Con Law Outline

Table of Contents

I. Economic Liberties
A. Constitutional Sources
B. Lochnerism
1. Lochner Era
2. Demise of Lochner

II. Fundamental Rights Under Due Process
A. Constitutional Sources
B. Process for Analyzing
C. Incorporation Debate
D. Family Autonomy
E. Contraception
F. Procreate
G. Abortion
H. Sex
I. Medical Decisions
J. Control of Information

III. Equal Protection
A. Constitutional Sources
B. Analysis
C. Rational Basis
D. Race and National Origin
1. Reason
2. Facial Discrimination
3. Facially Neutral Laws With a Discriminatory Impact or With Discriminatory Administration
a. The Requirement for Proof of a Discriminatory Purpose
b. Is Proof of Discriminatory Effect Also Required?
c. How is Discriminatory Purpose Proven?

4. Racial Classifications Benefiting Minorities
a. Permissible Purposes
b. Permissible Means
E. Gender Classifications
1. Developing a Standard
2. When it is discrimination?
3. Gender Classifications Benefiting Women
a. Gender Classifications Based on Stereotypes
b. Biological Differences
c. Gender Classifications Benefiting Women as a Remedy
F. Discrimination Against NonMarital Children
1. Laws Denying Benefits to All Nonmarital Children
G. Other Types of Discrimination: Only RB Review
1. Age
2. Disability
3. Sexual Orientation
H. Constitutional Protection for Voting
1. Restrictions on the Ability to Vote
a. Are Elections Constitutionally Required?
b. Poll Taxes
c. Durational Residency Requirements
d. Literacy Tests
e. Prisoners’ and Felons’ Right to Vote
f. Limiting Voting in Primaries Based on Party Affiliation
g. Dilution of the Right to Vote
h. Gerrymandering
I. Constitutional Protection for Access to Courts
1. The Right to Appeal
2. Filing Fees
3. Other Costs
J. Constitutional Protection of the Right to Travel
1. Durational Residency Requirements
K. The Requirement of State Action
1. Exceptions to the State Action Doctrine
a. Public Functions Exception
b. Entanglement Exception

IV. Governmental Structure: the Three Federal Branches, Separation of Powers, and Federalism
A. Federal Judicial Power
1. Judicial Review
2. Justiciability Doctrines
a. Standing
b. Ripeness
c. Mootness
d. Political Question
B. Federal Legislative Power
1. Introduction: Enumerated Powers, the Necessary and Proper Clause, and Inferred Limits on States
a. The Scope of Congressional Power
2. Commerce Clause Power
a. Early Cases
b. Between the 19th Century and 1937
c. Lochner through 1937
d. Reaction to Lochner (1937-1995)
e. Contemporary Cases
f. Federal Common Law
3. Spending Power
a. For What Purposes May Congress Tax and Spend?
4. War Power
5. Civil Rights
a. May Congress Regulate Private Conduct?
b. What is the Scope of Congress’s Power?
c. Confining Congressional Power to “Proportional” and “Congruent” Remedies
C. State Limits on Federal Power
a. The 10th Amendment in the Nineteenth Century
b. The 10th Amendment from the Late Nineteenth Century Through 1937
c. The 10th Amendment Between 1937 and the 1990s
d. The 10th Amendment in the 1990s and Beyond
D. Federal Executive Power
1. Inherent Powers?
2. Executive Agreement
E. Separation of Powers
1. The Legislative Veto
2. Removal Power a. Dormant Commerce Clause Before 1938
3. Executive Privilege
4. Dormant Commerce Clause/Negative Aspects of the Commerce Clause
a. Dormant Commerce Clause Before 1938
b. Shift to the Balancing Approach
c. Facially Discriminatory Laws
d. Facially Neutral Laws
1) Balancing Test: When the State is Not Discriminating
2) Analysis When the State is Discriminating
e. Exceptions
F. Privileges and Immunities of State Citizenship
G. Preemption of State and Local Laws
1. Field Preemption
a. Foreign Policy and Immigration
b. Federal Regulations
c. Conflicts Between State and Federal Laws
d. State Laws that Impede Achievement of Federal Objectives

I. Economic Liberties

A. Constitutional Sources
Contracts Clause in Article I, §10
5th Amendment’s Takings Clause
5th and 14th Amendments, respectively, provide that neither the federal nor state governments can take a person’s property (or life or liberty) without due process of law. At times, the Court has also used DP to protect other economic liberties such as freedom of contract, freedom to pursue a livelihood, and freedom to practice a trade or profession.
In the early nineteenth century, the Court invoked natural law principles to protect property rights.

Calder v. Bull (1798) CT law that set aside the decision of a probate court that had denied inheritance to hose designated as beneficiaries under a will. After a new law was adopted the probate court changed its ruling and allowed inheritance. The Court upheld the constitutionality of the law. Chase, even though part of the majority, further held that the government could neither violated the provisions of the Constitution nor infringe rights that are a part of natural law. Note that Iredell’s Concurrence agreed with the result but argued that courts should not rely on natural law. Nevertheless, the Court’s opinion throughout the early nineteenth century was that natural rights concerning property limited government actions.
Throughout the nineteenth century, the Court aggressively used the contracts clause to limit the ability of states to interfere with existing contractual obligations.

The Slaughterhouse Cases (1873) Court’s first attempt to interpret the 14th Amendment. Louisiana granted a monopoly to one corporation to operate slaughter houses. Independent butchers argue that this law violates the 14th Amendment by denying them of right to exercise their trade, in violation of 13th Amendment (involuntary servitude) and 14th Amendment (privileges and immunities, due process, equal protection). Court takes a historical view, arguing that the 13th and 14th Amendments were limited to the purpose for which they were adopted (after the Civil War). Court says that 14th only guarantees privileges and immunities of citizens of the United States, as distinct from citizens of a state. Privileges and immunities of US citizens are limited, and enumerated elsewhere in the constitution: right to peaceably assemble, etc. This essentially killed the privileges and immunities clause.
Field and Bradley Dissent argued that 14th Amendment protects citizens of the US against the deprivation of any rights arbitrarily by state legislation. Privileges and immunities are those that of right belong to the citizens of all free governments. Bradley says it was intention of 14th Amendment to provide national security against violation by the states of the fundamental rights of citizens. Interpreted “liberty” and “property” to include a right to practice a trade or profession. This later became the majority view of the Court.

Due Process and Equal Protection were basically an afterthought in this case. Idea coming in was that if there substantive rights, they were in privileges and immunities. Field says that the Slaughterhouse Cases foreclosed privileges and immunities, which is where any substantive rights should be. What in the 14th Amendment could the Louisiana law violate? Privileges and immunities: right to work, natural rights. Due Process.

Therefore, everything after tried to get substantive rights out of Due Process, where they don’t belong. By the end of the 19th Century, began to get incorporation of Takings, with some Due Process holdings striking down economic legislation (that had nothing to do with the civil rights purposes for which the 14th Amendment was adopted). But if nothing in the privileges and immunities then there is not much the feds can do. Initially, the federal courts in The Slaughterhouse Cases determined that privileges and immunities never included civil rights which should still be in the states. Over time, the Supreme Court was appalled not only by the civil rights treatment, but also the economic regulations (not following Adam Smith) and its effect on property rights applying 5th Amendment via 14th or “shocks the conscience.” There is some property that is in the public interest (monopolies) and really can fiddle with the rates a bit in these circumstances. When states start regulating private property like maximum hours or sale prices, that is unconstitutional. Hold corporations as persons within the meaning of the 14th Amendment. Rate regulation must have DP. Worried that state regulation may be disguised in one of its state power roles. Liberty does not mean only freedom from physical restraint but also use of faculties. Field thinks the Slaughterhouse viewpoint was wrong and this one is right but that they found a funny place to locate the right of the federal government to regulate the state – in areas that they are concerned about (listed below).

State police power = the power of the state to regulate except as the federal constitution prohibits it directly or as exercised by the federal government . There are some topics for state police power: health, safety, morals, and general welfare (as explained in Lochner). These are very broad and could be construed to include nearly anything.

B. The Rise and Fall of Lochnerism (Economic Substantive Due Process)

Beginning in the late 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 DP clause. The Court aggressively protected economic rights under the DP clause. Many state laws were declared unconstitutional. The contracts clause was not used often during this era as the protection of freedom of contracts under the DP clause made the contracts clause superfluous. Freedom of contracts under the DP clause limited the government’s ability to impair existing and future contracts while the contracts clause always has been confined to the former. Note though, that if states enacted a law it would violate this clause and during the same era the Court would find a federal government’s exercise of the same to be violating the states’ role – so there was minimal possibility of economic regulations. Note as well that government regulation significantly increased during this time period as industrialization changed the nature of the economy.

1. Lochner Era (1905-1936) NY passed a law limiting working hours in the bakery trade. Court taking up the issue of whether this regulation goes beyond the general police powers of the state. It is the opinion of the court that it did so. 1) Freedom of contract is a basic right protected as liberty and property rights under the DP clause of the 14th Amendment. 2) The government could interfere with freedom of contract only to serve a valid police purpose. 3) It was the judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it served a police purpose. Find no compelling reasons – does not have much to do with health for the bakers and the public as there is no direct relationship to healthy bread and healthy bakers. Bakers are as intelligent as other groups and can make their own decision (distinguishing that this is not like the miners who work in extremely hazardous conditions and are thus in a class by themselves). If do this for bakers, will have to do it for everyone else. The test is whether it is fair and reasonable in pursuit of a legitimate end or whether it is arbitrary and capricious. But we will later also see a mix of evaluating the ends and the means. Not a reasonable means for protecting the health of the baker. Not a legitimate end to have bread health because there is no evidence that working hours affects the bread. The real motivation was to bring incomes closer together and to give workers a fair bargaining position – not accepted then but it is a reasonable justification today if a majority in the legislature accepts it. Concerned about socialism motive at the time.
Harlan Dissent Majority assumes that there is equal bargaining power and thus actually undermines liberty. The legitimate end is the health of the bakers and we should give deference to the state legislature. Common sense shows that there is a relationship.
Holmes Opinion Constitution should not be determined by economic theory. Even if bakers do not stand out more than anyone else this might be a reasonable first installment of a larger plan. Does it need to be rational for just bakers or for larger group?

What is wrong with this system? It is hard to know how to judge this case – many people dump on it. 1) In thinking about DP and what should be the court’s relation to the legislature we are philosophically at a different place than the court. In justifying modern DP, must explain why we can do it in one instance but not another and note that it is hard to distinguish among economic, social, and individual rights legislation. Also need to figure out whether it is legitimate to have dumped as much as we have on substantive DP. 2) The Supreme Court, not through political pressure, but through arguments of principle, will hold up the underdogs.
3) The Court was wrong in protecting freedom of contract as a fundamental right and that it erred in concluding that the government could only interfere with this right to enhance health, safety or morals. The government should be able to regulate to achieve many other goals. 4) Inconsistent application in later cases. 5) Unelected judges were unduly substituting their values for those of popularly elected legislatures to protect rights that were not expressly stated in the Constitution.

2. Demise of Locher In the mid-1930s, enormous pressures were mounting for the Court to abandon the laissez-faire philosophy of the Lochner era as the depression created a wide spread perception that government economic regulations were essential. Freedom of contract came to be seen as an illusion. Moreover, Lochner rested on the assumption that freedom of contract and related property rights were part of the natural liberties possessed by individuals and legal realists began to argue that therse were political choices. Consider, as well, the court packing plan.

Nebbia v. West Coast Hotel (1934) State had established price of milk. The language shows us that times are changing. If not guaranteed a certain price, dairy farmers would be more likely to sell contaminated milk. On one hand, can view it as a narrow decision based on strong evidence of the importance of milk and a legislative finding that the market could not correct it, or it could be seen as a business in the public interest. Court seemed to question the basic premise of Lochner – property and contract rights are not absolute, deference to legislative choices.

West Coast Hotel v. Parrish (1937) State minimum wage law for women upheld. Made it clear that the Court was abandoning the principles of Lochner. Notes that freedom of contract is not mentioned in the Constitution like liberty and property. Emphatic that the government was not limited to regulating only to advance the public safety, public health, or public morals. It would no longer protect freedom of contract as a fundamental right, government could regulate to serve any legitimate purpose, and that the judiciary would defer to the legislature’s choices so long as they were reasonable.
Justice Robert “The switch in time that saved nine.”

Reaffirmed in Caroline Products stating that economic regulations should be upheld so long as they are supported by a conceivable rational basis, seven if it cannot be proved that it was the legislature’s actual intent. In the famous footnote, the Court articulated a double standard of review: Generally, the Court would defer to the government and uphold laws so long as they were reasonable. But this deference would not extend to laws interfering with fundamental rights or discriminating against discrete and insular minorities.

Since 1937, not one state or federal economic regulation has been found unconstitutional as infringing liberty of contract as protected by the DP clauses of the 5th and 14th Amendments. Clear that they will be upheld when challenged under DP so long as they are rationally related to serve a legitimate government purpose. Any conceivable purpose, rather than the actual one, is sufficient.

Williamson v. Lee Optical (1955) Law prohibiting opticians from fitting glasses unless they had a prescription by optometrist or opthamalogist upheld because a possible rational basis existed. Stressed the need for judicial deference.
Could analyze the means or look at the real motive, but much of this is based on economic theory. Field argues that there is no judicial review here to speak of. Do we treat individual liberties and economic liberties the same? No, but this one likely has a bad motive

II. Fundamental Rights Under Substantive Due Process

A. Constitutional Sources

14th Amendment §1 All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they resides (overrules Dred Scot). No state shall make or enforce any law which shall abridge the privileges or immunities if citizens of the United States

What are privileges and immunities? Article IV, §2 of the constitution uses this term, but in a different context—one state cannot deny privileges and immunities to the citizens of another state. If the 14th Amendment creates any substantive rights, privileges and immunities seems to be where they would come from

The Amendment was supposed to change the balance of power between the federal government and the states—for some time the Court refused to recognize such a radical change without more explicit language (Court often asks Congress for more explicit instructions before recognizing a big change). The purpose of the 14th Amendment was to say that the federal government could protect civil rights.

Due Process seems to prevent state from taking away substantive rights granted elsewhere The Court has deemed some rights as so fundamental that the government cannot infringe upon them unless strict scrutiny is overcome, meaning that the government must justify its interference by proving that its action is necessary to achieve a compelling governmental purpose. If the right is not fundamental, only rational basis is required. Almost none of these are mentioned in the Constitution, but the Court’s authority stems from the Due Process Clause of the Fourteenth Amendment and it’s protection of “liberty.” Carolene Products Footnote 4 Cannot be pronounced unconstitutional unless a RB there is a presumption that the legislative judgment on economic legislation is valid. The footnote distinguishes cases in which greater judicial scrutiny might be possible. With less political process there is more judicial scrutiny. Should discrimination against minorities via political process that is supposed to protect them be subject to greater scrutiny?

Other Analysis – Procedural DP and EP. Sometimes these are analyzed under procedural due process as well as equal protection, both of which are located in the Fourteenth Amendment, as well. Under any of these approaches, the Court must decide whether a claimed liberty is sufficiently important to be regarded as fundamental, even though not mentioned in the text of the Constitution. If presented under DP, the constitutional issue is whether the government’s interference is justified by a sufficient purpose. But if it is presented under EP, the issues is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose. Thus, if the law denies the right to everyone, then DP would be the grounds for analysis; if the law denies the right to some, while allowing it for others, the discrimination can be challenged under EP and the violation of the right under DP.

Most often, the Court points to the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to disparage others retained by the people.” The Ninth Amendment is generally not seen as the source of the rights in that rights are not protected under it; there are no Ninth Amendment rights. Rather, the Ninth Amendment is used to provide a textual justification for the Court to protect nontextual rights, such as the right to privacy. Thus, the Ninth Amendment is just a justification for the Court safeguarding unenumerated rights which are protected via other Amendments and parts of the Constitution.

Very much used and relevant today. Possibly overused. For example, the” discrete and insular minorities”, the paradigmatic description of subject classifications - as EP grows, we look for this description and sometimes it is not the best descriptor. In the gay community, this description does not apply according to some scholars.

B. Process for Analyzing Fundamental Rights
1. Is there a fundamental right?
2. Is the Constitutional Right Infringed?
3. Is there a sufficient justification for the government’s infringement of a right?
4. Is the means sufficiently related to the purpose?"

Look at text of legislation, statements before the Court and legislative history. Field would always start with the text – don’t overrule the text with something that some Senator says – go to the others when it is not clearly stated or if there is not a clear implication starting with legislative history. The courts are not looking at what the legislature thought and whether it is legitimate but whether the legislature could have or might have come up with a legitimate reason. The case is different in discrimination situations because the court will look at what the legislature’s intent was. Sunday closing and abortion rules could be argued to have originated from religious movements, but the courts are not interested.

The Supreme Court has not given a very good definition of fundamental rights. Field thinks it is not enough to use the strict scrutiny and compelling interest boxes – that would be arbitrary and they shouldn’t solve it alone. On the exams there will be hard questions and you have to think about the factual situation and the real reasons the state and parties would want certain choices. Talk about the weighing of values in addition to RB and SS. Don’t let the framework be it as it is not – sometimes ,as in Lawrence where it was only rational basis, the Court just can’t sit with a law and a value judgment is really going on.

C. The Incorporation Debate

Black and Douglas—total incorporation; the 14th Amendment incorporate the first 8eightamendments, in their entirety
Frankfurter, Cardozo, Harlan—fundamental fairness; “shocks the conscience.” Court should look at individual cases to determine whether fundamental fairness was violated. Do not incorporate whole amendments for all cases.Black argued that this approach was too subjective, giving the judges too much power
Murphy and Rutledge—incorporation meant the first eight amendments, plus other fundamentals. This is pretty close to what we got. Most of the first eight amendments are incorporated (with exceptions like grand jury and 6th Amendment jury provisions—did not require unanimous verdicts or 12 person jury in the states)—selective incorporation. Court basically said that when rights apply to the states, they apply in exactly the same way that they apply to the federal government. This meant that once an amendment was incorporated, there was a whole body of doctrine that already accompanied it.

Bradwell v. Illinois like Calder v. Bull raises the question of whether the constitution completely erased everything before it or built off of it. What are the natural laws it was based on?

Remember that federal law trumps state law – Article VI of the Constitution’s Supremacy Clause. The whole provision in the constitution that is responsible for stating that there is a trump says that state judges shall be bound by the federal constitution (which includes federal statutes because they apply via the Constitution) and any state law to the contrary notwithstanding. It all works through state judges rather than all the branches.

D. The Fundamental Right of Family Autonomy

Origins in Meyer v. Nebraska (1923) Reversed the conviction of a teacher for teaching German and thus violating a state law prohibiting the teaching of foreign languages to young children (right after WWI). McReynolds’s broad view of liberty denotes not merely freedom from bodily restraint but also to contract, engage in any of the common occupations of life, acquire useful knowledge, marry, worship God, bring up children, etc. as recognized 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.

Pierce v. Society of Sisters (1925) OR law requiring children to attend public schools. McReynolds found to peculiar circumstances or present emergencies which demand extraordinary measures. Interferes with parents ability to direct upbringing and education of their children.

If this case were arisen today… Assume that in Massachusetts there is a private school culture and want to give a better education structure to the public schools. Seems to be a good state purpose. Certain things are private as in Griswold, etc., may be encompassing how to raise children. Privacy zones can slop over into other things. Could easily be unconstitutional because of the government, albeit state, taking so much control. Field says it shows that this is a weighing of values and we have to question who will weigh them – the court or the legislature?

They were written by McReynolds – the hayday of the substantive due process era and were throwing out everything they think is unreasonable - the fact that these cases also cover privacy zones is not fully developed in this cases and hence, the cases were discredited.

Eperson v. Arkansas (1968) Teacher wanted to keep teaching in AK public schools but a law stated that no one could teach anything about Darwinism. Her textbook had a chapter on Darwinism and brought a DJ. The Supreme Court wanted to hold it unconstitutional, not on the basis of educational freedom, but based on the religious purpose. No one ever followed the approach again.

Zablocki v. Redhail (1978) Any minor having a minor not within their custody and a financial obligation to them had to get court approval that they were caring for the child and were not likely to become public support in order to get married. Primary purpose to ensure that fathers with child support obligations are meeting those obligations. Evidentiary problems with showing that kids will not become public charges – if you’ve paid your child support you’ve met your public obligation. Court argues it would be unusual to recognize the right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation for family in our society. Court holds it is not constitutional because under the heightened scrutiny of the marriage privacy interest. State interest deemed legitimate but unnecessarily inhibited one’s ability to enter into marriage as there were less intrusive means to meet this interest (criminal law, garnish wages, etc). Note that the majority opinion found the right to marry to be a fundamental right protected under the liberty of the due process clause, but the concurring opinion by Powell used an EP approach.

In Linda S. Woman sues the prosecutor for man’s backpayments. Supreme Court holds no standing because no proof that he would still pay without going to jail. So much for criminal penalties options.
DP v. EP Analysis If the court characterized the π’s injury as a denial of EP because of discrimination against mothers of illegitimate children, this injury would be remedied by a favorable court decision regardless of whether more money would be forthcoming as a result of the suit.
Turner v. Safley (1987) Constitutionally protected marital relationship in the prison context. Unlike the usual strict scrutiny for fundamental rights, the government may interfere with prisoner’s rights if the action is reasonably related to a legitimate penal interest, but here it was not. Prison could regulate the time and circumstances of the ceremony as well as cohabitation.
Since he can’t have conjugal visits, can he artificially inseminate?

Racakport v. Katz Ready to get married and the guideline stated that they had to have proper attire to get married. Marriage is like abortion – a fundamental right but with lots of restrictions allowable. Probably wouldn’t have been struck down as not an undue burden. Also really are looking for how these matters affect most people.

Befurt. v. Adrian Wanted to name a combination of mother’s and father’s name. State interest in administrative records. Court finds a fundamental CL right to give a name under rational basis test – prohibits from arbitrary state action. The attitude here is that the administration, rather than the s are being stubborn.

Grandparents Rights Troxel v. Gainville (2000) A father committed suicide. For the first year after his death the girls continued to regularly visit with their paternal grandparents then the mother largely ended this visitation. A statute from WA which said that anyone could get visiting rights to any child by proving that it was in the child’s best interest – could be more than grandparents and could even be the babysitter. The Washington trial court ruled in favor of the grandparents and ordered extensive visitation but the Washington Supreme Court declared this unconstitutional as violating the mother’s right to control the upbringing of her children. There was no majority opinion for the Court but the plurality found that the Washington law as applied in this case was unconstitutional as infringing on the fundamental right. Read broadly, the case can be read to affirm parental rights but read narrowly it may only apply to this specific case, especially since O’Connor stressed that they were not evaluating grandparents rights statutes in general and that the mother allows some visitation.

Field thinks it makes life as a single mother impossible and discourages boyfriends and other close relationships with the child. Some think it’s good for lesbian relationships – but Field says make a contract. Supreme Court felt that it was alright for WA to find it unconstitutional.

Troxel and Michael H. (and Kelley below) are not constitutional rules but rather possibilities for what states can do

Rights of Unmarried Fathers The Supreme Court has recognized that parents have a fundamental right to custody of their children. Michael H. v. Gerald D. (1989) held that even an unmarried father who participated actively in the child’s life is not entitled to DP if the mother was married to someone else. The state may create an irrebuttable presumption that a married woman’s husband is the father of the child even though it negates all of the biological father’s rights. No tradition of protecting unmarried father’s rights (Rehnquist and Scalia only). Stevens, the fifth vote, wrote separately to say that he would not foreclose the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married and cohabitating with another man at the time of the child’s conception and birth. He only joined the opinion because the state offered a procedure whereby the biological father could have established paternity and preserved his rights.

Field is against having a rule that an unwed father can come in and say that the child is his. If the unwed father can challenge the presumption rather than the Husband or Wife, then he is the one coming to ask for the blood test. It means that anyone can come off the street and disrupt the nuclear family. Most of the cases would not be from the guy who was sure he was the biological father as blood tests had not happened yet, so would have t require blood tests to prove it. CA’s law was at least constitutionally valid.
Note though that the only time a woman is protected in this type of situation is if she is a married woman, not if she is single or a lesbian woman and has to welcome him in on the theory that anyone is better off with the father.
Lost two votes in getting footnote – the way that we look at natural fathers in general does not apply in this case because he is an adulterous natural father so it is a more specific case. Do biological fathers have a right to get to know their child? Scalia narrows from biological fathers to adulterous natural fathers. Whichever level you describe it at can change the result. But then to say that there is a rule that you start at the lowest level does not work as you don’t. Field thinks his test does not work. Think about miscengenation. O’Connor says that it was struck down not because there was a tradition of blacks and whites marrying, but more generally, a right to marry who you choose.

E. The Fundamental Right to Contraception

Griswold v. Connecticut (1965) Douglas Majority Opinion holds that guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees. Various guarantees create zones of privacy. Douglas tries to draw a line between economic and social policy, where the Court will not sit as a “super-legislature,” and something else (intimate details of marital relationship). Found that the right to privacy was a fundamental right, but it was not protected under the liberty of the DP clause. Declined invitation to follow Lochner and thus avoided substantive DP.. Instead, the right to privacy is implicit in many of the specific provisions of the Bill of Rights (First, Third, Fourth, and Fifth Amendments). The right to privacy is an emanation of these guarantees which help give them life and substance. The right to privacy was violated by the CT law prohibiting married couples from using contraceptives. Does not focus on the right to avoid procreation or make reproductive choices; it focuses on the privacy of the bedroom.

Apparent limitations on the opinion 1) Douglas points out that this is a law prohibiting the use of contraception, not manufacture or sale. Does this mean that a law prohibiting sale or manufacture would be constitutional? No, later cases said right to use means a right to buy (and sell) 2) Is it limited to married couples? Later case expanded right to privacy beyond marriage (Eisenstadt v. Baird). But not until Lawrence, last summer, did there appear to be a right to sex for single people.

Relationship to the Incorporation Debate
Douglas has committed himself (along with dissenting Justice Black) to saying that there is nothing in the 14th Amendment except the first 8 amendments. So he has to look at the Bill of Rights itself to decide the case, not to the broader concept of “liberty” under the 14th. Black had said repeatedly, with Douglas, that the 14th Amendment incorporates the first 8 amendments. Douglas slipped away, by adding more to those first 8 amendments than they apparently contain.
Goldberg Concurrence invokes the 9th Amendment to say that concept of liberty protects personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. Ninth Amendment says that the enumeration of rights in the Constitution does not deny or disparage other rights retained by the people. Black argues that the 9th Amendment argument opens the door for the Court to strike down any law it wants. Raises a big question: did the Constitution replace everything that came before it, or does it build on what came before it, leaving all rights that it does not explicitly contradict.
Harlan Concurrence states that the proper constitutional inquiry is whether Connecticut statute infringes the DP Clause of the 14th Amendment because the enactment violates basic values “implicit in the concept of ordered liberty.” 14th Amendment is broader than the specific provisions of the Bill of Rights. Word “liberty” includes a freedom from all substantial arbitrary impositions and purposeless restraints.
White Concurrence argues that this case does not even meet a rational basis test and finds the answer to this case in word “liberty” in the 14th, not in any specific provision of the Bill of Rights. White says that the statute does not work for its purpose—if aim is to stop adultery, law forbidding married people from using contraception is inappropriate. Field says this is a usurpation – judges should not say whether legislation is effective.
Black Dissent (and Stewart Dissent) Government has a right to invade privacy unless prohibited by some specific constitutional provision. Argues that the Court is following Lochner. Stewart: “We are not asking in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the Constitution.”

Should the Court or the legislature be making decisions like this? Under our constitution, Court can only strike laws down if they violate the constitution. So Court had to find some way to say that this. What does the 14th Amendment Due Process Clause have to do with a law preventing married people from using contraception? Most important idea here—Court could not stand to turn their back on a statute outlawing contraception, even though there wasn’t a thing in the constitution about it.

Because Douglas avoided substantive DP, the case has not been followed by subsequent cases and is heavily criticized. It also does not achieve the goal of avoiding substantive DP because the Bill of Rights applies to the states via the Fourteenth Amendment and hence the penumbral approach is ultimately a DP one.

Eisenstadt v. Baird (1972) Declared a Massachusetts law that forbade distributing contraception to unmarried individuals unconstitutional. The Court found that MA had violated EP by discriminating against unmarried individuals. Expands on Griswold by granting a right to sex to unmarried individuals as well as establishing the right of control over reproductive choices as a fundamental right. Although it makes little sense, it is an important case in right of privacy law. Whatever rights the married person has, the individual has. A single person has the right to decide whether to bear or beget a child – the holding is that a single person has the right to access for contraception. Powell and Rehnquist were not present – Brennan received four votes. The holding is important, but so too are the reasons that Massachusetts put forward for its statute. Takes the statute seriously and the goal to reduce sex outside of marriage. Although it is legitimate to want to reduce fornication, the state cannot deny access to contraception (try to figure out that reasoning!). Right to contraception but no right to sex. The sentence is not that great and having a child is greater punishment (MA didn’t intend the child to be the punishment). If the state really had an interest in preventing fornication, the punishment would be much stronger for the fornication rather than helping along the act (distributing contraception). This case is bigger than Griswold in making zones of privacy as that case dealt with married couples’ right to sex only.

Marriage used to be the place for sex with a low risk of children if desired (Griswold and extended to singles via Eisenstadt), children (Levy), sharing property (considered prostitution at first and no longer under Marvin, living together. No marriage anymore. Curiously, economic factors make a huge difference in these decisions, and the cases only address the legal side. Most of the time although states had fornication laws they only enforced them in statutory rape-like situations.

It made a difference in an AIDS/Herpes situation where someone does not tell the other partner. Doe v. Roe (D.D.C. 1993) Couldn’t criminally prosecute because they were fornicating. Can’t think that deterrence means 100% deterrence – without contraception there will still be sex but there probably will be less sex. But is deterrence less because than in crime because crime is not natural but sex is natural. Stevens’ explanation in a separate opinion in Carey is that a reason for requiring.

Steriliziation CA passed statute that no one could be sterilized unless they personally consented. The substantive DP right not to be sterilized. 26-year old rule HLS woman has three woman already and is pursuing a clerkship and ready to have voluntary sterilization. Couldn’t do it by the 120 rule (age x number of children). Anthony v. Worcester Hospital (D. MA 1972) Held unconstitutional. In Valerie N. (1985) when parents wanted a retarded daughter to be sterilized the CA Supreme Court approved of it, which probably is not legitimate considering Supreme Court jurisprudence. Rose Bird, the Chief Justice, wrote a dissent discussing things that are natural v. unnatural.

Conflicts with Parental Control Why do we allow parents full control over their child’s education but not over contraception, etc.? What is the parent does not want sex education in the schools? Do we ask what the child wants? If the student can decide to get contraception shouldn’t he be allowed to determine if he wants sex education? Even if parents have a DP right to direct upbringing of their children, we are going to run into the fact that even when you have a fundamental DP right, the fundamental rights are not absolute. Suppose you are a Jehovah’s Witness and do not want your child to be vaccinated for school, you will still need to have a vaccination.

F. The Fundamental Right to Procreate

Buck v. Bell (1927) Initially the Court rejected the position that the right to procreate was fundamental by upholding the ability of the government to involuntarily sterilize the mentally retarded. A set up case. The lawyer for Carrie Bell knew that she was not retarded. Did Holmes know that she was not retarded

Skinner v. Oklahoma (1942) Marriage and procreation are fundamental for the very existence for the survival of the race. The court rejected an OK statute allowing courts to order sterilization of those convicted of two or more crimes involving moral turpitude. Larceny = entering the property to take the stuff. Embezzlement = working and entrusted with the goods (more a white collar crime). The embezzlers weren’t going to get sterilized, only the larcenists. Cannot show that it is discrimination through the links – larceny = poor people. Douglas finds an equal protection argument that both or neither should be sterilized. Also a DP argument that could have been brought up that people have a right not to be sterilized. This case has the language that says sterilization is a DP right. Douglas was always good at throwing in language that could be used for future generation.

G. The Fundamental Right to Abortion

Roe v. Wade (1973) The structure of 14th Amendment decisions is that you have a DP right to determine whether to beget a child or not but that right is trumped in the third semester by the state’s interest in preserving life. A Texas abortion law that only under the purpose of saving a life of the mother can one have an abortion. Blackmun holds that the right to an abortion is a fundamental right as the right to privacy is a fundamental right under Griswold and are extending it here. The individual interest in a distressful life and future. Only under compelling state interests can the state infringe upon that right. Fetus is not a person. Regulation after viability which is in the third semester (much medical terminology – could be independent life outside the womb with or without artificial means). After viability the state can, but is not required to, forbid abortion except for preservation of the life or health of the mother (TX statute only referred to life, huge question that the Supreme Court will decide at some point perhaps in partial birth abortion decisions is what is health). Blackmun finds the fundamental right from something that is serious not only to this particular woman but to women in this position in general. It is not absolute – the woman does not have the choice up until the moment of birth. Citing Jacobsen, it must be balanced and qualified against important state interests. Comes up with the three trimester model. Not protecting a person here, but potential life and the state’s legitimate interest in protecting it as well as the health of the mother and maintaining certain medical standards along with a disposition against fornication. Fetus not a person under the Fourteenth Amendment (when life begins is a different question). In the first trimester, no regulation and left to medical judgment because abortion is safer than childbirth at this time and are therefore making it even safer. In the second trimester, the state can regulate in ways relative to maternal health. The court did not find privacy, as Douglas did in Griswold, in the penumbra of the Bill of Rights, but instead as part of the liberty protected under DP. Use strict scrutiny because the right to abortion is fundamental.

