Downloaded From OutlineDepot.

com

Hassel_Constitutional Law I_ Fall 2011

Hassel_Constitutional Law Outline_Fall 2011

Court doesn't get involved in political questions, advisory opinions or discretionary duties.

CHAPTER 1: The Supreme Court's Authority and Role

The Power Of Judicial Review
MARBURY v. MADISON "Marshall Opinion" Adams- President (Federalist) - more control Jefferson- New President (Republican) more liberal JUDICIAL REVIEW

Federalists passed the Sedition Act of 1798 - couldn't criticize the government passed by the Federalists. Jefferson pardons all convicted over Sedition Act, and rules unconstitutional since at time judicial review didn't play a role. Facts: Adams appoints "midnight judges" to keep alive the Federalists in the judiciary. Marbury was a last minute judicial appointee whose commission was not delivered to him before Adams left office; Jefferson declined to deliver the commission. Issues: 1. Has the applicant a right to the commission that he demands? Yes, he gained commission as soon as it was signed and sealed. 2. Does he have a legal remedy? Yes, court has power over people holding office under the authority of the United States. Writ of Mandamus- issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly. Ministerial duties are individual rights assigned by laws or constitution. Judiciary Act of 1789 gave the court the power to do writ of mandamus. 3. Is the legal remedy a writ of mandamus issuing from the Supreme Court? NO, Article III of the Constitution explains that in some situations the Supreme Court has original jurisdiction and in other situations it has appellate jurisdiction Holding: No law original jurisdiction for Supreme Court to order writs of mandamus. Marshall uses the three ways to interpret the constitution:

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

1. 2. 3.

Text- language Intent- meaning Structure- where it's placed in constitution.

Narrow Holding of Marbury: Court will follow constitution when confliction with statute. Broad Holding of Marbury: Court has power to interpret Constitution for all branches. (judicial review) COOPER v. AARON Issue: Whether the governor and legislature of Arkansas were bound by the holding in Brown v. Board of Education. Holding: The rulings of the Court can't be openly or indirectly nullified. Article VI -Constitution is Supreme Law of the Land. Rationale: Saves judicial economy. Indispensable for the protection of freedoms guaranteed by our fundamental charter for all of us. Dickerson v. United States: Note Case on p. 21. Issue: May Congress overrule Supreme Court interpretations binding on Congress by statute? NO, Miranda rights are Constitutionally required so legislature can't add an alternative test or interpretation. Scalia DISSENT: statutes should get an interpretation of whether constitutional on their own merits, not on constitutionality as relates to Miranda ruling. MARTIN v. HUNTER'S LESSEE Facts: Virginia gives land to Hunter, U.S./treaty gave land to Martin. Article 25 of Judiciary Act of 1789, if you lose federal claim in the highest courts in state, then you can go to Supreme Court. Article VI gives state courts general jurisdiction because they must follow the Constitution since it is the Supreme Law of the Land. Holding: For uniformity of decisions the United States Supreme Court is the singular revising authority to control discordant state court judgments and harmonize them into uniformity so that they arent applied differently by different states.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Political Restraints on the Supreme Court (p27) 1. Judicial selection 2. Impeachment for conviction of treason, bribery, or other High Crimes and Misdemeanors. 3. Constitutional Amendment Article V gives two methods: a. Congressional Proposal b. State-initiated convention 4. Court Stripping- Article III, Section 2 gives Congress the power to make "exceptions" to the Supreme Court's appellate jurisdiction. 5. Court packing- setting size and budget for the court is given to Congress in Article III, Section 2

The "Case or Controversy" Requirements Article III, section 2, clause 1

The judicial power should extend to a list of enumerated "cases" and "controversies". Court has refused to give: Advisory opinions- opinions on the legality of executive or legislative action that did not involve and actual "case". *Some state supreme courts are authorized to issue advisory opinions. STANDING *Advocacy is need to have both sides presented. When a party has staked a claim it will be able to articulate injury more vigiously then if there is just a general question presented to the court.* Textual Approach- the fact that put in the limit for standing and court must look at word meaning to try and determine. Structural Approach- don't want to infringe on other branches of the government. LUJAN v. DEFENDERS OF WILDLIFE "Scalia Opinion" Plaintiff's needed to show redress ability and actual injury. Court rejected view that Plaintiffs' had standing due to procedural injury. Rule: A plaintiff raising only a generally available grievance about governmentclaiming only harm to his and every citizens' interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large - DOESN'T state an Article III case or

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

controversy. Congress cant give standing where there shouldn't be any through case or controversy provision. Standing Elements: 1. It suffered at "concrete and particularized" injury that is actual or imminent. 2. Injury is fairly traceable to the defendant. (Causation) 3. A favorable decision could redress that injury. MASSACHUSETTS v. ENVIRONMENTAL PROTECTION AGENCY Injury- greenhouse gases causing water to rise, plaintiff is losing land. States can have standing due to interests of citizens. Mootness- When litigants who clearly had standing to sue at the outset of the litigation are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after the lawsuit has gotten underway. Ripeness Doctrine- When the dispute is insufficiently developed and is instead too remote or speculative to warrant judicial action.

