Standing : Determination of whether a specific person is the proper party to bring a matter to the court for adjudication.

- Values of limiting standing 1) Promotes separation of powers by restricting the availability of judicial review. Limits the matters that the Court will address and minimizes judicial review of the actions of the other branches of the government. 2) Preventing a flood of lawsuits by those who have only an idealogical stake in the outcome. 3) Ensures that there is a specific controversy, and that there is an advocate with sufficient personal concern to effectively litigate the matter. 4) Serves the value of fairness by ensuring that people will raise their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection offered. - Requirements for Standing Constitutional 1) Plaintiff Must allege that he or she suffered or will imminently suffer an injury. - Key to ensuring that there is an actual dispute between adverse litigants and that the court is not being asked for an advisory opinion. - Ensures the plaintiff is not an intermeddler and he has a personal stake in the outcome of the controversy. - Sierra Club v. SCRAP: The plaintiffs complaint must specifically allege that he or she has personally suffered an injury. - Lujan v. National Wildlife Federation: The plaintiffs were not entitled to to standing unless they could demonstrate that they used specific federal land that was being mined under the new federal regulations. - Application: City of LA v. Lyons - Establishes that in order for a person to have standing to seek an injunction, the individual must allege a substantial likelihood that he or she will be subjected in the future to the allegedly illegal policy. - Sufficient Injury: Injuries to Common Law Rights: Property, contracts and torts. Injuries to Constitutional Rights: 1) It is necessary to decide which constitutional provisions bestow rights. Personal, not generalized grievances, etc. 2) What facts are sufficient to establish such an injury. 3) Injuries to Statutory Rights. Other than that it is unclear, essentially a plaintiff has standing if she asserts an injury that the Court deems sufficient for standing purposes. 2) Causation: The injury is fairly traceable to the defendants conduct. 3) Redressability: A favorable federal court decision will likely redress the injury. - Criticisms: It is undesirable because it is an improper determination to make on the basis of the pleadings - It is highly contingent on the characterization of the injury, ability to compete vs. denial of admission Bakke - It is inherently unprincipled in terms of what constitutes a sufficient likelihood of solution to justify standing. Unclear on probability spectrum where it is sufficiently certain that a court should grant standing. Prudential 1) A party may generally assert his or her own rights and cannot raise the claims of third parties not before the court. - Exceptions: - Where the Third Party is unlikely to be able to sue: - Close Relationship between the Plaintiff and the Third Party: Doctors and Patients, vendors and their customers, etc. denied mother in sons pending death sentence. - Overbreadth Doctrine: Appears limited to First Amendment cases.

Standing for Associations: Hunt v. Washington State Apple Edvertising Committee: three-part test: 1) its members would otherwise have standing to sue in their own right, 2) the interests it seeks to protect are germane to the organizations purpose, and 3) neither the claim asserted nor the relief requested requires the participation in the lawsuit of the individual members. 2) A plaintiff may not sue as a taxpayer who shares a grievance in common with all other tax payers. prevents individuals from suing if their only injury is as a citizen or a taxpayer concerned with having the government follow the law. Where the plaintiffs sue solely as citizens concerned with having the government follow the law or as taxpayers interested in restraining allegedly illegal government expenditures. Needs to be a violation of a constitutional right. In order for a taxpayer to sue, the plaintiff needs to establish two factors: 1) a logical link between the status and the type of legislative enactment attacked, and 2) a nexus between the status and the precise nature of the constitutional infringement alleged. (Congress violated a specific constitutional provision, not that it merely exceeded its powers under the Constitution.) 3) A party must raise a claim within the zone of interests protected by the statute in question. applies when a person is challenging an administrative agency regulation that does not directly control the persons actions o plaintiff can sue if it can show that it is within the group intended to benefit from the statute (generally only in challenging a statute) o i.e. text book company on behalf of widget company SC: the interest sought to be protected by the complaint is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question Court has been inconsistent in applying this prudential requirement, uses it in some instances and has not in others Is it Desirable? o Provides for problems encountered in the area of dispute, yielding t the parties that are sensitive to the conflicting interests, and those most directly involved o Criticisms: if a person meets the other standing requirements, and is asserting a judicially cognizable injury, there is no reason to deny review. The Court has never articulated how a judge is to decide the zone of interest protected by a particular statute. Inconsistencies in Application o Court has applied, but stated it is a requirement that generally should not preclude standing o Plaintiffs need only demonstrate the Statute arguably protects their interests. o In contrast, it held in Air Courier that a person or group must show they are within the zone of interest based on the statutes text or history justifying such a conclusion. Strong indication that it only applies under the Administration Procedures Act

Ripeness: Determines when litigation of an issue may occur, seeks to separate matters that are premature for review, because the injury is speculative and may never occur, from those cases that are appropriate for federal court action - Overlaps with Standing because if an injury has not occurred, the case may be dismissed because it is not ripe o May be able to distinguish because standing reqs. Under Art. III focus on whether the type of injury is qualitatively sufficient, whereas ripeness focuses on whether the injury has occurred. o Yet, very interchangeable and the court has declared failure to show standing where it could have ruled the case is not ripe.