The Situation at the Time Field thinks the methodology is clearly laid out in the bottom of p. 521. Up until this moment there as movement on the right of privacy and contraception front. What it looked like it was going to develop into was that the government had no right to intervene when there was two consenting adults with no tangible harm. Could not require seatbelts or motorcycle helmets or regulate consensual sex between adults. It seemed that abortion would not fit into this mold – for example, are eliminating the husband’s right to know. States were liberalizing it a little bit and many considered health or life of the mother as an exception but the health of the mother was broadened to include things like mental distress. NY was offering abortion on demand open to residents of other states. Rich folks going to Puerto Rico and Mexico. Blackmun determines that the right to privacy includes the right to decide to have an abortion. What won Blackmun over was the plight of the women before him. The detriment that the state would impose on the woman. Many people think Burger voted with the majority because he would have gotten to assign who writes the opinion and if not the senior justice would assign it to himself and Douglas would have assigned it to himself. Burger thought Blackmun would never gotten around to writing it. Field doesn’t think this opinion is as bad as everyone says that it is.

What if we held that the fetus was a person? Citizenship? EP? FAS The writers didn’t mean for this to be included in the Fourteenth Amendment, if it did things would get all mixed up. Not treated as an equal under the Fourteenth Amendment. Note though that person under the Fourteenth Amendment did not include women nor did it intend liberty to extend to abortion.

Problems with this framework: 1) State may have interest in potential life from Day 1 (Blackmun says that the woman’s interest trumps it at this point). Individuals want interest in potential life to begin at birth. 2) Viability could occur later or earlier than the start of the third trimester. 3) Things done in early trimesters can affect maternal health and viability in later trimesters. If state has no interest in the first trimester, then does it have an interest in maternal alcoholism in the first trimester when the effects are not until after birth when the state has a viability interest? Field thinks that these systems are not the same. 4) When you go to the doctor to determine date of conception but that is not considered the beginning, rather it is the end of your last period. So for the first two weeks you are pregnant you really are not and hence have only 11 weeks in the first trimester. Also may not know you are pregnant until the second trimester. 5) Some argue that this is not constitutional law at all. 5) Prohibiting abortion which applies exclusively to women should be declared unconstitutional as gender discrimination under EP.

Essentially became regulated abortion. Many states created all sorts of “health” regulations to make it harder to have an abortion like informed consents and double physician approval. These regulations were held one after another unconstitutional as they were not bona fide regulations but rather to burden the woman getting an abortion and discourage her from doing so. Also, Casey moved viability forward a bit and Webster, although still on a trimester system, found ways around viability.

Under Casey, viability is moved two weeks earlier. What if the legislature required a state of viability? Could it force it and/or redefine the lines of the presumption of viability? Medical community has unequivocally stated that it cannot keep a baby alive much earlier. Second trimester abortion are people who didn’t know they were pregnant. Third trimester abortions are life changes or receiving amnio late and get the results in the third trimester. Field thinks that provisions allowing abortions for fetal deformity are unconstitutional.

Casey v. Planned Parenthood (1992) Eradicates the trimester system. Moved line up two weeks for viability – line is viability not trimester. No undue burden on the woman seeking the abortion for the purpose or effect of a substantial obstacle. Requiring a 24 hour rule not deemed an undue burden even though some women would need to make substantial trips. For minors, have judicial bypass or parental consent. Does not require spousal notification (but men do not have to notify of vasectomy). O’Connor seems to think that women have to go begging to their husband, but it is not really this way (but are then asking people to lie which is a burden). Reporting of abortion information allowed because of medical knowledge. Claims to have stayed with core of Roe v. Wade (women have a choice about whether to terminate a pregnancy for their own reasons), but rather the state always has an interest but it is just tempered by women’s rights. Regulations do come in the second trimester. Extra health regulations make it much more expensive to have an abortion in the second trimester.
O’Connor, Kennedy, Souter (3) overruled the trimester distinctions used in Roe and also the use of strict scrutiny for evaluating government regulations of abortions. Rather, the plurality said that government regulation of abortions prior to viability should be allowed unless there is an undue burden on access to abortion.
Blackmun and Stevens (2) Concurrence would have reaffirmed the trimester distinctions and the use of strict scrutiny. Thus, they would have struck down all elements of the Pennsylvania law.
Rehnquist and Scalia, plus White and Thomas stated that Roe should be overruled. Oddly enough the Court reconsidered Roe even though the law before the court did not prohibit abortions.

What about notification after the abortion? Would be less of a burden, but wouldn’t be related to her making an informed decision. Would give him knowledge about what his marriage was all about.

Start using the word liberty rather than privacy. Perhaps are trying to move it closer to the Constitutional language.

The big attack on American Laws is that we go for abortion on demand via Roe v. Wade making it constitutional and subject to Casey regulations. Many European countries take quite a different approach in which there is a short period to receive an abortion and after that have to receive permission with specified allowable reasons. We don’t have to give a reason, which Field thinks is important to our system. With specified reasons, these are reasons that Congress thinks are important but there are also extremely important reasons.

What if the government paid for high school teen mothers to have norplant with a stipend on top of it and regular check ups? Concerns about the state promoting abortion and contraception. Consider Mayer.

Funding Restrictions Permitted Maher v. Roe (1977) CT regulation that did not give health care coverage for elective abortion but did for childbirth. Unequal treatment of childbirth and abortion does not interfere with fundamental right in Roe. Government can choose how to spend its limited resources. Just because it cannot prohibit abortion does not mean that the government cannot encourage a certain option. Court found that this did not place an obstacle in the pregnant woman’s choice to have an abortion – although indigency may make it difficult but is neither created or in any way affected by the CT regulation. This case fits in with Casey and the language about substantial obstacles. Don’t want people relying on abortion as a means of contraception – background fear to forbidding public funding of abortion. Free abortions means a lot of them.

What if the government paid people not to vote? Are these rights different from each other – impact on society and/or impact on democracy? Wouldn’t do this for first amendment rights. Field thinks the clincher here is that they are spending money to discriminate against abortion than to fund childbirth – funding argument doesn’t work because abortions are cheaper than childbirth.

Harris v. McCray (1980) Regulation would not give health care coverage for a medically necessary abortion – still the state can spend money where it wants to. A feeling on the part of the US government that they do not want a single penny of tax money to go to any type of abortion. Woman has at least the same range of choices as if the government did not fund any health care costs.

Webster v. Reproductive Health Services (1989) One step further than Harris. The Court upheld a state law establishing that even if the woman is paying for the abortion herself, public employees and facilities could not be used to perform or assist the performance of abortions except where necessary to save the mother’s life. The Court said that this law was indistinguishable from earlier cases allowing the government to deny funding of abortions.
Russ v. Sullivan (1991) Upholds law stating that governmentally funded clinics cannot say the word “abortion.” When spending money can do what the government wants.

Spousal Notification Not Permitted Planned Parenthood of Central Missouri v. Danforth Court declared unconstitutional a state law that required a husband’s written consent before a married woman could received an abortion unless a physician certified that the abortion was necessary to protect a woman’s life. Even though a husband may have a strong opinion, if there is a difference, one spouse’s view has to prevail.

Parental Notification Allowed if Judicial Bypass Planned Parenthood of Central Missouri v. Danforth Court invalidated a state law that prevented an unmarried woman under age 18 from receiving an abortion unless her parents consented or a physician certified that the abortion was necessary to protect the woman’s life. Bellotti v. Baird Struck down a similar law that also allowed an abortion if the cort authorized the abortion for good cause. A state could require parental consent for unmarried minors’ abortions, but only if it created a bypass procedure where a minor could obtain an abortion by persuading a judge that it would be in her best interests or that she is mature enough to decide for herself.
What about equality for men? Are we going to move into notifying the boyfriend and the one night stand?

Stenber v. Carhart (2000) Majority held that a partial birth abortion ban was an impermissible undue burden on a woman’s right to abortion. The law lacked any exception for the life of the mother and also imposes an undue burden on a woman’s ability to choose the type of abortion, thereby unduly burdening the right to choose abortion itself. O’Connor’s concurrence clearly signaled that she would be much more likely to uphold a narrower partial birth abortion ban (i.e an exception for the life and health of the mother). The real core of all of this is the right, up until the time of viability, not to make abortion criminal for the woman or the doctor. Can have some regulations that are not undue burdens.

When does life begin? Blackmun avoids the question. If reasonable people could disagree about something , the states can have anything they want unless it is unconstitutional – basic constitutional law. Some argue that the states should be left open to decide the abortion question because many people differ on this issue.

Note that there is a movement to allow abortion of a handicapped child to be one of the exceptions in the third trimester. The state funds amnio but does not fund abortion. Field thinks this is discrimination against handicapped people. Does making it discrimination make it a person? Couldn’t give more time to abort a female because viability determined later? What about discrimination against the mother and women as a whole? Also discrimination to the whole population of handicapped persons.

Even though the Supreme Court does not want to churn out new areas of the right to privacy, it is in a fluid state and could expand beyond abortion and contraception.

H. Fundamental Right to Consensual Sexual Activity Among Consenting Adults (For Heterosexual and Homosexual)

Bowers v. Hardwick Outlawed heterosexual and homosexual sodomy (note that the definition of sodomy varies). Arrested in the private home. Court had held that single people had a right to contraception although unclear what they could do with it along with abortion rights - Wanted an extension of the right of privacy to encompass any consensual sexual act by adults in the home. The Court only applies its ruling to homosexual sodomy and do not express any opinion on heterosexual sodomy. A case came up through MI of a wife trying to get husband prosecuted for it and denied cert – didn’t want to touch husband and wife relations. Thus, begins with a court created discrimination situation. Not protected as part of family life or hints of protection for sex/contraception because the court adopts a more narrow view looking at just at homosexuals and sodomy and finds no link to the family, marriage, and procreation. There are other sexual crimes that are committed in the home and the Court does not want to open up another flood gate of gay marriage, etc. White says that it is enough RB that it is based on morality as there are many laws based on morality and finding it inadequate would involve striking down many laws.\ Field did not teach the case in the past as a DP case because it seems like an EP case – can discriminate against homosexuals all you want to. Interestingly, a year earlier he had come up out against discrimination of mentally challenged people even though he found that they were only subject to minimal scrutiny as retarded people were a powerful political force.

Romer v. Evans (1996) A much more pro-gay opinion written by Kennedy. And after that everyone knew Bowers would be overturned. The Court used a rational basis test to find that a Colorado initiative repealing laws protecting LGBT from discrimination and precluding new laws to achieve this goal, violated equal protection.

Lawrence v. Texas (2003) Private, intimate sexual conduct between two consenting adults is protected. There are obviously some limits (like S&M and an infliction of harm). Note that this does not necessarily apply to the military and prisons.
O’Connor Concurrence wanted to go on EP (and that way don’t have to overturn Bowers). The problem would be that the TX law focused on homosexuals, so then it would open things up for allowing a law that banned sodomy for both groups. Will likely only enforce against homosexuals. Very hard to strike down these types of cases (refer to Criminal Procedure class). Moreover, homosexuals are not a protected class under EP. Plus, why refuse to decide the issue when it basically discriminated against homosexuals. Didn’t tell us about Bowers. She thinks that a neutral law would not stand, dream on, it will stand and only be enforced against homosexuals.
Scalia’s stare decisis argument is odd – where is the reliance interest? Granted, might appear as if the Court is responding to political pressure.

The gay marriage case was decided before this so there should be some ripple effects. Although a FL case upheld an anti-gay adoption case.

I. Constitutional Protection for Medical Care Decisions

A Right to Medical Care Youngburg v. Romeo (1982) As a general matter, the state is under no constitutional duty to provide substantive services, however, when a person is institutionalized and wholly dependent on the state a duty to provide certain services and care does exists although even then a State has considerable discretion in determining the nature and scope of its responsibilities. Involuntarily committed retarded man had interest in safety from undue restraint. Asked for some sort of rehab instead of just a food and bed and being chained. To make it reasonable meant more expense and the states have moved them out into the community, which works well for retarded people but not the mentally ill. Patients enjoy constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.

The Right to Refuse Treatment Generally there is a constitutional right of individuals to refuse medical treatment but it certainly is not absolute and can be regulated by the state.

Whalen NY law that required patients to be recorded by the state when getting certain types of prescriptions

Cruzan v. Director, Missouri Department of Health (1990) Parents wanted to remove tubal feeding. Supreme Court finds that the woman had the liberty to do that. Missouri Supreme Court came back saying that there was not clear and convincing evidence of her wishes to have that done. Supreme Court then replied that the scheme was permitted to require clear and convincing evidence to allow anyone to exercise the decision for the person in the vegetative state. There are two issues here, the right to die and substituted judgment. When this case was coming up Field was worried that the Supreme Court would overlook the latter and there would be less protections for all of us in that type of situation. Just because there is a Constitutional right that individuals have, does not mean that if the individuals are incompetent, that someone can make the decision for them. Maybe they can, maybe they can’t, but it does not follow that they are automatically approved to do so. Eight justices held that there is a right to refuse treatment under the liberty of the DP clause and five expressly said this includes a right to refuse food and water to bring about death. A state may require clear and convincing evidence that a person wanted treatment terminated because of the state’s important interest in protecting life. And a state may prevent family members from terminating treatment for another. Note, that if ruled incompetent and no substituted judgment, there is not exercise of the right. Right to refuse medical treatment, a CL right, is a substantive DP right of the individual in Cruzan

Remaining Questions: 1) It did not articulate a level of scrutiny to be used in evaluating government regulation of personal decisions concerning medical treatment. 2) It did not use the label fundamental to describe the right suggesting a lower level of scrutiny than HS is appropriate. 3) Did not resolve what is sufficient to constitute clear and convincing proof of a person’s desire to terminate treatment. Implied a written living will would be enough. 4) Does not address the situation where a competent person designates a guardian to make the decision concerning terminating life saving treatment.

What if someone is paralyzed and cannot administer the medication themselves? Make an EP argument. Perhaps a non-terminally ill person in extreme pain has more need than those who have a short time left (of course the downward spiral could be terrible as well in the final months if terminally ill)?If it is hard to draw a line with all these regulations, Field thinks that we should allow the Congress to determine these situations just like they draw semi-pointless lines like taxes.

Parenting Conflicts Is it odd that a mother can abort a child but cannot decide how a mentally retarded person will marry or if she is sterilized? Isn’t abortion of a mentally retarded child saying that it is substituted judgment that the child would rather be dead – allowed for a while to kill down syndrome baby after birth Baby Doe. What if equally retarded later in life? Are medical costs a factor?
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Forced cesarean or forced blood transfusion? Forcing brain dead woman to stay on life support until baby is born? These would probably be overruled after Cruzan. Before Cruzan, there was nothing except for refusing medical treatment although had a hard time applying to pregnant women and mothers (who would take care of the children? Did not apply to fathers). The line right now allows a substantive due process right to a right to refuse treatment and the right to withdraw life sustaining equipment.

Why did courts distinguish between the two for so long? Life sustaining treatment is usually complicated and has to be completed by the doctor and the doctor is supposed to be keeping you alive. What if it is only food and hydration, can you cut that off? It is included in treatment that you can withdraw. In some cases they have required the person to do home to die as a hospital is supposed to keep you alive.

Ashcroft suit to not only rule that assisted suicide is not a constitutional right but not at all permissible was thrown out. We are in the position of abortion. Perhaps states can experiment with what they want to do. With both we are talking about the right to choose in private matters. And yet with the regulations they are talking about here it seems like a very restricted right to choose.

Physician-Assisted Suicide Washington v. Glucksberg (1997) and Vacco v. Quill (1997) Rejected facial challenges to state laws prohibiting aiding a suicide and the claim that there is a constitutional right to physician-assisted suicide. In Glucksberg, Rehnquist noted that a right is protected as fundamental under the DP clause only when supported by history or tradition and here it has long been a crime despite advances in medical technology. Therefore, a law on this matter need only meet the RB test. Legitimate interests in preserving life and the integrity of the medical profession. Pointed to elder abuse cases in the Netherlands. In Quill, Rehnquist explained that there was no EP violation from a ban on physician-assisted suicide. It does not discriminate against a suspect class nor violate a fundamental right. Therefore, it need only meet a RB test. Moreover the law did not discriminate against anyone. The court further noted the major difference between refusing treatment and actively assisting in death.

These cases left open some doors for physician assisted suicide: 1) States may enact statutes protecting such a right. 2) Five justices in concurring opinions left open the possibility that laws prohibiting physician-assisted suicide might be declared unconstitutional as applied in specific cases. 3) Is this an important aspect of personhood and autonomy or is it a matter appropriately left for the political process as the Supreme Court deemed?

J. Constitutional Protection for Control Over Information.

Liberty v. Privacy A basic aspect of privacy is the ability of people to control information about themselves. The switch to liberty is better than privacy as it has more to do with personal choice.

Whalen v. Roe (1977) A NY law that required physicians to provide reports identifying patients receiving prescription drugs that have a potential for abuse. The state maintained a central database of this information. The Court rejected a privacy argument noting that the law created liability for Health Department employees who failed, deliberately or negligently, to maintain proper security. The state has an important interest in monitoring the use of prescription drugs that might be abused. Disclosure to doctors and medical personnel is an important part of modern medical practice and should be extended to the state which has a strong interest in the health of the community. The court did not reject the possibility that the right to privacy might be recognized in the future to include a right to control information.

Personal Appearance Kelley v. Johnson Hair case Not heightened scrutiny for matters of personal appearance as they were not personal liberties. Under this model, if Dayton OH passed a law saying that all residents had to cut hair above the ears because it was economically better as more companies would want to be in this type of city, would pass.

K. Fundamental Right to Vote and to Access to the Courts
Under DP and EP - see below.

III. Equal Protection

A. Constitutional Sources
The Constitution originally had to EP provision. After the Civil War, widespread discrimination against former slaves led to the passage of the 14th Amendment: “No state shall…deny to any person within its jurisdiction the EP of the laws.” The promise of this provision went unrealized for almost a century as the Supreme Court rarely found any state or local action to violate EP until the mid-1950s. Holmes referred to it as the last resort of Constitutional arguments. Brown v. Board of Education (1954) ushered in the modern era of EP. Since Brown, the Supreme Court has relied on the EP clause as a key provision for combating invidious discrimination and for safeguarding fundamental rights.

Note that there is no provision which says that the federal government cannot deny EP of the laws. However, in a companion case to Brown the Court held that EP applies to the federal government through the DP clause of the Fifth Amendment.

Fundamental Rights Protection Under EP Sometimes EP is used if the government discriminates against people for exercising a fundamental right.

B. Analysis
Theory of EP is that you don’t have to have the right but if you do you need to give it to everyone..
1. What is the classification? 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. Sometimes laws are facially neutral but there is a discriminatory impact to the law or discriminatory effects from its administration. The Supreme Court has made it clear that discriminatory impact is insufficient to prove a racial or fender classification. If a law is facially neutral, demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law. So have to either show that the classification exists on the face of the law or that a facially neutral law has a discriminatory impact and a discriminatory purpose.
2. What is the appropriate level of scrutiny?
a. Strict Scrutiny Discrimination based on race or national origin is subjected to strict scrutiny as well as aliens, generally. Under strict scrutiny a law is upheld if it is proved necessary to achieve a compelling government purpose. The government must have a truly significant reason for discriminating and it must show that it cannot achieve its objective through any less discriminatory alternative. The government has the burden of proof under strict scrutiny and the law will be upheld only if the government persuades the court that it is necessary to achieve a compelling purpose. Strict scrutiny is virtually always fatal to the challenged law.
a.1.1. Allegation of racially discriminatory effect leads to a burden shift to the employer. Note, however, that civil rights statutes can, and often do, allow violations to be proved based on discriminatory impact without evidence of a discriminatory purpose. For example, Title VII of the 1964 Civil Rights Act allows employment discrimination to be established by proof of discriminatory impact and the 1982 Amendments to the Voting Rights Act of 1965 permit proof of discriminatory impact to establish a violation of that law.
b. Intermediate Scrutiny is used for discrimination based on gender and for discrimination against nonmarital children. Under intermediate scrutiny a law is upheld if it is substantially related to an important government purpose. In other cases, the Court need not find the government’s purpose compelling but it must characterize the objective as important.
c. Rational Basis is the minimum level of scrutiny. All laws not falling under strict or intermediate scrutiny end up here (i.e. alleged racial discrimination with only effect but not purpose). Under RB review, a law will be upheld if it is rationally related to a legitimate government purpose. The government’s objective need not be compelling or important, but just something that the government legitimately may do. The means chosen only need be a rationally way to accomplish the end. RB is saying that it is enough for the legislature to have a possible (not necessarily actual) reason. The challenger has the burden of proof under RB review and it is enormously deferential to the government and only rarely have laws been declared unconstitutional for failing to meet this test.
3. Does the government action meet the level of scrutiny? The Court examines both the ends and the means. For SS the end must be deemed compelling for the law to be upheld, for IS it must be important, and for RB there must be a legitimate purpose. The Supreme Court often evaluates over and under inclusiveness. Being this way, though, does not automatically make a law unconstitutional, in fact the court has recognized that perhaps the government wants to proceed one step at a time (Williams v. Lee Optical). Rather, it is used to determine the fit between the government’s actions (means) and the ends – for SS a relatively close fit and the least restrictive alternative.
4. Is it government action?

How does the Court choose the correct standard of review? 1) The court has emphasized that immutable characteristics like race, national origin, gender and the marital status of one’s parents warrant heightened scrutiny because it is unfair to penalize a person for characteristics that the person did not choose and that the individual cannot change. 2) The court also considers the ability of the group to protect itself via the political process. Women, for example, are more than half the population but traditionally have been severely underrepresented in political offices. Aliens do not have the ability to vote, and thus the political process cannot be trusted to represent their interests. 3) The history of discrimination against the group is also relevant and relatedly, the likelihood that the classification reflects prejudice as opposed to a permissible government interest. For example, the Court uses SS for racial classification because judgment based on race is virtually never an acceptable justification, whereas, intermediate scrutiny is used for gender classifications because biological differences between men and women mean that there are instances where gender might be a justifiable basis. 4) Note that the court has shown little willingness in the past two decades to add more categories to intermediate and strict scrutiny.

Marshal and Stevens criticize the rigid application of these standards of review and argue that there should be a sliding scale rather than the three levels. Moreover, they argue that the Court should consider factors like the constitutional and social importance of the interests adversely affected and the invidiousness of the basis on which the classifications are drawn – a more well rounded approach.

Some feel that some form of a sliding scale already exists as the Court sometimes claims to be using RB but uses it with more bite, etc (i.e. Romer, Cleburne, Moreno).

Moreover, under RB review, is it appropriate deference to the legislative process or undue judicial abdication? Since 1937, the Court has deferred to the government’s economic and social regulations unless they infringe on a fundamental right or discriminate against a group that warrants special judicial protection.

Filling in our picture of the two different levels of scrutiny. Saw it in due process. If you get a fundamental right, you are in the heightened scrutiny problem in the sense that the court will look hard at the restrictions. In EP, economic and social is still in RB and suspect classifications are in SS (race). Religion mostly falls under 1st Amendment. Classification has to be rationally related to the purpose of the law (as opposed to DP in which we ask if the entire law is rational).
Won’t ask if Congress got it right, but if there was anything at all that could have upheld it. Brennan argues that you should take into account the actual purpose. These classifications totally leave out degree. Consider that courts are more principled than legislatures – legislatures comprise and have other factors going into decisions. Civil libertarians try to get more and more into SS. People start to talk more about real reasons. Start to think about actual purpose (Cleuburn and Lawrence for DP) because it is mere rationality but things still get struck down. For example, overruled Morey v. Dowd which Field thought was correct. In Chicago, they had places to go to cash checks and get money orders. Some were not very high class. Had a rule that you couldn’t operate this kind of business unless you put down a deposit of a certain amount of money in case the orders turned out to be fake there would be a means for recovery. Exception for American Express because it was a clearly established company. Field thought it should have said except or companies that could show x. The whole purpose of EP is that you have to operate in broad categories. Shouldn’t be a closed one – some of the businesses may be able to move up into it.

Note that there are many different reasons that legislators approve a law so it can be hard to determine the actual purpose.

Field though discrete means visible (v. gender and some races). Insular means integrated. There are folks who think this shouldn’t be the litmus for getting a suspect class (i.e. doesn’t work for sexual orientation).

C. Rational Basis Test

At minimum, the government has a legitimate purpose if it advances a traditional police purpose: protecting safety, public health, or public morals. Note that these are not the confines of permissible government objectives, nearly any goal that is not forbidden by the constitution will meet the RB test.

Railway Express Agency v. New York (1949) An example of a case where a law was found constitutional for promoting public safety. NY regulation that prohibited advertising on trucks unless the ad related to the business of the truck. Court gave two rationales: when someone sells advertising it is more likely that the advertising will be more outlandish and. Deny of EP claim that some people can advertise and others can’t and there are many other distracting things. Douglas’ answer is that you don’t need to eradicate all evils at once and they are different categories so the legislature can determine a piece meal approach. Deference to the legislature. EP not exercising much of a restraint. Armchair science – what are reasons that the legislature could have come up with and if he can say them with a straight face then it passes. Field thinks Jackson’s opinion is one of the best descriptions of EP – protection for everyone so that the big guys don’t get everything.

Williamson v. Lee Optical (1949) An example of public health as a legitimate basis. The law seemed to have a clearly protectionist purpose: helping optometrists and opthalmologists at the expense of opticians, however, Douglas held that law potentially advanced public health.

Romer v. Evans (1996) There are situations when moral justifications are not legitimate. There was no legitimate purpose in singling out a particular group and prohibiting it from using the political process. It was born of animosity towards the group affected. Scalia’s Dissent argued that it was a permissible moral judgment by the Colorado voters to preserve traditional sexual mores.

New Orleans v. Dukes (1976) Upheld an ordinance that banned all pushcart food vendors in the French Quarter except those who had continuously operate there for eight years or more. The Court found a permissible purpose in maintaining the charm of the historic village and might impact the economy and the younger businesses had less reliance in continued operation.

A desire to harm a politically unpopular group is not permissible. US Dept. of Agriculture v. Moreno (1996) Federal law that excluded participation in a food stamp program from any household containing an individual who is unrelated to any other member of the household. The express congressional purpose of discriminating against hippies could not constitute a legitimate purpose. Goals to raise nutrition levels and increase agriculture industry – this had nothing to do with the law. Probably could have come up with a possible justifiable reason. Talk in RB but sneak in heightened scrutiny.

A conceivable purpose is enough US Railroad Retirement Board v. Fritz (1980) Upheld a federal law designed to prevent retired RR workers from receiving benefits under both the SS system and the railroad retirement system. The law did allow those who were already retired and receiving dual benefits continue to do so but those were still working had to have been working for 25 years; thus, someone who had worked for the RR for ten years and retired received dual benefits but someone still working in his 24th year could not. The Court stated that it is constitutionally irrelevant whether this reasoning actually underlies the legislative decision and is particularly true when the legislature is necessarily engaging in line drawing. Here, Congress could have thought that those with 25 years of service could have a stronger equitable claim to those benefits. The dissent argued that the law could only be rationally related to the achievement of an actual legitimate government purpose.

Requirement of a Reasonable Relationship – the court must decide whether the classifications are reasonable in light of its purpose. The Court is deferential, thus, the law will be upheld unless the government’s action is clearly wrong, a display of arbitrary power and not an exercise of judgment. As a result, under and over inclusive laws are allowed. Even substantial underinclusiveness is allowed because the government may want to take one step at a time. (i.e. Railway Express). Also, substantial overinclusiveness is tolerated under rational basis review. New York Transit v. Beazer (1979) The Supreme Court upheld a city’s regulation that prevented those in methadone maintenance programs from holding positions with the Transit Authority. The vas majority of those in methadone programs posed no safety risk. The Supreme Court upheld the law under RB finding that an alternative rule is likely to be less precise and would be more costly than the total ban on those using drugs. Note, as well, that this case was under and over inclusive since it excluded people who posed no safety risk and allowed employment of others who would be a safety threat.

Cases where laws are deemed arbitrary and unreasonable (more bite) City of Cleburne v. Cleburne Living Center (1985) a little town in TX is not allowed to permit group homes for all kinds of groups except the feeble minded. A denial of EP. Field likes to think about the town that comes around next arguing that they don’t like any sort of group home and prohibit them all. Is there anything that the retarded people that want to live in a community are able to do? A substantive DP argument without EP – fundamental right to live in a community. Not on our list of fundamental rights because we all assume it. The court found that the listed reasons (property owners would not like and local junior high students would taunt them) were either not legitimate purposes or that there was a more reasonable way of accomplishing these goals.
Note that being mentally ill is more temporary than being retarded.

When arguments are so bad perhaps it suggests that it is invidious? Can’t use property value would go down argument (consumer preference, like stewardess arguments, are not permissible).

White argues that mentally retarded individuals are not suspect because such a diverse group, thus the legislature should handle and define. A flood of other classes could come in. Field says that perhaps the diversity could cut the other way – go by characteristics to define the group. White also notes that there are benign programs (special education) and it may be hard to distinguish them. Used to say that mentally retarded people couldn’t parent a child. Intellectual stimulation of a child requirement only applied to them when many parents babysit with the TV. Gentle paternalism with mentally retarded as opposed to other groups.

D. Classifications Based on Race and National Origin

1. The reason for strict scrutiny is that because of the long history of racial discrimination makes it very likely that racial classifications will be based on stereotypes and prejudices, because these groups tend to be less politically powerful, and race is an immutable trait. It is clearly established that racial classifications will be allowed only if the government can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling government purpose – must be extremely important reason for its action and it must demonstrate that the goals cannot be achieved through any less discriminatory alternative. Initially the Court recognized that the primary purpose of the 14th Amendment was only to protect blacks.

2. Facially Discriminatory Laws Laws that expressly impose a burden on people because of their race or national origin.

Strauder v. West Virginia (1879) Struck down a law limiting jury service to white males over the age of 21 who were citizens of the state, holding that the Fourteenth Amendment was designed to give blacks enjoyment of all the civil rights enjoyed by white persons. This law expressly singled out and disadvantaged blacks. It is unconstitutional on its face. State can restrict based on education, age, or even gender, but not by race. This rule discriminates against black men.

Any government action that uses race as a basis for a burden or disadvantage is a classification of this type.
Palmore v. Sidoti (1984) Mother received custody after divorce. When she remarried a black man, the white biological father was granted custody “in the best interests of the child.” Court found unconstitutional because although prejudice cannot be ended by the courts the courts should not tolerate it. Interestingly, the mother never got the child back as the FL courts just made up another reason.

Palmer v. Thompson Segregated pools in Mississippi. Now it turns over from education to everything else. Instead of integrating they close them. Allowed because not an essential function of government and there were other reasons besides segregation.

a. Japanese Internment
Asian-Americans played an important role in Constitutional law. Constant theme of immigration for work leads to resentment leads to restrictions
The first immigration laws with racial bars has to do with Asian-Americans. Page Act of 1875 had to deal with Asian female prostitutes. Chinese Exclusion Act of 1882 dealt with Chinese laborers.
Chae Chan Ping (1889) the federal government’s power over immigration is very plenary with minimal judicial review. Seemed impossible for them to assimilate. Incapable of democratic forms of government and fears that they will destruct civilization on the west coast.
Fears of vast hordes. Japanese then come and this leads to the Gentlemen’s Agreement in 1907 with Japan. An agreement rather than a treaty. First time that a non-white country beats a white country in modern times. Roosevelt couldn’t push them around.
In 1790 naturalization was only allowed for free white persons; added persons of African descent in 1879.
Ozawa (1922) says that white means Caucasian.
Thind (1923) says that Asian Indians are Caucasians. The court back pedals.
The first alien land law in CA (1914) created an international crisis as in Japan there were calls for gunboat diplomacy.

Terrace v. Thompson says that it is not race discrimination but alienage discrimination which is possible as the Congress has made such differences. Treats them differently because they have not declared their intent to naturalize (but aren’t even allowed to naturalize).

Pearl Harbor is bombed. Right after wards, the FBI arrested 2000 aliens under the ABC list, mostly Japanese. Anyone who was a leader in the Japanese American community was arrested. Indicated that they had everyone. Congressman Ford (CA) urges internment. Supreme Court Justice Roberts writes a report that there is fifth column support. White agricultural community urging to kick Japanese out. Military leader DeWitt recommends evacuation and FDR in generically worded EO 9066 that they give power to the military to evacuate people as they see fit (no mention of race). Later Congress gives criminal sanctions in P.S. 503. Following that curfew and freeze orders for Japanese and Italians. Then there are specific evacuation orders to report to a certain place. After the orders we had a decisive victory at Midway meaning that there is no possibility of overtake of the West coast but continue relocation. Average stay was 900 days. 70% were citizens (mostly because they were born here rather than naturalized, meaning kids). Forced recitation of pledge of allegiance. Forced to sign contracts taking low wages. No more notion of family life and parental control diminish. Worries because the same people set up these camps as set up reservations. Not a single conviction of a Japanese-American for aiding the enemy.

Hrabayashi and Yasui (1943) Hirabayashi was a Quaker and committed civil disobedience to avoid internment. Procedure was a segmentation strategy. What the Supreme Court did very carefully was to sharply distinguish among curfew, evacuation, relocation even though everyone was already relocated. Decided only to address the curfew issue even though he was arrested for relocation as well. District Court has sentenced him to two concurrent sentences. The standard – distinctions between citizens solely because of ancestry are odious. Early form of strict scrutiny. Application is quite deferential. Accepted racial profiling. Discriminating because good cause. This is a Catch 22 because of the Nazi treatment going on at the same time – Frankfurter points this out and notations that since the close of the previous century, when Japanese began coming over in large numbers, that the Japanese have increased solidarity and have not assimilated. Also rejected the citizen/non citizen distinction holding that in times of war the government should be able to respond to threat if it has a reasonable ground to believe a threat is present.