POLITICAL QUESTION
Two Strands of political question doctrine: 1. Some matters are committed to the unreviewable discretion of the political branches. 2. Some otherwise legal questions ought to be left to the other branches as a matter of prudence. a. Textual commitment to another branch. b. Lack of standards. c. Need for finality Avoidance of chaos or confusion. BAKER v. CARR Rule: The Guaranty Clause may not be used as a source of a constitutional standard for invalidating state action, but an equal protection claim may be so used where it doesn't implicate a political question. Facts: Plaintiff's want reapportionment of votes. Guaranty clause: all states must be republic. Guarantee Clause is non judiciable because whether a state is a republic or not is a question for Congress.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Could have brought suit under Equal Protection Clause is judicable because it's not committed to another branch, and the 14th Amendment allows it to be enforced by the judiciary. DISSENT: People of the state should have ability to enforce amount of representation. Luther v Borden (p 51): Guaranty Clause can't be used by the judiciary to identify a state's lawful government. Court says that's the judgment for Congress. *Political question comes up when its questions of whether something in another branch is right.*

CHAPTER 2: The Nation and the States in the Federal System

Vertical separation of powers between nation and the states and horizontal separation of powers among the federal branches. Dual sovereignty results in more individual liberties. The 10th Amendment to the Constitution: 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. Article I, Section 10- Forbidden acts of the States. McCULLOCH v. MARYLAND Congress can incorporate a bank because of implied power that it needs to be in charge of money so if a bank is useful to Congress than they can incorporate it. The whole can tax the parts but the parts can't tax the whole. The States can't tax the federal government because it would defeat the purpose of the government being able to accumulate money through taxation. Necessary and Proper clause expands Congresses power. Can't tax operations of the federal government but federal government has to pay real estate taxes because those taxes can be controlled by representative reinforcement, which is that representatives elected by the people of the state can be made to enforce fair rules of the state or they will not be reelected into office. U.S. TERM LIMITS, INC. v. THORNTON (p76) Arkansas wanted to end eligibility after 3 terms in House of Representatives or 2 terms in the Senate. A state can't add qualifications (i.e. nonincumbency) to terms. Rationale: 1. Power to add qualifications is not within the "original powers" of the States, and thus not reserved to the States by the 10th Amendment.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

2. Powers divested by the Constitution since it was intended by the Framers to be the exclusive source of qualifications for members of Congress. The people and Congress have the power to add qualifications by amending the Constitution.

CHAPTER 3: The Commerce Power and Its FederalismBased Limits

Commerce Clause - Article I, Section 8- Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Commerce power is most used federal power. GIBBONS v. OGDEN Facts: Ogden given sole permission to ferry boat by N.Y. Gibbons given permission to ferry boat by federal statutes. Commerce clause gives power to federal government to regulate commerce and navigation. Note Cases: U.S. v. E.C. Knight Co. Sherman Act- illegal to monopolize or engage in anticompetitive conduct. Court- Sherman Act can only regulate things that only directly effect interstate commerce. Here buying up sugar plants only goes to the refineries, not the actual commerce of sugar. Shreveport Rate Case Train company had different rates between interstate and intrastate. Congress made them regulate the rate. Court- Transportation can be regulated. Substantial economics effects test. Champion v. Ames (lottery case) Congress can regulate morality of goods. Don't want one states morality to affect another state. Court- Congress can regulate morality in transportation. Hipolite Egg Co. v. United States Court- Ability to confiscate outlaws of commerce even after no longer within interstate commerce. Hoke v. United States Mann Act- prohibited the transportation of women in interstate commerce for immoral purpose.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Court- upheld Mann Act under the principle that Congress has power over transportation 'among the several states', that power is complete in itself and that Congress, as an incident to it may adopt, not only means necessary but convenient to its exercise, and the means may have the quality of police regulation. HAMMER v. DAGENHART "The Child Labor Case" Congress can't use laws to make states regulate unfair competition between places that allow child labor and those that don't. Here Congress tried to standardize the ages of child employment, which it can't do under this type of Act over states. 1. Congress can't have the power to regulate state child labor hours. 2. Transends authority for Congress to regulate commerce. Similar to a Knight argument, that child labor doesn't directly enough fall into commerce. DISSENT: (Holmes) once a business moves across state lines it can be regulated and Congress has right to carry out views of public policy. THE COMMERCE POWER AND THE NEW DEAL Schechter Poultry v. U.S. "The Sick Chicken Case" Act unconstitutional. Wages and hours aren't subject to federal control under Commerce clause. Applied the Hammer v. Dagenhart rule that goods are regulated, not all aspects of business. Carter v. Carter Coal Co.Production of coal is a purely local activity so can't regulate wages and maximum hours. DISSENT- "Cardozo"- Interstate prices are directly affected. National business would effect commerce. Direct/intimacy on impact of commerce. THE COMMERCE POWER AFTER THE NEW DEAL NLRB v. JONES & LAUGHLIN STEEL CORP. NLRB wanted federal government to enforce the board's order for the defendant to end discrimination and coercion in their unfair labor practices. Supreme court enforced the order, reversing the lower court's opinion that the order lay beyond the range of federal power. Rule: Government has the power to protect interstate commerce from burdens and obstructions. Can regulate activity if it is closely and substantially related to interstate commerce.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Rationale: Congressional power can be used to reach activities that are deemed burdensome or obstruct commerce. DISSENT- Effect on interstate commerce too remote. UNITED STATES v. DARBY Overruled Hammer Once a business gets into interstate commerce Congress can regulate it to protect against unfair competition. Can regulate wage and hour requirement because Congress has power over things that substantially effect on interstate commerce. Congress can control means to carry out policies against unfair competition. Two holdings in Darby: 1. Permitted Congress to regulate the literal shipment of goods across state lines even if the motive of the regulation was to control aspects of local production. (Overruled Hammer v. Dagenhart) 2. Substantial effects of local economic activity on interstate commerce as basis for congressional authority. Note Cases: Wickard v. Filburn " The Wheat Quota Case" Congress regulating amount of wheat that plaintiff can sell. Marketing quota held constitutional. Court- Congress can reach anything that exerts a substantial economic effect on interstate commerce. In the absence of regulation the price of wheat in the U.S. would be effected by world conditions. Heart of Atlanta Motel v. U.S. African American were being discriminated against in hotels. Court- Commerce power extended to include motels. Interference with free flow of interstate travel since discrimination discourages travel in the African American community. Test: 1. Whether activity sought to be regulated affects more states than one. 2. Whether there is a real and substantial relation to the national interest. Katzenbach v. McClung

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Congress can regulate restaurants that get their food from other states. 46% of restaurant's meat was bought from local merchants that purchased it from another state. 14th Amendment couldn't be applied because it doesn't cover discrimination by private parties, only by the government. Perez v. United States Federal criminal statutes also covered by Commerce Clause. Court- Extortion has economic effects on economy due to connection to organized crime.