Therefore, involves the question of when may a party seek preenforcement review of a statute or regulation o Customarily, a person may challenge the legality of a statute or regulation only when he or she is prosecuted for violating it. o Semi-Unfair to require someone to violate law in order to challenge it Declaratory Judgement Act: Primary purpose is to allow preenforcement review of statutes and Regulations o Only in cases of actual controversy o Does not permit advisory opinions because it is limited to justiciable cases Ripeness, thus is best Understood as the determination of whether a federal court can grant preenforcement review o 2 Considerations: o 1) the hardship to the parties of withholding court consideration; and o 2) the fitness of the issues for judicial review Advances Seperation of powers because it avoids becoming involved when unnecessary because there is not a substantial hardship to postponing review. Enhances Judicial Economy, limits occasion for federal review, most of all enhances quality of judicial decision by ensuring there is adequate record to permit effective review. o Court has a lot discretion in determining if a case is ripe 1st Criteria for Determining Ripeness: The Hardship to Denying Review The more a plaintiff shows substantial hardship to a denial of preenforcement review, the more likely a federal court is to find ripeness o Hardship from Choice between Possibly Unnecessary Compliance and Possible Conviction When an individual is faced with a choice between foregoing allegedly unlawful behavior and risking likely prosecution with substantial consequences, the federal courts will deem the case ripe rather than insist the individual violate the law People should not be forced to exercise their rights at peril of criminal sanctions or loss of employment. Other cases have been contrary to this, especially when the identity of particular candidates is part of issue, see 108-109 o Hardship where Enforcement is Certain Substantial Hardship where the enforcement of a statute is certain and the only impediment to ripeness is simply a delay before the proceedings commence Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect. Regional Railroad Reorganization Act Cases o Hardship Because of Collateral Injuries Nuclear Plants limited liability found ripe because while the primary injury focused on by the lawsuit was not ripe, other injuries existed to make the case justiciable. o Hardship Is A Prerequisite for Ripeness If there is minimal harm to denying review, or the harm is too speculative the case will be dismissed as not ripe. nd Criteria for Determining Ripeness: The Fitness of the Issues and Record for Judicial Review 2 o Is there Significant Gain to Waiting for an Actual Prosecution?

The more a question is purely a legal issue the analysis of which does not depend on a particular factual context, the more likely it is that the Court will find ripeness. However, there needs to be a concrete factual situation to facilitate judicial review. o Relationship Between the Two Ripeness Criteria Not clear, seem to need to have both, but academics have said you only need either Unclear if greater hardship compensates for less factual record or vice versa. Constitutionally based, thus flexible. Prudential req about record given less weight. Mootness: An actual controversy must exist at all stages of federal court proceedings, if subsequent events resolve the dispute, the case is dismissed as moot. - Standing in time frame, the personal interest that must exist at the commencement of the litigation must continue through its existence. o Circumstances that might cause a case to be Moot Any change in the facts that ends the controversy renders the case moot o Why Have a Mootness Doctrine? SC has stated it is derived from Art. IIIs prohibition against federal courts issuing advisory opinions Four Exceptions: casesare not dismissed as moot if they are collateral injuries; if the issue is deemed a wrong capable of repetition yet evading review; if the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time; and if it is a properly certified class action suit. o Procedural issues Can be raised at any stage of proceedings, if deemed moot, previous lower court rulings are vacated o Exceptions: Overview Situations where a federal court should not dismiss a case as moot even though the plaintiffs injuries have been resolved Do policy considerations served by the exceptions justify allowing review in a case where there is not an actual dispute between adverse litigants and where a favorable court decision will not effect a change. o Exceptions: Collateral Consequences Technically not moot, because an injury still remains Criminal Cases: Felonies have a broader punishment than incarceration ,i.e. voting, jobs, therefore it should not be dismissed on mootness grounds Dismissed only if there is no possibility of any collateral legal consequences. Only challenges of conviction, not sentence. Civil Cases: Case not moot as long as the plaintiff continues to suffer some harm that a favorable court decision would remedy. As long as the parties have a concrete interest in the outcome of the litigation, it is not moot. o Exception: Wrongs Capable of Review yet Evading Review Injuries occur and over so quickly that they will always be moot before the federal litigation process is over Requirements: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. o Exception: Voluntary Cessation

A case is not dismissed as moot if the defendant voluntarily ceases the improper behavior, but is free to return to it at any time, unless there is no reasonable chance the defendant could resume the offending behavior. Burden on those claiming mootness, usually defendant, unlike standing where the burden is on the plaintiff to show constitutional and prudential requirements are met Statutory Change: Key seems to lie in the idea that a case will not be dismissed as moot if the court believes there is a likelihood of reenactment of a substantially similar law if the lawsuit is dismissed. Compliance with a court order only renders a case moot if there is no possibility that the allegedly offending behavior will resume once the order expires or is lifted. Unless the offending behavior is unlikely to resume. Central question is whether the defendant has the abiliy to resort to the allegedly improper conduct that was voluntarily stopped. o Exception: Class Actions As long as the members of a class action have a live controversy, a plaintiff may continue to appeal the denial of class certification even after his particular claim is mooted. Consistent with Art. III because there is an actual dispute between adverse litigants and a favorable court decision will make a difference for the class members. Political Question Doctrine - What? Certain allegations of unconstitutional government conduct should not be ruled on by federal courts even though all of the jurisdictional and other justiciability requirements are met Subject matter deemed inappropriate for judicial review, therefore it is up to the politically accountable branches of government to decide. o Baker Criteria and Their Limited Usefulness Baker v. Carr: A textually demonstrable commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards 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 courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government, or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Impossible for a court or commentator to apply the criteria to identify what cases are political questions. Areas where considered: republican form of government clause and the electoral process, foreign affairs, Congresss 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. - Should there be a Political Question Doctrine? o Justifications It accords the federal judiciary the ability to avoid controversial constitutional questions and limits the courts role in a democratic society. Prof. Bickel: The strangeness of the issue and intractability to principled resolution