Korematsu (1944) To do more would go beyond the issues raised there will be time enough to decide. Segmentation of issues. Evacuation only v. passive virtues. Incrementatalism made possible through segmentation - It’s just curfew and we might lose the war in Hirabayashi to won’t talk about indefinite detention but only about evacuation. Incremental increase of burden but not one that creates a novel question of fact. Classic strict scrutiny standard gives birth to the idea that racial classifications are immediately suspect and must satisfy means-end scrutiny. Reasoning still says that the ends are justified via military exigency. Impossible to segregate loyal from disloyal. How do they know this? Japanese-American men were drafted from the camps and prosecutions of draft dodgers. There is no record and no real District court trial it was loosey-goosey judicial notice.

Was there a better means? Perhaps individualized review? Why treat Germans better? They didn’t actually bomb us and we had concerns about the west coast.

Two models of thinking about this case: 1) Sometimes we trump rights with overriding concerns like war. This is race discrimination but there is an overriding state interest. Does the court admit that there is discrimination in this sense or argue that it is not discrimination about race. 2) Ancestry v. race. Cannot call it a race discrimination case because it is a military case – confused the issue language. Government has a rational reason.

Detention Endo (1944) same day as Korematsu. In this case the Japanese Americans win. No way in terms of procedure that the court cannot address relocation, but do avoid constitutional law issue. War is going very well and FDR has been re-elected. Can the United States indefinitely detain a concededly loyal American citizen? Obvious answer is no, but the Supreme Court goes off on non-delegation grounds and states that all of this was done by a crazy executive agency which was not given powers by Congress or the President (insulates them). War Relocation Agency considered a rogue agency. Hollow victory – this opinion leads to a rescinding of the relocation orders before the decision comes down (evidence that Frankfurter tipped off the agency). No relief because of rescinding the regulations.

What did the Supreme Court do? Made sure they did not interfere with relocation. Never officially approved of internment either. Insulated the political branches of any responsibility. Did not address civil rights and constitutional law issues.

b. Racial Classifications that Burden Whites and Minorities

For example, miscegenation laws. The Supreme court initially upheld such laws on the ground that they did not discrimination as they treated black and whites equally. Loving v. Virginia (1967) Couple convicted for interracial marriage. Judge suspended sentence on terms that they leave Virginia and not return together for twenty-five years. Found it violated the EP clause even though it applied equally to both races. Under strict scrutiny, the 14th Amendment prohibits racial discrimination and these classifications are based solely on race and have criminal consequences. EP is largely semantics – usually can find a way to say that same rule for both, but this one has racial overtones. Laws only affected white-other race marriages and not other-other. Basically a racial supremacy statute.

What if the statute had said that all can marry their own race only? Or a mixed legislature passed it? Probably would have gone into the fundamental right to marry. Consider EP argument that a white man and a black man wanted to marry a white woman. Only one of them can. But this logic also applies to cousins and gays, so it may not have worked.

Anderson v. Martin (1964) Struck down a law requiring the listing of the candidates’ race on the ballot, finding that the vice lies not in the resulting injury but in the placing of the power of the state behind a racial classification that induces racial prejudice at the polls.

Hunter v. Erickson (1969) which declared unconstitutional an ordinance, adopted via referendum, that required laws regulating real estate transactions on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors voting on the question at a regular or general election before the ordinance shall become effective. The court found that it was an explicitly racial classification treating racial housing matters differently from other racial and housing matters. Blacks were obviously harmed by creating obstacles to enactment of open housing laws and thus the Court found the ordinance to violate EP.

c. Statutes Requiring Segregation

Plessy v. Ferguson (1896) 7/8 Caucasian and refused to leave his seat on a train. He argues that he should be considered Caucasian (so it doesn’t seem to be a strong civil rights argument). Brown rules that it is not any more unreasonable than segregated schools. Civil War Amendments only referred to political equality, not social or racial separation and moreover, the law had separate but equal facilities. Underlying fallacy of the plaintiff’s argument – he should have the rights because he is white, not because he is a human being. Courts finds that the assumption that the enforced regulation is derogatory towards blacks is incorrect. If civil and political rights are equal, one group cannot be inferior to the other.
Harlan Dissent is a little better as it notes that the coaches were not completely equal as was meant to exclude blacks from white cars and not so much whites from black cars; but, he has similar sentiments that the white race will always be the dominant race. Does say that the Constitution is colorblind.

Cumming v. Board of Education (1899) expressly approved separate but equal in the realm of education. In several cases between 1938 and 1954 the Court found that states denied EP by failing to provide educational opportunities for blacks that were available to whites. Interestingly, most of these involved legal education.

In the 1952-1953 term, the Supreme Court granted review in five cases that challenged the doctrine of separate but equal in the context of elementary and high school education. The judges could not agree on a decision and the cases were set for re-argument for the following year, asking the parties to brief several questions that primarily focused on the intent of the framers of the 14th Amendment. Inbetween terms a justice died and was replaced by Earl Warren who convinced the Court to develop a unanimous opinion.

Brown v. Board of Education (1954) Could have reasoned that kids will fight or the race relations will distract from learning. It is the birth of stricter scrutiny. Don’t care if there are reasons for it, there is something fundamentally wrong about it. Substantive EP. Substantive DP dated from Griwsold, about ten years after this. It is substantive EP because usually in heightened scrutiny cases is announcing a substantive value judgment in addition to making a comparison between the two groups. Opinion began by explaining that the constitutionality of segregation in education could not be resolved based on the framers’ intent because the sources are inconclusive and there have been many changes in education since that time. The Court did not focus on the obvious inequalities between black and white schools because there are findings that these schools have been or are being equalized, thus, the Court focused on the effect of segregation itself on public education – it created an inherent stamp of inferiority on black children and impairs their educational opportunities. Separate is inherently unequal.
Even Bork admitted that this is consistent with original intent of the founders. Field says that Warren shouldn’t have focused on the psychological impact and instead said that we just shouldn’t make these kind of distinctions and that when it is the majority doing it to the minority group it is like saying that we don’t want them around. What if new studies came out?

Was this case just about education? What about golf courses? Not on the basis of Brown as it only applied to education. How then did it apply to Plessy v. Ferguson? Could say that transportation is really important. Snuck in anti-discrimination under education (which has since been declared not a fundamental right).

We’ve seen a few different theories. Harlan’s colorblind constitution in Plessy – don’t want a caste. Brown don’t want to discriminate against the minority. Another way to look at it is that it is discriminating against everybody.

Nothing happens for a year until Brown II which argues all deliberate speed and remands cases to lower courts to use traditional equity principles to fashion remedies. This does not get people moving either. The real enforcement of integration was 1964-1973 because of the Civil Rights Act.

In some cases, the remedy is simply invalidating the discriminatory law but in others the Court must go further and fashion and injunction prohibiting the offending conduct. In the area of school segregation this was particularly hard because of the logistics involved and massive resistance.

Cooper v. Aaron (1958) The Little Rock school system was ordered desegregated but the governor called out the Arkansas National Guard to keep blacks out and black students only were able to attend after Eisenhower used federal troops to protect them. The Little Rock school system then asked for a stay on the injunction. AK had not been a party in Brown. So their first line of defense was that they did not need to follow it. Supreme Court only decides things for parties in front of it. Total havoc and want to put it off. Everybody agreed it was havoc and the Board had acted in good faith and other agencies, the Governor, had got in the way. Court finds that havoc is not a compelling state interest. Up to state agencies to diminish the havoc. Does not matter that they were not a party to the dispute. Constitutional rights should not be subjugated to these problems. Also list the names of all nine judges at the beginning to make it more forceful.

For nearly a decade the Court didn’t hear any other desegregation cases but eventually had to respond to all of the ways schools were finding around desegregation.

Allowed moving to another school if you are in the majority. On its face it look is good. It would be better to say if you were a minority. Idea was that where blacks were the majority they could transfer. Look at results and if it doesn’t look like integration has worked, your job is not to have a neutral system but a system that works. Until you have that you are under an injunction. A law allowing people who were minorities move to other schools struck down as promoting segregation. More reasonable rules allowed because means are not as important as the end result.

Goss v. Board of Education (1963) Invalidated a Knoxville, Tennessee law that allowed students who were assigned to new schools as part of desegregation to transfer from schools where they were a racial minority to ones where they would be in the racial majority. The Court declared this system unconstitutional because it is readily apparent that the transfer system lends itself to perpetuation of segregation.

Griffin v. County School Board (1964) Unconstitutional to close rather than desegregate. Whatever nonracial grounds might support a state’s allowing a county to abandon public schools the object must be a constitutional one and grounds of race and opposition to desegregation do not qualify as constitutional. Frustration that there had been too much deliberation and not enough speed.

Green v. County School Board (1969) Declared unconstitutional a freedom of choice plan that was a common approach used to frustrate desegregation. A school system in rural Virginia adopted a desegregation plan where students could choose which school to attend. Three years after implementation, no white student was attending a black school and only 15% of blacks were attending white schools. The court found it incumbent upon the school board to establish meaningful and immediate progress. The availability of other more promising courses of action may indicate a lack of good faith and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method.

d. Proving Discrimination in the Northern School Context There was no problem proving discrimination in state where segregation was written into the laws, but in Northern school systems, where segregated schools were not the product of state laws, the issue arose as to what had to be proved in order to demonstrate an EP violation and justify a court remedy. .

Keyes v. School District No. 1 Denver, Colorado (1973) Even though the schools were not segregated by statute, the Court found that school authorities have carried out a systematic program of segregation and common sense would find a dual school system. If there are no laws on the books requiring segregation, plaintiffs must prove intentional segregative acts affecting a substantial part of the school system, then, a presumption is created that other segregated schooling within the system is not adventitious. Such proof shifts the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.

The Court has drawn a distinction between de jure segregation in the South and de facto segregation in the North. De facto discrimination requires proof of intent which is consistent with the Supreme Court’s holdings that when laws are facially neutral, proof of a discriminatory impact is not sufficient to show an EP violation – there must also be proof of discriminatory purpose. Note that requiring proof of intent in the North created an obstacle to desegregation as it was a product of a myriad of discriminatory policies. Powell’s Concurrence in Keyes called for an end of the jure/facto distinction and mandate all schools to act to end discrimination.

1954 BenchmarkHad a law in 1954 and now you have the remnants of it or had remnants in 1954 of prior law.. Rehnquist has a huge problem with this – why pick 1954. Moving de facto and de jure too close together. Taking things that show original intentional system it gets treated the same way as present de jure. Response that kids feel the same.
Columbus Board of Education v. Penick (1979) The District Court had found that as of 1954, Columbus had maintained an enclave of separate black schools on the near east side of the city. The Supreme Court held that this finding was sufficient to establish an EP violation because proof of purposeful and effective maintenance of a body of separate black schools in a substantial part of the system itself is prima facie proof of a dual school system and supports a finding to this effect absent sufficient contrary proof by the Board. Dayton Board of Education v. Brinkman (1979) Again there was a lower court finding that at the time of Brown the city was intentionally operating a dual school system. The Supreme Court said that this triggered a duty to desegregate. The court explained that the Board had to do more than abandon its prior discriminatory purpose and has an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices are not used and do not serve to perpetuate or reestablish the dual school system.

d. Judicial Power to Impose Remedies in School Desegregation Cases

Want the school board, or whoever else is designated in the state, comes forward with a desegregation plan. If that plan is done well, it is fine, the school board takes over all the logistics. If the school board’s plan don’t work and the courts can’t get the school board to come up with something good, then the court starts coming up with court orders on what to do.

Swann v. Charlotte-Mecklenburg Board of Education (1971) A NC case. Had implemented a plan in which half the black students were the minorities in some schools and the other half were in all black schools. Supreme Court said that it was not enough. Order to find the most effective plan which could include bussing, redrawing school districts. Goal to have the same mix as the general population. Supreme Court found that district courts have broad authority in formulating remedies in desegregation cases. Comparisons to the general population are useful starting points. Schools may not always end up this way and there may unavoidable clear majority or all race schools but in those cases close judicial review of it is necessary if it was once segregated by law. Courts could redraw attendance zones and order bussing.

Milliken v. Bradley (1974) Supreme Court imposed a substantial limit on the courts’ remedial powers in desegregation cases. A federal district court had imposed a multidistrict remedy for de jure segregation in one of the districts. The Supreme Court ruled this impermissible because before the boundaries of separate and autonomous school districts may be changed it must first be shows that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Without an interdistrict violation and interdistrict effect there is no constitutional wrong calling for an interdistrict remedy. The case can be defended on the traditional principle that a court has authority to impose a remedy only after it is proved that the person or entity violated the law and on the tradition of local control over public education.

This case made desegregation in metro areas very hard – the inner city schools district would be primarily black but the surrounding suburbs would have mostly white schools.

San Antonio Independent School District v. Rodriguez (1973) which held that disparities in school funding do not violate EP result in separate and unequal schools.

Important federal laws had much to do with ending desegregation. Civil Rights Act of 1964 Title VI prohibited discrimination by schools receiving federal funds. The act also authorized the US Attorney General to intervene in desegregation suits.

f. When Should Federal Desegregation Remedies End?

Pasadena City Board of Education v. Spangler (1976) The school system had been segregated by law and a federal court order succeeded in desegregation. In 1970 no schools were racially imbalanced but by 1974 five of the thirty-two schools were over half black and a federal district court ordered that attendance lines be redrawn on an annual basis so that no school had a majority of black students. The Supreme Court found this to be improper considering that residential shifts would inevitably lead to some racial imbalance. Having once implemented a racially neutral attendance pattern to remedy the perceived constitutional violations the District court had fully performed its duty.

In the 1990s, the Supreme Court hastened the end of federal court desegregation orders. Board of Education of Oklahoma City v. Dowell (1991) Schools had been segregated under a state law but a federal court order was successful in desegregating the schools. Evidence proved that ending the desegregation order would result in resegregation, nevertheless the Supreme Court held that once a unitary school system had been achieved a federal court’s desegregation order should end even if it would mean resegregation. The Court did not define unitary, saying only that the desegregation decree should be ended if the board has complied in good faith and the vestiges of past discrimination have been eliminated to the extent practicable. Also, the District court should look not only at student assignments but every aspect of school operation.
Freeman v. Pitts (1992) A federal court desegregation order should end when it is complied with even if other desegregation orders for the same school system remain in place. An order for a school system in Georgia that had previously been segregated by law was still in place. Part of the desegregation order had been met but the order concerning assignment of teachers had not been and the school planned to construct a facility that likely would benefit whites more than blacks. Still, the Supreme Court held that the facilities desegregation order had already been met and thus the federal court could not review the discriminatory effect of the new construction. It should remain involved only in the areas that have not been met. Missouri v. Jenkins (1995) Ordered an end to a school desegregation order. Missouri law had order segregation and a district court order did not come in until 1977 and substantial progress had been made. Rehnquist held in favor of the state on every issue. First, the order’s requirement to attract nonminority students from outside the district was impermissible because there was no evidence of an interdistrict violation. The present social reality is that many urban schools are mostly minority. Second, increasing teacher salaries was not necessary as a remedy and hence impermissible. Last, the continued disparity in student test scores did not justify continuance. The Constitution mandates equal opportunity and not equal result. Appears that the Supreme Court is declaring victory in desegregation and ordering withdrawl.

This is different from affirmative action. Two different groups on the court have developed it. Now times indicated that states can’t correct voluntarily and must get court approval.

Let’s say the school system wants to create a neighborhood school system after injunction has been lifted (have got ridden of all past vestigages of discrimination). Probably can’t do it.
What if a school determines which school you are in by your test score? Easily constitutional. No racial animus. Now suppose that the top two schools in terms of standardized tests have a small percentage of minorities. Is this de facto? Can’t prove intent and have shed 1954 discrimination. Neutral test. Suppose the questions were like the old IQ tests asking what is pretty with a blonde and a black woman? If the court buys the neighborhood schools then it is okay under Washington v. Davis, although Field, if a judge, would argue that were are in degrees of intent (like criminal law (purpose no, knowledge okay and all after - reckless, negligence, strict liability). 2. Facially Neutral Laws With a Discriminatory Impact or With Discriminatory Administration

Allegation of racially discriminatory effect leads to a burden shift to the employer.

Note, however, that civil rights statutes can, and often do, allow violations to be proved based on discriminatory impact without evidence of a discriminatory purpose. For example, Title VII of the 1964 Civil Rights Act allows employment discrimination to be established by proof of discriminatory impact and the 1982 Amendments to the Voting Rights Act of 1965 permit proof of discriminatory impact to establish a violation of that law.

a. The Requirement for Proof of a Discriminatory Purpose Current law means that the government need not offer a racially neutral explanation for these effects and, indeed, need do no more than meet a RB test. This can be justified by the view that the EP clause is concerned with stopping discriminatory acts by the government, not in bringing about equal results. And there is concern that countless laws might have some discriminatory impact and be struck down. On the other hand, providing discriminatory purpose is very difficult and rarely will such motivation be expressed especially since benign purposes can be given for most laws. Consider as well unconscious racism. Some believe that EP should be in line with equal results.

Washington v. Davis (1976) Applicants for the police force in Washington, D.C. were required to take a test and statistics revealed that blacks failed the exam much more often than whites. Proof of discriminatory impact is insufficient, by itself, to show the existence of a racial classification. Thus, facially neutral laws will receive more than RB review only if there is proof of a discriminatory purpose. Otherwise, a whole host of laws would be considered unconstitutional. Allege unrelated to job performance and exclusion a disproportionate number of minorities. Once you show this, the burden shifts to employer to demonstrate that the tests are alright and do accord with job performance. Remember of course that the employer often is the one with the statistics in the first place.

b. Is Proof of Discriminatory Effect Also Required? Although the court has never expressly addressed the question, it appears that both are required
.
Palmer v. Thompson (1971) EP not violated when a city closedown its previously segregated swimming pool rather than have it integrated. The court noted that in no case has the Court held that a legislative act violates EP solely because of the motivations of the men who voted for it.

c. How is Discriminatory Purpose Proven? The requirement is proof that the government desired to discriminate and it is not enough to prove that the government took an action with knowledge that it would have discriminatory consequences. The Court’s adoption of this narrow standard of intent can be questioned because it does not comport with the tort definition of intent as acting with knowledge of foreseeable consequences and instead adopted a criminal law definition of intent meaning the desire to cause those results. Some argue that a showing of significant disproportionate disadvantage without more gives rise to an inference of bad motive and should oblige that government to come forward with a credible explanation showing that the action was or would have been taken apart from prejudice.

Massachusetts v. Feeney (1979) See below.

Arlington Heights v. Metropolitan Housing Development (1977) Explained the different ways in which discriminatory purpose can be proved. A challenge to a city’s refusal to rezone a parcel of land to allow construction of low and moderate income housing. The plaintiffs alleged that this had a discriminatory effect in excluding blacks from the city. The impact of a law may be so clearly discriminatory as to allow no other explanation that that it was adopted for impermissible purposes (i.e. Yick Woo a statistical pattern than can be explained only by a discriminatory purpose, but such instances are rare). A second method is through the history surrounding the government’s action, particularly if it reveals a series of official actions taken for invidious purposes. A third way is through the legislative history of the law, but only in extraordinary circumstances the legislators might be called to testify. .
4. Racial Classifications Benefiting Minorities It is clearly established that SS is used to evaluate all government affirmative action plans, but this decisions was arrived at after struggling with the level of scrutiny for over a decade.

Regents of the University of California v. Bakke (1978) UC Davis had affirmative action program with quota system – set a certain number of spaces for minority students (16 out of 100). Bakke had higher scores than they did. There was no majority opinion. Four Justices said that intermediate scrutiny was appropriate for racial classifications benefiting minorities. Another group of four Justices concluded that the affirmative action program violated Title VI of the 1964 Civil Rights Act which prohibited discrimination by institutions receiving federal funds. They did not reach the constitutional issue or discuss the level of scrutiny. Five Justices rejected this view and concluded that the analysis under the Constitution and Title VI is identical. One Justice, Powell, said that SS should be used and concluded that the set-aside was unconstitutional but that it was permissible for race to be used as one factor. Thus, the vote was 5 to 4 to invalidate the set-aside, but also 5-4 that it is permissible for universities to use race as a factor in admissions to increase diversity
.
Employment v. Education Later O’Connor basically says it is not strict scrutiny but fatal in fact so it looked really bad for affirmative action in employment cases, and then the Supreme Court did education cases last year. We probably have two standards. Hoping that education would be considered differently because diversity is a goal – argued in the next case and won on it. Bakke notes that it should be more wholistic rather than rigid – how do we apply to the employment context?

Fullilove v. Klutznick (1980) Upheld requirement in Congressional procurement that 10% of authorization for local spending project must be for hiring minority businesses. Trying to encourage the private companies to do so. Emphasized deference to Congress’ findings of a long history industry and that the affirmative action program was justified as a remedy and it was necessary to prove that they had specifically suffered discrimination. Although it has not been overruled, it is unclear whether it survives later rulings and it appears that now the Court would be unlikely to accept such affirmative action efforts in the future where there is neither proof of discrimination by the entity nor proof that the particular recipients’ rights were violated. Again did not produce a majority opinion concerning the appropriate level of scrutiny.

Wygant v. Jackson Board of Education (1986) Central issue was minority preference in teacher lay offs: when they have to do layoffs, new people get cut first, and need to bring more minorities in so that when they do layoffs they would keep a certain percentage of minority personnel. When layoffs came, they cut some seniors and kept the minority percentage. Had been a fairly segregated workplace and only recently started hiring minorities so thus they would be the first to go under a seniority only plan. Supreme Court found this not constitutional. How is this reconciled with Folilove? Public employers have to have compelling interest and narrowly tailored means. “Role models” was not a compelling state interest. No evidence of discrimination and remedying general societal discrimination is not a sufficient compelling interest. Also the set percentage was not narrowly tailored. Layoffs v. not hiring someone.

Richmond v. J.A. Croson Company (1989) Held expressly that SS should be used in evaluating state and local affirmative action programs and invalidated a Richmond, VA plan to set aside 30% of public works monies for minority-owned businesses. Evidence that 30% of the population was black but only received .67% of the contracts. Granted, a huge disparity, but it is not narrowly tailored – don’t know how many contractors were qualified. Assumes the contractors are around in the first place, if there was broad discrimination they wouldn’t be there in the first place. The number might be desirable but might not be practical, at least early on. The court alludes to quotas and how they aren’t good (perhaps a little more leeway because it’s spending versus hiring numbers).
The group that adopted it here was the city council who was 5-4 minority. If you were going to allow it, to allow people to do it voluntary, a persuasive argument is that the majority is burdening itself.

Metro Broadcasting v. FCC (1990) FCC had two minority preference policies: awarding enhancement for minority ownership in new broadcast license and a distress sale alliance in which a station could only transfer it to a minority firm. Brennan says that when the purpose is benign, intermediate scrutiny is the standard. How would you argue that this still stands after Adarand? More important to have minority ownership in this case because of first amendment interest in broad speech. Also a question of degree. Think about this again after studying the first amendment material. Also the FCC is dealing with a limited supply. Three principles: skepticism of any situation of racial classifications – necessity of applying strict scrutiny, consistency – standard of review is not to depend on the race, congruence – 5th and 14th Amendments should be considered to mean the same standard for federal, state, and local.

Adarand Constructors, Inc. v. Pena (1995) Between this case and Metro Broadcasting four of the justices, but none in the Dissent, resigned. Dissenters joined by Thomas to create a majority to overrule Metro Broadcasting and find SS the standard. O’Connor’s plurality noted tat it wanted to dispel the theory that SS was strict in theory and fatal in fact. Scalia wrote separately to say that the government could never have a requisite interest.

Standards Arguments Pro & Con Those who favor SS argue that all racial classifications whether invidious or benign should be subjected to SS. All racial classifications stigmitize and breed racial hostility. Supporters of affirmative action argue that there is a significant difference between using racial classifications to benefit and to disadvantage minorities and emphasize that social equality requires affirmative action at this point in history. There is a major difference between a majority discriminating against a minority and discriminating against itself.

University of Michigan Considers race but a much less clear as Bakke. Can’t have a separate track or quota, but can have a critical mass or seek diversity as in the case here. Now any time that you don’t’ like a program, you have to say it’s a quota. Not allowed to do it because you think society is discriminatory, even educational discrimination. Can only do it in response to a statutory or constitutional violation.

Gratz Can’t have a guaranteed bonus (mechanical formula). Gave 20 points for being a minority and needed 100 to be admitted. Also don’t target just race, consider first generation college students ,religion, geography, etc.

Strict Scrutiny goes for majority or minority on race issues; rational basis for other issues. Doesn’t this create a crazy system? Can discriminate for provost’s choice anytime you want or against men.

Black is the only one who has a separate category of “as construed.” If you have a law like Bowers (no sodomy for everybody). If the state court interprets it to apply only to homosexuals, it is the same as if it was written into the law. It’s pretty clear now that we consider action by any government official to be state action eve n if state law prohibits it or the state court would disapprove of it. Obviously more freedom when the federal court is reviewing federal laws as they are the final authority.

What about EP between minorities? No one really talks about what the standards are anymore so it may be difficult to determine

Weber A bad purpose did not include trying to be fair to people who were underrepresented. A man looks upon his workforce and sees that it is 95% workforce and the neighborhoods around him are 50% Caucasian. No particularly high requirements for the workforce. Has he been discriminating or is there societal discrimination? Doesn’t want to be lily white company and decides to give preference to minority applicants. Fifth Circuit held that it was discrimination and the Supreme Court reversed. Can’t say that he is not allowed to do what other people were forced to do. DeFunes.

Certain conditions to satisfy for employment affirmative action. Adarand If there is local, state, or federal de jure discrimination, one can make victims become whole again. O’Connor’s is really the opinion and notes that strict scrutiny goes both ways. Must be strict in theory and fatal in fact. People then think that she will find education to be different and will pass this standard.

a. Permissible Purposes

It is clear that affirmative action will be allowed if it is directed at entities that are proven to have engaged in illegal discrimination and if it is limited to providing a remedy to those who are proven victims of that discrimination. It is also clear that affirmative action will not be allowed if it is based on a desire to remedy the long history of racism throughout society. The more uncertain area is when the Court will allow affirmative action efforts directed at particular entities or sectors of the economy where discrimination ahs been proved to occur, but where the beneficiaries are not themselves the proved victims of such discrimination. It is unclear when, if at all, the current Supreme Court will accept enhancing diversity as a justification for affirmative action programs. In Bakke Justices indicated that they would allow affirmative action to achieve this goal. Metro Broadcasting noted it was important in the employment context, but because of First Amendment interests and the case has been overruled at least in its holding that IS should be used. Enhancing services provided to minority communities has not been accepted by the Supreme Court. In Bakke, Powell rejected this argument and said that there was no proof that training more black doctors would mean that there would be more doctors actually practicing in minority communities and there might be other ways of achieving this goal more directly.

b. Permissible Means

The Supreme Court has made it clear that numerical set-asides will be allowed, if at all, only if needed to remedy clearly proved past discrimination. Follilove allowed it but its precedential value is questionable. On two occasions the Supreme court has indicated that the government may use race as one factor among several in decision making to help minorities and to enhance diversity (Bakke and Metro Broadcasting – the portion of the case discussing this has not been expressly overruled.). Deviance from Seniority Systems not an acceptable means of affirmative action. Even if prior discrimination has been proven, the layoff provisions was not a constitutionally acceptable means of achieving even the compelling purpose of remedying prior discrimination.

E. Gender Classifications

1. Developing a Standard It was not until 1971 that the Supreme court first invalidated a gender classification. The appropriate level of scrutiny is intermediate (IS).

Reed v. Reed (1971) State law gave preference to men over women in deciding who should be appointed as administrators of an estate when a person died intestate. Court declined to treat gender as a suspect classification, and then stated it was a rational basis test. Rational reason was administrability so did not have to have a hearing to determine whether a man or a woman would be better administrators – men had more experience with the world. There is a “rational basis” and the court went into a value judgment. Claimed it was not reasonable because it was arbitrary. Want a sensible reason. First indication that not any rational basis would count. Articulated as traditional RB and that there was no rational relationship between the ability to administer the estate and gender, but had to have been more involved. If the rule had stated that between two equally qualified persons random selection would occur, that would have been permissible so there must be something worse about choosing on the basis of gender.

Frontiero v. Richardson (1973) A federal law allowed a man to automatically claim his wife as a dependent and thereby receive a greater allowance for quarters and medical benefits. A woman could only gain these benefits if she could prove that her spouse was dependent on her for over half of his support. Four votes for gender as a suspect classification with at least an additional vote that he is not going to decide. Rationale was that the same characteristics that justify suspect classification of race apply here: long history of discrimination and immutable. Stewart concurred arguing that he would find the law unconstitutional under the basis of Reed (apparently he thought that SS should apply but also thought the ERA would be passed so this ruling wouldn’t be necessary). Three justices wrote that they concurred in the judgment but did not think SS should apply, noting that the Court should wait and see what happens with the ERA.

Kahn v. Shevin (1974) Upheld a state law that provided a property tax exemption for widows but not for widowers. The Court did not articulate a level of scrutiny, typical in the cases after Frontiero, but found that whether from overt discrimination or from the socialization process of a male-dominated culture, the job market is inhospitable to the woman seeking any but the lowest paying job, and was hence a rational basis for the law.

Stanton v. Stanton (1975) The Court declared a Utah law unconstitutional that required parents to support female children until 18 but male children until 21 because the statute was based on old notions about social roles.

Craig v. Boren (1976) Agreed on intermediate scrutiny. Women allowed to have a low alcohol percentage drink at 18 while men were not. Rational basis that men are less mature and statistics that men are arrested more than women for drunk driving in this age group. Found not to be congruent enough. Although prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive basis.

Mississippi University for Women v. Hogan (1982) Applied IS to declare unconstitutional a state nursing school that was available only to women.

RB Women SS
Rationally Related Substantially Related Perfect Fit
Any Leg. State Interest Important State Interest Compelling State Interest

In male nurse case, the court uses “exceedingly persuasive justification” for important state interest. Scalia says this is close to strict scrutiny.

You might call these cases substantive equal protection. In each area there’s a substantive message (a principle to state through the EP clause). In the gender cases, the message is that you’re not supposed to be excluded from anything because of your gender. Is this person’s gender determining how the state treats them? If so, is gender the only reason they’re being treated this way? The state won’t further gender stereotypes.

Exception to the intermediate scrutiny standard when “womanhood” is relevant in and of itself – there are real differences between women and men that have importance. The court has said there aren’t any racial differences that make any difference.

VMI v. United States (1996) Did not allow women to be admitted. Found to have violated EP. The separate military college was not of an equivalent standards, not equal so not an appropriate remedy.

There have been cases in which gender classifications have been upheld without the Court expressly using IS or mentioning heightened scrutiny. Rostker v. Goldberg (1981) Man can challenge by saying without women registered, there’s a higher probability that the man will get drafted. Upheld a law requiring men but not women to register for the draft. Lawyers structured the case incorrectly – the better challenge is the fact that women are restricted from combat via statute. If you accept that women can’t go into combat, then you accept that there’s a meaningful difference between men and women for constitutional purposes.
Does this discriminate against women also? Women can volunteer, but men will be drafted. MF says this is like excluding blacks from the jury – badge of inferiority. MF says this perpetuates gender stereotypes. Woman bringing this case could cite Strouder.

Michael M. v. Superior Court (1981) upheld a state’s statutory rape law that punished men for having sexual intercourse with a woman under age 18 but did not punish a woman for having sex with a man under age 18. There’s a burden/deterrence on the women already  pregnancy. Criminal sanction on men equalizes the deterrents for the sexes. Administrative convenience/effectiveness of the statute – if statute is gender neutral, then no one will report the crimes
How does this discriminate against women? Women under 18 can’t decide to have sex, while men under 18 are allowed to have sex.

Arguments in favor of SS: immutable characteristic, long history of discrimination
Arguments in favor of IS: biological differences make some distinctions justified, the 14th Amendment was meant to deal with racial discrimination, a political majority so not a discrete and insular minority, makes affirmative action for women more possible.

The two methods for proving gender classification are identical to the two methods of demonstrating racial classification: first it can exist on the face of the law (refer to all the cases above) or if it is facially gender neutral, proving a gender classification requires demonstrating that there is both a discriminatory impact to the law and a discriminatory purpose behind it.

2. When it is discrimination?

Geduldig v. Aiello (1974) It was not a denial of EP for a state’s disability insurance system to exclude pregnancy-related disabilities but include disabilities affecting only men. The program divides potential recipients into two groups: pregnant women and nonpregnant persons. The first group is exclusively female but the second includes members of both sexes. The exclusion of pregnancy met RB review because the state has a legitimate interest in maintaining the fiscal integrity of its program and making choices in allocating its funding.

Arguments Against this Decision This reasoning can be criticized because it appears that the court is saying that pregnancy is not a sex based characteristic. California’s exclusion of pregnancy from coverage would impact not only currently pregnant persons but also all capable of becoming pregnant and women might choose to delay or forgo a pregnancy because of the inability to receive payments. The law thus clearly distinguishes between persons capable of becoming pregnant, which is only women, and those not capable, which is almost all male. Yes. Is this substantially related? Field says saving money is a great idea but you have to do it in some fair way. But to just pick out women is not a fair way to do it. there’s no exception for rape; other “voluntary” conditions were included: still coverage for plastic surgery Coverage for other things that applied to only men. Congress, via statute, has overruled this case. Is saving money an important state interest?
Arguments in Favor of This Decision: These are family expenses, so they effect both women and men. Choice – you choose to get pregnant. Disability – pregnancy is not a disability. Women get their share of medical expenses (50% anyway)

Feeney v. Massachusetts (1979) Mass law granting absolute lifetime preference to veterans for state civil service positions is upheld. Majority says it’s gender neutral on its face and there was no discriminatory purpose. Argument that it isfacially neutral: preference for “veterans” means more men will be benefited than women.

