician to provide the woman with truthful information about the nature of the abortion procedure, the health risks of abortion and childbirth, and the probable gestational age of the fetus. [Planned Parenthood of Southeastern Pennsylvania v. Casey] ii. Waiting PeriodNo undue burden: Requiring a 24-hour waiting period between the time the woman gives her informed consent and the time of the abortion does not amount to an undue burden. [Planned Parenthood v. Casey] iii. Parental ConsentNo undue burden: A state may require a minor to obtain her parents (one or both) consent to have an abortion (or give notice to them even if their consent is not required) if there is a bypass procedure whereby the minor may obtain the abortion (without notice to or consent of her parents) with the consent of a judge. The judge is required to make a prompt decision as to (i) whether the minor is sufficiently mature to make her own abortion decision, and (ii) is she is not sufficiently mature, whether having an abortion without 73

4. 5. 6.

7. 8.

notice to her parents is in her best interest. [Hodgson v. Minnesota; Ohio v. Akron Center fro Reproductive Health; Planned Parenthood v. Casey] iv. Spousal ConsentIs an undue burden: It is an undue burden to require a woman to sign a statement that she has notified her spouse that she is about to undergo an abortion. [Planned Parenthood v. Casey]. v. Physician Only RequirementNo undue burden: A law restricting the performance of abortions to licensed physicians does not impose an undue burden on a woman seeking an abortion. [Mazurek v. Armstrong] vi. Partial Abortion: A state may NOT completely proscribe so-called partial-birth abortion procedures since they are the most commonly used methods for pre-viability, second trimester abortions. Such a ban would impose an undue burden on a womans right to choose a previability abortion. However, a state could bar one type of partial-birth abortion if there are other adequate, safe methods of abortion available and the law provides an exception for those instances when the banned procedure is necessary to preserve the life or health of the mother.[Stenberg v. Carhart] b. Post-Viability RuleMay prohibit abortion unless womans health is threatened: Once the fetus has become viable, the states interest in the fetuss life can override the womans right to choose an abortion, but it does not override the states interest in the womans health. Thus, after viability the state can prohibit a woman from obtaining an abortion unless an abortion is necessary to protect the mothers life or health. However, viability is itself a medical question, and a state cannot unduly interfere with the attending physicians judgment as to the reasonable likelihood that the fetus can survive outside the womb. [Colautti v. Franklin] Obscene Reading Material: The right to privacy encompasses the freedom to read obscene material in your home, except child pornography. [Stanley v. Georgia]. It does not, however, include the right to sell, purchase, receive, or transport obscene material. [Paris Adult Theatre v. Slayton] Keeping Extended Family Together: The right to privacy includes the right of family memberseven extended onesto live together. Thus, a zoning ordinance cannot prohibit extended families from living in a single household since there is no compelling interest to justify such a rule. [Moore v. City of East Cleveland] Rights of Parents: Parents have a fundamental right to make decisions concerning the care, custody, and control of their children. [Troxel v. Granville] a. Education: Although the state may prescribe reasonable educational standards, it may not require that all children be educated in public schools. [Pierce v. Society of Sisters]. Neither may the state forbid education in a language other than English. [Meyer v. Nebraska] b. Visitation: A state law was found to be overbroad and in violation of parents rights where it (i) authorized the courts to grant any person (including grandparents) a right to visit a child upon finding that this would be in the childs best interests and (ii) did not allow the judge to give significant weight to the parents offer of meaningful visitation opportunity and the traditional presumption that a fit parent will act in the childs best interests. [Troxel v. Granville] Sodomy: The right of privacy does not include the right of consenting adults to engage in sodomy. [Bowers v. Hardwick]. It should be noted that the SC did not determine whether a significant prison sentence for private, consensual homosexual acts would violate the Eighth Amendment prohibition of cruel and unusual punishment. Right to Die: Liberty Interest in Refusing Unwanted Medical treatment. 1. A majority of the Court has recognized a low level liberty interest in refusing medical treatment. 2. CASE: Cruzan v Director Missouri Dept of Health: The Court upheld a Missouri statute that required proof by clear and convincing evidence that an incompetent person would have wanted to discontinue lifesaving procedures to be administered. The Court found that there was a liberty interest in refusing unwanted medical treatment--four Justices deemed the interest fundamental. a. You must show that the person opted for this decision. This decision should be in place by a living will of your intent. b. Court states that you can require proof such through the judicial process or appoint a guardian to protect the person. c. Court states that you can not ban turn off, you must have a process with options to maintain or not maintain your life.

74