The sheer momentousness of it, which tends to unbalance judicial judgement The anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be The inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from It allocates decisions to the branches of government that have superior expertise in particular areas. The federal courts self-interest disqualifies them from ruling on certain matters. On separation of powers grounds as minimizing judicial intrusion into the operations of the other branches of government. o Criticisms The Judicial Role is to enforce the Constitution, it is inappropriate to leave Constitutional questions to the political branches. The federal courts credibility is quite robust, there is no evidence that particular rulings have any effect on the judiciarys legitimacy, and the courts mission should be to uphold the constitution and not worry about political capital. It confuses deference with abdication. In areas where they lack expertise, they should be more deferential to the other branches of government. o Constitutional or Prudential? Unknown, not derived from Article IIIs limitation of judicial power to cases and controversies like other justiciability doctrines o The Republican Form of Government Clause and Judicial Review of the Electoral Process Article IV 4: The United Sates shall guarantee to every State in the Union a Republican form of government S.C. has consistently held that cases alleging a violation of this clause present nonjusticiable political questions Some scholars have urged the court to reconsider Luther v. Borden The Court refused to decide the case where Borden broke into Luthers house to search it. RI had a messed up gov., and Luther believed it was unconstitutional. The Court held that it is Congress job to decide what type of government constitutes a Republican one. Not one instance where the S.C. has deemed a state government or state action to have violated the republican form of government clause Reappotionment The S.C. has only approved federal court involvement in cases alleging racial discrimination in the drawing of election districts or in holding elections. Baker v. Carr: S.C. deemed justiciable claims that malapportionment violates the equal protection clause o Distinguished from Luther v. Borden, of cases pursued under the equal protection clause and those pursued under the republican from of government clause USDOC v. Montana, Court found justiciable to the method of apportioning members to the House of Representatives. There was no constitutional violation. The Court

explained that objections to apportionment should be treated no differently than challenges to state government districting restrictions. The Court has made it clear that strict scrutiny must be met in order for race to be used as a predominant factor in districting. Gerrymandering Vieth v. Jubelirer: the Court dismissed a challenge to partisan gerrymandering. A plurality said that such suits are inherently nonjusticiable political questions. o The question was whether partisan gerrymandering violates the equal protection clause. o There are no judicially discoverable or manageable standards and no basis for courts to decide when partisan gerrymandering offends the Constitution. o There are no cases holding these situations are always political questions, but it is hard to imagine such a case succeeding Review of political Parties The Court has repeatedly held that the federal judiciary will prevent racial discrimination by political parties But other challenges to political parties, especially suits concerning the seating of delegates at national conventions, have been dismissed by the courts. o Foreign Policy Cases presenting the issues related to foreign affairs pose political questions The Court also emphasized it is error to to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Areas of Foreign Policy that Pose a Political Question The determination of when a war begins and ends The recognition of foreign governments The many issues concerning the ratification and interpretation of treaties Challenges to the presidents use of the war powers Should Foreign Policy Issues Be a Political Question? It is the expertise of the branches of government to decide Critics argue that constitutional questions rearding foreign affairs should be adjudicated o The constitutional questions do not require expertise o Without judicial enforcement, the constitutional provisions governing foreign policy are rendered meaningless Because precedents concerning judicial review pertaining to foreign affairs are conflicting and controversial, it is inevitable that the issue will be revisited in the future o Congressional Self-Governance Often, although not always, the Court has held tht Congressional judgments pertaining to its internal governance should not be reviewed by the judiciary Powell v. McCormick: Key case in rejecting the application of the political question doctrine o House refused to seat Powell, was allowed to sit when reelected o S.C. held his previous case was not moot because of back pay

o That the HoR only had power to determine if he met the qualifications articulated in Article 1 5. o Court stressed the importance of allowing the people to elect the legislators Underlying normative question is whether these decisions invoking the PQD are proper deference to a coordinate branch of government or whether they are unjustified judicial abdication. o The Process for Ratifying Constitutional Amendments Inconsistency among the Cases In some instances, the S.C. has allowed judicial review o Hollingsworth v. Virginia o The Court held that the president may not veto amendments passed by Congress o Leser v. Garnet o The Court held that a states certification that it has ratified an amendment is enough to count it as an approval of the Con change o Dillon v. Gloss o The court upheld the constitutionality of Congresss creating time limits for the ratification of an amendment Others it has held the cases non justiciable o Coleman v. Miller o The Court declared that Congress has the sole and complete control over the amending process o Excessive Interference with Coordinate Branches of Government Limiting Judicial Oversight and Intrusion Gilligan V. Morgan: S.C. deemed not justiciable a lawsuit claiming the government was negligent in adequately training the National Guard of Ohio Lower Courts have also continued to find that there is a political question where there is a challenge to the exercise of executive discretion o States v. Mandel: decision of the secretary of interior to place an item on the commodity list was non justiciable Impeachment and Removal from Office Nixon v. United States o Impeachment of federal district court judge is nonjusisticiable because it would be inconsistent with the framers views of impeachment in the scheme of checks andbalances o Yet, leaves open the question if this is applicable in all cases, i.e. someone impeached for lawful acts Congressional Control of Federal Court Jurisdiction - Intro Another possible check on federal court power is the ability of Congress to limit federal court jurisdiction Proposals to Restrict Jurisdiction In the 1990s, Congress enacted significant restrictions on federal court jurisdiction