“Veterans” is a closed category from which women have been largely excluded – we can look and see who the veterans. Unlike Washington v. Davis (where anyone can take the civil service test). Veterans are 98% male and 2% female. To give veterans a preference is to give men a preference. State says that it has an interest in giving a preference to veterans. But Fieldasks why this particular preference? This is 100% lifetime preference over non-veterans in Massachusetts civil service jobs. Field says this is a legitimate state interest but to do it in a way that means no women in civil service is too much. Note though, that when Feeney law was in place, there were very few veterans. Most were civil war. Most were old and people preferred younger workers so trying to help them get positions. Not an overtake of the entire civil service system

Feeney goes further than Washington v. Davis – highlights difference between knowledge and purpose. Field says this is a case where the degree of the impact must be taken into account. They certainly know that this law will result in no women, but because that wasn’t their aim (aim was to help veterans) it doesn’t count as a discriminatory purpose. Court is looking to see if there is a discriminatory intent and not just impact. .

3. Gender Classifications Benefiting Women

The majority of Court cases concerning gender discrimination have involved laws that benefit women and disadvantage men. Three principles emerge from these decisions: 1) Gender classifications benefiting women based on role stereotypes generally will not be allowed; 2) Gender classifications benefiting women designed to remedy past discrimination and differences in opportunity generally are permitted; 3) Gender classifications benefiting women can be based on biological differences between men and women.

a. Gender Classifications Based on Stereotypes Many of the laws struck down were based on the assumption that the man was economically independent but the woman was dependent on her husband. The Supreme Court also struck down laws that automatically allowed women economic benefits, such as when their husbands died, but permitted men the same benefits only if they proved dependence on their wives’ income.

Orr v. Orr (1979) Invalidated an Alabama law that allowed women, but not men, to receive alimony in case of divorce. Individualized hearings at which the parties’ relative financial circumstances were considered already so needy males could be helped with little additional burden to the state. Field notes that the women really lose in this case. Case says total equality in family law.

Weinberger v. Wiesenfeld (1975) Declared unconstitutional a provision of the Social Security Act that allowed a widowed mother, but not a widowed father, to receive benefits based on the earnings of the deceased spouse. The law was based on the stereotype that males workers’ earnings are vital to the support of the family while the earnings of females workers do not significantly contribute to their family. The court applied Weinberger in Califano v. Goldfarb (1977) to hold unconstitutional a provision in the Federal Old-age, Survivors and Disability Insurance Benefits program whereby a woman automatically would receive benefits based on earnings of her husband, but a man would receive such benefits only if he could prove that he received at least half of his support from his wife. It was based on the presumption that wives are usually dependent and such assumptions do not justify gender-based discrimination in the distribution of employment-related benefits. Wengler v. Druggists Mutual Insurance Company (1980) The court applied the same principle to rule unconstitutional a state law that automatically allowed widows benefits but only allowed widowers benefits if they proved that they were dependent on their wives’ income or were physically incapacitated.

Mississippi University for Women v. Hogan (1982) Declared unconstitutional a state policy of operating a nursing school that excluded men. The Court said that the gender classification was not designed to remedy past discrimination but was based on an occupational stereotype.

b. Biological Differences
Note, however, that the Supreme court has upheld laws benefiting women even though they seems to be based on stereotypes. Remember that in Michael H. upheld a statutory rape law that only penalized males. The state could attack the problem of teenage pregnancy and sexual activity by regulating and punishment men but not women because virtually all of the significant, harmful, and inescapably identifiable consequences of teenage pregnancy fall on the women and a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers a few of the consequences of his conduct.

Also in Rostker v. Goldberg the Court upheld the draft only applying to men because of a need for healthy deference to the legislative and executive judgments in the area of military affairs. Women, unlike men, are not eligible for combat and Congress and the president had evidenced an intent to retain that policy in the future. And combat exclusion was good reason to have only men register for the draft. Women could serve in noncombat roles but congress simply did not consider it worthwhile to have the added burdens of including women in the draft and registration plans and moreover Congress had determined that the staffing of noncombat positions with women would be positively detrimental to the important goal of military flexibility.

These cases force consideration of when biological differences justify gender discrimination. To ignore physical differences between men and women leads to absurd results such as in Geduldig where the court essentially said that pregnancy is not a sex-based classification. Yet, allowing laws to be based on perceived physical differences between men and women risks upholding laws that are really based on stereotypes.

c. Gender Classifications Benefiting Women as a Remedy Gender classifications benefiting women will be allowed when they are designed to remedy past discrimination or differences in opportunity.

Califano v. Webster Upheld a provision in the Social Security Act that calculated benefits for women in a more advantageous way than for men. Based not on stereotypes but rather the permissible goal of redressing our society’s longstanding disparate treatment of women. It operated directly to remedy past economic discrimination.

Schlesinger v. Ballard (1975) Upheld a navy regulation that required the discharge of male officers who had gone nine years without a promotion but allowed women to remain thirteen years without promotion because men had more opportunities for promotion. Congress could have rationally believed that women had less opportunity for promotion and therefore a longer period of tenure would be consisted with the goal to provide women with fair and equitable career advancement.
So far the Court has not considered a constitutional challenge to an affirmative action program designed to benefit women. Although intermediate scrutiny is the test for all gender-based classification, many of the same issues will arise as in the context of race-based affirmative action, including what interests justify affirmative action and what techniques are permissible.

Don’t see dejure remedies in sex discrimination (Field not sure why), seem to do everything the way we do de facto discrimination

Is separate but equal permissible? Warchimer testing a HS whereby there was a coed, male, and females schools. Still an open question because the Supreme Court affirmed by an equally divided court (then no one writes the opinion). No one know who is on which side. Affirmed by lower court’s opinion so no law in terms of the Supreme Court. Field doesn’t think you could have just co-ed and boys, but co-ed and girls might be permissible.

F. Discrimination Against NonMarital Children

Intermediate scrutiny is applied in evaluating laws that discriminate against nonmarital children. It is justified because of the unfairness of penalizing children because their parents were not married. The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons outside of marriage but visiting the condemnation on the head of an infant is illogical and unjust. Legal burdens should bear some relationship to individual responsibility. As with other classifications that receive heightened scrutiny there is a long history of discrimination and it is immutable in the sense that there is nothing the individual can do to change his or her status; however, illegitimacy is different from gender and race because it does not carry an obvious badge nor has is approached the severity and pervasiveness of historic legal and political discrimination against women and racial minorities.

Three principles emerge: 1) laws that provide a benefit to all marital children but not to nonmarital children always are declared unconstitutional; 2) laws that provide a benefit to some nonmarital children, while denying the benefit to other nonmarital children, are evaluated on a case-by-case basis under intermediate scrutiny; 3) laws that create statutes of limitations for the time period for evaluating paternity must provide enough time for those with an interest in the child to present his or her rights and must be substantially related to the state’s interest in preventing false claims.

1. Laws Denying Benefits to All Nonmarital Children
Clark v. Jeter (1988) Declared unconstitutional a state law that required a nonmarital child to establish paternity within six years of birth tin order to seek support from the father. The Court expressly stated that IS is used. Six year period was impermissible because financial needs may not emerge until later and because it did not offer the child a sufficient opportunity to present his or her own claims.

Levy v. LA (1968) Unacknowledged, illegitimate children should be allowed to sue for wrongful death. Unacknowledgement by mother must mean some legal procedure that she did not follow. State’s interest in encouraging acknowledgement (but wouldn’t have she have signed the birth certificate?), discourage probate problems, discourage illegitimate children. RB test plus special sensitivity – must be because a clear state interest in administrability. Illegitimacy has nothing to do with the wrong to the mother, so not RB for this group of people and using RB language to increase scrutiny. Why should tortfeasors get away because of this? It is a discrete group because it is hard to tell if acknowledged.

Gomez v. Perez (1973) Texas rule said unwed dads are not responsible for support of children. State rationale was that it would encourage marriage. In per curium held unconstitutional via EP. Can compare lots of groups (dads, moms, kids, and across). Which one you pick can change the outcome. Inequality between married-unmarried women and the unmarried-married dad. Could say married man took on an obligation and married woman relied on husband, but instead the Court compared the children.
What if the statute allowed suing for support within one year? Struck down because of the kids comparison again. Don’t want children to suffer because the mother did not get herself together. 18 is probably an allowable limit because legitimate kids get until then and after that parents don’t have to include in their wills.

Trimble v. Gordon (1977) Deemed unconstitutional a law that prevented nonmarital children from inheriting from fathers who died intestate. Allowed marital children to inherit from either parent but a nonmarital child could only inherit from the mother. Although there is a need to establish paternity for unwed fathers this does not justify the complete denial of benefits to all nonmarital children.

2. Laws That Provide a Benefit to Some NonMarital Children No similar brightline rule exists when the law provides a benefit to some nonmarital children and denies it to others. Determined on a case by case basis via evaluating whether there is an important interest served and whether the law is substantially related to that goal.

Lalli v. Lalli (1978) Upheld a state law that provided that a nonmarital child could inherit from his or her father only if paternity was established during the father’s lifetime. Therefore, some nonmarital children could inherit. The state had an important interest in preventing fraud and that requiring paternity to be established during a father’s lifetime was substantially related to that objective.

Compare with Trimble In both Trimble and Lalli, there was fool proof proof and had relationship with the father. In Lalli, thus, no one had sued him to establish paternity. Trimble required several things including marrying the mother, which the Court emphasizes as too stringent, but focuses that the father was clearly the father, but it could be different in other situations where it is not clear. Seems the opposite in Lalli where it is a judicial determination (more stringent than in Trimble). Now it is so easy to prove that we shouldn’t need all these hurdles. Also remember that a parent can choose not to leave any $$$. Field prefers Trimble – only one can be the law. Indicate some HS in this area, but the Court has not done a lot of these types of cases.

RB Illegitimacy Gender SS

G. Other Types of Discrimination: Only RB Review

The Supreme Court has expressly rejected HS and said that RB is sufficient for classifications based on age, disability, and wealth. The Supreme Court has not yet ruled, but has indicated, that RB review will be used for discrimination based on sexual orientation.

1. Age

Somewhat insular (i.e. retirement homes) but not as much as mentally retarded. A grouping that each of us will reach so less insular. There is a history of discrimination against the elderly with judgments often based on stereotypes. A person’s age is immutable in the sense that a person cannot voluntarily change it and it is a characteristic that is visible. However, only RB is used.

Mass Board of Retirement v. Murgia (1976) Upheld a state law that required police officers to retire at fifty years of age. While the treatment of aged has not been free of discrimination, it does not have the history of purposeful unequal treatment or unique disabilities on the basis of stereotypes that are not indicative of their ability. Old age does not define a discrete and insular group in need of extraordinary protection from the political process. Since physical ability generally declines with age, under RB the law survives.

2. Disability

Only RB review should be used for discrimination based on disability. However in City of Cleburne, the Supreme Court used RB to declare unconstitutional a city ordinance that required a special permit for the operation of a group home for the mentally disabled. Each of the city’s justifications were not legitimate or did not used a rational means. One could argue that the Court’s review was more rigorous than usual for RB analysis. Usually, significant underinclusiveness is tolerated and the government may proceed one step at a time. The

Heller v. Doe (1993) confirmed that RB should be used when it upheld a state law that mentally retarded individuals could be civilly committed if there was clear and convincing evidence justifying institutionalization but required there was proof beyond a reasonable doubt for the mentally ill. The Court found that there were reasonable distinctions between mentally retarded and mentally ill. Mental retardation is subject to more objective measures than mental illness and the methods of treatment for the mentally retarded are less invasive.

3. Sexual Orientation

Discrimination based on sexual orientation has many characteristics that are present where HS is used. There is a long history of discrimination against homosexuals. Laws discriminating on this basis generally reflect prejudices and stereotypes rather than any actual differences. Recent research also suggests that sexual orientation is immutable.

James Exam Q very much like it and asked how it should come out. When asking the same case there is a reason – perhaps because a later case (here Washington v. Davis). Nothing wrong with a referendum as it is the hallmark of democracy and it did not involve race distinctions. Referendums often apply to various other groups.

Romer v. Evans affects James. Constitutional Amendment in CO prohibited any law on any level from protecting homosexuals in the future and repealed any present laws stating as such. Using RB the Court struck it down. Irrational because only taking away these special protections from this group and not other non-suspect groups that had special protections (i.e. the pregnant, aged veterans, etc.). Taking away extra rights. Could say that repealing them is invidious. Are put in a solitary class via this state action and withdraws from them specific legal protection caused by discrimination. No legitimate reason that homosexuals could not use the political process like everyone else. Observed that the only apparent purpose behind the law was animus.
Looked pretty hard to figure out a way to strike it down and Bowers suggested there wouldn’t be anybody working very hard to strike down. Overbreadth of those with the orientation who do not act. Lacks a rational relationship to legitimate state standards (but does seem to accord to morals/disagreement with homosexuals – don’t cite Bowers because that case basically states that you can have animus, although could distinguish because of act v. orientation and criminal v. civil). Talked about it as a law that says no special favors for gays and lesbians (Scalia’s viewpoint). Adopted a state wide referendum – people have voted – no special favors which applies not only on state level but in municipalities as well. The court applies RB – sexual orientation is not a suspect class and does not require heightened scrutiny. State interest in protecting the moral heritage along with employer and property owners’ rights and protecting those who disapprove of homosexuals. Devoting more resources to combating discrimination against the suspect class. Real RB probably would allow this law to pass unless there was something illegitimate about the goals. Bowers said that preserving traditional morality is permissible. Nonetheless, they struck it down. Are they doing more that Railway Express RB? Colorado had chosen to go further than the U.S. Constitution to protect all these groups.

Does it matter that it is an amendment and not a statute? Making it a constitutional amendment makes the political process harder for this group of people v. a statute. Probably would have been permissible as a statute..

Can’t give a right to be free from discrimination and then take it away (not that you are taking something away but it is what you are taking away – a right). Allowed to stop bussing because didn’t have to do it to begin with. Field says this creates a problem though because then no one will want to do more than the federal Constitution. Also can probably repeal it if didn’t have to do it to begin with. Now are not in the same position as they were before but are in a worse off position – this is a point of disagreement between Scalia and Kennedy. Field happens to agree with Scalia. Court does make something of the fact that at the statewide level you are prohibiting local ordinances – some suggestion that this is wrong but Scalia notes this is just crazy. Couldn’t have made a statute because the CO Supreme Court had ruled it would violate the state constitution? Why make an amendment rather than an amendment? Could still throw out local rules. Making it harder for them to get special protections than other groups. Also with a referendum it is not exemplary of republican form of government – not as much deliberation, less give and take, and the things that are on ballots are usually those of demagoguery. It really is less democratic.

F. Constitutional Protection for Voting

The right to vote is bootstrapped – the inherent right is not located in the Constitution. An example of judicial creativity. Seen as a critical part of our democracy and somehow get it out of the Constitution.

The Supreme Court has declared that the right to vote is a fundamental right protected under EP. It is fundamental because it is essential in a democratic society; through voting the people choose the government and hold it accountable. It is the preservative of all rights. It is clearly established that law infringing on the right to vote must meet SS.

If it is an EP fundamental right than it will get heightened scrutiny because it touches a fundamental right. Theory of EP is that you don’t have to have the right but if you do you need to give it to everyone. The problem with voting is that once you say this EP comes into play – that is fine but you already have to give it to one person. If you say white male property owners have the right to vote, then via EP you have to give the right to everyone.

1. Restrictions on the Ability to Vote

a. Are Elections Constitutionally Required?

Similar as with appeals – have to give to all when give to one person. But, under voting, have to give one person the right to vote as opposed to appeals. It is clearly established that once there is an election, any laws that deny or limit the ability of citizens to vote must meet SS (poll taxes, property ownership requirements, residency duration requirements). There have been some areas where the Court did not use SS and upheld restrictions on voting in areas like literacy tests and laws preventing felons from voting. Also the Court has allowed closed primaries when the restrictions are reasonable.

Generally, the court has allowed state and local governments to select their officeholders through means other than elections. The ability of a state to have its legislature choose its governor when no candidate received a majority of popular votes has been recognized by the Supreme Court. There are cities when the elected city council chooses a city manager rather than holding elections for the executive official.

Article I, §2. The electors for federal elections will have the same qualifications as required for the state legislators.
Article I, § 3. The Senate shall have two senators from each state chosen by the legislators thereof. Changed by 17th Amendment.
Article I, §4. The times, place, and manner of election shall be decided by the state.
Article II, § 1. Each state shall appoint electors equal to house and senate members.
Article IV. §4. US guarantees a republican form of government. The Supreme Court has consistently held that cases brought under this clause pose a nonjusticiable political question.
15th Amendment. Can vote regardless of race.
19th Amendment. Women can vote.
24th Amendment. No poll tax.
26th Amendment. Can vote over eighteen.

b. Poll Taxes
The 24th Amendment prohibits poll taxes in elections for federal offices.

Harper v. Virginia (1966) Held poll taxes unconstitutional as a denial of EP for all other elections. An annual $1.50 poll tax as a precondition to voting. Sued to have it declared unconstitutional and it was rejected by three court judge below and goes right to the Supreme Court. State interest in collecting revenue and paying for the administration of elections. Also, it weeds out people who don’t really care that much about voting. Really trying to disenfranchise blacks who tended to be poor. Voter wealth qualifications deemed irrelevant – have no basis in participating intelligently in the electoral process. Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the PE clause. Again there probably is RB but using more plus language. Too fundamental a right to be burdened or conditioned. The court rejected the state’s argument that it was minimal and not a significant burden. The degree of discrimination is irrelevant.

Property Ownership Requirements
Laws requiring property ownership as a requirement for voting seem to run afoul of Harper’s forceful declaration that wealth cannot be a basis for denying individuals the ability to vote; yet, the Court’s record in dealing with such requirements is mixed.

Kramer v. Union Free School District (1969) Limited school board elections to parents and property owners. Not per se bad but is SS because the law kept some citizens from voting in school elections. The state’s primary justification for the restrictions was to limit participation to those who were primarily interested in school affairs. The Court found that it was not permissible for the government to measure interest by property ownership or the presence of children in the school system and thus the requirement is not sufficiently tailored. Over and under broad. Apply SS and show that it doesn’t match the intentions. In theory there is an election limited to certain people but can almost always find a way through SS to strike it down.
In follow-up cases Cipriano v. City of Houma (1969) – law that only property owners could vote on whether a municipal utility could issue municipal bonds – and City of Phoenix v. Kolodziejski – state law limiting vote to real property owners in elections to approve the issuance of general obligation bonds – the Court emphasized that all citizens had an interest in the availability of municipal services.

Kramer does not mean that all property ownership requirements for voting are invalid. Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973) upheld state laws that limited voting in water storage district elections to property owners and that apportioned votes according to assessed valuation of land within the districts because landowners had a far greater interest in the outcome of the lection than other citizens. Landowners as a class were to bear the entire burden of the district’s costs. Ball v. James (1981) applied Salyer and also a water district election. Votes were allocated based on property ownership – once acre, one vote. Unlike Salyer, decisions by the government body had a wide impact, nonetheless, the Court found that property ownership requirements for voting were justified. Only landowners were subject to the acreage-based taxing power. The court did not deny that others had an interest in and were affect by the decisions of the district but the Court noted that Salyer did not say that the selected class of voters for a special public entity must be the only parties at all affect by the operation of the entity; rather, the question was whether the effect of the entity’s operations on them was disproportionately greater than the effect on those seeking to vote. While Kramer suggests that all citizens regardless of whether they own property have an interest in the conduct of their government. The water district cases suggest that property ownership can be required as a condition for voting if some are more directly affected and if the governing body has limited authority. But note that in Kramer, there was an argument that property owners and parents are more directly affected by school district decisions and that a school board has a limited governing authority.

c. Durational Residency Requirements Waiting periods for new residents have been sharply limited by the Supreme Court.

Dunn v. Blumstein (1972) Invalidated TN’s one-year in-state residency requirement for voting. Subject to SS b/c they curtained fundamental interest in voting and burdened right to travel. Challengers need not prove that one-year waiting requirement actually deterred interstate travel, as SS was triggered by “any classification which serves to penalize the exercise.”

Where else could you vote? Nowhere because you already claimed “residence” of your new state which automatically extinguishes your residency elsewhere.

Particular concerns for students, and service personnel. Court says you can’t presume that they aren’t residents (that gov’t dragged them there) – you have to allow them to prove they are bona fide residents. Can’t discriminate against them as a group.

d. Literacy Tests The Supreme Court has concluded that literacy tests are permissible as a qualification for voting although they have been outlawed by federal statutes.

Guinn v. United States (1915) Upheld the ability of states to require passing a literacy test as a condition for voting, but the Court invalidated a grandfather clause that exempted from the literacy test anyone or their lineal descendants who could have voted on January 1, 18656. The effect was to deny the vote to blacks who were ineligible to vote at this time. The literacy test, however, was an exercise by the state of a lawful power vested in it not subject to the Court’s supervision.

Lassiter v. Northhampton County Board of Elections (1959) The Court upheld a North Carolina statute that conditioned voting on eligibility on a person’s ability to read and write any section of the Constitution in the English language, emphasizing that the States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised absent discrimination which the Constitution condemns. Literacy tests may be used because the ability to read and write is relevant to the ability to exercise the franchise intelligently. Literacy is neutral. Although illiterate voters may be intelligent voters in today’s society where printed matters canvass and debate campaign issues, a State may conclude that only those who are literate should exercise the franchise.

This decisions rests on two assumptions: that literacy tests are race neutral in their purpose and effect and that literacy tests meets SS. The history of literacy tests, however, indicates that they generally were motivated to exclude blacks and that was the impact. With radio and television news even illiterate voters could be well informed and literacy is not necessarily a prerequisite for handling a ballot because alternatives exist.

Congress amended the Voting Rights Act to completely prohibit them and the Court upheld these laws as a valid exercise of Congress’s powers under §5 of the Fourteenth Amendment even though they had the effect of overturning an earlier Court decision.

e. Prisoners’ and Felons’ Right to Vote States cannot deny the right to vote to those being held waiting for trial and must provide absentee ballots if they have no other means. Once a person has been convicted of a felony, a state may permanently disenfranchise the individual. But, at least where there was evidence of a racially discriminatory purpose behind the law, a state was prevented from permanently denying the right to vote to those convicted of crimes involving moral turpitude. Hunter v, Underwood (1985) Invalidated an Alabama law that denied the right to vote to those who had been convicted of crimes involving moral turpitude. A federal district court found that the provision had been adopted wit the purpose of disenfranchising blacks and that it had that affect.

f. Limiting Voting in Primaries Based on Party Affiliation On the one hand, there is the desire to restrict participation in primaries to those who are members of the party. There is a fear that members of the opposing party might sabotage a party’s primary. However, limiting voting to those who are registered members of the political party denies individuals, especially independents, of their right to vote and participate in primary elections.

Rosario v. Rodriguez (1973) The Court upheld a New York law that required voters to select a political party thirty days before a general election in order to vote in the next political primary. The Court explained that the law was designed to prevent raiding, a practice whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary.

Kusper v. Pontikes (1973) Declared unconstitutional a state law that prohibited a person from voting in a political primary if he or she had voted in another party’s primary in the prior 23 months. The difference with Rosario was the length of time – but is eighteen months versus 23 months that much of a difference.

Tashjian v. Republican Party of Connecticut (1986) Declared unconstitutional a state law that limited voting in a primary to those who were members of that party. The Connecticut Republican Party adopted a rule that permitted independent voters – those not registered with any political party – to vote in Republican primaries for federal and state offices. Connecticut law, unlike the party rule, limited voting in a primary to those registered in that political party. The Court emphasized that the rationale underlying Rosario – preventing voters from one party from participating in the primary of the other and sabotaging its choices – was inapplicable with regard to independent voters. The Court emphasized that the party itself wished to open its elections.

California Democratic Party v. Jones (2000) Declared unconstitutional a blanket primary and placed in doubt the constitutionality of other forms of open primaries. California voters adopted an initiative that allowed a voter to case a ballot in either party’s political primary. It impermissibly violated the First Amendment’s protection of political association – right to exclude. Evidence supports the fear that non-adherents can play a decisive role in choosing a nominee and rejected the various justifications offered by the state for the blanket primary, such as increasing participation in the political process.

The decision invalidated blanket primaries but it certainly cast doubt on all state laws that force parties to include nonmembers to participate in choosing candidates. In some states, voters must request a ballot of a particular party at the time of voting during the primary. This is different than California’ blanket primary that allowed a person to vote for any candidate for each office. Is the requirement for requesting a ballot for a specific party and whatever affiliation that conveys enough to distinguish Jones?

g. Dilution of the Right to Vote Malapportionment in many areas prior to the 1960s was a result of population shifts to urban areas. Districts often were not redrawn after urban migration, causing cities to be underrepresented compared with more rural.

Baker v. Carr (1962) EP challenges to malapportionment were justiciable. Had already held that Republican government was non-justiciable. Now hold that it is justiciable.

Gray v. Sanders (1963) Challenge to the Georgia system of selecting representatives for the Georgia House of the General Assembly on a county basis. An inequality resulted because counties varied widely in population size. Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote as required by the EP Clause of the Fourteenth Amendment. One person, one vote. EP requires that all districts be about the same in population size and anything else impermissibly dilutes the voting power of those in the more populous districts.

Wesberry v. Sanders (1964) declared unconstitutional districts for the House of Representatives where some districts had twice as many people as others. Discussed at length the framers’ theory of representative democracy and again concluded one person, one vote. It may not be possible to draw districts with mathematical precision, but that is no excuse for ignoring the Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goals of the House.

Reynolds v. Sims (1964) It was a big deal – they had already decided Gray was not binding (which struck down county unit system in statewide primary elections saying that it had to be close to one man one vote and treating apportionment like primaries). Wesberry was state elections for federal office and had not held it in state elections for state office until this case. Declared malapportionment of a state legislature unconstitutional and ordered its reapportionment. Under then existing law, the Alabama legislature had a thirty-five member state senate elected from thirty-five districts that varied in population from 15,000 to 634,000. Here the state used the numbers of 1900s even though the state constitution states every decade. Court stated that geographical area made no sense in drawing districts; only population was a permissible basis. Legislators represent people not trees or acres. Malapportionment inevitably means vote dilution as those voters in the more populous district have proportionately less influence in the political process than those in the small districts. A state is not allowed to mirror Congress where they House is apportioned by population and Senate seats are allocated two to each state regardless of population. Rather sharp dissents.
Warren uses words like undeniability and undoubtedly – used this type of language when not in the Constitution.

One might have thought that states would have more control over how to establish their own government. Interested in effect here much more than intent. Could have said that it was up to the state and there was no invidious intent. As a representative government, elections are a bedrock of our system. This is institutional – states will have to develop new schemes and if the states do no come up with a satisfactory one the court will do it. A long term projects of overseeing the state legislatures. Since schools, the courts have been careful not to get involved in this type of enforcement.

EP requires a state to make an honest and good faith effort to make equally populated districts. Let’s say a state divides its legislature into a house and senate and follow the federal scheme. House is elected one person one vote and senate has two people from each district. It’s not analagous to the federal government because for the federal government it was a necessary compromise to make the national government happen and states came in under this system. There is therefore, no one person one vote in the Constitution. No one thought this was an issue until Reynolds when one person one vote arose. What about the Commonwealth of Massachusetts which came in before the United States existed? People are not a part of the state system by choice but did choose to ratify the Constitution. Can’t use this system even if the people voted for it.

Can you require a super majority? Yes. It is not unconstitutional under the one person, one vote standard.

Lucas v. Forty-Fourth General Assembly (1964) Companion case to Reynolds. It was irrelevant that voters, by initiative, had approved the malapportionment. One person, one vote is a constitutional mandate and voter approval does not justify such a violation any more than voter approval would permit the violation of any other constitutional right.

Avery v. Midland County (1968) Extended one person, one vote to county commissioners who had general government powers over the entire geographic area served by the body. Hadley v. Junior College District (1970) applied to an elected body with a limited governing authority – a junior college district. It had the power to tax, employ teachers, and manage the educational program. Rejected earlier attempts to distinguish legislative officials from administrative ones. All elected officials must be done so in a manner that avoids vote dilution. Only in unique and limited circumstances, like the water cases, has the Court permitted deviation from one person, one vote.

Only relatively small deviations are tolerated. In Kirkpatrick v. Preisler (1969) the court invalidated districting for the House where the most populous district was 3.13% above the mathematical ideal and the least populous was 2.84% below. The Court emphasized that the government must make a good-faith effort to achieve precise mathematical equality. White v. Weiser (1973) declared unconstitutional even a smaller deviation. Again in Karcher v. Daggett (1983) Declared unconstitutional districting for the House where the deviation between them was 0.7%. The Court has repeatedly emphasized that, especially with regard to elections for federal offices, any deviation must be justified. This deviation was impermissible because the state could offer no justification as to why it was needed.

Note that the Court has allowed more deviation in districts for electing state and local officials. Mahan v. Howell (1973) expressly said that broader latitude has been afforded the states under EP in state legislative districting and allowed deviations where the overrepresented districts exceeded the ideal by 6.8% and the underrepresented districts were 9.6% away from target.

Who counts? All persons legally within the area? Registered voters? Those who voted in the last election? The Supreme Court has not ruled that one of these approaches must be used, though in Burns v. Richardson (1966) it held that it is permissible for the government to use the number of registered voters.

An enormous effect on government. Although they were viewed as extremely controversial in the 1960s, but the 1990s, they are seen as a paradigm instance of the judiciary acting to perfect the political process and reinforce democracy. Reapportionment was very unlikely to occur without judicial action because officeholders were not likely to give up their seats. The decisions dramatically changed the composition of state legislatures, and in turn the laws adopted. Some still criticize the cases as excessive judicial activism because there was not authority in the text or framers’ intent for the rule of one person, one vote.

h. Gerrymandering Practice of a political party of drawing election districts to benefit itself and harm its opponent.

Gaffney v. Cummings (1973) The Court indicated that it would be very reluctant to invalidate districts based on gerrymandering. Districts were drawn to create a legislature reflecting the approximate political strength of the Democratic and Republican parties within the state. No EP violation. Politics and political considerations are inseparable from districting and apportionment. Acceptance as long as one person, one vote is maintained and there is no discrimination against any racial or other group.

Davis v. Bandemer (1986) The Court considered a more difficulty case in which the incumbent party controlling the legislature draws districts to help it remain in control. Initially said that challenges to such gerrymandering are justiciable. Although the Court recognized that the issue was different than in the malapportionment, but the issue is still one of representation. White’s plurality opinion said that in order for a group to prove a violation of EP it must prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group. However, the Constitution does not require that there be proportional representation in the legislature based on political party strength and the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination. Unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voters’ or group of voters’ influence on the political process as a whole. Cannot show it through one election alone. Found no unconstitutional violation here. Three would have denied it on justiciability grounds. The last three would have found justiciability and the districting in Indiana denied EP.

The result was a very fragmented opinion: Six justices found that challenges to gerrymandering are justiciable. Seven justices voted to uphold the districts used in Indiana, four by finding no constitutional violation and three by concluding that the state was not justiciable.

Shaw v. Reno (1993) and its progeny. The use of race in drawing election districts must meet strict scrutiny. The use of race in drawing election districts is permissible only if the government can show that it is necessary to achieve a compelling purpose. The Court indicated two ways in which it can be demonstrated that race was used in drawing election districts (Shaw v. Reno and Shaw v. Hunt)and thus SS is to be applied: if a district has a bizarre shape that in itself makes clear that race was the basis for drawing the lines or if the use of race in districting cannot be inferred from the shape of the district, SS is justified if it is proved that race was a predominant factor in drawing the lines (Miller v. Johnson and Bush v. Vera). Justifications sufficient to meet SS do not include section 5 of the Voting Rights Act which requires that the Justice Department approve changes in election systems in states where there has been a history of race discrimination with regard to voting. Views of the Justice Department about the desirability of maximizing minority districts do not constitute a compelling interest sufficient to meet SS. Compliance with the 1982 amendments to section 2 of the Voting Rights Act which prohibits election systems, such as in distinction, that have discriminatory effects against racial minorities was avoided in Shaw v. Hunt and Bush v. Vera, but in Bush O’Connor wrote a separate opinion concurring the judgment and holding that it was a compelling state interest – thus she combined with the four dissents would make it a justification.

Dissent made a strong argument that affirmative action in voting is different than affirmative action in areas such as employment or education. Racial classifications benefiting minorities arguably disadvantage a white individual who is not hired or admitted because of the affirmative action program, but in voting every person still gets to vote and every vote is counted equally.

Hunt v. Cromartie Districts for congressional seats in North Carolina. A three-judge federal district court held that North Carolina’s legislature had impermissibly used race as a predominant factor in drawing the 12th Congressional District’s boundaries. The Court reversed and found that the fact-finding was clearly erroneous. Breyer drew a distinction between the use of race for political reasons as opposed to for affirmative action. The main issue was evidentiary and the court stated that it must determine whether there is adequate support for the District Court’s key findings, particularly the ultimate finding that the legislature’s motive was predominantly racial, not political. In this inquiry, the burden of proof is on the plaintiff asserting the impermissible use of race and that courts must show deference to legislative choices in districting. The government may use race as a factor in districting if the goal is political, such as protecting a safe seat for an incumbent or creating a district which ahs a majority of one political party. The Court found that the evidence here showed a political goal to create a majority Democratic district. African-Americans in North Carolina were Democratic about 95% of the time as much as it would show an affirmative action explanation. Must show that could have done through less restrictive means that are comparably consistent with traditional districting principles and that these districting alternatives would have brought about significantly greater racial balance
The problem is that rarely with politics and race be separated.