THE REHNQUIST COURT'S REVIVAL OF INTERNAL LIMITS ON THE COMMERCE POWER

UNITED STATES v. LOPEZ Government tries rationale for restricting guns in school: Reduced travel to "unsafe" areas. Cost of violent crimes shared. Bad educational environments cause worse students so worse future economy. Rationale: 3 categories of commerce regulation: 1. Channels of interstate commerce. "means and movement" 2. Instrumentalities of interstate commerce. "items moving" 3. Activities having a substantial relation to interstate commerce. Here Test applied was substantial effect on commerce test. Act EXCEEDED commerce clause power. People need to know who to hold accountable for unjust laws so judiciary has to limit legislative power. Law not a part of a larger scheme to regulate commerce. CONCURRENCE- too much rides on modern interpretation of commerce power to rid of substantial effects to commerce test. DISSENT- 1. Majority's holding is contrary to case law. 2. Distinction shouldn't be made between commercial and noncommercial in this case since schools can fall on commercial side. 3. Creates a legal uncertainty in this area of law. Law was amended, and found constitutional, to say that it's a federal crime to be found with a gun that has traveled in interstate commerce. Could have also been amended to say that it was unlawful to purchase a gun from another state that you intend to bring to school.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

UNITED STATES v. MORRISON Violence Against Women Act- all persons should have a right to be free from crimes of violence motivated by gender. Doesn't go to activity that is economic in nature. If accepted, reasoning would have allowed Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Only states can enact a law such as this. GONZALES v. RAICH Controlled Substance Act- prevents people from possessing, obtaining, or manufacturing cannabis for personal medical use. Court says CSA is like Wickard, but Wickard regulated wheat after a certain amount is produced, but here want to regulate to the point that no amount can be produced. Even though used domestically rather than sold on the open market, it is still subject to federal regulation, because the court refuses to excise individual components of a larger scheme and given the finding of the CSA and the magnitude of the commercial market for marijuana, the act is constitutional. CONCURRENCE- "Scalia"- Necessary and proper clause makes constitutional because for a large regulatory scheme, it may be necessary to regulate smaller things to carry out the larger theme and purpose. DISSENT- "O'Connor"- No interstate commerce effect. Non-commercial. Inconsistent with Wickard. Indistinguishable from Lopez and Morrison.

EXTERNAL LIMITS ON THE COMMERCE POWER: FEDERALISM AND THE 10th AND 11th AMENDMENTS
Tenth Amendment - "The powers 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." Possible structural marker for state sovereignty. Eleventh Amendment - "The judicial power of the United States shall not be construed to extent 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." Can't sue your state as an individual. Note Cases: National League of Cities v. Usery " Traditional Control" Congress can directly displace the States' freedom to structure integral operations in areas of traditional governmental functions.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Garcia v. San Antonio Metropolitan Transit Authority "Overruled National League of Cities" Rejected whether governmental function is integral or traditional. NEW YORK v. UNITED STATES Congress tried to make states take care of radio active waste in 3 ways: 1. Monetary incentives which allowed states with disposal sites to impose a surcharge on waste received from other states. (Court Affirms) 2. Access incentives, which allowed states to increase the cost of access to their sites and then deny access altogether to waste generated in states that did not meet federal deadlines. (Court Affirms) 3. Take Title sanction, providing that a state that failed to provide for the disposal of all internally generated waste by a particular date must take title to the waste and become liable for all damages suffered by the waste's generator or owner. ( Court Denies) Congress can't compel states to enact federal regulatory programs. Accountability is diminished when state officials aren't the ones regulating. Constitutional committee chose the Virginia Plan that Congress would exercise legislative authority directly upon individuals without employing the states as intermediaries. The Tenth Amendment stands for political accountability. Printz v. United States Congress can't pass laws to commandeer state executive branch officials either. ELEVENTH AMENDMENT Ex parte Young Can't sue state but can sue state officials for injunctive relief. Congress may abrogate the 11th Amendment in cases where Congress uses Commerce power or Due Process Clause. Seminole Tribe of Florida v. Florida Took away power of Congress to abrogate (override) the 11th Amendment because state sovereignty is protected by the 11th Amendment. People can't sue state because then financial danger might ensue and that will encroach on state sovereignty. Can't sue state in State or Federal Court.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Federal Agencies can sue the States. Individuals can sue for injunctive relief.

CHAPTER 4: Taxing, Spending, War, Treaties, and Foreign Affairs

Taxing Power- Article I, Section 8, Clause 1 - Congress has the power to lay and collect Taxes, Duties, Imposts, and Excises, to pay the debts and provide for the common defense and general welfare of the United States. CHILD LABOR TAX CASE {Bailey v. Drexel Furniture Co.} "tax v. penalty" Child Labor Tax of 1919 - Imposed a federal excise tax of 10% of annual net profits on every employer of child labor in the covered businesses. Rule - Can't allow congress to enact regulations and to just enforce them by using taxes. (Unconstitutional) Here the tax has become more of a penalty since as soon as a business has one child laborer, that company must pay a 10% tax. Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. But this time the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment. SPENDING POWER UNITED STATES v. BUTLER Agricultural Adjustment Act of 1933 - Authorized the Secretary of Agriculture to make contracts with farmers to reduce their productive acreage in exchange for benefits payments. The payments were to be made out of a processing tax paid by the processor "upon the first domestic processing" of the particular commodity. (Unconstitutional) Two different views of the Taxing Power clause: 1. Madison View: The grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to Congress. (Spending power limited to other enumerated power.) 2. Hamilton View: Confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress subsequently has a substantive power