Felker v. Turpin: the Court upheld a provisions restriction on Supreme Court review of court of appeals decisions by concludingthat there remained some opportunity for S.C. review: writs of habeus corpus filed in the Court Many have been recently proposed in light of the Immigration and terrorist problem o Boumediene v. Bush: Court declared unconstitutional because the Constitution only allows Congress to suspend hbeus corpus in instances of rebellion or invasion. Saying this is a fundamental right as declared in the Constitution. Purpose of Jurisdiction Stripping To Achieve a change in the substantive law by a procedural device Without lower federal courts and the SC to protect particular rights, the litigation would be entirely in state courts with no review in the federal judicial system de facto reversal, by means far less burdensome than those required in constitutional amendment, of Supreme Court decisions Constitutionality Uncertain Proponents o Article III authorizes congressional restriction and this is an important aspect of the check on judicial power Opponents o Strippin would infringe on review of constitutional rights and allow Congress to disregard the Constitution and allow States to ignore federal law On several occasions, The Court has upheld statutory limits on lower federal court jurisdiction, concluding that because congress can create the lower federal courts, it should be able to define its jurisdiction Opponents argue that the lower courts are fundamental in due process considerations The Scope of Congresss power to define lower court jurisdiction focuses its ttention on separation of powers and the allocation of power among the branches of the federal government Court Has Jurisdiction to Decide Constitutionality Marbury v. Madison o Thus, the federal courts must decide whether a statute restricting jurisdiction is constitutional before it can be applied to deny review in a particular case. o Congressional Control of Supreme Court Jurisdiction Issue No consensus on the constitutionality of restrictions on jurisdiction Dispute over Meaning of Constitutional Text Proponenets of Congressional Limitation o Article III: authorizes Congress to create exceptions to the S.C.s jurisdiction and that such exceptions include the ability to preclude review of particular topics o Evidence: First Congress did not vest S.C. with appellate jurisdiction over all types of cases and controversies contained in Article III Opponents

o Exceptions modifies Fact o Framers were concerned with Courts ability to overturn fact-finding by lower courts, especially when done by juries o Congress can create an exception to the S.C.s jurisdiction for review on matters of fact, but cannot limit the jurisdictional ability on matters of law Precedents for Both Arguments Ex Parte McCardle: Advocates to proposals to limit S.C. jurisdiction point to this case. o McCardle was detained for writing about Reconstruction. Filed a petition of writ of habeus corpus pursuant to a 1867 statute. Congress adopted a rider to a tax bill repealing that part of the 1867 statute. o The Court dismissed the case because the statute repealed jurisdiction. o Quote language from Court stating they are not entitled to look into the motives of the legislature. We can only look into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. Ex Parte Yerger: a year later, same situation, SC held they had jurisdiction under a different Act. (McCardle couldve used it but didnt state it in his jurisdictional statement). Therefore the opponents of jurisdiction stripping contend McCardle is not a precedent that would eliminate all SC review of controversial topics. Felker v. Turpin: 1996 Anti terrorism statute. Precluded SC review of any decision by a court of appeals granting or denying authorization for a state prisoner to file successive habeus corpus petition. o SC upheld stating the law did not preclude all SC review of petitions from individuals denied the ability to file successive ones; the law did not repeal the Courts authority to entertain original habeas petitions. U.S. v. Klein: Opponents of jurisdictional stripping cite this case as precedent that Congress cannot restrict SC appellate review in an effort to direct particular substantive results. o Statute that people whose property was seized during Civil War could recover it, or compensation, upon proof they didnt support union during the war. Congress enacted statute declaring pardons proof that a person aided the rebellion and denied federal court jurisdiction over the claims o SC held statute unconstitutional: Congress has inadvertently passed the limit which seperates the legislative power from the judicial power o Proponents argue thus that Congress may not restrict SC jurisdiction in an attempt to dictate substantive outcomes. o Difference between Klein and the statute reversing a SC interpretation of Title VII First, statute redifing presidents pardon power. Second, the statute arguably unconstitutionally deprived property without just compensation or due process. Supporters argue Klein merely doesnt support the proposition that Congress may not restrict jurisdiction in a manner that violates another constitutional provision

Roberts v. Seattle Audobon Society: The court read Klein as applying in a situation where Congress directs the judiciary as to decision making under an existing law and not applying when Congress enacts a new law. Plaut v. Spendthrift Farm, Inc.: Court declared unconstitutional a federal statute that overturned a SC decision dismissing certain cases. Not exactly under limiting jurisdiction, but analogous. It was ordering the SC to hear cases it had previously dismissed. The Federal Legislative Power - The Doctrine of Limited Federal Legislative Authority Congress may act only if there is express or implied authority to act in the Constitution States may act unless the Constitution prohibits it Art. I of the Constitution, which creates the federal legislative power, states: All legislative powers herein granted shall be vested in a Congress of the US which shall consist of a Senate and a House of Representatives. 10th Amendment: 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. In evaluating the Constitutionality of any act of Congress, there are always two questions: o 1) Does Congress have the authority under the Constitution to legislate? o 2) if so, does the law violate another Constitutional provision or doctrine, such as by infringing separation of powers or interfering with individual liberties? The only question to ask when evaluating the constitutionality of a state law is: o Does the legislation violate the Ocnstitution? Only the states possess the police power. The police power allows State and local governments to adopt any law that is not prohibited by the Constitution. The Reality of Broad Federal Powers After 1937, the SC accorded Congress broad authority to regulate under constitutional provisions such as the commerce clause, the spending power, and the Reconstruction Amendments ( 13th, 14th, and 15th). From 1937-1995, not a single federal law was declared unconstitutional as exceeding the scope of Congresss commerce power. In large part based on the perceived need for a strong national government to deal with the problems of the twentieth century, and, in part, a reaction to the intense criticism of the earlier decisions that had sharply limited the scope of federal powers. In the last 15 years, the SC has limited the scope of Congresss power under the commerce clause and under 5 of the 14th amendment. Also, OCngress has revived the 10th amendment as a limit on federal power McCulloch v. Maryland and the scope of Congressional Powers Congresss Authority to Create the National Bank o 1) Historical Practice established the power of Congress to create the bank