Case Differs from Shaw which was dealing with race considerations. 20% of NC population was black but was dispersed and tried to create districts that would have a strong black majority and drew funny looking districts. Majority-minority voting districts were encouraged by the Voting Rights Act. Found to be unconstitutional because it created racial animus and us v. them mentality. Racial classifications of any sort reinforce that people should be judged by color of skin and can Balkanize. Same argument as affirmative action. – no good because done to achieve racial result.

Field thinks its odd to adjust districts for political considerations but not racial political interests.

G. Constitutional Protection for Access to Courts

The Court has long said that the right to be heard in court is an essential aspect of DP. Also, the Court has held that discrimination among people as to access to the courts is subjected to SS under EP. Access to courts is also protected by specific guarantees in the Bill of Rights like the Sixth Amendment’s guarantee of the right to counsel. Although at times the Court has spoken generally of a right of access to the courts, the decisions have all involved challenges to particular impediments, the DP and EP areas of the right to appeal, challenges to filing fee requirements, and prisoners’ access to the judiciary.

1. The Right to Appeal

Neither the Constitution or the BOR mentions a right to appeal nor has the Supreme Court held that DP requires an appellate review of criminal convictions or civil judgments. But the Supreme Court has ruled that when appeals are made available, the government cannot discriminate or create barriers that limit the ability of indigents to exercise this right

Griffin v. Illinois (1956) Inmates wanted to appeal but did not have $$ for transcript. Illinois law created a right to appeal criminal convictions but direct appellate review was available only if the  provided the appellate court with a bill of exceptions or a report of the trial proceedings certified by the trial judge. It sometimes was impossible to prepare such documents without a stenographic transcript of the trial. Under state law these were provided free of charge only to s facing the death penalty. The Government must provide transcripts on appeal for indigent criminal s. No right to appeal in Constitution (but neither is abortion or voting). Not treated like DP. Once given to one, have to give to all, so EP (rather than DP fundamental right). Not perfect EP because right to one appeal. Frankfurter’s concurrence added that the right ot appeal from a conviction for crimes is so established that it leads to the easy assumption that it is fundamental to the protection of life and liberty and therefore a necessary ingredient of DP.

Douglas v. California (1963) Public Defender incompetent and defendants dismissed him. Wanted to appeal but Court didn’t give another lawyer. Tried to follow Gideon by only giving the right to worthwhile cases. The government must provide indigent criminal s free counsel on appeal at least for their initial appeal which state law requires the courts of appeals to hear. Lack of equality under the 14th Amendment. Counsel not giving total equality, giving the minimal. The Court subsequently limited this right to initial appeals that are created as a mattero fright by state law in Ross v. Moffitt.

2. Filing Fees

Despite the strong statement of a right of equal access to the courts for rich and poor, the Court has been very inconsistent as to whether the government is constitutionally obligated to waive filing fees for indigent individuals in civil proceedings. Generally, the Court has refused to find that filing fees impermissibly violate EP or DP.

Boddie v. Connecticut (1971) Goes back to DP. Have to pay $60 to get a divorce – struck down under DP because marriage is a fundamental right. In prison cases, the need for equality comes from the state using all its resources against you. Here the state is trapping you into a marriage (not affirmative right but rather because of this).Preempting the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so. Exclusing from the only forum effectively empowered to settle their disputes.

United States v. Kras (1973) The government was not required to waive filing fees for indigents seeking to file for bankruptcy. Divorce relates to the constitutional right to marry and the denial of access to the judicial forum touched directly on the marital relationship and bankruptcy does not rise to the same constitutional level and second, the state has a monopoly in granting divorces while there are alternative ways to solve the problem of debts. The court also found the fee minimal, but Marshall pointed out that the Court did not appreciate the margin of survival of poor people.

Ortwein v. Schwab (1973) Followed the reasoning in Kras and held that the government was not obligated to waive filing fees for judicial review of adverse welfare decisions. A denial or reduction in welfare benefits did not implicate constitutional rights. Interestingly, like in Boddie, the state had a monopoly for resolve disputes.

Although Kras and Ortwein make it very difficulty to challenge the filing fee requirements, it is still possible in areas where fundamental rights are at issue and where the state has a monopoly in providing redress. Still those are strong precedents.

MLB v. SLJ (19696) Declared unconstitutional a state requirement that parents pay a fee (which was in the thousands of dollars) for preparation of the trial record in order to appeal a termination of custody. Ginsburg noted that choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society that are sheltered by the 14th Amendment against the state’s unwarranted usurpation, disregard, or disrespect. Generally, access fees only have to meet RB review but that there is an exception in that access to judicial processes in cases criminal or quasi-criminal in nature may not turn on ability to pay.
Field criticizes the scope because it only applies to termination and earlier has been an involuntary removal and really need the right.

3. Other Costs

Cannot have prison sentences to work off fines.

Little v. Streater (1981) The right of an individual to deny paternity. The government must pay for blood tests for indigent s in paternity cases. A  unable to afford these tests would lack a meaningful opportunity to be heard because there was no other way to refute the allegation. A cost requirement, valid on its face, may offend DP because it operates to foreclose a particular party’s opportunity to be heard.

H. Wealth Discrimination

For a time it appeared that the Court would use HS for law discriminating against the poor after Griffin and Harper.

Also the other rights are independently explicit or implied. But if they were independent explicit and implied DP rights, does EP really mean anything? Field thinks, though, that there is some relationship. For example, in abortion, if extended viabilility mark longer wouldn’t be required via DP but if it chose to go further for some people it would need to go further for all under EP. Also if you extended voting rights to age 16 for men, via EP would have to give it to women as well.

Poverty a quasi-suspect class (other rights not deemed fundamental like travel). Other things not treated as fundamental rights are the right not to be sterilized (Skinner), right of unwed fathers to know their children (Michael H.)

Dandridge v. Williams (1970) Upheld a state law that put a cap on welfare benefits to families regardless of their size. Children in larger families therefore received less per person than those in smaller families. RB review was appropriate because the law related to economics and social welfare. The Court accepted the state’s interest in allocating scarce public benefits as sufficient to justify the law. Deference to state officials when allocating limited public funds.
Marshall Dissent says that the right to food and shelter is fundamental and thus the state should have to provide a compelling argument in addition to that it wants to save money. Not really saying that it should be SS, or even RB, because a false dichotomy; rather, when it is fundamental the state should have an equally compelling reason to deny. He is talking here about an all the factors test. So what if a class is not a suspect class, they might have some prejudice against them. Look at degree of the discrimination and the degree of the state’s interest. Notes that this is not at all like business regulations which are the normal economic and social legislation.

Discrimination against the later born children. State interest seems to be to prevent people from having extra kids they can’t afford. Of course there is not constitutional requirement for AFDC so the state doesn’t need to do anything. Punishing parents via the children. Could argue Levey v. LA violation. Counter-respond that you should be looking at it by comparing families not by comparing individual children. Is that an EP unit? Haven’t used families as a unit in the past.

Maher v. Roe (1977) Rejected the argument that the government violated EP when it refused to fund abortions, even though it was paying for childbirth and other medical care costs. It has never been held that financial need alone identifies a suspect class for purposes of EP analysis. Why is funding for abortions different? The state is permitted to give to one and not the other (funding wise). Considered different because she is in the same position as if they had done nothing at all, versus in the EP cases the state is acting against the person.

San Antonio School District v. Rivas (1973) Expressly held that poverty is not a suspect classification and that discrimination against the poor should only receive RB review. TX has a law in which it collects local property taxes to fund school districts, creating differing amounts of funding, as a result poor areas are taxed at high rates for education but still had little to spend while wealthy areas had low rate and could spent a lot. Court finds this permissible as rational basis applies. Education is important but not a fundamental right, more like economic and social legislation. Not explicit nor implied in the Constitution. Also, there was no evidence that it was discrimination against the poor as a group. Court was hesitant because of the need to then monitor schools.

Argument against this is that education is important for exercising First Amendment and voting rights. The poor do share many characteristics with groups that are protected by intermediate and SS: lack political power, long history of discrimination against the poor in a wide array of areas throughout society, and some argue that there should be minimum entitlements under the Constitution.

One of the reasons poverty is not a suspect class is that you don’t have to be in it forever. If we have this as an ideal, education is key. Poverty is not immutable and most discrimination against the poor is a result of the effects of the law rather than a produce of intentional discrimination. Worry though that other rights will start floodgating in. Also wanted to avoid creating a constitutional right to government benefits such as welfare, food, shelter or medical care. Field thinks that a better way to look at the case is not to get caught up in degrees of scrutiny.
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These are the school districts. The basic thing was that there was some state money given to every school district along with federal money. 60% of the whole thing. Could have 1% or 5% taxes on property. If property value is 100,000 and tax at 5% (District 1) and another district has a property value of 500,000 and taxes at 1% (District 9) they get the same amount of money. Who is being discriminated against? It is not discrimination against the poor, it is discrimination against those who live in a property poor district (which of course has overlap with poverty). State’s interest in local control can still happen with a fair system. Have it all go to a state fund and give 1% $100 and people who voted for 5% to $500. Still getting the same percentage but of the same pot. Will get proportionately how much percentage they vote. Keep it in districts to preserve interest in local control. Not letting people who choose to spend a little end up with a lot and vice-versa. Note though that the Constitution recognizes states and not localities so perhaps this would have to apply to the entire state.

Plyer v. Doe (1982) Struck down a Texas law that provided free public education for children of citizens and documented aliens but required undocumented aliens to pay for schooling. Brennan started off by noting that even unlawful aliens have been recognized as persons guaranteed DP by the 5th and 14th Amendments. Another case of punishing kids for the parents. Not delaying it but creating an absolute bar to education which is an important service. Now it might consider it a part of legislative deference if Congress enacted it as it is usually in charge of immigration.
The Court did not articulate expressly a level of scrutiny but it did say that undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy. Nor is education a fundamental right. But the Court also made it clear that it was using more than RB review. The state’s claim of a desire to reserve benefits for its own citizens would likely meet a RB test. Thus, it appears the Court was using intermediate scrutiny.
Dissent argued that RB review was appropriate and that the judiciary should defer to the legislature on matters of how to allocate resources for education. HS was inappropriate because there was no suspect classification and no fundamental right.

In comparison, Mathews v. Diaz (1976), the court unanimously upheld a federal statute that denied Medicaid benefits to aliens unless they have been admitted for permanent residence and resided at least five years in the United States. The relationship between the United States and alien visitors has been committed to the political branches of federal government – deference because decisions in these matters may implicate our relations with foreign powers and since a wide variety of classifications must be defined in light of the changing political and economic circumstances such decisions are frequently of a character more appropriate to either the legislature or the executive than to the judiciary. The Court thus drew a distinction between alienage classifications imposed by the federal government and those created by state and local governments HS is used for the later but the Court said that federal law was upheld because it was not wholly irrational and served the legitimate interests of the federal government in preserving the fiscal integrity of the program.

Lindsay v. Normet (1972) The Court rejected a challenge to a state’s summary eviction procedure. The Constitution does not provide judicial remedies for every social and economic ill and there is nothing in the Constitution about guarantees of access to dwellings of a particular quality.

La Fleur Legislature made a presumption that women who were three months pregnant could not work. Violative of DP to due that without a hearing.

H. Constitutional Protection of the Right to Travel
The Court has held that there is a fundamental right to travel and to interstate migration within the United States. Therefore, laws that prohibit or burden travel within the United States must meet SS. Although the text of the Constitution does not mention a right to travel, it long has been recognized by the Supreme court. Crandall v. Nevada (1867) – invalidated tax on passengers leaving the state because it imposes a tax upon the passenger for the privilege of leaving the state or passing through it by the ordinary mode of travel. Presumably rested on structural inferences since it was rendered before ratification of 14th. So important because linked to the commerce clause.

Must always distinguish b/w (1) federal P&I clause under 14th amendment and (2) state P&I clause under Art IV, §2.

Counter view by Stewart in US v. Guest “Although the Articles of Confederation provided that “the people of each State shall have free ingress and regress to and from any other State, that right finds no explicit mention in the Constitution.”

Edwards v. California (1941) Invalidated law making it misdemeanor to bring into California “any indigent person who is not a resident of the State, knowing him to be an indigent person.” – invalidated law making it misdemeanor to bring into California “any indigent person who is not a resident of the State, knowing him to be an indigent person.” Majority opinion relied solely on commerce clause and did not address the right to travel. Four justices in concurrence stated that the right was to travel an incident of national citizenship protected by federal p&I of 14th amend.

United States v. Guest (1966) Expressly declared that there is a fundamental right to interstate travel. Individuals were prosecuted for a conspiracy to interfere with civil rights because of their actions against African-Americans. Indictment charged that the s had conspired to deprive blacks of their full and equal enjoyment of the right to full and equal utilization on the same terms as white citizens to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce. The Court reversed a decision by the district court dismissing the indictment declaring that the constitutional right to travel occupies a position fundamental to the concept of the federal union and is a right that has been firmly established and repeatedly recognized. It was absent from the text of Constitution because it was so basic, it was assumed to exist.

Saenz v. Roe (1999) In 1992, CA limited new state residents for the first year of residence to same level of welfare benefits they would have received in their prior states of residence. In 1996, Congress enacted Personal Responsibility Act which expressly authorized states to do programs like CA. CA argued their program imposed no penalty on interstate migration under Shapiro. Travelers who become permanent residents have right to be treated like other citizen of that State. Using combination of federal P&I clause and citizenship clause of 14th. Citizenship= residence, Clause does not allow for degrees of citizenship based on length of residence. Congress was wrong – don’t care that Congress approved it.
Rehnquist Dissent notes that the State’s argument is similar to rationale of abortion funding cases – this isn’t “penalty,” as you can’t lose what you never actually had. Court engaging in rare exegesis of Slaughter-House cases and federal P&I clause.

Three components of right to travel (outlined in Saenz v. Roe)
1. Right of citizens of one State to enter and to leave another State (Edwards v. CA)
2. Right to be treated as a welcome visitor rather than an unfriendly alien (Art. IV, §2)
3. For travelers who become permanent residents, right to be treated like other citizens of that State (Saenz v. Roe)

1. Durational Residency Requirements

Shapiro v. Thompson (1969) Court relied on EPC to invalidate law denying welfare benefits to new state residents until they had resided in state for a year. Brennan applied SS. Effect of waiting period is to create 2 classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year. All citizens free to travel throughout the length and breadth of our land uninhibited by statutes, rules, regs that unreasonably burden this movement. State has valid interest in preserving fiscal integrity of programs, but may not accomplish such purpose by invidious discrimination between classes of its citizens. Also, it is just as impermissible to want to keep out a particular type of migrants, indigent ones, as migrants as a whoel.
Warren Dissent argues hat Congress could had have authorized such discrimination. Harlan Dissent objecting to Court’s fundamental interest EP methodology. Statute affects only matters not mentioned in Constitution.

Field says right to travel is misnomer…these are people who were moving there to live there. Can state discriminate against out-of-staters? NO - Article IV, Section 2 – state privilege and immunity clause (has been held to protect fundamental rights of non-citizens visiting another state). But question in this case is whether you can distinguish b/w two classes of residents. Residence = citizenship (14th amend, §1). Thus, we aren’t really talking about state privilege and immunity clause.
Also, “fundamental” is different. Fundamental rights under state p&I clause are not the same as fundamental rights under DP or EP.

“Test of residence” = (1) presence, and (2) intent to stay. Can’t discriminate against new residents, but sophisticated person would know how to establish residency. So basically State has to take their word that they intend to stay. Always have a residence, and never have more than one. So, after Shapiro, question is whether this applies to all state services? Court calls this a penalty on new residents because it is a necessity of life. Dunn v. Blumstein (1972) Invalidated TN’s one-year in-state residency requirement for voting. Marshall found it subject to SS because they curtained fundamental interest in voting and burdened right to travel. Challengers need not prove that one-year waiting requirement actually deterred interstate travel, as SS was triggered by “any classification which serves to penalize the exercise.” It is clear that the freedom to travel includes the freedom to enter and abide in any state. The court rejected the state’s justification that the requirement was necessary for knowledgeable voters.

Later, the Court qualified this ruling and allowed residency requirements of up to 50 days to give the government time to check election rolls, prevent fraud, and administer the election.

Memorial Hospital v. Maricopa County (1974) Court relied on Shapiro in invalidating an AZ requirement of a year’s residence in a county as a condition of an indigent’s receiving free nonemergency hospitalization. Court deemed medical care, like welfare “basic necessity of life to an indigent.” The law penalizes indigents in exercising their right to travel. Rehnquist was sole dissenter.

Starns v. Malkerson (1971) Requirement OK for college tuition. Court summarily affirmed preferential in-state resident tuition rates at state universities.

Sosna v. Iowa (1975) Upheld a requirement that a party reside in state for one year before bringing divorce action against a nonresident. Rehnquist notes that this area of domestic relations “has long been regarded as a virtually exclusive province of the States.” Appellant was not irretrievably foreclosed from obtaining some part of what she sought unlike welfare recipients in Shapiro, voters in Blumstein. Also prior justifications were poor.

Doesn’t this infringe on fundamental right to marry? Have to now wait another year to marry someone of your choosing. Can’t make monetary threshold, but durational limit is okay. Also, consider that someone could eventually get welfare or medical benefits in the other cases.
How does Saenz change this? Field says not much
I. The Requirement of State Action

Civil Rights Cases (1883) In 1879, soon after the ratification of the 14th Amendment, the Court declared that the provisions of the 14th Amendment have reference to State action exclusively and not to any action of private individuals. §1 of CRA of 1875 states “all persons shall be entitled to full and equal enjoyment of accommodation..inns, public conveyances on land or water, theatres..” The law specifically prohibited discrimination based on race and color or on the basis of any previous condition of servitude – prohibited private race discrimination and provided both criminal and civil penalties. The Court, with only Harlan dissenting, declared it unconstitutional because Congress lacks the authority - Can’t punish private action. 14th Amendment only has power over states. Private action governed by state law and not covered by the federal Constitution. Congress under §5 of the 14th Amendment could not regulate private conduct but can only 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 13th Amendment because the refusal to serve a person was no more than an ordinary civil injury and not a badge of slavery.

Two elements/problems of “state action” cases:
1. state – Civil Rights Cases provide definition
2. action – Sure lack of enforcement of public accommodation is discrimination, but it is “non-action.” Remember Constitution doesn’t place affirmative burdens upon the states. But drawing the line between action and inaction isn’t that easy in these cases.

When Does the Constitution Apply to Private Action? 1) The 13th Amendment is the one provision that directly regulates private conduct as it forbids slavery. 2) There are exceptions where private action needs to comply with the Constitution – a conceptual diaster area. These exceptions focus on the public functions exception (involves a task that has been traditionally, exclusively done by government as well as the entanglement exception (the government affirmatively authorizes, encourages, or facilitates unconstitutional conduct. 3) Federal and state statutes can apply to private conduct – state action is only about constitutional requirements.

Costs of a State Action Requirement 1) Private infringements can be just as harmful as government violations. 2) Does the government’s failure ot stop private infringement of rights become itself a constitutional violation? Because the state has the power to do so, its failure to do so constitutes a state decision to permit violations; however, it is analytically possible to conceptualize any private infringement of constitutional values as a result of government inaction. 3) The freedom of the violator and the person who was violated are both at stake. 4) If states are not doing an adequate job, should the federal government still preserve their sovereignty?

Justifications for State Action Doctrine 1) The text of the Constitution seems to limits its application to just the government. 2) Common law protects individuals from private discrimination. However, this idea has diminished significantly as some rights are not protected under common law, like freedom of speech. 3) Policy reasons include that it preserves a zone of private autonomy and enhances federalism by retaining an area of state sovereignty.

San Francisco Arts and Athletics, Inc. v. US Olympic Committee (1987) Held that the U.S. Olympic Committee was not a part of the government and was not thus required to comply with the Constitution though it was charged by Congress, regulated by federal law, and partially federally funded A corporate charter granted by Congress does not make it a government actor, nor is government regulation or government funding.

1. Exceptions to the State Action Doctrine

There are two exceptions to the state action doctrine – public functions and entanglement.

Note that these cases seem very inconsistent. Explanations include that it reflects the inherent problems with state action as the government always has the power to regulate private behavior and so there can never be a clear line for when the failure to do so constitutes state action and hence a constitutional violation, the government is involved to some extent in almost every activity and it is hard to draw a meaningful line as to the point where the involvement is great enough to require private action to comply with the Constitution, many early decisions were written with broad principles that would apply to much activity and have been narrowed but not overruled by later decisions, also in the 1940s through 1960s the Court expansively defined such action in order to combat discrimination, and the CRA of 1964 made state action inquiry unnecessary in many aspects because the statute already covered it. Note that the Court is often not clear about what exception it is applying

The Court has been much more likely to apply the exceptions in cases involving race discrimination than in cases involving other constitutional claims. But why should it depend on the nature of the claim?
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a. Public Functions Exception

The rationale for the exception is that the government should not be able to avoid the Constitution by delegating its tasks to a private actor and that there are some acts that seem inherently governmental in nature and a private entity performing them therefore also should be limited by the Constitution.

Jackson v. Metropolitan Electric Co. (1974) Held that there is state action in the exercise by a private entity of powers traditionally exclusively reserved to the state. Private electric company and is the only one. It terminates a woman’s electric service without procedural DP. Not deemed state action because regulation and monopoly status is not enough. Public utilities are natural monopolies (Field thinks this is ridiculous).

Suppose they cut off her electricity because she was a single mother? What about little league discriminating? Advertise in schools and use public parks. What we see through these examples is not only are they pulling back from Burton but that they are applying state action in a rather irrational way and are using more of a sliding scale depending on the level of state action and the level of the wrong rather than an either/or system. Seems to mean something different for gender and race.

How should this test be formulated? Which of the following should be considered? Frequency, intent to delegate and avoid constitutional limitations, and nature of the rights.

There are three major areas, in addition to Jackson, where the Court has considered the public functions exception: management of private property, control of the electoral process, and the running or regulation of schools.

Marsh v. Alabama (1946) Company owned the entire town and Jehovah’s Witness wanted to exercise First Amendment rights and distribute literature. Could the state criminally prosecute her She was able to because of the First Amendment. Because the company town is serving a public function they still need to allow Constitutional rights. The more an owner for his advantage opens up his property for use by the public in general the more his rights become circumscribed by the constitutional and statutory rights of those who use it. When balancing the rights of property owners against those of the people to enjoy the freedom of press and religion, the latter occupy a preferred position.

This suggests that the determination of state action of a balancing test where the court weighs the interests of the private property owners and the constitutional rights involved and from this perspective any state failure to prohibit serious violations of constitutional rights by private entities is actionable under the Constitution. The Court has not gone this far in applications and in Jackson cited Marsh for the limited proposition that a private entity performs a public function when it exercises power that has been traditionally exclusively reserved to the state. The language here is much broader but has never been overruled. The company town was performing nearly every function and as you move back into the shopping center it is more of a gray area.

Evans v. Newton (1966) A whole series of cases like this. A man in GA left a park to be open only to white people and made the mistake of having the city as one of the administrators of the park. Then the City was the agent forbidding blacks which was obvious state action. One thing we’ve learned from Yick Woo is that state action can take place at any level down to city agencies. The city then resigned as a trustee. NAACP wrote a great brief and got cert but the only issue was whether they had resigned as a trustee and hard to get a federal issue out of that but Douglas did. The park is still serving a public function. Douglas claims, even though it is not in the record, the only reason the city resigned as trustee is because it wanted to segregate. So not just the general function of the park but also in this specific case a desire to discriminate.

DeShaney State inaction. You could make the argument that it was state action by getting involved in the process of custody (doesn’t know how moving to a different state changes this), social workers had make reports about the abuse, if there had not been a state system that was supposedly taking care of this there might have been other people who would have rise to the occasion but instead they thought that the report to the government was enough. The reason was likely that the agency is underfunded and overworked and for that reason suits to sue these type of agencies usually fail because otherwise they would get into equal funding. Even in our CL rule, if you start something you have to finish on the grounds that people were relying on the action.

Hypo: Driving along in my car on Mass Pike and am speeding a little bit and get stopped. Can’t find registration because car is messy and there is a rule that if you can’t find it they are supposed to take you in. Leave car slightly to the side of Mass Pike. Two children are in the backseat and truck hits the car killing them. Is there state action for killing the kids? 7th Circuit held that it was not state action.

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.

Election Cases/ White Primary Cases Holding an election for government office is a public function that must meet the constitutional requirement for EP.

Smith v. Allright It is a delegation of a state function and are violating the 15th Amendment right to vote. Part of it is because of the place of the primary in the election scheme made it clear that is was delegation. And because of the nature of Texas, the Democrat was always going to win so the primaries were important. Effectively was eliminating black folks from any choice at all.

Terry v. Adams (1953) A challenge to the exclusion of black from participating in preprimaries held by the Jaybird Democratic Association, a Texas political organization. The Jaybirds contended that they were a private club and not a politically party or an electoral body. Because the same group kept winning the primary elections, it basically took blacks out of the system entirely. Deemed state action.

c. Running and Regulating Schools Because Jackson narrowly defines public function 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.

Rendell-Baker v. Kohn (1982) No state action when a private school that received almost all of it’s funding from the government fired a teacher because of her speech. Providing special education was an important social function, but said that there was not state action because such private schools have long existed.

National Collegiate Athletic Association v. Tarkanian (1988) The NCAA is a private entity and that it therefore did not have to provide DP before it suspended the basketball coach at a state university. SF Arts and Athletics noted that regulation of amateur sports has not been a public function.

Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) Found that a private entity regulating high school athletics was a state actor based on the government’s entwinement wit hits activities. Based on the entanglement exception. 84% of the members of the private entity were public schools, the state traditionally had delegated regulating interscholastic athletics to the entity, most of the funds came from public schools, and most of its meetings were held on government property. Distinguished Tarkanian because the NCAA worked in all states and couldn’t be a surrogate for one state.

Thomas Dissent noted that never before has the Court found state action based on entwinement rather than entanglement.

b. Entanglement Exception The Constitution applies if the government affirmatively authorizes, encourages, or facilities private conduct that violates the Constitution. Either the government must cease its involvement with the private action or the private entity must comply with the Constitution.

What degree of government involvement is sufficient to make the Constitution applicable? These cases are more confusing than the pubic function exception.

The entanglement cases have arisen primarily in four areas: judicial and law enforcement, government licensing and regulation, government subsidies, and voter initiatives permitting discrimination.

In almost every area of entanglement, there is a Warren Court decision expansively defining the exception to find that private race discrimination violates the Constitution. Later, in each area, there are Burger and Rehnquist Court decisions greatly narrowing the scope of the exception without overruling the earlier cases with arbitrary distinctions. Overall it is possible to say that the Court is most likely to find state action based on entanglement if it can be shown that the government’s purpose was to undermine protection of rights or if the government is facilitating private conduct that otherwise would not occur. To find state action based on entanglement there must be some government action that can be identified as affirmatively authorizing, encouraging, facilitating constitutional violations.

Shelly v. Kramer (1948) Petitioners were African Americans who purchased homes from white owners despite racially restrictive covenants, causing friction. The argument was that private contractual agreements need not comply with the Constitution and that court enforcement was simply implementing private choices. The neighborhood association went to court trying to enforce the contract and lost. Interestingly rationale was that using the state court to enforce a racially restrictive covenant makes the state a party. But wouldn’t these be like enforcing neutral trespass statutes at the Woolworth counters? Court never said it wasn’t state action but never said it was either. Here though we have a willing buyer and seller. The state action is coming between these two willing parties.

This case is uncontroversial in the sense that a branch of the government, the judiciary, was enforcing the law of the state, albeit the common law, to enforce racial discrimination by enforcing the discriminatory covenant. Still, the case is controversial because ultimately everything can be made state action under it if any decision (even dismissal) by a state court represents state action. Should a fire department save a burning white supremacist club? Yes. Definitely state action in saving the club, but it is not discriminatory. It is a service that they apply to everyone. The Court has not taken Shelley this far and only rarely has applied it as a basis for state action.

There are two other areas where the Court has found the involvement of courts as a basis for state action: the use of courts for prejudgment attachment and the use of peremptory challenges at trials.

Lugar v. Edmonson Oil Co. (1982) Found that there was state action when a creditor obtained a writ of prejudgment attachment from a court. Articulated a two part test: first the deprivation must be caused by the exercise of some right or privilege created by the state, or a rule of conduct imposed by the state, or by a person for whom the state is responsible and second the party charged with the deprivation must be a person who may fairly said to be a state action because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state. In the present case, state law provided for prejudgment attachment, meeting the first prong and the sheriff carried out the attachment meeting the second requirement.

Flagg Brothers v. Brooks (1978) Held that a private creditor’s self-help repossession did not constitute state action, and thus DP was not required prior to the sale of 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’s primary contention was that the state delegated a power, resolving disputes, traditionally and exclusively reserved to the state The Supreme Court held that since the warehouse company was privately owned, the Constitution, and hence DP, did not apply. There are many ways in which a dispute of this kind could be resolved.

The key difference between the two above cases was the direct involvement of a state officer, the sheriff, in the former case while the latter was entirely private self help. Still, the difference in state involvement seems to be more a matter of degree than one of kind as the Court tried to make it seem. In fact, in the second case, the involvement of the sheriff was unnecessary precisely because the state’s law allowed the repossession action without assistance of the sheriff

Edmonson v. Leesville Concrete Co. (1991) Held that Batson (EP prohibits prosecutors from using peremptory challenges in a discriminatory fashion in criminal cases) applied to private civil litigation The Court applied the Lugar two part tests and found that there is state action where private parties exercise peremptory challenges in a civil case in a racially discriminatory manner. With respect to the first prong, it is state and federal laws that authorize peremptory challenges in state and federal courts. And as to the second prong, the Court emphasized that the involvement of the government in jury selection from subpoenaing individuals for jury service to compelling completion of questionnaires to judicial supervision of the voir dire process. Moreover, juries function as a traditional and important government decision-making body

Government Licensing and Regulation In general, government licensing or regulating is insufficient for a finding of state action, unless there is other government encouraging or facilitating of unconstitutional conduct. Here, too, though the cases are not easily reconciled.

The high point of state action is the Burton v. Wilmington Parking Authority (1961) Government licensing and regulation deemed sufficient for stat action. Wilmington, Delaware operated a parking authority that leased space to a private restaurant, the Eagle Coffee Shoppe, that denied a person service solely because he was black. Found that the government was so entangled with the restaurant that there was a symbiotic relationship sufficient to create state action. The government had responsibility for upkeep and maintenance of the building, and this was done with public funds. The parking facility was used by the restaurant’s customers and the government benefited from revenues from the restaurant and its customers. The state placed its power, property, and prestige behind the admitted discrimination as the state has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in a challenged activity.

By this reasoning virtually everything is a state action – all corporations, for example, are chartered by the state This is the most far reaching, can’t help those who discriminate even on a commercial basis. Implies that government contractors can’t discriminate but later held that they can (Burton has not been carried out to its fullest extent). Perhaps a distinguishing factor is that the parking garage was raised through public funds and has the flag flying above it. Moose Lodge was not a regular commercial interaction. The Court has not applied it as strictly and has virtually always found that government licensing or regulation is not sufficient to create state action.
Moose Lodge v. Irvis (1972) Moose Lodge restricted membership to whites and refused to allow guests to bring blacks into the dining room and bar. Not a state actor because a liquor license is not enough to make it state action. The Liquor Control Board played no role in establishing or enforcing the membership or guest policies. Nothing approaching the symbiotic relationship of Burton. The state must actively involve itself in the discrimination. Notion that they don’t want to interfere with private life – don’t want to start telling people who they can have over for dinner. The state could have prevented discrimination by making that a condition of the liquor license and the state was conferring a substantial benefit on the private club by granting it a license, still this was insufficient for state action.
Douglas Dissent talks about the value of the license and the state putting the weight of its license against the liquor license.

Government Subsidies

Blum v. Yaretsky (1982) Strong argument that the government’s funding of Medicaid patients caused their transfer to other less-equipped facilities. State policy required that private facilities receiving Medicaid funding create utilization review committees to determine the level of care needed. After a decision from a utilization committee the state would terminate its Medicaid payments for patients unless they were transferred from skilled nursing facilities to health related facilities. Because the state paid over 90% of the medical expenses for the patients, its decision clearly was responsible for the transfer decisions. The patients argued that they should be given DP with regard to their transfer. The Court ruled that there was no state action because it was the decision of the private nursing home to transfer the patients. Found neither the extent of state regulation nor the size of state funding to be a basis for finding state action. State financial incentives for the transfers were not sufficient to constitute state action as the state normally can be held responsible for a private decision only when it has exercised such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state.

IV. Governmental Structure: the Three Federal Branches, Separation of Powers, and Federalism

A. Federal Judicial Power

1. Judicial Review

The Constitutional Convention recognized the need for a federal judiciary and Article II covers seven important topics concerning the federal judiciary.:
1) Created a federal judicial system.
2) Vests judicial power in one supreme court and in inferior courts as Congress may from time to time ordain and establish. A major dispute at the convention was whether lower federal courts should exist as some argued that state courts, subject to review by the Supreme Court, were sufficient to protect the interests of the national government and lower courts would be an unnecessary expense and an infringement on the sovereignty of lower courts. Others express distrust in the ability and willingness of state courts to uphold federal law as state judges are likely to be biased against federal law in times when it conflicted with state law. The number of appeals would exceed the Supreme Court’s capacity without lower courts.
3) Assures the independence of the federal judiciary by according all federal judges life tenure.
4) Defines federal judicial power in terms of nine categories of cases and controversies: one set authorizes the federal courts to vindicate and enforce the powers of the federal government (cases arising under the Constitution, treaties, and laws of the United States) and federal courts have authority to hear all cases in which the United States is a party (all cases affecting ambassadors and other public ministers and consuls, all cases of admiralty and maritime jurisdiction, cases between a state or its citizens and a foreign country or its citizens). A second set authorizes the federal courts to serve an interstate umpiring function, resolving disputes between states and their citizens (controversies between two or more states, between a state and citizens of another state which was essentially overturned by the 11th Amendment, between citizens of different states, and between citizens of the same state claiming land in other states).
5) Allocation of judicial power between the Supreme Court and lower federal courts. The Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and counsels, and those in which a state shall be a party. In all other cases, the Supreme Court is granted appellate jurisdiction, both as to law and face, subject to exception and under regulations as Congress may make. The Supreme Court has held that Congress can give the lower federal courts concurrent jurisdiction even over those matters where the Constitution specifies that the Supreme Court has original jurisdiction. In contemporary practice, the Supreme Court’s original jurisdiction is limited to disputes between two or more states.
6) Prescribes that the trial of all crimes, except in cases of impeachment, shall be by jury. Requires that the trial shall occur in the state where the crime was committed.
7) Provides requirements for the crime of treason.