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. (Spending power is its own enumerated power.) Court adopts the Hamilton View. The limit of Congresses power to tax is confined in the clause which confers it. Act here cant be enforced because of another principle embedded in the Constitution. The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. Act not voluntary because: 1. Loss of benefits with non compliance. 2. Conditional appropriation of money. DISSENT: Gives incentives but isn't coercive. The standard from clause is national purpose, not coercion. Charles C. Steward Machine Co. v. Davis "THE SOCIAL SECURITY CASES" The Social Security Act is found Constitutional. Cardozo distinguishes from Butler: (p160) 1. Proceeds not earmarked for a special group. 2. The unemployment compensation law which is a condition of the credit has been approved by the state and could not be law without it. 3. State has power to revoke contract. 4. Not directed to the attainment of an unlawful end. SOUTH DAKOTA v. DOLE National Minimum Drinking Age Act - Directed the Secretary of Treasury to withhold 5% of the federal highway funds otherwise payable to states from any state that permitted the purchase of alcoholic beverages by persons less than 21 years old. (Constitutional) Congress can attach conditions to federal funds as long as: DOLE FourPart test: 1. The exercise of the spending power must be in pursuit of the general welfare. 2. Must made the condition of funding clear and enable to States to exercise their choice knowingly cognizant of the consequences of their participation. 3. Must be related to the federal interest in particular national projects or programs.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

4. Congress may not require the States to violate due process, equal protection or the ban on cruel and unusual punishment. THE WAR AND TREATY POWERS AND IMPLIED POWER OVER FOREIGN AFFAIRS WOODS v. CLOYD W. MILLER CO. Title II of the Housing and Rent Act of 1947 - (Constitutional) Need to remedy deficit in housing caused by the heavy demobilization of veterans and by the cessation or reduction in residential construction due to the war. Rule: Congress can use war powers to cope with conditions caused directly and immediately by war. CONCURRENCE: War powers can't last as long as the consequences of war because those consequences may be indefinite. MISSOURI v. HOLLAND Migratory Bird Treaty Act - prohibited that killing, caputuring, or selling any of the migratory birds included in the treaty. Rule: When state action wouldn't be enough, the government may form a treaty or statute to regulate. Congressional Power Over "Foreign Affairs" (p 172)

THE DORMANT COMMERCE CLAUSE

Federal Limits on State Regulation of Interstate Commerce
In dormant Commerce Clause analysis, court asks whether challenged law discriminates against interstate commerce, in which case the law is virtually per se invalid, and survives only if it advances legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives; absent discrimination against interstate commerce, the law is upheld unless burden imposed on interstate commerce is clearly excessive in relation to putative local benefits Consent to State Laws: congress may affirmatively consent to state interference w/ interstate commerce. Market Participant Exception to the Dormant Commerce Clause The state may not impose conditions, whether by statute, regulation, or K, that have a substantial regulatory effect outside of that particular market. Wunnicke. A. The Dormant Commerce Clause- not just a grant to Congress, but also limit on states 1. Congress says nothing, federal govt still regulates; state cant fill void

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

i. creates chaos if states regulate their own ii. commerce delegated to C; implies states dont have power iii. no action means Congress doesnt want anything to happen iv. structural argument- you cant have two sovereigns in one field 2. Dormant Commerce Clause Cases GIBBONS v. OGDEN Meaning of congressional silence: states could regulate commerce in a particular way if there was no actual conflict between the state regulation and an act of Congress. Look at intent of state (1.) health, safety, protection- probably okay (2.) to get an economic advantage- not cool Taxation v. Commerce: Tax : Power of taxation is indispensable to the existence of the states and the states constitute an important part of the federal govt. Taxation can be exercised by different authorities at the same time. When each state exercises its own tax power, its not exercising that power of the others. Commerce : When a state proceeds to regulate interstate or foreign commerce, it is exercising the very power that is granted to congress and is doing what congress is authorized to do. Wilson v. Black-Bird Creek Marshall Co. - Delaware damned a navigable creek a. Congress is silent, state can do it b. State is doing this to bolster property on waterway-okay COOLEY v. BOARD OF WARDENS State can discriminate for health, not for purposes of putting more money in locals pockets National v. Local Matter: States can regulate local, but not national. PHILADELPHIA v. NEW JERSEY "New Jersey waste ban." Health concerns about New Jersey trash. Out-of-state landfill owners would get money from people who can't bring trash into New Jersey. In-state dump owners would get profits. Unconstitutional because impermissibly protectionist. Rule: A virtually per se rule of invalidity against state discrimination against outof-state commerce. Court takes high amount of scrutiny and gives no difference to the state. Congress could pass law like this but not State.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Representative Reinforcement- Court needs to represent minority or states who's rights are violated. Maine v. Taylor "Bait Fish" Want to protect ecological effects on possible presence of parasites and non-native species. Court says legitimate environmental effects. Local v. national concern possibility. Alternatives v. only solution. West Lynn Creamery, Inc. v. Healy Taxing everyone okay, but state was giving back to state producers; basically only taxing out of staters. Can't do it. DEAN MILK Co. v. MADISON Madison ordinance: Barred sale of pasteurized milk unless it had been processed and bottled at an approved pasteurization plant within 5 miles of central square of Madison. Rule: Can't discriminate against interstate commerce if reasonable, non discriminatory alternatives are available that conserve local interests. C & A CARBONE, Inc. v. CLARKSTOWN Flow control ordinance. All garbage needs to go to new facility (privately owned). Rule & Exception- Discrimination against interstate commerce in favor of local business or investment is per se invalid. But, in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it had no other means to advance a legitimate local interest. THE MARKET PARTICIPANT EXCEPTION TO THE DORMANT COMMERCE CLAUSE Market participant exception- a state or city may discriminate in favor of its residents when it is a market participant. (1.) State is acting as an individual company. (2.) Congress is still regulating interstate commerce. (3.) Voters have say about how much things can cost. SOUTH-CENTRAL TIMBER DEVELOPMENT Inc. v. WUNNICKE Alexandria Scrap - state is participating as buyer and okay to control. (Scrap Case) Reeves - state is selling to in-staters only. (Cement Case) White - city demanding people work for contractors, all working for city. Requirement for Market Participation Doctrine Permits a state to influence "a discrete, identifiable class of economic activity in which it is a major participant.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