The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judial department as a law of undoubted obligation. Historical experience has justified constitutionality of a practice in numerous instances o 2) Marshall refuted the argument that states remain the ultimate sovereignty because they ratified the Constitution If the states are sovereign, than they would have the authority to veto a federal action. Marshall stated it was the people who ratified the Constitution, and thus the people are sovereign, not the states. Reaosning can be questioned language of Article Vii, but the view has controlled throughout American history o 3) The Court addressed the scope of Congressional power under Article I. The Court broadly described Congresss authority even before addressing the necessary and proper clause. The Constitution should be interpreted differently than a statute. Marshalls ultimate conclusion is that Congress is not limited to those acts specifically enumerated in Article I, Congress may choose by any means, not prohibited by the Constitution, to carry out its lawful authority. Eventhough the Constitution does not mention a power to create a Bank of the US, Congress can create one as a means to carry ou its other powers If Congress was limited by Article I, the powers would be finite. But if Congress can choos by any means to carry out its powers , they are almost infinite. The problems of the twentieth and twenty-first centuries , can only be dealt with an eighteenth century constitution because of the broad construction of the congressional powers found in McCulloch. o 4) Meaning of the necessary and proper clause. Article I 8 concludes by granting Congress the power to make laws which shall be necessary and proper for carrying into Execution the foregoing Powers, andall other Powers vested by the Constitution. Let the end be legitimate, let it be within the scope of the constitution, and all means are appropriate, which are plainly adapted to the end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional. Necessary means useful or desirable, not indispensible or essential expands Congresss powers, 9 limits them. Thus, this is the right interpretation. Does not give Congress unlimited authority. Statute must be rationally related to the implementation of a constitutionally enumerated power

The relevant inquiry is whether the means adapted to the attainment of a legitimate ender under the commerce power or under other powers the Constutution grants Congress the authority to implement. o Constitutionality of MDs tax States cannot impede enactments of Congress Also, it would be a tax on other states citizens and thus puts burden on them and it is unfair to allow a state to regulate those who have no representation in the state. o Supremacy of Federal Law and Doctrine of Preemption Intro Limits on state authority State and Local governments possess the police power, meaning they can take any action unless there is constitutional prohibition. State and Local governments are limited by the Constitutions protections of individual rights Also, the Constitution explicitly identifies a few instances where states may not act. o Art. I 10, states: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and Silver Coin a Tender in Payments and Debts; or grant any Title of Nobility. Preemption There are two possibilities when considering whether a state or local law is invalidated because of these restrictions. o One situation is where Congress has acted. If Congress has passed a lawful exercise of congressional power, the question is whether the federal law preempts state or local law. Article VI: shall be the Supreme Law of the land. Dormant Commerce Clause o The other is where Congress has not acted (or at least the judiciary decides that federal law does not preempt state or local law). Even though there is not preemption, state and local laws can be challenged under two principles The dormant commerce clause and the privileges and immunities clause o The dormant commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. The SC has inferred this limit on state regulatory power from the grant of power to Congress to regulate commerce among the states. Even if Congress has not acted, even if its commerce power lies dormant, state and local governments cannot place an undue burden on interstate commerce. Privileges and Immunities Clause o Art.IV 2: The Citizens of the United States shall be entitled to all Privileges and Immunities of Citizens in the several States.

Limits the ability of States to discriminate against ou-of staters with regard to constitutional rights or important economic activites. Underlying Policy Themes o What is the appropriate degree of judicial oversight or of judicial deference to state and local governments. Preemption of State and Local Laws Intro o Federal laws are the supreme law of the land o SC: Uner the Supremacy Clause, from which our pre-emption doctrine is derived, any state law, however clearly within a States acknowledged power, which interferes with or is contrary to federal law, must yield. Gade v. National Solid o Difficulty is whether a specific state or local law is pre-empted by a specific federal law No clear rule, Ways of Finding Preemption o SC has identified two major situations Where a federal law expressly preempts state or local law. Where preemption is implied by a clear congressional intent to preempt state or local law Gade v. National Solid Waste Management: Express or implied Implied: Implicitly contained in its structure and purpose. o Two types: o Field Preemption: the scheme of regulation is so persuasive as to make reasonable the inference that Congress left no room for the States to supplement it o Conflict Preemption: where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes ond objectives of congress Problems with Applying the Test for Preemption o The purpose of Congress is the ultimate touchstone in every preemption case It rarely indicated the scope of preemption or provides guidance for the myriad of problems that may arise o Express Even if there is statutory language expressly preempting state law, Congress rarely is clear about the scope of what is preempted or how particular situations should be handled. Courts must decide what is preempted, and this inevitably is an inquiry into congressional intent. o Implied Is often a function of both perceived congressional intent and the language used in the statute or regulation.

o The intent of Congress is rarely expressed or clear, therefore it is up to the Court to guess about purpose based on fragments of statutory language, and random statements in the legislative history, and the degree of detail of the federal regulation. o Recently the Court declared: Because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly preempt stat-law causes of action. In all preempton cases, and particularly those which Congress has legislated in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Three Situations Where Preemption Claims Arise o Express preemption o Implied preemption Field Preemption The scheme of federal law and regulation is so persuasive that Congress left no room for the States to supplement it. Where there is a conflict between federal and state law If a state law impedes the achievement of a federal objective o States generally cannot tax or regulate federal government activities Different because it does not require legislative intent Underlying Policy Issues o How willing should courts be to find preemption? Recent courts have leaned towards protecting federalism and states rights Express Preemption of State Laws Federal Laws Can Explicitly Preclude State Regulations o Some federal laws contain clauses that expressly preempt state and local laws. Jones v. Rath Packing Co.: Federal Meat Inspection Act: Marking, Labeling packaging, or ingredient requirements in addition to, or different than, those made under this Act may not be imposed by any State. State law did not permit variations from the stated amount because of moisture loss. The federal law did. The Court held the express language of the Federal Act preempted the State Law. Morales v. Trans World Airlines: Airline Deregulation Act of 1978: NO State shall enact or enforce any rule, regulation, standard or other provision having the force and effect of law relating to rates, routes or services of any carrier. Court interpreted broadly and found tht price advertising guidelines were related to rates. Another Case, Court ruled that a state consumer fraud law concerning airlines frequent flier programs was preempted.