Article III never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive actions. Perhaps reflects the shared understanding that courts possess the authority for constitutional review and it was thought unnecessary to enumerate this. Perhaps the silence reflects a failure to consider the issue or the assumption that courts do not have this authority.

Federal courts are courts of limited jurisdiction with two primary restrictions: Article III defines the scope of federal court authority (and judicial interpretation has created crucial doctrines that restrict access) and Congress plays an important role in limiting federal court jurisdiction as the Supreme Court has held that a federal court may hear a matter only when there is both constitutional and statutory authorization and thus statutes limit jurisdiction along with the Article III notation that congress has the power to create exceptions and regulations to the Supreme Court’s appellate jurisdiction (the extent of this provision is unknown).

Marbury v. Madison (1803) Established the authority for the judiciary to review the constitutionality of executive and legislative acts even though the Constitution is silent about this authority. In the closing days of his administration, John Adams appointed several justices in the District of Columbia which were approved by the senate and commissions were signed and sealed. Secretary of State Marhsall did not have time to deliver them before the close of the administration. Shouldn’t Marshall have excused himself? Jefferson administration comes into power and Madison, the new Secretary of State, refuses to deliver commissions. Appointed individuals sue for a write of mandamus ordering deliverance of the commissions. Lots of politics in this situation. Many judges had been impeached and the situation was very contentious. Almost as if it is the Court versus the President. Short of impeachment there is also the possibility that the President won’t follow any orders. He wants to tell the President what to do and does so but does not issue a specific order to the President to do so and rules they do not have jurisdiction for a writ of mandamus – it has appellate jurisdiction here rather than original jurisdiction, so the statute giving it power for writ of mandamus is unconstitutional because it does not follow this procedure. The Court cannot hear the case. This in essence says that the Court has power over the legislature which some would argue is not even at issue here. States that there is not a right without a remedy. A unique opportunity to claim the power of judicial review in a context least likely to draw opposition. The statutory provision declared unconstitutional was the one that enlarged judicial power so the Jefferson administration obviously welcomed the result

In order to duck everything here, he has to hold the statute is unconstitutional because it was placed in original jurisdiction which is contrary to Article III. Is this true? Could have read this to mean at minimum it is in original jurisdiction but Congress can add others. Sec. 1 says that the judicial power shall be vested in one Supreme Court and lower courts that Congress can establish. The Supreme Court springs into being from the Constitution and the lower federal courts are optional, if they are optional then couldn’t anything be in the Supreme Court? Everything starts in the Supreme Court unless Congress changes it. Thus, the judiciary can find legislative actions unconstitutional under the Article III authority to decide cases arising under the Constitution

The case establishes the power of the judiciary to review the constitutionality of executive action where the executive ahs the duty to act or refrain from acting. The judiciary could provide remedies against the executive when there is a specific duty to a particular person, but not when it is a political matter left to executive discretion. Ministerial acts where the executive had a duty to perform are different than political acts within the discretion of the executive and judicial review was only appropriate in the former category.

Was Marshall justified in giving judicial supremacy? Since the Court found it lacked jurisdiction, the subsequent arguments were arguable improper. Textual arguments that were helpful: Even if the judicial power extends to things arising under the Constitution and has to be able to interpret the Constitution, but so could the other branches. Judicial review did exist in some states but in some places they didn’t, so it’s not inherent. Go over his textual argument.

Is judicial supremacy a good idea? Is it necessary to have one branch be the one with the final word? Cooper v. Aaron brings this out. If it is necessary to have one branch have the final word should it be the judiciary?

What does judicial review mean? Two alternative ways to look at Marbury: Clean hands theory (non activist theory) and the Watchdog Theory (more activist). Can’t enforce unconstitutional congressional statute because every branch has to decide for itself whether it can enact something and the judiciary can’t be made to do something that they know is unconstitutional whether or not all the legislative modes were followed. Or, this government needs somebody to put everybody in line and bring forth the right answer.

Reasons to have the Supreme Court be the final say: 1) They are infallible. 2) Check on majority rule (which is inherent in the Congress). 3) Legislature doesn’t think as much about the Constitution. Of course, many of them are lawyers. 4) They aren’t as connected to politics (life term, appointed, etc). 5) The least dangerous branch because no power of the purse (legislature) and no power of enforcement (executive).

Reasons not to have the Court have the final say: 1) Different branches have been more protective at different times (Court wasn’t helpful in Dred Scot). 2) They really aren’t that separated from politics. 3) They could just as easily ignore the Constitution – any branch as the final say could.

Cooper v. Aaron (1958) The Supreme Court is not limited to reviewing state court decisions as federal courts also have the authority to review the constitutionality of state laws and the actions of state officials. A federal district court ordered the desegregation of the Little Rock, Arkansas public schools. The state disobeyed the order, in part, based on a professed concern that compliance would lead to violence and, in part, based on a claim that it was not bound to comply with judicial desegregation decrees. The Court rejected this position and declared that Article VI of the Constitution makes the Constitution the Supreme Law of the Land and Marbury declared the basic principle that the federal judiciary is supreme in the exposition of the law. That principle has ever since been respect by the Court and the Country as a permanent and indispensable feature of our constitutional system.

Richardson CIA budget is secret and a man sues to make it public. Court finds that it is too generalized. The problem is that the right is being violated but his objection is an objection shared by everybody.

2. Justiciability Doctrines
Perhaps the most important limit on the federal judicial power is imposed by these doctrines which determine which matters federal courts can hear and decide – specifically, prohibition against advisory opinions, standing, ripeness, mootness (some think that these are all standing) and the political question doctrine. All of these doctrines were created by the Supreme Court and neither the text of the Constitution nor the framers in drafting the document expressly mentioned any of these limitations. The Court has declared that some of the doctrine are a result of an interpretation of Article III §2 in that the requirements for cases and controversies imposes substantial constitutional limits on federal judicial power. The Court has also said that the powers stem from prudent judicial administration – although the Constitution permits federal court adjudication, the Court has decided that in certain instances wise policy militates against judicial review. There are some hard core constitutional issues and some that are prudential which are more discretionary and this actually helps explain why the cases have been all over the place – standing is really hard to understand. Congress may override prudential but not constitutional restrictions. These doctrines must be balanced with the need for judicial review. Should these doctrines be flexible or clear?

Rationales for justiciability doctrines: separation of powers (when it should defer to other branches), conserve judicial resources allowing federal courts to focus on cases most deserving of federal attention, improve judicial decision making by providing federal courts with concerte controversies best suited for judicial resolution, prevent federal courts from adjudicating the rights of those who are not parties to a lawsuit.
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Other limits include the 11th Amendment which prevents federal court relief against state governments, a number of circumstances identified by the court in which federal courts should abstain even though it is justiciable and all jurisdictions requirements are met, Court has stated it will avoid deciding constitutional issues where there are nonconstitutional grounds for decision, where the record is inadequate to permit effective review, or where the federal issue is not properly presented.

a. Standing

The determination of whether a specific person is the proper party to bring a matter to the court for adjudication. Frequently identified as one of the most confusing areas of the law. There have been many changes in the last twenty-five years. The extensive attention reflects its importance in defining the role of the federal courts in American society.

Values served by limiting standing 1) Promotes separation of powers by restricting the availability of judicial review (but concern for separation of powers also must include preserving the federal judiciary’s role in the system of government). 2) Serve judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome (but considering the high cost of litigation one must wonder how large the burden really would be without restrictions). 3) Improve judicial decision making by ensuing that there is a specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter (but the need for specificity is likely to vary as some cases present pure questions of law in which the factual context is largely irrelevant and the insistence on a personal stake is very uncertain for the best advocacy as the best litigator could not raise the issue without a claimant). 4) Ensure the value of fairness by requiring that persons will raise only their own rights and concerns and that people cannot be intermeddlers.

Requirements for standing include constitutional ones arising from the interpretation of Article III which cannot be overridden by statute (has suffered or imminently will suffer an injury, the injury is fairly traceable to the ’s conduct, must allege that a favorable federal court decision is likely to redress the injury) as well as prudential principles which may be overridden by statute (generally may assert only his or her own rights and cannot raise claims of third parties, may not sue as a taxpayer who shares a grievance in common with all other taxpayers – recently held that this is constitutional in nature, and must raise a claim within the zone of interests protected by the statute in question., these cases amount to a rule that you cannot challenge a benefit to someone else only a detriment to yourself. Like selective enforcement.

Why aren’t advisory opinions a good thing? 1) The Supreme Court can’t make a decision unless it is going to be final. Advisory opinions would be reviewable by another branch. Could take it or leave it. 2) Don’t want them prejudging a statute. 3) Separation of powers is maintained by keeping the courts out of the legislative process. 4)Judicial resources are conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature. 5) Helps ensure that cases will be presented to the Court in terms of specific disputes, not as hypothetical issues.

Lujan v. Defenders of Wildlife (1992) Considered a challenge to a revision of a federal regulation that provided that the Endangered Species Act does not apply to United States government activities outside the United States or the high seas. Plaintiffs lacked standing because they could not show a sufficient likelihood that they would be injured in the future by a destruction of endangered species abroad. The desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purposes of standing, but does not work here because the plaintiffs had no real plans to go to foreign countries again.

Importance of causation and redressability doctrines

Linda R.S. v. Richard D. A unwed mother sought to have the father of her child prosecuted for failure to pay child support. The State of Texas has a policy of prosecuting fathers of legitimate children for not paying required child support, but did not prosecute father of illegitimate children. The plaintiff argued it was unconstitutional discrimination on the basis of the child’s legitimacy. Sued D.A. to enforce child support. No standing found because even if it is enforced no showing that he would actually pay as the only definite relief would be that the father would be jailed.

Warth v. Seldin Rochester NY zoning ordinances made it hard for low income people to live there. Low income individuals who stated they would like to live there along with developers challenged the law. Neither of them could sue, nor could the people who were actually in the town already. Needed to show injury and causality/redress. Could not show that absent the ordinances the appropriate housing would be built and the individuals could afford to live there. Must have shown that absent the laws there was a substantial probability that the housing could be built/people could have afforded to live there. Haven’t shown that if they win the lawsuit they can live in this area.

Imply that it was wrong in pleading, but in reality they are just brushing them off, these lawyers spend lots of time developing pleadings.

Simon v. Eastern Kentucky Welfare Rights Organization (1976) Challenged an IRS revision of a Revenue Ruling limiting the amount of free medical care that hospital receiving tax exempt status were required to provide. Whereas previously tax exempt charitable hospitals had to provide free care for indigents, under the new provisions only emergency medical treatment of indigents was required. These plaintiffs claimed that they were denied needed medical care and hence injured by the hospitals receiving tax exempt status. The Court denied standing concluding that causation and redressability were lacking as it was purely speculative whether the new Revenue Ruling was responsible for the denial of medical services to the plaintiffs and that the complaint suggests no substantial likelihood that victory in this suit would result in respondents receiving the hospital treatment they desire.

Duke Power v. Carolina Environmental Study Group The court found the causation and redressability requirements to be satisfied. Forty individuals and two organizations challenged the constitutionality of the Price-Anderson Act which limited the liability of utility companies in the event of a nuclear reactor accident. Argued that the act violated DP because it allowed injuries to occur without compensation. Standing existed because the construction of a nuclear reactor in the plaintiffs’ area subjected them to many injuries, including exposure to radiation, thermal pollution, and fear of a major nuclear accident. Also the Court accepted the lower court’s conclusion that the causation and redressability tests were met because but for the Price-Anderson Act the reactor would not be built and the plaintiffs would not suffer these harms. The Court still found the Price-Anderson Act constitutional.

Allen v. Wright Parents of black public school children brought a class action suit challenging the failure of the IRS to carry out its statutory obligation to deny tax exempt status to racially discriminatory private schools. They claimed two injuries – that they and their children were stigmatized by government financial aid to schools that discriminate (held too abstract to confer standing) and that their children’s chances to receive and integrated were diminished by the tae breaks. The Court acknowledge that the latter claim stated an injury but denied standing based on the absence of causation as the injury alleged is not traceable to the government conduct. Even though a change in IRS policy might redress the injury that is insufficient for standing because the IRS did not cause the segregation.

The causation/redressability standing requirement has been controversial. Defenders argue that it simply implements the prohibition against advisory opinions(if a federal court decision will have little effect and/or will not redress the injuries, then it is an advisory opinion). Critics contend that it imposes an unjustified and unprincipled limit on the availability of the federal forum, it is inherently a factual question that should be made at the outset of litigation, is inherently unprincipled because it depends entirely upon how a court chooses to characterize the injury, and inherently unprincipled in terms of what constitutes a sufficient likelihood of solution to justify standing.

b. Ripeness

While standing is concerned who is a proper party to litigate a particular matter, ripeness and mootness determine when that litigation may occur. The ripeness doctrine seeks to separate matters that are premature for review, because the injury is speculative and may never occur. In practice there is overlap with standing as if no injury has occurred the plaintiff might be denied standing or the case might be dismissed as not ripe. Perhaps the distinction between standing and ripeness is that standing focuses on whether the type of injury alleged is qualitatively sufficient to fulfill the requirements of Article III and whether the plaintiff has personally suffered that harm, whereas ripeness centers on whether that injury has occurred yet. There are two considerations: the hardship to the parties of withholding court consideration and the fitness of the issues for judicial decision. Seems linked with the requirement for cases or controversies.

For ripeness, a good case is the Bush case challenging the war. Jude Torro in the District Court in Boston said it was a political question. Appellate judge said it wasn’t ripe. All trying to duck it. Political question keeps it from every being adjudicated whereas ripeness does not.

c. Mootness

An actual controversy must exist at all stages of federal court proceedings – standing of time frame. Any change in the facts that ends the controversy renders the case moot. It is derived from Article III’s prohibition against federal courts issuing advisory opinions as by definition if a case is moot there is no longer an actual controversy and if the matter has been settled there court decision will have little effect. May not actually conserve resources because will be continually litigated at lower levels. Because of these competing interests the Court has spoken of the flexible character of mootness doctrine.

Some exceptions like abortion cases “capable of repetition yet evading review.” Otherwise pregnancy cases wouldn’t be allowed because wouldn’t be pregnant by the time it got appealed. Requirements include that the injury must be of a type likely to happen to the plaintiff again and a type of injury of inherently limited duration so that it is likely to always be moot before litigation is completed.

Fuenes the law school said they would let him graduate no matter how the case came out, so Supreme Court found mootness but could have easily been deemed “capable of repetition yet evading review.”

Robinson v. California Couldn’t discriminate for being an alcoholic. Already written opinion and handed it down even though they discovered Robinson was dead. Is this contrary to case or controversy? Could say that thinking he was alive was good enough. At moment does it have to be moot?

d. Political Question

The Supreme Court has held that certain allegations of unconstitutional government conduct should not be ruled on by the federal courts even though all of the jurisdictional and other justiciability requirements are met as constitutional interpretation in these areas should be left other politically accountable branches. This doctrine is also confusing because its name is a misnomer as the courts deal with political questions all the time, the Court has defined it very differently over the court of time (from Marbury to now not limiting it to instances in which the president is exercising discretion and there is no claim of unconstitutional conduct), and the Court has not articulated a clear test. However, for example, the Constitution does not mention judicial review much less limit it by creating textually demonstrable commitments.

Political question might be a rule of law rather than a rule of discretion. Is not derived from Article III’s limitation of judicial power to cases and controversies. Might be treated as constitutional if it is thought to be based on separation of powers or textual commitments to other branches of government; on the other hand, the doctrine is prudential if it reflects the court’s concerns that preserving judicial credibility and limiting the role of an unelected judiciary in a democracy society

Baker v. Carr (1962) Articulated the following criteria: a textually demonstrable commitment of the issue to a coordinate political department, or a lack of judicially discoverable and manageable standard for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion, or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect to due coordinate branches of government, or an unusual need for unquestioning adherence to a political decision already made, or the potentiality of embarrassment from multiple pronouncements.

It is better to look at the specific areas with the Court has invoked it: republic form of government clause and the electoral process, foreign affairs, Congress’s ability to regulate its internal processes, the process for ratifying constitutional amendments, instances where the federal court cannot shape effective equitable relief, and the impeachment process.

Arguments in favor the doctrine accords the federal judiciary the ability to avoid controversial constitutional questions and limits the courts’ role in a democratic society, allocates decisions to the branches of government that have superior expertise in the area, the federal courts’ self-interest disqualifies them from ruling on certain matters, and separation of powers grounds by minimizing judicial intrusion.

Criticisms include that it is inappropriate to leave constitutional questions to the political branches of government, the federal courts’ credibility is robust and there is no evidence that particular ruling would diminish it, it confuses deference with abdication.
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Republican Form of Government and Reapportionment
Colegrove v. Green (1946) Declared nonjusticiable a challenge to congressional districting in Illinois, declaring tht the Court should not enter this political thicket.

Foreign Affairs
Goldwater v. Carter ((1979) Goldwater argued that rescission of a treaty required approval of two-thirds of the Senate. The plurality said that this case posed a political question as there were not standards in the Constitution governing rescission of treaties and that the matter was a dispute between co-equal branches of government each of which have resources available to protect and assert its interests.

Congressional Self-Governance
Powell v. McCormack (19 69) The House refused to seat representative Adam Clayton Powell because a subcommittee found that he had deceived Congress by misappropriation of government funds even though he was properly elected and met all of the requirements in the Constitution. Later seated but the Court took it because backpay still at issue. The Constitution has provisions for expelling but this was about seating. The Court determined that Article I §5 meant that the House may judge the qualifications of its members – only the qualifications in the Constitution. Noted that at times the Court needed to interpret differently than another branch.

Impeachment
Nixon v. United States (1993) Federal district court judge convicted of making false statements and kept pay from prison. Challenging that the way impeachment was being conducted was not proper (should be full Senate rather than committee). Deemed a political question – for legislature to determine. Article I §3 demonstrates a textual commitment of impeachment to the Senate. Judicial review would be inconsistent with the framers’ view of impeachment as a scheme of checks and balances (the only legislative check on the judiciary). If something is committed by the Constitution for another branch to decide then it is a political question (Powell). Leaves open whether all questions of impeachment will be deemed a political question.

Bush v. Gore (2000) Gore did not raise justiciability issues in his briefs or oral argument yet it is jurisdictional and the Court can raise it.

B. Federal Legislative Power

1. Introduction: Enumerated Powers, the Necessary and Proper Clause, and Inferred Limits on States

A basic principle of American government is that Congress may act only if there is express or implied authority to act in the Constitution; states, however, may ct unless the Constitution prohibits the action. Thus, must ask if the Congress has the authority under the Constitution to legislate and if so does the law violate another constitutional provision or doctrine? In contrast, when evaluating the constitutionality of a state law we only ask if the legislation violates the Constitution as the key difference is that state governments only possess police power. It is rare that the federal government has police powers; however, after 1937 the Court accorded Congress broad authority to regulate under constitutional provisions such as the commerce clause, the spending power, and the Reconstruction Amendments. In the last decade, the Court has sharply changed course and in several important rulings ahs limited the scope of Congress’s power under the commerce clause and under 14th amendment §5.

a. The Scope of Congressional Power

McCullough v. Maryland (1819) Found that the state had no power by tax or otherwise to impede or control actions by Congress. Constitutional for Congress to create the bank because it falls under the necessary and proper clause (isn’t this almost infinite?), historical practice established the power of Congress to establish the bank (should this have normative significance?), refuted the argument that states retain ultimate sovereignty because they ratified the Constitution as it was the people who ratified, and under n&p the Congress may choose any means not prohibited by the Constitution to carry out its express authority (some say it is instead a limit).

Where in the Constitution does it say that the states cannot discriminate against the US? Nowhere. Then where do we get it? In Osborn, Marshall didn’t make this argument but it would have been the easier one. It doesn’t really say it, but everyone cites the Supremacy Clause (which has to do with the state judges). Remember that this argument and the one Marshall uses only works if the bank is constitutional in the first place. Marshall points to the necessary and proper clause.

Are these powers coming out of the necessary and proper clause as good as the enumerated powers? Enumerated powers are the ends, the goals they are allowed to work towards. Necessary and proper clause powers are possible means – not doing the bank as an end but as a means towards an end set up in the enumerated powers.
1. Evaluate whether it is constitutional.
2. Pretext – cannot just use it in a way that it is perfectly obvious the Congress is doing it for the means and not for the enumerated means. But only where it seems like cheating will the Court step in and find it unconstitutional.

Marshall defines necessary more broadly as appropriate not the only means and it is not for the Court to judge whether it is necessary, it is the Congress’ role – the court will step in only when it is clear that Congress is cheating.

Instead of looking at discrimination against the US, Marshall goes into a complicated intergoverment immunity argument that only applies one way. This argument was carried to the extent that federal judges did not have to pay state income taxes. The US government could tax Maryland’s banks because Maryland has representatives in the federal government but the federal government has no say in Maryland. This doctrine is no longer with respect to judges but it still true that the state cannot tax the United States.

US Term Limits v. Thornton (1995) Here the states are trying to add to the qualifications for federal legislators via term limits. Question is whether the states can add to the qualifications in the Constitution. What would be the argument that they could even though Congress could not – the states ratified the Constitution and when the Constitution is silent there is no bar to action by the states and the people, also now the people, rather than the state legislature, vote in the representatives. Since each state controls and sends the representatives they should be able to decide who they want to send from their state. The Majority argues instead that it is a national body representing everyone and so the rules should be the same for everyone. Reading the qualifications clause to be exclusive, it doesn’t say either, but we are interpreting it to be the excusive list of any and all qualifications. So any changes whether enacted by the Congress (Powell) or the state is not permitted.

Are they limiting themselves at the expense of the rest of the country and the bank case was going to their advantage?

2. Commerce Clause Power

Article I §8 contains eighteen clauses enumerating specific powers of Congress and parts of Article IV authorize congressional action as do clauses in the reconstruction amendments. The commerce clause powers are the most important and have been the authority for a broad array of federal legislation.

Three central questions: what is commerce – is it one stage of business or does it include all aspects of business and even life in the United states, what does among the several states – is it limited to instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient, does the 10th Amendment limit Congress – if Congress is acting within the scope of the commerce power can a law be declared unconstitutional as violating the 19th Amendment?

a. Early Cases
Gibbons v. Ogden (1824) NY Steamboat granted monopoly from NY law. Someone interferes on it. Question is whether the federal law trumps the NY law granting him a monopoly. State argues that this is navigation, not commerce and Marshall says that commerce includes navigation. Can affect other states and be under the commerce clause, although doesn’t hit anything exclusively internal that does not affect other states. Commerce deemed to be more than just traffic but is intercourse between nations and parts of nations in all is branches and is regulated by prescribing rules for carrying on that intercourse- commerce includes all phases of business. “Among the states” not taken for the broadest possible definition but still defined it broadly as restricted to that commerce that concern more states than one and Congress could regulate intrastate commerce if it had an impact on interstate activities. Also found no limit in the 10th Amendment as Congress has complete authority to regulate all commerce among the states.

Field thinks that the newer cases, even though they cut back on commerce power, are in line with these early cases.

b. Between the 19th Century and Lochner

The Court was controlled by conservative justices deeply committed to laissez-faire economics and strongly opposed to government regulation. Many federal laws were struck down as exceeding commerce clause powers. It was the first time that the Supreme Court aggressively used its power of judicial review to invalidate federal and state laws. The Court did not invalidate another law as exceeding the scope of the commerce clause until 1995 and has generally much deferred to the federal and state economic regulations. Was also following a policy of dual federalism which was the view that the federal and state governments were separate sovereign and that each had separate zones of authority – it was the judicial role to protect the zone of activities reserved to the states. As part of this view, the Court narrowly defined commerce so as to leave a zone of power to the states (commerce was one stage of business distinct from earlier phases such as mining manufacturing or production), restrictively defined among the states as allowing Congress to regulate only when there was a substantial effect on interstate commerce, and held that the 10th 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 violated that sphere.

Shreveport Rate Cases (1914) Rate inside of Texas is much cheaper than to other states even though it is longer. Court allowed the Interstate Commerce Commission to set intrastate railroad rates because of their direct impact on interstate commerce. Field considers this to be a big expander of the Commerce Clause. Note that it is hard to distinguish between direct and indirect effects.

Swift & Co. v. United States (1905) Upheld the application of the Sherman Anti-trust Act to an agreement among meat dealers to fix the price at which they would purchase meet from stockyards. Although the stockyard was intrastate the Court stressed how it was only a temporary stop for the cattle. Court finds that selling cattle was within interstate commerce – within the “current of commerce” among the states and the purchase of the cattle is a part and incident of such commerce.

Champion v. Ames (1903) Federal law prohibited the shipment of a specified item – goods made by child labor or lottery tickets – in interstate commerce. Congress was obviously trying to stop intrastate activities; yet, in the former the Court declared the federal law unconstitutional whereas in the latter the Court upheld the federal law. In the lottery case, the Court made it clear that it was within Congress’s commerce clause power to stop lottery tickets from being a part of interstate commerce. Deemed a part of interstate commerce. Interests in morality and stopping pollution of commerce. Rejected that it violated the 10th Amendment and that it would give Congress seemingly limitless authority as the possible abuse of a power is not an argument against its existence.

Isn’t it already permissible to regulate morals? Why go under commerce clause? More willing to allow morality regulations than economic regulations.

Terms so far: substantial effect, current of commerce, moral purpose permissible.

Child labor cases struck down as not within commerce powers. Does not regulate transportation across states (goods shipped are of themselves harmless) and what they are trying to do is not regulate the goods but the people who make the goods who are not within commerce. Try and distinguish because the harm is yet to come in the lottery cases and here it has already happened.

c. Lochner through 1937
The court’s conservative policy was causing enormous pressure to change the direction of constitutional law. The Court was deeply committed to laissez-faire economics. There were many different forms of pressure: the decisions were intellectually vulnerable because they seemed based on arbitrary distinctions and were frequently inconsistent (chickens v. cows, lottery v. child labor, commerce v. other forms of business), the economic crisis of the depression made laissez-faire economics seem untenable, FDR won a landslide reelection victory in 1936 and saw this as a strong endorsement for the New Deal programs that the Court had been invalidated. Roosevelt tried to pack the courts. Nothing in the Constitution says that there has to be a specified number of justices. Not clear that it is not constitutional but the whole idea just doesn’t sound right - more unconstitutional in spirit than in law. Plan did not have to happened because of Roberts vote in NLRB. Recent research suggests that he would have voted this way anyway despite the plan.

NLRB v. Jones & Laughlin Steel Corp (1937) 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 and 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. Jones was clearly a part of interstate commerce. The steel business was a part of the stream of commerce and labor relations within it had a direct effect on commerce. The fact that employees were engaged in production is not determinative. The power is plenary and may be exerted to protect interstate commerce no mater what the source of the dangers which threaten it. Could be squared with previous cases but the Court signaled a clear change

United States v. Darby (1941) A challenge to the constitutionality of the Fair Labor Standards Act of 1938 which prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage. The Court departed from all aspects of the pre-1937 commerce clause doctrines. Congress may control production by regulating shipments in interstate commerce. Manufacture itself is not commerce but the shipment is and regulation of it is commerce clause regulation. Expressly overruled Hammer v. Dagenhart and rejected the view that the 10th Amendment limits Congress’s powers – states but a truism.

Wickard v. Filburn (1942) Farmers producing wheat for their own consumption and at the time there were quotas on how much they could produce. Jackson finds that Congress may regulate wheat, even for private consumption, because look at it in the aggregate. If every farmer home consumed it would still affect the price. The distinctions which were important in the earlier era, between commerce and production, and between direct and indirect effects are no longer followed. Wheat is the single most variable factor in the wheat market and could account for as much as 20% of production. Basic rule of these cases was that Congress could regulated any activity, individual or in the aggregate, if there was a substantial effect on interstate commerce.

d. Reaction to Lochner (1937-1995)
The court in some cases even deleted the word substantial and declared that Congress could regulated anything under the commerce clause so long as there was a RB for believing that there was an effect on commerce (Hodel v. Irving)

Regulatory Issues Dramatic increase in the number of federal administrative and regulatory agencies and in the scope of the authority that they possess. The court held that Congress can set the terms for anything shipped in interstate commerce, this includes even intangible items like insurance policies. Congress can regulate purely intrastate activities including all aspects of business if there is a RB for believing that there is an interstate effect. Congress can also regulate intrastate activities if necessary to protect is regulation of interstate activities.

Civil Rights Laws The 1964 Civil Rights Act in part prohibits private employment discrimination based on race, gender, or religion, and forbids discrimination by places of public accommodation such as hotels and restaurants. Civil Rights cases packaged under commerce clause – would this be the best way to do it? Interstate travel was very difficult for blacks. Wanted to do it under §5 of the 14th Amendment but under the Commerce Clause wouldn’t need state action.

Heart of Atlanta Motel v. United States (1964) Upheld the constitutionality of title II of the CRA which prohibited discrimination by places of public accommodation. Determinative facts are that it was burdening interstate travel, located in downtown Atlanta, right on the highway, 75% of guests were out of state. In evaluating the law and its application the only questions are 1) whether Congress had a RB for finding that racial discrimination by motels affected commerce and 2) if it had such a basis whether the means it selected to eliminate that evil are reasonable and appropriate. Voluminous testimony before congress present overwhelming evidence that discrimination by hotels and motels impedes interstate travel. It does not matter that Congress’s motive in part was moral because many federal law stretching back to the lottery case had been adopted under the commerce power to remedy moral wrongs. It does not matter that the motel was of a purely local character because if interstate commerce feels the pinch it does not matter how local the operate which applies the squeeze.

Katzenbach v. McClung (1964) Upheld the application of CRA to a small business. Signs saying white folks only, but blacks could use a take out window. Small out of the way place but a substantial portion of food is from out of state, placing it within Congress’ control. The Courts’ decision, however, was not based on the interstate impact of this particular restaurant as the Court found that Congress rationally had concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. Testimony before Congress afforded ample basis for the conclusion that established 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 gained from establishing there as a result.
Couldn’t aggregation get us all restaurants?
Concurrence tries to limit it to specific restaurants.

It wasn’t done for commercial reasons it was done to stop racial discrimination, which was a moral reason, albeit a moral reason with a commercial impact. It was in commerce but not interstate commerce. Congress can place things into categories aggregated if there is a RB to do so, though.

Douglas and Goldberg concurred in the above decisions on the basis of §5 of the 14th Amendment.

Is the Broad Definition of the Commerce Power Desirable? A core principle of American constitutional law is that the federal government has limited powers with most governance left to the states. Should the judiciary protect the states or is the only check on Congress through the political process?

e. Contemporary Cases
United States v. Lopez (1995) Declared unconstitutional the Gun-Free School zones Act of 1990 which made it a federal crime to have a gun within 1000 feet of a school. Opinion begins by emphasizing that the Constitution creates a national government of enumerated powers, thus the Court returned to the notion that Article I limits Congress’s legislative powers to those that are express or implied in the Constitution. Court strikes it down saying that it is not regulating commerce as it is only tangential. Congress says guns are in commerce, but Court says that it is not commerce but a creation of a police power. Not even proof that this particular gun was ever in interstate commerce. Three types of activities that Congress can regulated under the commerce clause power: 1) the use of the channels of interstate commerce (Heart of Atlanta), 2) to regulate and protect the instrumentalities of interstate commerce (includes persons and things in interstate commerce), 3) those activities having such a substantial relation to interstate commerce. More emphasis on substantial and for commercial purposes than the Warren Court. Rehnquist is big on saying that they need to cut off commerce somewhere. Field thinks guns in general would have gone over better or guns that moved in commerce or more findings on the topic. Moral purpose is okay but not if it is substantially affecting interstate commerce – has to be within interstate commerce.
Thomas Concurrence urged a narrower view of congressional power as in the 1887-1937 approaches.
Kennedy and O’Connor Concurrence stressed federalism as well as the lack of necessity for the federal law since many states already had similar provisions.
Dissent criticized the majority as activism and abandoning sixty years of precedent. RB that an activity affects interstate commerce should be sufficient. Guns are inherently a part of interstate commerce and guns near schools have an economic impact.

United States v. Morrison (2000) Showing that they are taking Lopez seriously. Challenged the civil damages provision of the federal Violence Against Women Act. Congress enacted it based on detailed findings of the inadequacy of state laws in protecting women who are victims of domestic violence and sexual assault. Defended under option three of Lopez, that violence against women had a substantial impact on the national economy in the cumulative. As in Lopez, they did not limit it to women who had traveled in interstate commerce or batterers who had. No clear Congressional findings. Congress was relying on a but-for causal chain from the initial occurrence that would work for any crime.

Thomas Concurrence again said that restrictions should be tougher and that option three is poor.
Dissent stressed the need for deference to Congress and that the Court should review not for soundness but rationality. In the aggregate violence against women has an enormous effect on the economy.