BALDWIN v. G.A.F. SEELIG, Inc. Rule - Protectionism is per se invalid. Exclusion of competition is invalid. (Wouldn't allow sale of out-of-state milk if bought for cheaper than local price.) H.P. HOOD & SONS v. Du MOND Rule - Can't prevent destructive competition. States are not separable economic units. (Wouldn't give license to out-of-state milk depot.) Exxon Corporation v. Governor of M.D. MD prohibited producers and refineries of petroleum products. OK because allows national chains and locals to have gas stations, just not producers or refineries. Not favoring MD because doesn't have its own refineries or producers so has to get gas from out of state anyways. KASSEL v. CONSOLIDATED FREIGHTWAYS CORP. Balancing interstate harm against local benefit. (Pike balancing test (p213)) 1. Kind of facially discriminatory. {Iowa trying to protect highways by limiting truck size} 2. Protectionist purpose is safety. 3. Benefit to state is small compared to burden to interstate travel. Inefficient flow of traffic.

PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV

Privileges and Immunities - Article IV, Section 2: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States. Like the Dormant Commerce Clause, it serves as a restraint on state efforts to bar out-of-staters from access to local resources. Corporations have no protection under P&I clause Congress may not waive P&I clause P&I extends only to fundamental rights No Market Participant exception UNITED BUILDING & CONSTRUCTION TRADE COUNCIL v. MAYOR AND COUNCIL OF CAMDEN A Camden statute provided that 40% of all employees working on city funded projects must be Camden residents. Two steps with privileges and immunities clause: 1. Whether effects a fundamental right. {Court here holds right to be employed is a fundamental right.}

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

2. Must be a substantial reason for the discrimination. {Court remanded to investigate if high unemployment rate is enough.} Supreme Court of New Hampshire v. Piper Law limited out-of-state bar admissions. Being able to practice law is a privilege.

PREEMPTION
Three different kinds of Preemption: 1. Express preemption. 2. Implied pre-emption a. Field pre-emption Federal rules seem to want to be sole regulator. Rice v. Santa Fe Elevator Corp.- Congress must be pervasive, makes it clear no room for State to supplement b. Conflict pre-emption: compliance w/ both State and fed law is physically impossible; Congress trumps

CHAPTER 6: Separation of Powers

Article II Vests executive power to President without qualification. Article I Delegates to Congress all legislative powers granted "herein". YOUNGSTOWN SHEET & TUBE Co. v. SAWYER {The Steel Seizure Case} Commander-in-Chief doesn't give president power to seizure. Congress rejected the idea of giving the president the right to take steel mills even though threat of national strike. FORMALIST APPROACH- Black doesn't care about consequences, only about the law. Only powers given by constitution. FUNCTIONALIST APPROACH- If Congress hadn't rejected the idea and there was a history of presidential seizures, then president would be able to. (Silent Consent) (Justice Frankfurter- implied consent) Look at politics, potential effects, and tripartite system. JUSTICE JACKSON'S TRIPARTITE SYSTEM (most used) 1. When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 2. (Zone of Twilight) Congressional inertia, indifference, or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibilities. 3. When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can only rely upon his

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

own constitutional powers minus any constitutional powers of Congress over the matter. DAMES & MOORE v. REGAN Rule: President has power to suspend pending claims against foreign countries where such action is necessary to the resolution of major foreign policy and Congress has given implied consent to act. (Falls under zone of twilight.) Executive Order - Doesn't need approval from Senate, just order from President. Can be given statutorily (Congressional power). Can use implied power or consent from Congress to give orders. THE PRESIDENT, CONGRESS, AND WAR POWERS Article I, Section 8, Clause 11 - Gives Congress to "declare war". Article I, Section 8, Clause 12 & 13 - Gives Congress power to raise and support armies and navies. Article II, Section 2 - Confers upon the President the authority to act as Commander-in-Chief of the armed forces. (Unitary Executive theory- President controls the entire executive branch.) War Powers Resolution of 1973 President may introduce troops into hostilities for sixty days only to: 1. A declaration of war. 2. Specific statutory authorization. 3. A national emergency created by attack upon the United States. After 60 days President must terminate use of Armed Forces unless the Congress: 1. Has declared war or has enacted a specific authorization for use of Forces. 2. Has extended by law such 60-day period. 3. Is unable to meet due to attack on United States. Habeas Corpus- power to go to court to see if rightfully detained. (Scalia- Habeas corpus doesn't apply extra-territorially. Article I, Section 9, clause 2 - The privilege of Habeas Corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require. (Congress has power to suspend writ.) Ex parte Milligan Milligan was a citizen and was caught in state of U.S. that was nonrebellious. He was not a confederate soldier so he had a right to trial. Ex PARTE QUIRIN