o Concerned services The Scope of Preemption is Rarely Clear o Express preemption clauses rarely provide guidance for its scope Tobacco Cases The Federal Cigarette Labeling and Advertising Act: Requires all cigarette packages to have a warning of smokings health hazards. 1965 law: No statement relating to smoking and health, other than [the federally prescribed warning]shall be required on any cigarette package [and no such ] statement shall be required in advertising. 1969 law: No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising of any cigarettes the package of which are labeled. o Cipillone v. Liggette Group: Whether these provisions preempted a state from awarding damages on claims for torts such as failure to warn and fraudulent misrepresentation. 1965 did not, 1969 did preempt state damage actions for failure to warn and fraudulent misrepresentation. The phrase state law incorporates common law as well as statutes and regulations Did not prevent suits for breach of warranties Preempted fraudulent misrepresentation claims pertaining to advertising but not intentional concealment of information through other channels o Lorillard Tobacco Co. v. Reilly: Court invalidated prohibition of outdoor advertising within 1,000 feet of school or playground The 1969 law vested regulation to FTC Stevens dissent: different because it regulated location, not content These cases indicate that even when there is an express preemption provision, a court must decide the domain expressly preempted by that language. Often leaves the court to arbitrary and inconsistent answers Field Preemption o Defined SC will find preemption if there is a clear congressional intent that federal law should exclusively occupy a field.

If either the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakingly so ordained. A scheme of federal law so pervasive as to make it reasonable the inference that Congress left no room for States to supplement it. Difficulty is that the Court must make a judgment call as to whether the interests behind federal law will be best served by the law will be best served by the law being exclusive in the field. Chamber of Commerce v. Brown: CA law prohibits employers that receive grants over $10k in state progam funds from using the funds to assist, promote or deter union organizing. Court acknowledged the NLRA expresses no specific preemption provision, but it reflects a policy choice that both employers and employees be allowed to speak with regard to the issue of union organizing and that this be left largely to market forces. o The Court concluded that this interfered with this by imposing a provision on employer speech. o Disagreement between the majority and dissent over scope of field preemption o Foreign Policy and Immigration as Example Common area where the Court has found field preemption Federal government has exlusive control over these areas. o How far do these provisions extend o Hines v. Davidowitz: PA law requiring aliens to register, carry ID, and pay tax. Preempted, emphasizing that alien registration is an area of international relations. o Two aspects noteworthy: 1) Court found preemption of a law that contemplated federal law, and in no way interfered with it. Field preemption means federal law is exclusive n the area. 2) Court found preemption even in the absence of express language in the federal statute. Congress surely could have expressly preempted State law concerning alien registration. This argument of field preemption where the statute lacks express preemption is still argued today. Tension between the desire to effectuate the interests of the federal government and the desire to limit the instances where state power is limited. o Later cases in this area have also found preemption

o De Canas v. Bica: Court found no preemption where state law precluded employment of undocumented aliens if that employment would adversely affect residents. Allowed to the extent consistent with federal law, to regulate the employment of illegal aliens. Foreign Policy o PA v. Nelson: Scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. o Uphaus v. Wyman: Congress had not preempted all state sedition laws. States were allowed to prohibit subversive activity, and it narrowly construed Nelson as only prescribing a race between federal and state prosecutors to the courthouse door. o From a federalism perspective, such a broad view of field preemption dramatically limits the choices state governments make. Federal Regulations as Preemption Rice v. Santa Fe Elevator Corp.: Perhaps the most frequently cited case concerning field preemption o Whether States could regulate grain elevators licensed by the federal government o NO, Court saw federal law as eliminating dual regulation and found preemption based on Ocngresss desire to make preemption exclusive in the field. Has not found preemption: o Health and Safety Matters o Record Piracy/ copyright law o Making Sense of Field Preemption No clear Rule for field preemption, Several Criteria can be identified: 1) Is it an area where the federal government traditionally has played a unique role? i.e. immigration and foreign policy 2) Has Congress expressed an intent in the text of the law or in the legislative history to have federal law be exclusive in the area? i.e. Rice 3) Would allowing state and local regulations in the area risk interfering with comprehensive federal regulatory efforts? i.e. Burbank and curfew of flights. 4) Is there an important traditional state or local interests served by the law? Factors not mutually exclusive, the presence of more than one enhances the likelihood that preemption will be found. Conflicts Between State and Federal Laws Preemption If Impossible to Comply with Federal and State Law

o If person cannot simultaneously comply with both, it is deemed preempted McDermott v. Wisconsin: Federal law required labeling prohibited by state law. Deemed preempted Problems in Deciding if there is a Conflict o The fact that they are different does not automatically preempt Could be that the federal government has set a minimal standard, and permits states to set stricter standards. Other cases where the federal law is meant to be the standard. Florida Lime v. Paul: CA law regarding Avos more strict than federal law. FL met federal, not CA. Court decided the federal law was the floor not ceiling Setting the minimum standard and the standard. The Court emphasized the traditional role of states in regulating the marketing of food products. Often Arises in cases involving environmental laws: Midatlantic National Bank v. NJ Dep. Of Env. Protection: Court looked at federal bankruptcy and environment law to determine that the Bankruptcy Ocde was not meant to preempt all state laws that constrain the exercise of trustees power. And evidence of congressional goal of protecting the environment against toxic pollution. In the face of clear conflict, Court used Congresss overall intent to reject a preemption claim. Making Sense of Conflict preemption o If the federal government requires conduct that the state prohibits, conflict preemption will be found o There are harder cases though that depend on judicial interpretation of federal intent State Laws That Impede Achievement of Federal Objectives A State law will be deemed preempted if it stands as an obstacle to the accomplishment and execution of the full objectives or purpose of Congress. Problems: o Determining the federal objective and whether a particular type of state law is inconsistent with it. o Preemption based on state laws interfering with a federal goal turns on how the court characterizes the federal purpose To avoid, it can narrowly construe the federal objective and interpret the state goal as different. To find, it can view federal purpose broadly Preemption of State Taxation or Regulation of The Federal Governmant Because it violates the Supremacy Clause of Article VI o McCulloch v. Maryland When are State Taxes of Federal Activities Allowed? o State and local property taxes cannot be applied to federal property unless there is express authorization from Congress