Congress knew that the commerce clause no longer meant everything and had all kinds of Congressional hearings. On reason for deference to Congress is that it is the body that can find out. This shows that when Congress tries and tries hard, knowing that there is a problem it still can’t do it because the Court may second guess the findings or even if the findings are correct it is not sufficient.

States do the truly local and the federal government is truly national. Beating up women is truly local as part of the criminal and family roles of the local government and their traditional roles in health, safety, morals, and welfare. One would think that women travel more in interstate commerce than guns. Would VAWA be under Section 5?

Champion said it was okay to regulate for noncommercial affairs but there the thing was within interstate commerce.

How far can Congress go to protect the channels of interstate commerce? What is Congress’s authority to regulate the instrumentalities of interstate commerce and persons and things in interstate commerce? How is the line between economic and noneconomic activities drawn in Morrison to be defined? Many federal laws from drug laws, to RICO, environmental laws, and civil rights laws are no vulnerable.

Field’s former exam question: Takes place in CA. CA Senator defending a statute that had already been passed which stated that you could grow marijuana (everyone could grow two plants) and only allowed to grow it on your land for home consumption. Other issues included that if you had a certificate of medical necessity then you could have ten plants for home consumption. People answers substantive DP right to smoke marijuana (Field wasn’t asking a whole question on this), some people said it was a violation of EP to let people in pain have more (not a good answer).What Field was trying to do was suggest that making health, safety, morals, and welfare. Federal statute makes it illegal for all marijuana via interstate commerce because it’s too hard to tell what is interstate. That is why Field picked CA because most marijuana comes here. Now with Lopez/Morrison one might look and say if this case would make it to federal regulation. Health, safety, morals, and welfare are all state purview and cover this topic. No commercial motive that is interstate because home consumption. Could make an aggregation argument. Isn’t saying no buying or selling a commercial regulation. But it is for moral reasons, but not in interstate commerce. Is this like the Child Labor Case in that the problem has nothing to do with the interstate commerce aspect of the law. Could states then authorize their own prescription drugs?

f. Field’s Fiew of the Cases: Examples of Federal Common Law

Disputes between states – whose law is supposed to apply? Whichever state’s is applied, that state wins. The court will decide to use federal common law. The court is supposed to create the law as there is no other law to apply.

When Congress makes a statute and it covers a lot of labor law but has no statute of limitations. The court decides what Congress meant about the statute of limitations the Court might decide what it is by reference to another federal statute.Do the thing that congress wanted or would have wanted. If Congress doesn’t like it they can just pass a statute and overturn the Court’s decision.

Field thinks that there is an analogy with executive power. A lot of the issue in these cases is about what the meaning of Congressional silence is. Remarkable in Youngstown that they are getting so much out of silence.

Can the President go first in an emergency and then go over to Congress? Same thing as federal common law – can you fill in the blank and leave them to change it or do you need to leave it to them to fill in the blank.

3. Spending Power

Article I, §8 states that “Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States, but all duties, imposts, and excises shall be uniform throughout the United States.

a. For What Purposes May Congress Tax and Spend?

United States v. Butler (1936) Concerned the constitutionality of the Agricultural Adjustment Act of 1933 which sought to stabilize the 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 to encourage agricultural production. Declared it unconstitutional on the ground that it violated the 10th Amendment because it regulated production. This aspect of Butler has never been followed, however, the discussion of the scope of the taxing and spending power remains good law as it chose that congress has broad authority to tax and spend for the general welfare, rather than only to carry out other powers specifically enumerated in Article I. The debate over the scope of the taxing and spending power goes back to a dispute between Madison and Hamilton. Madison took the limited view while Hamilton took the broader position.

Steward Machine Co. v. Davis (1937) The Court upheld the constitutionality of the federal unemployment compensation system created by the Social Security Act. Affirmed broad spending powers.

Helvering v. Davis (1937) Upheld the constitutionality of the Social Security Act’s old age pension program which was supported exclusively by federal taxes. 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, or not an excise of judgment. The concept of general welfare is not static.

South Dakota v. Dole (1987) A federal law sought to create a 21-year-old drinking age by withholding 5% of federal highway funds from any state government that failed to impose it. Approved this condition on federal money as it 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 this point in which pressure turns into compulsion, but in this case it was mild encouragement. Four part test:
General welfare (Article I Section 8) with substantial deference to Congres, knowing choice – shouldn’t be taking away too much, a related condition, not barred by another constitutional provision – here the 21st Amendment is at issue.

Could make case that this isn’t really related (DUI is within the state and is very indirect) and the 21st Amendment gives the states the ability to regulate liquor. Other ways to achieve it by creating taxes or not allowing folks to go over borders. Not just left by the Tenth Amendment but given to the state explicitly.

The federal government gives a lot of money to the states so can it say that they don’t have to do it but if it does not choose to make reasonable background checks it will take away the money? Refer to South Dakota v. Dole would show that this isn’t constitutional because couldn’t take away all money, perhaps could if it was something related to anti-gun federal money.

Ways Around State Limits on Federal Power It is true that via offering money, the federal government can get the states to do things that they would otherwise not be able to require the states to do. This is important especially because the Court is cutting back on what the federal government is requiring the states to do. This spending condition and saying that “we will not use the federal power if you…” (happens with 11th Amendment issues) are the two ways around these restrictions.

4. War Power

The Constitution is an invitation to a struggle over control of the power to declare and conduct wars. Article I grants Congress the power to declare war and the authority to raise and support the army and navy. Article II makes the President the Commander in Chief. Presidents have used this power to send troops to foreign countries without express congressional approval. The Court has rarely discussed war without a formal congressional declaration in part because of the political question doctrine and standing issues.

In discussing congressional authority in the area of war powers there are two distinct questions: What constitutes a declaration of war? When may the president use American troops in hostilities without congressional approval? The Court has not answered these questions. Congress adopted the War Powers Resolution to address these two questions and as a response to the Vietnam War in which two presidents, Johnson and Nixon, fought a highly unpopular war with great cost and without congressional formal declaration of war.
It states that the president as commander in chief may introduce the US Armed Forces into hostilities or situations where hostilities appear imminent only pursuant to 1) a declaration of war 2) specific statutory authorization, 3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. It requires that the president consult with Congress where possible before introducing troops into hostilities and that the president report to Congress within 48 hours after troops are introduced into hostilities or in situations which risk imminent involvement in hostilities. It provides that the president shall withdraw troops after sixty days unless Congress has declared war or authorized a sixty day extension or is physically unable to meet as a result of an armed attack upon the United States. The president can extend this by thirty days if he certifies to Congress in writing that unavoidable military necessity respecting the safety of US Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. Presidents repeatedly have expressed that the resolution is unconstitutional and regularly fail to comply with it.

Advantages of this System Could see it as a limit on the president’s powers as commander in chief or as a constitutional and desirable assurance of checks and balances. A Court decision on its constitutionality is unlikely. Thus, the significance will depend on the willingness of Congress to enforce it, via for example, cutting off military funds.

Woods v. Cloyd W. Miller Co. (1948) The Housing and Rent Act became effective on July 1, 1947. The following day, the landlord demanded of its tenants increases of 40 percent and 60 percent for rental accommodations in a city defense-rental area. That was an admitted violation of the Act and regulations adopted pursuant thereto. The housing expediter thereupon instituted the proceeding under § 206(b) of the Act to enjoin the violations, and a preliminary injunction was issued. The injunction was reversed after a hearing. On appeal, the Court reversed. The Court held that the war power sustained the legislation. The legislative history of the Act made abundantly clear that there had not yet been eliminated the deficit in housing that, in considerable measure, was caused by the heavy demobilization of veterans and by the cessation or reduction in residential construction during the period of hostilities. Since the war effort contributed heavily to that deficit, Congress had the power even after the cessation of hostilities to act to control the forces that a short supply of the needed article created. Consider how much this is really related to war powers.

5. Civil Rights

a. May Congress Regulate Private Conduct?

Remember the Civil Rights Cases (1883) under the state action section above. The Court held the Civil Rights Act of 1875 unconstitutional and adopted a restrictive view as to the power of Congress to use these provisions to regulate private behavior. Under the 13th Amendment, the Congress could regulate private. But it held that Congress lacked authority to enact the law under the 14th Amendment as it only applies to government action. This remains good law in implicitly stating that §1 of the 14th Amendment only applies to government action (and the court later suggested that under §5 congress may regulate private conduct); however, the Court has held that Congress may prohibit private racial discrimination under the 13th Amendment.

United States v. Guest (1966) Involved a federal law which makes it a crime for two or more persons to go in disguise on the highway with intent to prevent hinder free exercise or enjoyment of any right or privilege. Acquitted of murder of a black man and federal charges were then brought. The Court held that interference with the use of facilities in interstate commerce violated the law, whether or not motivated by racial animus. Court says that it is an open question which means more yes than no. Say it can go further than §1 alone. Talk about it in terms of a person’s rights rather than a prohibition against the state which semantically suggests yes. Five Justices, although not in a single opinion concluded that Congress may outlaw private discrimination pursuant to §5.
However, in United States v. Morrison (2000) The Court reaffirmed the Civil Rights Cases and stated that the VAWA civil damages provision is not constitutional as an exercise of Congress’s §5 powers as Congress under this authority may regulate only state and local governments. The opinions in Guest suggesting otherwise were merely dicta.

b. What is the Scope of Congress’s Power? Can it interpret the 14th Amendment?

The nationalist perspective is that Congress may use its §5 authority to expand the scope of rights (Katzenbach). Another view is the federalist perspective is that Congress under §5 cannot create new rights or expand the scope of those rights as Congress can act only to prevent or remedy violations of rights and such laws must be narrowly tailored (City of Boerne). This is the adopted perspective

Lassiter v. Northhampton Election Board (1959) Upheld the constitutionality of an English language requirement for voting.

Katzenbach v. Morgan (1966) Indicated that Congress under §5 may independently interpret the Constitution and even overturn the Supreme Court. Concerned the constitutionality of §4(4) of the Voting Rights Act of 1965 which provides that no person who has completed sixth grade in a Puerto Rican school, where instruction was in Spanish, shall be denied the right to vote because of failing an English literacy test. Congress, via the VRA, sought to partially overturn Lassiter by providing that a literacy test. NY state law required English as primary language. Upheld this provision as a proper exercise of the powers granted to Congress by §5. Congress could have concluded that granting Puerto Ricans the right to vote would empower them and help them eliminate discrimination. Congress could find that the literacy test denied EP even though this was contrary to Lassiter – this aspect of ruling is the significant one as it accords Congress the authority to define the meaning of the 14th Amendment.

The dissent raised the concern that if Congress can interpret the Constitution under §5 then it could conceivably use this authority to dilute or even negate constitutional rights.

There is a problem because Lassiter upheld a literacy test although the Congress had said that they were not. How can Congress overturn the Supreme Court? Literacy didn’t have a really good reason except for discrimination so no RB and used versus minorities allowing them to change the facts for the Supreme Court which isn’t a fact finder. Saying that if the Court saw the same impact the Court would find the same way.

Oregon v. Mitchell (1970) Petitioner state governments invoked the court's original jurisdiction to challenge the constitutionality of amendments to the federal Voting Rights Act, claiming that the statute usurped powers reserved to the states to control their own elections. The statute lowered the minimum age of voters from 21 to 18, and temporarily prohibited the use of literary tests based on a finding by Congress that the tests were to discriminate against voters on account of their color. The statute also barred respondents from disqualifying voters in national elections because of state residency requirements. Petitioners argued that Congress lacked the powers to enact the statute. Respondent federal government and supporting amici curiae argued that a constitutional amendment gave Congress authority to enforce the provisions of that amendment by appropriate legislation. The Supreme Court held that Congress had the power to fix the voting age in national elections, but not in state and local elections, since Congress had the ultimate power to fill its offices under its own law. The court also held that Congress, in the exercise of its power to enforce constitutional amendments, properly determined that the use of literacy tests was discriminatory because statistics showed voter registration and voter participation were consistently greater in states without such tests. 4-1-4 decision with Black as the Concurrence. 4 saying all bad, 4 saying all good with Black saying federal good and state bad. What came out of this was that the 18 year old provision is unconstitutional, leading to the 26th Amendment. Black says that if Congress is trying to prevent racial provisions it could go further.

South Carolina v. Katzenbach (1966) Upheld the constitutionality of the VRA of 1965 which empowered the attorney general to suspend literacy tests and other restrictions in voting in those states where less than 50% of the citizens had voted or were registered to vote. Once these findings were made the state could not adopt any new standards without pre-clearance from the attorney general. A legitimate exercise of Congress’s power under §2 of the 15th Amendment.

City of Rome v. United States (1980) The Court went even further and suggested that Congress has the authority under §2 to interpret the meaning of the 15th Amendment. A challenge to changes that a city adopted after the VRA was enacted in 1965 as the city had annexed a substantial number of outlying areas and thus altered the racial composition of its electorate and also had adopted an at-large system for selecting city commissioners. Although a previous case held that the proof of a discriminatory intent was a prerequisite to finding a constitutional violation, the Court concluded that Congress could prohibit changes that have a discriminatory impact. The narrow reading sees it as simply approving a remedy for a proven history of the denial of voting rights while the broad reading sees it as authorizing Congress independently to interpret he meaning of the 15th Amendment and even adopt a view contrary to the Court.

Oregon v. Smith (1990) Significantly lessened the protections of the free exercise clause. Native Americans denied employment after being fired for using peyote. The state can make religiously neutral laws of general applicability that affects religious practices even if not compelling government interest. In response Congress enacts RFRA which requires a compelling purpose and it prohibited the government from substantially burdening a persons’ exercise of religion even if the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

c. Confining Congressional Power to “Proportional” and “Congruent” Remedies

City of Boerne v. Flores (1997) Expressly rejected Katzenbach and adopted the federalist perspective. Church denied a building permit and brought a claim under Religious Freedom Restoration Act. Field says that this is wanting an exemption for something that has nothing to do with central practices and is applying too broadly. Finds that Congress was attempting to redefine what a constitutional right is and this is not within Congress’ 14th Amendment, Section 5 powers. If allowed, ordinary laws would have the same stature as Constitutional provisions. Field thinks that Congress can’t overturn the Court but it should be able to suggest different facts and reconsideration. Congress is limited to laws that prevent or remedy violations of rights recognized by the Supreme Court and these must be narrowly tailored – proportionate and congruent – to the constitutional violation. Here RFRA is not confined as sweeping coverage ensure its intrusion at every level of government and it is even more so than the area of voting power. A need to preserve the Court as the authoritative interpreter of the Constitution.
Dissenters didn’t challenge this case but the reasoning of Oregon v. Smith that caused FRRA. This hurts minority religions. Officials aren’t trying to purposefully discriminate against them but often times don’t think about them.

Counter Arguments to this Opinion Even though the Constitution provides minimum guarantees, through the 9th Amendment shouldn’t Congress be able to expand rights? Unusual use of Marbury v. Madison in the opinion as it equates a Supreme Court decision failing to find a right in the Constitution with the conclusion that no right can be created by the Congress; yet the former does not necessarily lead to the later.

One of the strangest things which comes up in Morrison and Boerne is that they are talking about how the voting rights cases were confined to areas where it had been most flagrant. It applied only to the south and there were challenges to it on that ground – didn’t say the South but applied to states that met certain qualifications. Unusual for Congress to do so but it was upheld because neutral criteria. But in later cases criticize states for apply to all states when only a few should be included. Is this really a good idea?

The Warren Court of the 1960s was concerned with upholding federal civil rights laws and generally expanding the scope of individual rights broadly defined §5 powers. The Rehnquist Court is concerned with limited federal powers has narrowly interpreted this authority.
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Sherbert v. Verner (1963) Woman unable to work on Saturday because of Seventh Day Adventist and quit her job; as a result the state denied her unemployment compensation. The Court expressly held that SS was the appropriate test in evaluating government laws burdening religious freedom. The Court held that the denial of benefits imposed a substantial burden on religion as the woman had to choose between an income and her faith and could find no compelling interest.

There are three basic approaches: 1) Should be exemption when a strong religious practice unless it really messes up the secular program – presumption of exemption; 2) Scalia’s rule in Smith that if it is neutral on its face there is never an exemption; 3) middle ground of sometimes an exemption and sometimes not.

6. Relevance to State Sovereign Immunity

The 11th Amendment States that “The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state. The Supreme Court has long interpreted this provision as barring suits against state governments without their consent both by their own citizens and by citizens of other states.

The 11th Amendment has to do with individuals suing states and are allowed to do for injunctions and declaratory judgments and because they are allowed to do that you can get a reading on constitutional law. So an individual can keep the states from violating the Constitution by getting a ruling that the state can’t do so and if they do so after injunction or DJ can get damages back to the point of the injunction/DJ. A problem has arisen since the 1960s as wage and hours laws began applying to state employees. Questions started being raised about whether Congress had to power to extend as such as we saw in 10th Amendment cases. In between Wirtz and National League of Cities, a case called Employees found that Congress had power to regulate state employees under the commerce clause, but even though they have the power to regulate that does not mean there is power for an individual to sue the state to enforce the right, thus distinguishing the 10th Amendment issue about the federal government telling the state what to do from the 11th Amendment which is bout an individual to sue the state via the 11th Amendment, unless Congress has made a clear statement that it means for the individual to sue the state. In this case it was clear that Congress wanted this to happen but the Court finds that it does not clearly state as such. Congress immediately said that they meant as such and it goes back to the Court. Then the Supreme Court decides National League of Cities, that the federal government can’t regulate the states. Interplay between the 10th and 11th Amendments. But now that Garcia has overruled National League of Cities the question is raised again and it must be that Congress clearly states as such until Seminole Tribe in which the Court held that Congress can allow individuals to sue state if it says so absolutely clearly in the body of the statute, but Congress can do so only if it is doing so under Section 5 of the 14th Amendment. This is the reason why Section 5 has been narrowed substantially. Field doesn’t think this will last because it is so much putting the Court above Congress in such a perversion of their normal roles.

City of Boerne narrowed the scope of §5 powers. There is an obvious and crucial interrelationship of these two cases – in deciding whether a state can be sued under a federal statute the court must decide whether the law is a valid exercise of §5 powers. If it is valid, the state must be possible to sue or else the litigation against the state cannot continue.

Florida Prepaid Postsecondary Expense Education Board v. College Savings Bank (2001) College Savings Bank, a NJ company, devised a system, which it patented for students to use to save money to later pay for college education. Florida Prepaid, an agency of the state government, copied this system for use by FL residents to save money to attend FL schools. In 1992, Congress expressly amended the patent laws to authorize suits against state governments for patent infringement. The Supreme Court held that this was not a valid exercise of power under §5. Although patents unquestionably are property and the 14th Amendment protects property from being denied by state governments without DP, the Court found that the authorization of suits was impermissible because it was not proportionate or congruent to remedy Constitutional violations. Congress had identified no pattern of patent infringement by the states in contrast to the undisputed record of racial discrimination; thus it is not responding to a history of widespread and persisting deprivation of rights.What is striking about this case is that it involves patent law in which federal courts have exclusive jurisdiction, thus there is now no remedy.

University of Alabama v. Garrett (2001) Considered whether state governments may be sued for violating Title I of the Americans with Disabilities Act which prohibits employment discrimination and requires reasonable accommodation by employers. The plaintiff argued that the elaborate legislative history concerning government discrimination against the disabled made this case different. The Court rejected this argument and stated that the ADA was a substantial expansion of rights compared to the Constitution as normally it only has to pass RB test, but the law would find many things unlawful that would pass RB. Not congruent or proportionate because no record of irrational state discrimination.

Are these decisions desirable? Appropriate protection of state sovereign immunity and a proper limit in Congress’s §5 powers. Some disagree that sovereign immunity is an inherent part of the Constitution’s design and that it undermines government accountability.

Nevada Dept of Human Resoruces v. Hibbs (2003) The employee sought leave under the FMLA to care for his ailing wife. Petitioners granted the employee's request but terminated him when he failed to return to work. The Court determined that the employee could sue the State for money damages in federal court. Congress acted within its constitutional authority when it sought to abrogate the States' immunity for purposes of the FMLA's family-leave provision. Congress validly exercised its power under § 5 by enacting the prophylactic legislation in order to prevent and deter gender-based discrimination in the workplace. The States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits was weighty enough to justify the enactment of prophylactic § 5 legislation and was congruent and proportional to its remedial object, and could be understood as responsive to, or designed to prevent, unconstitutional behavior.

C. State Autonomy Limits on Congressional Power

The 10th 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 10th Amendment is whether it is judicially enforceable limit on the Congress’s powers? The Court has shifted between two approaches: One approach is that the 10th 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. A federal law never would be found unconstitutional as violating the 10th Amendment but it could be invalidated as exceeding the scope of Congress’s powers under Article I of the Constitution or violating another provision. The alternate approach is that the 10th Amendment protects state sovereignty from federal intrusion. Federal laws intruding into this zone should be declared unconstitutional by the courts.

Court Approach Mimics Commerce Clause 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 this century until 1937, the Court adopted the latter view and found that the 10th Amendment reserved to the states control over production and federal laws attempting to regulate production were unconstitutional. From 1937 through the 1990s, the Court shifted back to the former approach, but in the 1990s the Court has resurrected the 10th Amendment as a limit on Congressional power.

The dispute over the meaning of the 10th Amendment concerns two interrelated issues of constitutional policy: 1) How important is the protection of state sovereignty and federalism? Radically limited federal powers seems anachronistic in the face of a modern national market economy and decades of extensive federal regulations. Argument that there is a need for using states as laboratories should be made by Congress against federal legislation and not the judiciary.
Our federalism has always been one of overlap. We may have originally thought of family and crime as particular state areas, but that is changing with, for example, mandatory minimums and anti-miscegenation rulings. We have grown into much more overlap.
One place we might look to determine if there are some things that have to be left to the states, but it is deemed as a truism. It doesn’t say that the states have power over health, safety, etc. instead it says the feds will have all these powers and what is left will be given to the states.2) Should it be the role of the judiciary to protect state prerogatives or should this be left to the political process? Consider that there is a greater danger of special interests capturing government at smaller and more local levels. The goal of realizing democratic values to the maximum may be better achieved by the federal polity with greater resources and more attention. Wechsler argues that the interests of states are represented in the national political process and that the nature of that process provides sufficient protection of state sovereignty, thus making in unnecessary for the courts to enforce federalism as a limit on Congress. Is this still true since Senators are not appointed by the state legislatures? Could argue people vote for who best represents their state, but most senatorial elections deal with national issues.

The Court rarely speaks of the values of federalism but when it does it points to decreasing the likelihood of federal tyranny, enhancing democratic rule by providing government that is closer to the people, and allowing states to be laboratories for new ideas.

There has been a major shift over time as to how abusive government is best controlled. Now it is though that if a federal action intrudes upon individual liberties, the federal judiciary will invalidate it.

a. The 10th Amendment in the Nineteenth Century

Gibbons v. Ogden (1824) adopted the view that the 10th Amendment is simply a reminder that Congress must have authority under the Constitution in order to legislate, not as a judicially enforceable limit on legislative power. Once Congress is within the scope of its power, it can legislate the same as if there were no states at all.

b. The 10th Amendment from the Late Nineteenth Century Through 1937

The Court greatly circumscribed the scope of Congress’s powers, particularly commerce powers, and held that the 10th Amendment reserves a zone of activities to the states for their exclusive control. For example, the Child Labor Case, Hammer v. Dagenhart, (1918) was the most significant case to construe the 10th Amendment this way. A federal law prohibited the shipment in interstate commerce of goods produced in factories employing children. Although the law was limited to regulating goods in interstate commerce, the Court found it unconstitutional as it controlled production. Defenders had argued that the protection of state autonomy was illusory because the national market restricted the ability of the states to choose whether to allow or prohibit child labor. If a few states allowed it goods produced there would be cheaper and pressure other states to allow child labor. The Court flatly rejected it and said that the local control is important.
Maryland v. Wirtz (1968) Application of Congressional laws to state hospital workers. Harlan’s opinion said that there is nothing in the Constitution which says that when you enact a law you can’t apply it to states. Douglas saw a problem from the basic structure of the Constitution.

c. The 10th Amendment Between 1937 and the 1990s

United States v. Darby (1941) A challenge to the constitutionality of the Fair Labor Standards Act of 1938 which prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage or who worked more than the prescribed maximum hours. Upheld it as a lawful exercise of Congress’s commerce clause authority and flatly rejected the claim that the law violated the 10th Amendment calling it just a “truism.”

The moment at which the following 10th Amendment cases came up was after Wickard. See that there was aggregation and probably had to be something that is commercial. People had been asking was there anything that Congress could not reach under the commerce clause? And if not, does this show that something terrible is going on? Is federalism then going awry? Should it be reaching so much under just one power? National League of Cities v. Usery (1976) The only case in which a federal law was declared unconstitutional as violating the 10th Amendment and that decision was later expressly overruled.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 found that requiring states to pay their employees the minimum wage violated the 10th Amendment because the law operates to directly displace the States freedom to structure integral operations in areas of traditional government functions and are not within the authority granted Congress by Article I, Section 8, Clause 3 as it would require state and local governments to either raise taxes or cut other services. An unclear holding except for this last sentence as never got another majority and the tenth amendment is not cited is the only one. Overturned Wirtz so it doesn’t turn on the peripheral/integral.

Nothing fell within this test. About 10 cases until Garcia found that they were not within the scope. Almost all of these cases involve the Fair Labor Standards Act which imposed minimum wage and maximum hours on state workers. These things are clearly within the commerce clause but the state is saying there should be a different treatment because they are emanating from the state. This is a new argument because at this time the 10th Amendment as a truism was pretty much accepted. Tribe argued that the true meaning was the Court taking a step towards a Constitutional right of minimal subsistence. Held that a terrible thing was going on and something had to be done but then overruled in Garcia and come up with new approaches for handling Printz.

Federal Energy Regulatory Commission v. Mississippi (1982) Challenge to the Public Utilities Regulatory Policies Act of 1978 which required that state utility commissions consider FERC proposals. The Court emphasized that the federal regulation only forced states to consider adopting the federal standards and did not force them to do so, and thus there was no 10th Amendment violation

Garcia v. San Antonio Metropolitan Transit Authority (1985) Blackmun joined the National League of Cities dissenters to create a majority. Like, National League of Cities it focused on whether the application of the Fair Labor Standards Act to state and local governments violated the 10th Amendment. Blackmun offered two reasons for overruling National League of Cities: unsound in principle and unworkable in practice and the protection of states should be through the political process. There is nothing wrong with a big commerce power and the Congress is better at figuring out what should be done and we will only step in when Congress has gone totally out of bounds. No affirmative thrust from the 10th Amendment.

Although writing for the more liberal wing of the Court , the opinion sounded conservative as it argued for judicial restraint in enforcing the 10th Amendment in terms as he argued that a rule of state immunity that looks to the traditional, integral, or necessary nature of governmental functions inevitably invites and unelected federal judiciary to make decisions about which stae policies it favors and which ones it dislikes.

In contrast to the dissenters, Field thinks that Garcia is not the demise of federalism and that our system is a perfectly alright example of how to set up a federalist system. In the first place, it seems that the changes had taken place not through illegitimate changes – it is a departure from the framers point of view as to what the relationship would be, however, the framers’ point of view of percentages of how much it should be federal and how much state was not written into the Constitution and was not on purpose. O’Connor and Powell said that this was a huge problem of too much federal power and we needed a new doctrine to set everything straight, but they don’t pay enough attention to how the changes came about and just thinks changes happened and she should undo them. Some of the changes came about because of industrialization and now internationalization. The Fourteenth Amendment also had a huge role and can’t say it was illegitimate because it was a constitutional amendment. Also the federal income tax which cuts down on how much money the states can receive. One thing that is argued in these cases is that the proper body to determine the federal-state powers is the Congress rather than the Court because all the states are represented in Congress. That may have been a better theory when senators were elected by state legislatures than by the people because then they were probably looking out more for their state interests then and are now more national. This too was done by Constitutional Amendment. Rather than just fixing the old state doctrines O’Connor and Powell come up with new theory and don’t think about these legitimate changes.

Congress actually exercises a tiny fraction of its commerce powers abilities – Congress is making the choice of which ones to exercise rather than the Courts. One reason the Courts aren’t doing it is because they don’t have a principled reason for doing so and Congress doesn’t need one.

All of the dissenters here say that this is the most terrible opinion ever and that we will come back and overturn it as soon as they can. They have had this opportunity and have not done so. The Court revived the 10th Amendment in the 1990s but Garcia has not been overruled ann National League of Cities has not been reinstated. One reason is that they have come up with a different doctrine, but they could have had both. Perhaps they are respecting precedent.

Mass. Supreme Court justices are required to retire at 70 and brought a suit challenging it under the Age Discrimination Act. One would think that it is something state should decide by doing their own courts (and this would have been covered by National League), but Garcia says that the political process protects them. Could have overturned Garcia but avoided the issue by saying the act didn’t apply to this situation.

d. The 10th Amendment in the 1990s and Beyond

Printz v. United States (1997) Brady Act that requires the chief law enforcement officer of each state act as a federal officer by making background checks on gun purchases. Asked for reasonable effort rather than a meaningful effort. Held to be unconstitutional because the history of the founders didn’t imply having the states act as federal officials (duty not to obstruct rather than to implement), there is no constitutional text about this so have to look at jurisprudence and background history. Commandeering state executive officials into bureaucratic armies. (New York was state legislative officials). Violates separation of powers because the 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. Three reasons given against this: political accountability (it is a federal law but state officials are getting the blame), money (the feds should pay for it), state dignity (feds should not be pushing them around).

Breyer Dissent tries to argue that it is more dignified to have the feds ask you to carry out then come in and do it themselves.

Two problems: (a) de minimis (if there isn’t this exception we are in big trouble and there are all sorts of reporting requirements) and if so perhaps this should be one. (b) what about the judiciary? It is a basic principle that the state judiciary can be conscripted into federal service (Testa v. Katt and the Supremacy Clause). Frankfurter proposed that in order to reduce the clutter in federal courts we should take mickey mouse crimes and give them to the states. This wouldn’t pass this test. Try and say that this is different because of express authority in the Supremacy Clause.

Printz may make zero difference Federal government says it will either do all gun checking itself on a 30 day uncomputerized system or the chief local law enforcement officer can do it computerized in five days. Field thinks that this is permissible because of FERC (don’t have to adopt regulation but if do not adopt them have to consider them in your agency according to these procedures and reject them – Court found that could have done lesser thing). Also could find permissible under Hodel v. Virginia Surface Mining and Reclamation Association (1980) which although it state that NLC only applied when Congress was regulating state governments, also said that for a federal law to violate the 10th Amendment it needed to regulate “states as states,” address matters that are indisputably attributes of state sovereignty, directly impair the states’ ability to structure integral operations in areas of traditional government functions, and must not be such that the nature of the federal interest justifies state submission.

Reno v. Condon (2000) Unlike the other recent cases, the Court rejected a 10th Amendment challenge and upheld a federal law (unanimously). Involved a challenge to the Driver’s Privacy Protection Act, a federal law that prohibited states from disclosing personal information gained by departments of motor vehicles. Limiting what they can do versus saying what they must do. Alright to tell states to tell them they can’t do something but it is not okay to tell them to say that they must do something – an action/inaction distinction. It doesn’t mean that the states can’t fiddle with the states, it’s just that they can’t use them in their positive program. Also it dealt with private conduct as well as it regulated private entities that possess the information.
Criticism in that most laws could be descried in either way.

C. Federal Executive Power
Article II begins “The executive power shall be vested in a president of the United States of America” and then enumerates specific powers. There has been debate over whether this language was intended to grant the president inherent powers not expressly enumerated. Unlike Article I, it does not state “herein granted,” suggesting inherent powers; or, the language is just to settle that there is one executive.

1. Inherent Powers?

Youngstown Steel v. Sawyer Shortly before a steel strike, Truman stepped in and kept steel mills in operation, turning them over to the Secretary of Commerce. He believed the steel strike could endanger the war effort in Korea because it was indispensable for weapons. Interesting that the companies brought the action and not the union. Located his power in Article II: the Commander in Chief powers (need steel for the war), faithfully execute (executive given more broad executive power whereas the legislature has more specified powers). Steel company not deemed to be in the theater of war because considered more domestic. Want to say to keep Commander powers abroad, but we did have the Civil War, still this war takes place abroad. There were seven opinions with four different approaches: No inherent presidential power. Black’s majority opinion denied the existence of inherent presidential power. The president may only act pursuant to express or clearly implied statutory or constitutional authority. Neither was present in this case. Premised on the idea that inherent authority is inconsistent with a written Constitution. Interstitial Executive Power Douglas argued t hat the president can act without express statutory or constitutional power so long as he is not usurping the powers of another branch of government or keeping another branch from performing its duties. Here the seizure was unconstitutional because the president was forcing the expenditure of federal funds to compensate the steel mill owners and was thus impermissibly usurping Congress’s spending power. Premised on a belief that there is a need for the President to exercise powers not specifically enumerated but within bounds. Legislative Accountability Frankfurter argued that the president may take any action not prohibited by the Constitution or statute. Jackson's opinion also argued this (see below). The dissenters also seemed to adopt this approach but disagreed as to whether Congress had acted. Broad Inherent Authority The President has inherent authority at least in some areas unless such conduct violates the Constitution. Federal laws restricting the president’s power are unconstitutional. Warren’s dissent uses this approach. No Supreme Court case definitively makes one of these approaches correct and the others wrong.