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Saboteurs are unlawful enemies. Unlawful enemies are not entitled to prisoner of war status so denied right to jury trial before civilian courts and subject to trial before military tribunals. HAMDI v. RUMSFELD Rule: The government may detain citizens as enemy combatants, but due process demands that they be afforded meaningful opportunity to contest factual basis for detention before a neutral decision maker. HAMDAN v. RUMSFELD Rule: Accused terrorists are entitled to hearings before regular tribunals. Can only use military commissions in 3 contexts: 1. Martial law is declared. 2. When temporary government exists. 3. Violation of law of war. (Conspiracy not triable as law of war violation.) Guantanamo Bay detainees have right to trial. (in supplement) CONGRESSIONAL CONTROL OVER THE ACTIONS OF THE EXECUTIVE BRANCH Principle of Non-delegation - Congress may not constitutionally delegate its legislative power to another branch of the government. INS v. CHADHA Only times when one house of Congress may act alone and is not subject to President's veto. 1. The chief justice referred to the power of the House to initiate impeachments. 2. Senate's power to conduct trials on impeachment charges. 3. The Senate's power over presidential appointments. 4. Senate's power to ratify treaties. Statute must fall into one of the 4 constitutional provisions in order to authorize one house to act alone. FORMALIST APPROACH - Statute violated Presentment clause and bicameralism. Presentment Clause - Article I, Section 7, clause 3 - Every order, vote, or resolution passes through the House and the Senate, then presented to the President. Bicameralism - Article I, Sections 1 & 7 - No law may take effect without majority concurrences from House and Senate. CLINTON v. NEW YORK Line-Item Veto- Gives the President the power to disallow particular items of national spending without vetoing the entire bill.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Rule- Line-item vetoes are equivalent to partial appeals of Acts of Congress that fail to satisfy Article I, Section 7. FORMALIST APPROACH - President can only veto and send back, not just change the law before he passes it. DISSENT "Scalia"- Look to history, have been done before, can be done now. DISSENT "Breyer"- Not a presentment violation FUNCTIONALIST APPROACH - How is act really causing problem? Separation of powers, not aggrandizing Congresses power. Not encroachment. Limited Congress still retains control. CONGRESSIONAL CONTROL OVER EXECUTIVE OFFICERS Appointments Clause - Article II, Section 2, clause 2 - The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, Judges of the Supreme Court, and all other Officers of the United States whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Congress can't appoint inferior officers because then they'd be able to control who enacts their laws and how. BOWSHER v. SYNAR Rule: Congress can't remove executive officers. FORMALIST APPROACH - Legislative branch control the executive branch. Would permit Congress to intrude into executive function which is unconstitutional. MORRISON v. OLSON Courts appointed an inferior office in Special Agent (1.) Superior v. Inferior Officers (i.) superior has independent relationship w/ Pres (ii.) inferior has supervisor who reports to P b. Indpt counsel is only removal able by AG for good cause (1.) Ct didnt want P to have power to remove ppl who were investigating him (2.) this is okay b/c its indpt of Pres c. Law sunsetted and no longer exists (1.) possibly seems like a waste of $; potential for abuse DISSENT "Scalia" FORMALIST APPROACH (1.) Sep of power- Act takes power away from P (2.) What stops bad P? impeachment and political pressure (3.) if special P goes bad, weve got no way to stop him

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

EXECUTIVE PRIVILEGES AND IMMUNITIES

UNITED STATES v. NIXON Rule: The President can't use separation of powers to enjoy an absolute generalized privilege which would be allowed him to shield all communications from a subpoena in a criminal proceeding. Only national security and diplomatic information is protected. Nixon v. Fitzgerald Rule: Absolute immunity from civil liability for his official acts. CLINTON v. JONES Rule: A sitting President doesn't enjoy temporary immunity from all civil lawsuits based on his unofficial acts. CONCURRENCE: President has burden to present court need for postponement.

CHAPTER 7: Post-Civil War Amendments: "Fundamental" Rights and the "Incorporation" Dispute
BARRON v. MAYOR AND CITY COUNCIL OF BALTIMORE Rule: The just compensation provision of the 5th Amendment doesn't apply to the states. Marshall: First 9 amendments limited to the government. Privileges and Immunities - 13th Amendment Equal Protection - 15th Amendment So Important, called 2nd Framing of Constitution. Due Process Clause- 14th Amendment SLAUGHTER-HOUSE CASES Could be a dormant commerce clause problem i. First argument is that it violates 13th Amend a. being forced to work for someone else, Ct says yeah right ii. Next tries Equal Protection Clause- nice try this is treating ppl fairly iii. Privileges and Immunities a. Art. VI Sec. 2- fundamental rights (1.) protect by govt, right to prop, happiness and safety (2.) States decides individual rights are b. 14th Amend refers to rights granted to citizens of US (1.) NOT fundamental rights (2.) only fed. Can provide them c. Allowing Fed govt to control would be radical

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

(1.) ct is hesitant to create more rights under constitution (2.) Dissent points out that 14th Amend doesnt add anything under this interpretation d. Privileges and Immunities are only those enumerated in Constitution. SAENZ v. ROE 3 Components to Right to Travel: 1. Right to travel from one place to another. (Commerce Clause) 2. Right to be treated as a welcome visitor. (Privileges and Immunities Article IV, Section 2 - state citizenship) 3. Right of new citizen to privileges and immunities of old citizens. (Privileges and Immunities - 14th Amendment - national citizenship) Citizenship is equated with residency. Citizen's can chose state, state cant chose citizens. "INCORPORATION" OF THE BILL OF RIGHTS THROUGH THE DUE PROCESS CLAUSE Palko v. Connecticut "SELECTIVE INCORPORATION" "CARDOZO"- Apply amendments when states violating Scheme of ordered liberty. Fairness and justice. Adamson v. California "BLACK'S DISSENT"- total incorporation of the Bill of Rights. Discretion should be given to Congress not to judiciary. "FRANKFURTER"- If total incorporation then lose ability to add new methods and lose of autonomy of the state. DUNCAN v. LOUISIANA Trial by jury is fundamental to the American scheme of justice. 14th Amendment requires the right to jury trial through the 6th Amendment. DISTRICT OF COLUMBIA v. HELLER Possible incorporation of right to bear arms.