Congressional Powers o The Commerce Power Intro Of all provisions bestowing power on Congress, none is more important than Article I 8, stating: The Congress shall have the power to regulate Ommerce with Foreign Nations, and among the several states, and with the Indian Tribes o This provision has been authority for a broad array of federal legislation, ranging from criminal statutes to securities laws to civil rights laws to environment laws. Initially, in Gibbens v. Ogden, the SC adopted an expansive view of the Commerce clause From the late nineteenth century until 1937, the court adopted a much narrower construction of the commerce power and invalidated many federal laws as exceeding the scope of its authority From 1937 to 1995, not one federal law was found to exceed the scope of the commerce power. IN 1995 with the decision in Lopez, the SC declared unconstitutional a federal law prohibiting a person from having a firearm w/in 1000 ft of a school on the ground tht it exceedd the liits of the commerce power 5 years later in U.S. v. Morrison, the SC ruled unconstitutional a law allowing victims of gender based violence to sue their assailants. o Questions the Court considered throughout this era? 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 mean; is it limited to instances where ther is a direct effect on interstate commerce or is any effect on interstate activities sufficient?

o Federal Employees, so long as the tax is applied to the individual and not the government entity Extended to allow states to tax users of federal property so long as ther is no liability of the US government for the taxes, even if there is nonpayment by the person or the entity owing the taxes. o Difficulty is often deciding whether a particular entity should be regarded as independent of the federal government or sufficiently a part of it so as to be protected from the state or local taxation o General principle: Legal incidence Test: If the tax will be directly borne by the federal government, it is unconstitutional as violating the supreamacy clause unless Congress expressly allows it. Permissable if borne by a private actor, ven if the ultimate effect will be increase costs for the federal government. When IS State Regulation of Federal Activities Allowed? o In general, state laws apply to federal activities unless the application of the state law would conflict with or interfere with a federal law or policy.

Does the Tenth Amendment limit Congress; if Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the Tenth Amendment? Gibbons v. Ogden and the definition of the Commerce Power SC cases concerning the commerce clause begin with Gibbons v. Ogden NY granted monopoly to two dudes, Gibbons continued operating ferry because he was licensed under a federal law as vessels in the coasting trade. Prempted, see above The NY monopoly was an impermissible restriction of interstate commerce o What is Commerce? SC: Commerce undoubtedly is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. Commerce include all phases of business, including navigation. o What is Among the States? The word among means intermingled with. A thing which among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior. it may very properly be restricted to that commerce which concerns more States than one The completely internal commerce of a state, then , may be considered as reserved to itself. Made it clear though, that Congress could regulate intrastate commerce that had an affect on interstate activities. Took the middle ground, leaving the issue open for interpretation, in a case by case inquiry as to whether a particular activity has interstate effects. The Court must decide how direct or substantial the effects must be. o Does State Sovereignty Limit Congressional Power? Does state sovereignty and the Tenth Amendment limit Congresss powers. Congress has complete authority to regulate all commerce among the states. o Sole check is in the political process The Commerce Clause Before 1937 o Cases before 1887 Nothing much o Cases Between 1887 and 1937 Court controlled by conservative justices deeply committed to laissez faire economics

Dual Federalism: Federal and State governments were state sovereigns, that each had separate zones of authority, and that it was up to the judiciary to prtect the states by interpreting and enforcing the Constitution to protect the Zone of activities reserved to the states. Embodied in three doctrines. What is Commerce? Commerce ws to be narrowly defined as one stage of business. o The Constitution did not allow the federal government to regulate manufacturing, production, etc. o Need to preserve the zone of activities to the states o Narrow view essential to protect the states Decisions rely on many assumptions; that it makes sense to distinguish commerce from other stages of business; that the Constitution requires that a rigid zone of activities be left to the states; and that it is the judicial role to protect this zone What does among the states mean? Requirement that there be a direct effect on interstate commerce. o Shreveport Rate Cases: Congress in the exercise of its paramount power may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce. o Distinction between indirect and direct effects on commerce is inherently difficult to draw. o If the commerce clause were construed to reach all enterprises and transactions which could be sid to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people and the authority of the State over its domestic concerns would exist only by sufferance of the federal government. Often used the approach was to allow the Congress to protect the streamof commerce. o Why did intrastate railroad rates have a direct effect on interstate commerce, while regulations designed to limit the shipment of sick chickens in interstate commerde only have an indirect effect? Very inconsistent Does State Sovereignty Limit Congressional Power? If an activity was commerce among the states, Ocngress could still not regulate it if was intruding into the zone of activities reserved to the states.