Jackson’s Division into three categories:
1. Congress approves and President follows through executive power is the unquestionably permissible unless the Congressional statute is unconstitutional.
2. Twilight zone – Congressional silence or concurrent authority. Have to look at the facts of the situation rather than abstract theories of law. Was the silence a choice not to act or a choice to allow the President to decide? Congress could break out of it but there is Congressional inertia for various reasons (i.e. supported Vietnam War without declaring war).
3. Acting against the Congressional intent and the President can only do so if he has constitutional powers that the Congress does not. Jackson places this situation in this category because the silence was an expression of disfavor.

May not have noticed the odd procedure in Youngstown. Cert before judgment – in exceptional cases the court can look at a case before the Court of Appeals rules on it.

2. Executive Agreement

A treaty is an agreement between the United States and a foreign country that is negotiated by the president and effective when ratified by the Senate. An executive agreement is an agreement between the United States and a foreign county that is effective when signed by the President and the head of the foreign nation. What can be done by treaty can be done by agreement although agreements aren’t in the Constitution. The court has never declared an agreement unconstitutional as usurping the Senate’s power.

Dames & Moore v. Regan (1981) Shortly before leaving office President Carter negotiated an agreement with Iran whereby Iran would free hostages in exchange for lifting a freeze on Iranian assets in the United States and an end to all suits pending against Iran in United States courts and would be resolved in a new Iran-US tribunal. Challenged by Dames & Moore which had filed a lawsuit against Iran for breach of contract. The Court rejected a constitutional challenge emphasizing that a series of federal statutes authorized the president’s actions.
Different because an agreements in foreign affairs which is a much different than war.

Note that the scope of Congressional war powers is much broader (i.e. can use rent control during WWII). The problem is having the executive getting us into too many wars and some think that the powers are spread out to prevent this situation , but when we are attacked we need a much quicker response.

Guest Speaker on Iraq
No peace agreement in first Gulf War, it was a cease fire and required disarmament. On November 8, 2002 the US and UK got through a resolution 1441 in the security council (unanimous). The thrust was a final opportunity for Iraq to comply and there would e an enhanced inspection regime and non compliance would result in serious consequences. Inspectors were able to arrive in Iraq for the first time in four years. No approval in the resolution for force. In Bush’s State of the Union, he highlighted that if Iraq did not comply he would lead a coalition. Eventually put forward a resolution but it was withdrawn after veto threats. Refer to Article 51 of the UN Charter – self defense does not arise until there is an armed attack.

D. Separation of Powers

The constitution does not expressly mention agencies and in many ways they are in tension with basic constitutional principles as virtually all of these agencies possess rule-making power and these rules have the force of law. It is only in the last century that congress has routinely delegated its legislative power to executive agencies and the creation of the Interstate Commerce Commission in 1887 ushered in a new era for the federal government with the creation of federal administrative agencies with broad powers. This seems to conflict with Congress’s legislative powers. Yet, in many areas the need for complex regulations in better handled in a specialized agency and the sheer quantity surpasses Congress’s ability. Note that it also allows Congress to avoid the heat. Additioanlly, the agencies have executive powers of enforcement. The purpose is not just structure – individual rights depend on them as it prevents against tyranny. Nondelegation doctrine has demised. The framers were more worried about Congressional power getting out of control.

Do separation of powers, federalism, or individual rights just describes what is essential to our form of government or do we now have a doctrine developing from these descriptive terms? Before National League of Cities, there weren’t actual doctrines, the Court would just point to these terms.

1. The Legislative Veto

In light of the demise of the nondelegration doctrine, the issue arises as to how the power of administrative agencies will be checked and controlled. Congress could enact a law overturning an agency’s rule but requiring legislative action obviously limits the circumstances in which Congress can or will exercise its checking functions. In the 1930s, 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 agency’s action by doing something less than adopting a new law. A typical form of the legislative veto authorized Congress to overturn an agency’s decisions by a resolution of one house of Congress.

Immigration and Naturalization Service v. Chadha (1983) Under an immigration act, Congress delegated powers to the executive branch, specifically allowing the Attorney General to suspend the deportation of any deportable alien, however, it reserved the right of one house of Congress to veto that decision. The court finds that the veto is functionally a legislative act. Anything that is legislative must be approved by both houses and presented to the President. Also could say that Congress is also taking an adjudicative rule. Political convenience is not enough to justify being against a constitutional doctrine. A more formalist argument. Dissent argues that there is a problem in that there is now a large administrative government and some delegation may now be needed. The act of delegating to another branch isn’t explicitly talked about in the Constitution so why can’t they reserve that power? A more functionalist argument. The dissent needs to come to terms with the Constitutional arguments of the majority. They could argue that the AG’s role is lawmaking/administrative law. Other checks via purse strings, appointments, and investigations.

Should the proper analysis in separation of powers be functional or formal? Formalism has been adopted over functionalism with the line item veto and the Chaddha situation but this is not true in all of the cases.

This is also why line item veto is a problem – the bill the President signs ends up being different than what Congress passes. But could just print them up one by one and send them over individually for the President to sign. Doesn’t this interfere with the compromise that Congress goes through? Clinton v. New York found this statutory increase in Presidential power is unconstitutional. Again the dissenting view is functional.

Also, wouldn’t the War Powers Act violate Chaddha? Is the Iraq War unconstitutional? First act whether that unconstitutional part is severable and it probably is so that the rest of the Act would survive.

Severability would not work in a state system. Take for example Orr v. Orr in which a statute says that it is permissible for the man to pay alimony but not the woman, the Supreme Court cannot take out a part and sever it.

2. Removal Power

There is no provision of the constitution concerning the president’s authority to remove executive branch officials. The principle that has emerged from the cases is that in general the president may remove executive officials unless removal is limited by statute. Congress by statute may limit removal both if it is an office where independence from the president is desirable and if the law does not prohibit removal, but rather limits removal to instances where good cause is shown.

Morrison v. Olson (1988) Upheld the constitutionality of limits on the president’s ability to remove the independent counsel. The law creating the independent counsel provided that he could be removed by the attorney general only for cause and the attorney general would have to file a report with the panel of judges who made the appointment and the House and Senate Judiciary Committees. The Court suggested that it should ve separate from the President, but can only be removed for good cause. It did not violate the President’s authority in separation of powers, Article III, or the appointments process.

Mistretta v. United States (1989) The Court approved a broad delegation of power to the US Sentencing Commission. It is comprised of seven members appointed by the President, three of which must be federal judges. The Court upheld the law and rejected the claims that it was an impermissible delegation of legislative power to the judicial branch. 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. Breyer was the equivalent of Marhsall in Marbury (somewhat involved). Using Article III judges for nonjudicial tasks, an independent commission treated as officers not judges and removable by the President. Allowable (probably would approve anything confirmed by the sentence).

3. Executive Privilege

Ability of the president to keep secret conversations with or memoranda to or from advisors. The Constitution does not mention it but many presidents have claimed it. Seen as necessary in order for presidents to receive candid advice and well as to protect national security.

United States v. Nixon (1974) Whether President Nixon has to turn over the Watergate tapes and Chief Justice Burger who was appointed by Nixon wrote a unanimous opinion stating that he did. Rejected the contention that the case posed a nonjusticiable political question because it was an intra-branch dispute and that the president alone had authority to control prosecutions. The Court found that the president had delegated his authority to the independent counsel. It is the role of the courts to decide when the president has privilege and the scope of it, recognized the existence of executive privilege along with the need for it and that even though it does not expressly mention it in the Constitution it derives from the supremacy of each branch within its own assigned area of constitutional duties as certain powers and privileges flow from the nature of the enumerated powers (an inherent presidential power), not absolute and must yield when there are important countervailing interests.

Does Marbury preclude a constitutional interpretation which gives final authority to another branch even though it gives the power to review executive actions?

4. Presidential Immunity

It remains unsettled whether a president may be criminally prosecuted while in office or whether the sole remedy is impeachment and removal. However, it is established that a president may not be sued for injunctions or for money damages for actions taken while in office. It is clear that a president while in office may be sued for conduct that occurred before taking office. The usual argument is that they are free from civil damages under qualified immunity, meaning that if there is malice present then he is liable but not if there is good faith. The Court made an exception for the President in his powers noting that his office is too broad.

Clinton v. Jones (1997) Clinton is not covered under the immunity. Asked for immunity while President but it did not work because the incident took place before he was President and the Governor does not have the same privileges. All the Justices said that it would not disrupt his Presidency but in reality it did. The purpose is to protect the office holder in his discretion and this was not met here.

If there was a civil suit by Monica Lewinsky, the President maybe would have executive immunity because at some points he was within the scope of his duties (relieving stress, talking to heads of state). But could also argue that it was not within his powers.

4. Dormant Commerce Clause/Negative Aspects of the Commerce Clause

In Article I, §8 “Congress has the power to regulate commerce among the several states.” The negative aspect arises because it is concurrent powers and when the federal government asks in concurrent powers the federal government trumps the state government. Sometimes we find that even when the federal government has not acted, the state cannot act or cannot act in certain ways as it would unduly interfere with interstate commerce. Moreover, clearly, the states cannot discriminate versus the other states – super conservatives might want to make this the only rule. The limiting here, as opposed to allowing Congress to act, makes it dormant or negative.

Note that the dormant commerce clause is not the only way of challenging state laws that burden interstate commerce, especially if the state or local law discriminates against out of staters. If the state or local government discriminates against out of staters with regard to a fundamental right or important economic activities, a challenge can be brought under the privileges and immunities clause of Article IV, §2. Also could be challenged under EP.

Should there be a dormant commerce clause? The crucial question is whether the judiciary in the absence of congressional action should invalidate state and local laws because they place an undue burden on interstate commerce. Historical argument that the framers intended to prevent state laws that interfered with interstate commerce as a key impetus for the Constitutional Convention in 1787 was the absence of any federal commerce power. The economy is better off if state and local laws impeding interstate commerce are invalidated. States and their citizens should not be harmed by laws in other states where they lack political representation. Congress can’t handle all of these regulations by itself. The drafter should have and could have included a provisions prohibiting states from interfering with interstate commerce as it included the privileges and immunities clause and Article I §10 includes many limits on state power. Since Congress is given commerce power only it should be able to invalidate state laws on this ground.

Policy arguments about the scope are important. Should the courts be aggressive in striking down state and local laws or should the courts adopt a general posture of deference and invalidate only in exceptional and extreme cases? How important is it that state and local laws that interfere with commerce be invalidated? What is the appropriate allocation of power among Congress, the states, and the federal judiciary?

a. Dormant Commerce Clause Before 1938

Gibbons v. Ogden (1824) Issue was whether New York could grant an exclusive monopoly for operating steamboats in New York waters and thereby prevent a person with a federal license from operating in New York. Marshall used it as an occasion to broadly definite the scope of Congress’s power under the commerce clause. Commerce refers to all stages of business and among the states includes matters that affect more than one state and are not purely internal. The commerce clause is an independent limit on state power even where Congress has not acted. When a state proceeds to regulate commerce with foreign nations or among the states it si exercising the very power that is granted to Congress.

This argument seems to imply that states cannot regulate any commerce at all without authorization specifically from Congress, but Marshall drew a distinction between a state’s exercise of police power and a state exercising federal power over commerce (i.e. inspection laws, quarantine laws, health laws, laws regulating the internal commerce of the state, and those which respect turnpike roads, ferries, and the like that are components of the state).

Wilson v. Black-Bird Creek Marsh Co (1829) Considered whether a state could construct a dam that obstructed an interstate waterway. The Court rejected a challenge by the owners of a federally licensed ship because the construction of the dam was a permissible exercise of state police power. It hints the opposite of Gibbons - that there is no negative aspect if Congress has not acted as then states can act.

Cooley v. Board of Wardens (1851) Court drew a distinction between subject matter that is national in which event state laws are invalidated under the dormant commerce clause and subject matter that is local in which event state laws are allowed. A Penn law that required all ships entering or leaving the Philadelphia port to use a local pilot or pay a fine that went to support retired pilots. Upheld the law and found that the crucial question was whether the subject is of a nature that requires uniform national regulation or diverse local regulation. Here is was a local matter both because of differences among ports and because a federal law adopted in 1789 expressly allowed states to regulate piloting.

There are problems with this test: 1) It allows state regulations no matter how protectionist or how much they interfere with interstate commerce, so long as the subject matter is deemed local (the goal here was protectionist as safety concerns could be met by requiring some sort of test); 2) There is not a clear distinction between what is national and what is local as no criteria are articulated.

b. Shift to the Balancing Approach

The police power/ commerce power test of Gibbons and the local / national subject matter test of Cooley attempted to draw rigid categories of areas where federal law was exclusive and those where states could regulate. The modern approach is based on balancing the benefits of a law against the burdens it imposes on interstate commerce. Note, however, that the Court has never expressly overrule any of the earlier tests and sometimes invokes them. The balancing test depends on whether there is discrimination. If the Court concludes that a state is discriminating against out-of-staters then there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose. If the Court concludes that the law is nondiscriminatory, then the presumption is in favor of upholding the law and it will be invalidated only if it is shown that the law’s burdens on interstate commerce outweigh its benefits. If it treats both the same at least some of them are in the political process to influence the law. Remember to first determine if the law affects interstate commerce.

Rehnquist, Scalia, and Thomas have objected to this balancing test and argued in favor of upholding all state laws that are deemed nondiscriminatory unless there is Congressional legislation to the contrary. The interests on both sides are incommensurate and can’t be weighed against each other. Would be discriminatory if and only if it accords discriminatory treatment to interstate commerce in a respect not required to achieve a lawful state purpose.

c. Facially Discriminatory Laws

Philadelphia v. New Jersey (1978) NJ laws does not allow importation of solid waste from other states. Would you normally think of waste as something in interstate commerce? State Court said the regulation was okay because it was about the environment and health. The Court held that there was no way to say that NJ waste was better than anyone else’s. NJ could perhaps limit the amount but it has to be opened up to everyone in the country. Even though it is designed to protect health and the environment it has facial discrimination. Also a balancing test on page 353. Legitimate state concerns with indirect/incidental effects are allowed whereas protectionist ones are not.

Dean’s Milk Co. v. Madison (1951) An ordinance that barred the sale of pasteurized milk unless done so within five mile radius of Madison, WI. Excluded out of state and in state producers which is irrelevant. A company that is pasteurizing from about sixty-five miles away. Court argues that there are other ways to get health concerns taken care of, like by having inspectors inspect incoming milk. The real reason was the health and safety because of ease of inspection – can inspect the facilities and not just the milk. Having a primary intent of health and safety does not insulate from the commerce clause. Have to show that when protecting health and safety that the product from outside jeopardizes the health of the people more. Anybody could say health and safety. Being the real reason of health and safety is not enough. The purpose does not control, the effect does. If the Supreme Court can think of a better way of doing it – least restrictive alternative – making it the strictest form of review. Since this is discrimination in effect and not intent, would this fit under the discrimination prong?

Baldwin v. G.A.F. Seelig Inc. (1935) The New York Milk Control Act established a system of minimum prices to be paid by milk dealers to producers in New York. The milk dealer bought its milk in Vermont at prices lower than the New York minimum and refused to agree to conform to the New York statute and regulations in the sale of the imported product. The milk dealer was thus unable to obtain a New York business license. The Court held that the district court properly restrained the enforcement of the Act in its application to sales in the original packages but erred in refusing to grant an injunction with respect to milk in bottles. The form of the packages was immaterial. New York's attempt to regulate the price to be paid for milk acquired in Vermont had the same unconstitutional effect as a customs duty. The Court rejected the state officials' arguments that the purpose of the Act was not to protect its farmers from competition but to ensure an adequate supply of milk and to avoid tempting farmers to save the expense of sanitary precautions. Allowing a health exception would have destroyed the rule, and the relation was too indirect to obstruct interstate commerce.

d. Facially Neutral Laws

The Court has never articulated clear criteria for deciding when proof of a discriminatory purpose and/or effect is sufficient for a state or local law to be deemed discriminatory. At times the Court has found that proof of a discriminatory impact against out-of-staters is sufficient for a law to be regarded as discriminatory, at times it has found discriminated based on the disparate impact of a facially neutral law, in other cases the court has found that proof of discriminatory impact is not sufficient. The cases do not disagree as to the legal standard.All indicate that proof of discriminatory impact is sufficient for a facially neutral law to be deemed discriminatory. The cases turned not on differences about the rule, but on the Court’s appraisal of the particular facts and its assessment of whether there was discrimination.

Although there are no clear criteria, several factors seem particularly important: 1) If its effect is to exclude virtually all out-of-staters from a particular state market, but not if it excludes only one group of out-of-staters, 2) If it imposes costs on out-of-staters that in-staters would not have to bear, 3) If a law is motivated by a protectionist purpose. In sum, a law will be found discriminatory either if it facially discriminates against out-of-stares or if it is facially neutral and is deemed to have a discriminatory purpose and/or impact.

1) Balancing Test: When the State is Not Discriminating

However, if the state is not discriminating against out-of-staters then the above does not apply as the Court applies a simple balancing test – the burdens on interstate commerce against benefits. The balancing test gives courts enormous discretion because there is no formula or standard for how to compare the burdens on interstate commerce with the benefits to the state or local government. Generally the Court upholds something when it is not discriminatory. The Court also generally includes a least restrictive alternative component; yet the Court has never invalidated a nondiscriminatory state law on the ground that the goal could be achieved through a means that is less burdensome on interstate commerce. Very fact specific.

Pike v. Bruce Church, Inc. (1970) Articulated the balancing test: Where the statute regulated even-handedly to effectuate a legitimate a local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Also stated that whether it could be promoted as well with a lesser impact in interstate activities will be considered.

CTS Corp v. Dynamics Corp. of America (1987) Upheld a law seeming to be nondiscriminatory. An Indiana law limited corporate takeovers by requiring that a purchaser who acquired control shares in an Indiana corporation would acquire voting rights only if the transaction was approved by a majority vote of the preexisting disinterested shareholders. The Court determined it was not discriminatory against out-of-staters as it had the same effect on residents. The benefits outweighed burdens on interstate commerce because the state has an interest in promoting stable relationships among parties involved in such corporations have an effective voice in corporate affairs while the Act does not prohibit any entity from offering to purchase or from purchasing.
Scalia Concurrence argues to eliminate Pike balancing in favor of only looking at discrimination. Trying to cut down on dormant commerce clause. Scalia does believe on stare decisis ground that states cannot discriminate versus other states. Not clear whether he thinks that states cannot unduly interfere with federal commerce powers.

Kassel v. Consolidated Freightways Corp. (1981) Declared unconstitutional an Iowa law banning 63 foot double trailers. The basic principle was that overburdening the safety justification was heavy indeed. Forced trucks to avoid Iowa , the principle route, or detach the trailers and ship them separately, The state failed to present any persuasive evidence that these types of doubles are less safe than other trucks being allowed. Considered it highly relevant that the statute claimed exemptions which weakened the safety justification. Though the end was legitimate, the means towards that end were not as there were other less restrictive means available. The motive behind the statute might have been lacking in good faith. Powell manages to make it easy for himself by finding exceptions in the statute because the exceptions don’t really satisfy the objectives so he doesn’t need to take it as seriously. Suppose those exceptions were not there? He would probably go with the Pike balancing test – balancing the marginal gain in safety against the marginal burden on interstate commerce. Getting safety for your residents at the expense of all others. Might be totally different if you were Hawaii as opposed to a central state.

How do you really do the balancing if they are much helping safety and much dumping onto other states? The Court never seems to have a case like this – they always question the evidence of safety or health.

Hawaii does not allow brining in many things (state search you on the way in) because of disrupting the balance. On the way out, the Dept of Agriculture searches you because of concerns about fruit flies. Usually do not allow these barriers.

2) Analysis When the State is Discriminating

The better way to argue if you want something thrown out is to say that the state discriminates. There is a strong presumption against discriminatory laws and they will be upheld only to achieve an important government purpose. A discriminatory law invokes the strictest scrutiny of any purported legitimate local purpose and of the absences of nondiscriminatory alternatives. Thus, the judicial review involves scrutiny of both the ends served by the law and the means used. As to the ends, in many cases, the Court has said that a law that discriminates will be upheld if it is necessary to achieve a legitimate local purpose – which is very strange because this sounds like RB and the Court usually requires more than this. At the very least, a state law that discriminates against interstate commerce must be justified by a purpose that is unrelated to economic protectionism. Also will not be upheld if the purpose could not be served as well by available nondiscriminatory means (Dean Milk).

Occasionally, the Court finds a discriminatory law is necessary to serve an important purpose. Maine v. Taylor (1986) Upheld a Maine law that prohibited the importing of live baitfish into the state. The discriminatory law protected Maine’s unique and fragile fisheries from significant threats from parasites that were prevalent in out-of-state baitfish but not common in Maine. Also, non native species of fish that were inadvertently included with baitfish could pose a threat by preying on native species or by disrupting the environment in more subtle ways. There was no less discriminatory way to prevent these threats as there was no satisfactory was to inspect shipments of live baitfish for parasites or commingled species.

There is a difference between fish and waste. In NJ case saying that we don’t want to help the whole country. In the fish case, if you allow in the out of state fish you will upset the ecological balance in Maine.

Laws that Limit Access to In-State Resources: Philadelphia v. New Jersey
Laws that Limit Access to Local Markets by Out-of-Staters: Maine v. Taylor
Laws that Require Use of Local Businesses: Dean Milk, Cooley

Breard v. Alexandria (1951) Door-to-door salesman was arrested after failing to obtain the prior consent of the owners of the residences solicited as required by ordinance. The Court held the Constitutional protection of property rights did not make a state or city impotent to guard citizens against the annoyances of life because a regulation restricts the manner of doing a legitimate business. Therefore, as the challenged ordinance did exactly that, it was not invalid under the 14th Amendment. Likewise, because the ordinance left open the usual methods of seeking business and did not discriminate against out-of-state solicitors, it was a permissible burden on commerce and did not violate Article I, § 8. Finally, the ordinance did not violate the 1st Amendment, as the wares could be obtained without the annoyances of door-to-door canvassing, and where the government was entitled to control sales methods by ordinance.
Suggestion that Breard is inconsistent with Dean Milk.

e. Exceptions
There are two exceptions where laws that would otherwise violate the dormant commerce lcause will be allowed: if Congress approves the state law (see, e.g., the FCL discussion below) because Congress has the plenary power to regulate commerce or when the state may favor its own citizens in receiving benefits from government programs or in dealing with government-owned business because the government is a market participant. The state is literally a participant in the market and not a regulator. Note however that they might still be vulnerable to other constitutional challenges like Article IV privileges and immunities or EP.

The Court has imposed one important limit on the scope of the market participant exception in that state businesses may favor in-state purchasers but the may not attach conditions to a sale that discriminate against interstate commerce.

South-Central Timber Development, Inc. v. Wunnicke (1984) State of Alaska owns land from which it harvests timber and sells it. 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. Usually the company that buys it sells the unprocessed logs to Japan and challenges the law as a restriction on purchasing the timber and then sending it out. Usually a market participant exception which says that if you are using your own natural resources, producing goods, or subsidizing state entities, you are relieved of the dormant commerce clause. 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 and it cannot have a substantial regulatory effect outside of that particular market. Too broad and there were other means. State could process timber before it sells it. Can’t do something by contract that would violate. Acting more than merely a seller. Obligations are after the contract occurs (payment and delivery exchange). Downstream commitment.

Should There Be a Market Participant Exception? The dormant commerce clause is meant to stop protectionist actions by state governments and it should not be allowed regardless of whether the state is acting in a proprietary or regulatory capacity. There is not a clear distinctions between regulating and acting as a market participant. Allows citizens to recoup benefits of the taxes they pay. Less coercive than regulatory programs. Shouldn’t protect benefits for in-staters because of P&I and EP. Not inherently less coercive.

The Supreme Court is basically doing federal common law. There was power to act that was not necessary and the Court decided to interpret the meaning of Congressional silence. When Congress decided not to make a decision on pasteurized milk was it because it wanted no law, to allow each state to do as wanted, or some other reason? (In other areas besides dormant commerce clause in FCL, the Court has a third option of just making up a law). The Court looks at the facts of the particular situation and decides what Congress would have wanted. When Congress speaks there is no Congressional silence and Congress can overturn these decisions whenever they want to even when the basis is that states have been discriminating against other states.

Congress can change all of these things. The justification for allowing the Court to do so is that if they are wrong the Congress will change it. Scalia, however, thinks that they should not make this determination and just leave it to the states unless it is discrimination.

Can’t find FCL from the grant of diversity jurisdiction in Article III, but this is odd because can find from suits between two states in Article III as well as admiralty in that section.

E. Privileges and Immunities of State Citizenship

Article IV §2 states “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. The Court has interpreted this provision as limiting the ability of a state to discriminate against of-of-staters with regard to fundamental rights or important economic activities. Most cases under P&I clause involve challenges to state and local laws that discriminate against out-of-staters with regard to their ability to earn a livelihood. Such discrimination will be allowed only if it is substantially related to achieve a substantial state interest. Discrimination against citizens of other states is a prerequisite for application of the P&I clause and is limited to citizens of the United States and corporations and aliens cannot thus sue under this clause

Relationship to the Dormant Commerce Clause Both can be used to challenge state and local laws that discriminate against out-of-staters and they have a mutually reinforcing relationship. Key differences are: P&I can be used only if there is discrimination against out of staters while 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. Still, laws that discriminate are much more likely to be invalidated under the dormant commerce clause.
Corporations and aliens cannot sue under P&I but can under the dormant commerce clause.
The two exceptions to the dormant commerce clause do not apply to P&I.

Relationship to Other Constitutional Provisions The 14th Amendment has a P&I clause which states 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 very narrow construction and is rarely used while the P&I clause of Article IV remains an important tool for challenging discriminatory state and local legislation. Discriminatory laws can be challenged under the dormant commerce clause and EP clause as well as P&I.

Analysis Under P&I: First, has the state discriminated against out-of-staters with regard to P&I it accords its own citizens, and second, if there is sufficient justification for the discrimination? P&I clause is not absolute but it does create a strong presumption against state and local laws that discriminate against out-of-staters with regard to fundamental rights or important economic activities. Have seen this before in Slaughterhouse and the right to travel.

State Privileges and immunities:
1) Is it a privilege/immunities (fundamental/economic) The classic meaning o the phrase P&I includes protection by the government, enjoyment of life and liberty, right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may prescribe for the general good of the whole. Things important for national citizenship. State universities, welfare residency (but not duration), access to courts (residency and duration) the state can limit to residents but not finding a job. Can only limit when the state is directly doing it as a market participant but not if contracted out. And that exception is a commerce clause exception rather than a P&I exception. Must give access to parks. Lots of open questions about adoption, but so far can limit because not fundamental/necessity.
2) Is there a substantial state interest in different treatment of own residents? Does the discrimination against nonresidents bear a substantial relationship to the interest? Consider if out of state is more evil. If not residents are not paying money that is funding public institutions.

Supreme Court of NH v. Piper (1985) Invalidated a NH law which required residence in the state in order to be admitted to the bar. The practice of law is a P&I protected under the clause as the activities of a lawyer play an important part in commercial intercourse. And because the legal profession has a noncommercial role and duty that reinforces the view that the practice of law falls within the ambit of P&I clause. No reason to believe that residents would know the law better or behave more ethically. Problems with unavailability of nonresident lawyers could be solved by requiring the designation of local counsel.

Toomer v. Witsell (1948) Declared unconstitutional a South Carolina law that required $20 for residents and $2000 for nonresidents to purchase a license fee for a commercial shrimp boat. Does it matter if it is recreational rather than for a job? This is deemed economic whereas something like elk hunting is not economic and just recreational (and for which different prices for licenses have been upheld).

United Building & Construction Trades Council v. Camden (1984) Challenge to an ordinance requiring contractors working on city construction projects have a certain percentage of municipal residents. Subject to P & I even though it discriminates within the state and out of state. Engaged because it discriminates out of state against a certain subsect of state residents. P&I applies equally to municipal ordinances as state laws and the pursuit of a common calling is one of the most fundamental privileges. Consider whether it is integral to interstate commerce.

Dormant Commerce
State P & I
EP
Pre-emption
40% Camden Residents
Permissible because Camden was acting as a market participant.
No market participant exception
No market participant exception.

City project
Effect is enough for discrimination
Effect is enough for discrimination
Also need purpose.

Test
Balancing when not a discrimination but a burden.
Strict Scrutiny when (facial) discrimination and there is no full health explanation.
Intermediate scrutiny – carefully tailored.
SS, IS, and RB.

Corporations
Corporations are people
Not people
Corporations are people

Fundamental Rights

Fundamental right to get a job.
Fundamental rights

Would have to argue that non residents are a peculiar source of evil and that the law is carefully tailored. Perhaps use empirical evidence. Substantial reason for the evidence and close relation – sounds like intermediate scrutiny. Point to flight of residents to the suburbs and has deprived the city to the tax base and part of the problem is people living outside the city and community is becoming terrible. Field doesn’t know if this would work or not. Can sometimes survive intermediate scrutiny of the P & I but can rarely survive SS of dormant commerce clause.

It seems odd the judicially implied SS in dormant commerce clause is tighter than the one for P & I which has direct text in the Constitution. A justification is that the court’s holdings in dormant commerce clause can be overturned whereas P & I will not be overturned because it is a constitutional exception.

F. Preemption of State and Local Laws

Article VI contains the supremacy clause which provides that the Constitution and the laws and treaties made pursuant to it are the supreme law of the land and if there is a conflict with state law the federal law controls. There is no clear rule for deciding whether a state or local law should be invalidated on preemption grounds.

Types of Preemption: 1) Explicit language, 2) Field preemption where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it, 3) Conflict preemption where compliance with both state and federal law is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, 4) States generally cannot tax or regulate federal government activities (this one does not depend on congressional intent).

Problems With Applying the Test for Preemption: Even when it is explicit language, Congress rarely is clear about the scope of what is preempted and this inevitably is an inquiry into congressional intent. Conversely, implied preemption is often a function of both perceive congressional intent and the language used in the statute. In both cases you have to discern congressional intent. The Court has frequently said that congressional intent must be clear before preemption because of federalism’s respect of state and local laws. Also helps to minimizing undermining the objectives of federal laws.

1. Field Preemption

Exists is either the nature of the regulated subject matter permits no other conclusion or that the Congress has unmistakably so ordained. Either Congress expresses a clear intent that federal law will be exclusive in an area or if comprehensive federal regulation evidences a congressional desire that federal law school completely occupy the field. The difficulty is in deciding when congressional intent is sufficiently specific or federal regulation sufficiently detailed.

Several criteria can be identified that are crucial even though this area of law is unclear: Is it an area of law where the federal government has traditionally played a unique role? Has Congress express an intent in the text of the law or in the legislative history to have federal law be exclusive in the area? Would allowing state and local regulations in the area risk interfering with comprehensive federal regulatory efforts? Is there an important traditional state or loca intereste served by the law? The presence of more than one increases the likelihood of preemption.

a. Foreign Policy and Immigration

Hines v. Davidowitz (1941) Pennsylvania law required aliens to register with the state, carry a state issued registration card and pay a small registration fee. Thee Supreme Court deemed this law preempted by emphasizing that alien registration is in a field which affects international relations that has been most generally conceded imperatively to demand broad national security. The Court stressed extensive federal regulation in the area. Noteworthy because the Court found preemption of a state law that complemented the federal law and found it even in the absence of express preemptive language in the statute.

Crosby v. National Foreign Trade Council (2000) Massachusetts adopted a law which prohibited the state and its agencies from doing business with Burma because of human rights violations in the state. Found to be preempted by state law because Congress had enacted a sanctions law against Burma.

Questionable decision because Congress had not expressed or implied any intent to preempt states from imposing sanctions and the state law was not inconsistent with federal law. The state was choosing how it would spend taxpayer’s money and who it would do business with. Many state and local governments had similar laws with respect to South Africa. On the other hand can see it as following the tradition of having federal laws occupy the field of foreign policy.

b. Federal Regulations

Rice v. Santa Fe Elevator Corporation (1947) The Court concluded that a state regulation of grain elevators licensed by the federal government was preempted even though Congress did nto expressly preclude state regulation. The Court saw the purpose of the federal law as eliminating dual state and federal regulation.

c. Conflicts Between State and Federal Laws
The difficulty with regard to this type of preemption is in deciding whether there is a conflict as difference doesn’t always mean conflict. It could be that the federal government set a minimum standard or it could be the standard.

Florida Lime & Avocado Growers, Inc. v. Paul (1963) Department of Agriculture adopted regulations for measuring the maturity of avocados. CA adopted a stricter rule. FL avocados which were permissible under the federal law were prohibited under CA law. The Court concluded that the federal regulation was the floor not the ceiling. Emphasized the traditional role of states in regulating food products as well as the history of the adoption of the regulation.

d. State Laws that Impede Achievement of Federal Objectives

Characterize the federal law and the state law.

Pacific Gas & Electric v. State Energy Resources Conservation (1983) CA law that imposed a moratorium on the construction of nuclear power plants until the State Energy Commission determine that there was a safe means of disposing of the high-level nuclear wastes. The Court upheld the law by concluding that Congress’s intent was to ensure safety while the state’s goal was economic. Congress intended that the federal government have exclusive authority to regulate safety but that the states retain their traditional responsibility in the field of regulating electrical utilities. The main purpose of the CA law was economics.

Gade v. National Solid Wastes Management Association (1992) Whether the federal Occupational Safety and Health Act of 1970 and the federal regulations promulgated pursuant to it preempted an Illinois law that protected the health and safety of workers who handled solid waste. Both regulations required training of hazardous waste operators, a written exam, refresher courses, and fines for violations. Held to be preempted because Congress created a system where states could have their regulations approved and then their regulations would replace federal law and thus evidenced the intent to have one set.

Seems odd because safety is a traditional state function and also because the law in Pacific Gas & Electric appeared to be inconsistent with the federal objective of encouraging the development of nuclear power while the state law in Gade was consistent with the federal goal of protecting worker health. Point is that the Court can define the objectives in how it wants it to work.