CHAPTER 10: State Action & Congressional Power to Enforce Civil Rights
The 14th Amendment applies to state action, not individuals. Commerce clause gives power to attack individuals discrimination. The Civil Rights Statutes of the Reconstruction Era (p675) THE REQUIREMENTS OF STATE ACTION CIVIL RIGHTS CASES

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Limits amendments to apply to state action. Redress has to be from the laws of the States not Congress. SHELLEY v. KRAEMER Rule: Covenants are private actions but once courts are needed to uphold, it becomes a state action and violates the 14th Amendment. ENTANGLEMENT EXCEPTION- state action if government authorizes, encourages, or facilitates private conduct that violates Constitution. Evans v. Abney Town can't run park for "whites only" even though park willed to town with that restriction. Since town can't comply, it reverts back to heirs. Burton v. Wilmington Parking Authority The public building and parking of a private restaurant made it financially interdependent with the State so discrimination was 14th Amendment violation. Moose Lodge No. 107 v. Irvis Liquor license doesn't sufficiently implicate the state in the discriminatory guest policies of Moose Lodge. JACKSON v. METROPOLITAN EDISON CO. Test for state action: Whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. {symbiotic relationship standard} DeShaney v. Winnebago Due process doesn't require state to protect the life, liberty, and property of its citizens against invasion by private actors. CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER SECTION 5 OF THE 14TH AMENDMENT 1. After Civil War i. Minorities not allowed to vote unless they could pass a literacy test ii. many states altered tests to allow certain illiterates to pass 2. Voting Rights Act of 1965 i. banned all literacy tests and focused on the South KATZENBACH v. MORGAN Act says if you finished 6th grade in Puerto Rico you can vote. a. NY says you cant speak English, youre limited to how you can learn about candidates and their position so you cant vote. b. Congress can prevent discrimination against Puerto Rico b/c the literacy test is a mechanism to discriminate.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

(1.) Congress uses the necessary and proper clause: (i.) they can prohibit a literacy test b/c its necessary to promote equal protection. (2.) Congress can reform one step at a time. (3.) Congress can ensure more than Constitution requires, but cannot take away more. Rule: Congress may override a state law if it could find a reasonable basis to percieve that the law is violating equal protection CITY OF BOERNE v. FLORES RFRA requires that any time a state creates a law that interferes w/ someones religious rights the govt MUST prove they have a good reason b. Whats the difference b/t this and Katzenbach? (1.) History & 14th show Congress fixes problems not create them (2.) Katzenbach- obvious 14th amend is being violated (3.) no evidence states trying to prevent religious freedoms c. Created two part test (1.) congruence- must be fixing constitutional power (2.) proportionality- remedy must fix a specific problem; cant be too broad d. Federal Government is still subject to RFRA Congress can pass laws against itself but cant pass a law that take away right given to state by the Constitution. UNITED STATES v. MORRISON Ct found civil damages of Violence Against Woman Act unconstitutional. Statute here is not corrective in its character and not meant to redress state officer's wrongful conduct. Kimel v. Florida Board of Regents State employees cant sue for violations of Age Discrimination in Employment Act. a. Ct applied Bourne test (1.) no evidence that states are violating the rights (2.) no widespread problem or a solution that will work (i.) applies to private employers through commerce Nevada Department of Human Resources v. Hibbs Family Medical Leave Act was appropriate for gender discrimination. a. Evidence that states are violating these rights b. Gender-based discrimination has a higher level of scrutiny

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

(1.) history shows women has been disadvantaged in work (2.) big problem and this is just a small step to make better c. back to Katzenbach- gender and voting rights are important A law passed under Sect. 5 is only valid if it is remedial; not a discrimination deterrent.

CHAPTER 8: Due Process

NATURAL LAW - Pre-exists written law, generally accepted way things should be/ framework of rights that exist as a part of being a society, pre-political law. Sense of some extra constitutional source of rights even though they arent written in Constitution. POSITIVE LAW - Only law is that which is set forth in Constitution. Look at text of the Constitution. LOCHNER v. NEW YORK Law passed to limit hours bakers work to help the baker's health. Court: STRICT SCRUTINY. Natural Law Applied here. NO DEFFERENCE GIVEN TO STATE. Bakers can represent themselves. Court adopts economic liberty (laissez faire). Problems with Lochner: States should be free to adopt whatever economic theory they want and here court adopts laissez faire/ economic Darwinism. Privacy should have been taken into account, not economic freedom which isn't an individual right. Wrong to have a complete lack of deference. Coppage v. Kansas "yellow dog kt" Law unconstitutional. Let individuals kt how they want to. Right to join a union, but also have a right to kt away your right to join the union. Muller v. Oregon Can set hours for women to work because need to protect women. Need to be healthy to make good babies. Adkins v. Children's Hospital Can't make wages for women. Now that the 19th Amendment (women's suffrage) passed, don't need to protect women. Departure From Lochner: NEBBIA v. NEW YORK NY set minimum price for milk because people selling milk for too low. Milk not as healthy because businesses trying to cut cost to keep up. (NOT DCC problem because effects everyone.) COURT GIVES DEFERENCE TO STATE. Rational Basis Test: If both than allow.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

1. Proper legislative purpose. 2. Means must rationally relate to ends. Only going to interfere if arbitrary, capricious, or unreasonable. West Coast Hotel v. Parrish Overrules Adkins. Minimum age law for women. Court accepts equalizing of labor relations as an acceptable goal for the states because if not bad things will happen. Legal realism- laws are responsible to political power. Carolene Footnote 4 Court should get involved when discrete minorites rights are at stake. Depends on when courts need to correct political market failures. WILLIAMSON v. LEE OPTICAL States free to regulate economic relations and the court will not overturn such laws unless there is (standard) no conceivable rationale justification for the legislature. Punitive Damages and Substantive Due Process: 1:1 ratio for punitive damages. (Exxon Mobile case in supplement.) THE TAKINGS CLAUSE The Takings Clause, 5th Amendment - private property shall not be taken for public use, without just compensation. Berman v. Parker - Authorized the taking of private property for the purpose of redeveloping blighted urban areas. Hawaii Housing Authority v. Midkiff - Eminent domain can be used to solve the problem of concentrated land ownership. KELO v. CITY OF NEW LONDON Economic development is a public use. Private to private transfers only not allowed if for a private purpose. Must be for a public purpose. DISSENT: Went too far. "Thomas"- land needs to be put to public use that is open to the public, not for houses or private transfers. Minorities will always be taken advantage of. "O'Connor"- would have applied Midkiff. Regulatory taking- When property is regulated too far it will be recognized as a taking. PENNSYLVANIA COAL Co. v. MAHON Rule: Regulations go too far when property made economically worthless or when substantial "bundle of rights" are infringed upon.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Lochner-like move for court to say what a takings is by using expectations, bundle of rights as part of constitution. NATURAL LAW argument. Miller v. Schoene Red cedar trees could be destroyed because weren't substantial part of economic value of property. Penn Central Transportation v. NYC Penn Central balancing Test (1.) economic impact of regulation on claimant (i.) investment expectations are considered too (2.) character of govt regulation (i.) physical invasion is more likely a taking (ii.) what is states purpose? Loretto v. Teleprompter Manhattan CATV Corp. perm physical occupation is taking regardless of public interest that government is promoting. Lucas v. South Carolina Coastal Council Regulations prohibiting all economic benefits are per se takings. Palazzolo v. Rhode Island Owner could challenge regulatory taking when he brought property w/ restriction on it (1.) future generations have a right to challenge unreasonable limitationsremanded for Penn central test. The Kts Clause - Article I, Section 10: Prohibits any state "Law impairing the Obligations of Contracts" HOME BUILDING & LOAN ASS'N v. BLAISDELL Rule: The protection power of the State, its police power, may be exercised in directly preventing the immediate and literal enforcement of contractual obligations by a temporary and conditional restraint, where vital public interests would otherwise suffer. Level of Scrutiny: Deference to state. Economic due process. United States Trust Co. v. New Jersey An impairment of state obligations may be constitutional if it is reasonable and necessary to serve an important public purpose. SUBSTANATIVE DUE PROCESS AND PRIVACY Meyer- allowed teacher to teach foreign language at school.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Pierce- allowed choice for children to attend private, parochial, or public schools. Lochner/ Natural Rights Skinner- invalidated sterilization of third conviction felons. GRISWOLD v. CONNECTICUT Illegal to use contraception. CT trying to stop extramarital affairs. Violation of due process. Penumbras - inherent or emanating rights. Throughout the 1st (right to assemble), 3rd (home protection), 4th (leave home and things alone), 5th (self-incrimination), and 9th Amendments (rights can't be infringed upon, and other rights out there) is the right to privacy. Connecticut law is unconstitutional because laws can't invade areas of protected freedoms and right to privacy is protected. CONCURRENCE "Goldberg"- Right to privacy is a fundamental right in the 9th Amendment. CONCURRENCE "Harlan" Poe v. Ullman DISSENT Due process- history, tradition, conscious. Martial rights should be untouched. DISSENT - Right to privacy just not there. 9th Amendment just protects people from government infringing on rights. EisenStadt v. Baird Rights extended from marital rights to individuals and minors (Carey v. Population Services, International.) Now an individual right to privacy. ROE v. WADE Liberty is based on 14th Amend in due process by relying on past cases Fetus doesnt have right b/c at time of 14th amend, wasnt person State has interest in protecting maternal health a. 1st trimester: state cant do anything b. 2nd trimester: must be reasonably related to mothers health c. 3rd trimester: can regulate and prohibit unless to save moms life DISSENT "Rhenquist": abortion becomes public; removes right to privacy a. this is ct legislating; does state have rational basis? Let it go. Post- Roe- almost all limitation struck down except parental consent Govt doesnt have to provide funds to get an abortion PLANNED PARENTHOOD v. CASEY

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011

Court moves to undue burden test- is state creating an undue burden on individuals right to abortion/privacy a. Ct doesnt overturn Roe b/c of Stare decisis. Four times court shouldn't overrule doctrine: (1.) people rely on it. (2.) Roe isnt unworkable, states dont have problems w/ it. (3.) no evolution of principle. (4.) Cts legitimacy, we wont back down b/c dont like b. State can b/come more involved via undue burden c. 24 hr waiting and informed consent- not undue burden d. Spousal notification not allowed to be required. (1.) husband should have a say in this b/c he has rights (2.) in marriage, husband would abuse her if he knew she was going to get abortion (3.) this is a flashback to a woman being a piece of property e. Parental consent okay as long as judicial bypass in place. f. Collection of patient information is ok. DISSENT "Blackmun" - strict scrutiny is better standard DISSENT "Rhenquist" (1.) abortion is intentional termination of life (2.) State has valid interest in terminating life (3.) rejects stare decisis argument "Scalia" - rational basis test better Stenberg v. Carharr- language too vague; can refer to any type of abortion a. state has not introduced health exception for mother GONZALEZ v. CARHART "Partial Birth Abortion" case Congress passes law banning partial birth abortions and court finds Constitutional. Rule: A law limiting abortions is not invalid on its face where there is uncertainty over whether the banned procedure is even necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safer alternatives. DISSENT - patronizing women, know what theyre doing letem
3 Modern Challenges to DCC: 1. Facially discriminatory state laws to out of staters. 2. Laws with impermissible protectionist purpose or effect.

Downloaded From OutlineDepot.com

Hassel_Constitutional Law I_ Fall 2011 3. Disproportionate adverse effects on state commerce.