The Tenth Amendment reserved control of activities such as mining, manufacturing, and production to the states. o Regulating the hours of children workers was unconstitutional, it was entrusted purely to state authority. It referred to production o The power to regulate interstate commerce includes the ability to limit items from being in interstate commerce. Lottery The Court did not consistently define the zone of activites reserved to the states, yet the Court during the era clearly believed in dual sovereignty and used it to limit federal power. The Commerce Clause from 1937 to 1995 o Causes for the Change in Doctrine Previous distinctions inconsistent, impossible to reconcile o Key Decisions Changing the Commerce Clause Doctrine Three Decisions overruled the earlier decisions and expansively defined the scope of Congresss commerce power. NLRB v. Jones & Laughlin Steel: The law applied when there was an effect on commerce and, in fact, it expressly defined affecting commerce as meaning in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. The Courts opinion left no doubt the decision marked a major shift in law. The Court declared that: The fundamental principle to regulate commerce is that the power to enact all appropriate legislation for its protection and advancement, to adopt measures, to promoteits growth and ensure safety, to foster, protect, control, and restrain That power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it. o Later upheld to a small clothes manufacturer U.S. v. Darby: Ban against shipment of goods madeby employees not earning the minimum wage. SC upheld Act, departed from all aspects of pre 1937 commerce clause doctrines. Congress may control production by regulating shipments in interstate commerce. Wickard v. Filburn: Wheat case, farmer grew for personal use. The Court flatly rejected the limits on the commerce power that were enforced in the prior era. Stating there is no formula to determine the commerce power, such as production or indirect.

Once an economic measure of the reach of the power granted to Congres in the Commerce Clause is accepted, questions of federal power cannot be decided by simply finding the activity to be production and indirect Upheld because of the cumulative effect that home-grown wheat has on the market. Eventhough Filburms wheat had only a negligible effect on interstate commerce, Congress could regulate his production because cumulatively hom-grown wheat had a substantial effect on interstate commerce. The Test for the Commerce Clause after 1937 o No longer did the Court distinguish between commerce and other stages of business such as mining, production, etc. Congress could control all stages of business. o NO longer did they distinguish between direct or indirect effects on interstate commerce; Congress could regulate any activity taken cumulatively has an effect on interstate commerce. No longer was the tenth amendment a limit on gongressional power; a federal law would be upheld so long as it was within the scope of Congresss power, and the commerce clause was interpreted so broadly that seemingly any law would meet this requirement. Some cases, the Court even eliminated the word substantial , and invalidated only if there was no rational basis for a congressional finding that the regulated activity affects interstate commerce. No reasonable connection between the regulatory means selected and the asserted ends. o Regulatory Laws Expansive view has allowed Congress to regulate almost anything, including intangible things such as insurance policies and stocks. Congress can regulate purely intrastate actitvities, including all aspects of business, if there is a rational basis for believeing there is an interstate effect. Congress can regulate intrastate activities, if necessary to protect its regulation of interstate activities. o Civil Rights Laws In evaluating the law and its application the only questions are (1) whether Congress had a rational basis for finding that racial discrimination affected commerce, (2) and if such basis exists, whether the means selected to eliminate the evil are reasonable and appropriate. if it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze. Katzenback v. McClung: Congress had rationally concluded that discrimination by restaraunts cumulatively had an impact on interstate commerce. o Criminal Laws

Rational to conclude intrastate loan sharking has a sufficient effect on interstate commerce. Is the Broad Definition of the Commerce Power Desirable? o Key Question: Whether this is a desirable recognition of the need for federal legislation or whether it is an undesirable abandonment of basic constitutional principles? The Commerce Clause After United States v. Lopez o Lopez: SC declared unconstitutional the Act, making it a federal crime to have a gun within 1,000 ft of a school. Court ruled the relationship to interstate commerce was too tangential and uncertain to uphold the law as a valid exercise of Congresss commerce power. o Morrison: Goes further than Lopez, by holding that Congress cannot regulate noneconomic activity by finding that, looked at cumulatively, it has a substantial effect on interstate commerce. United States v. Lopez o Unconstitutional because it was not substantially related to interstate commerce. o Court articulated three types of activities that Congress can regulate: Regulate the use of channels of interstate commerce Heart of Atlanta Motel: Congress may legislate to regulate and protect the instrumentalities of interstate commerce. Includes power to regulate persons and things in interstate commerce Congress may regulate those activities having a substantial relation to interstate commerce. the proper test requires an analysis of whether the regulated activity substantially affects interstate commerce. United States v. Morrison o Reaffirmed the three part test for Congresss commerce power from Lopez Rhenquist reiterated that Congress was regulating noneconomic activity that had traditionally been dealt with by state laws. Court has only upheld regulation of intrastate activity where that activity is economic in nature if accepted Congress would be allowed to regulate any crimeas long as the nationwide, aggregated impact of that crime has substantial affects on employment, production, transit, or consumption. o Morrison goes farther than Lopez in limiting the scope of Congresss commerce power by narrowing the ability of Congress to regulate based on findings of substantial effect on interstate commerce. At least in the areas that the Court regards as traditionally regulated by the states, Congress cannot regulate noneconomic activity based on cumulative effect on interstate commerce.

Narrowly Interpreting Laws to Avoid Constitutional Doubts o Two cases after, Congress used restrictive interpretations of the commerce power as a reason for limiting the scope of federal laws. o U.S. v. Jones:Statute didnt involve arson, thus avoiding constitutionality question. o Solid Waste Management v. U.S. Army Corps of Engineers: the presence of migratory birds is not sufficient to bring intrastate waters within the scope of the Water Pollution Control Act. Both cases indicate another way in which the Rehnnquist Courts narrow interpretation of the commerce power is manifesting itself. Upholding Federal Laws and Rejecting Commerce Clause Challenges o Pierce County, WA v. Guillen: it is well established that the Commerce Clause gives Congress authority to regulate the use of the channels of interstate commerce [The Statutes] can be viewed as legislation aimed at improving safety of channels of interstate commerce and increasing protection for the instrumentalities of interstate commerce. As such, they fall within Congresss Commerce Clause power. o Gonzales v. Raich: The court concluded, that growing marijuana, looked at cumulatively, including that grown for medical purposes, hs a substantial effect on interstate commerce. Both cases stand for the proposition that intrastate production of a commodity sold in interstate commerce is economic activity, and thus substantial effect can be based on cumulative impact. Implications o A lot of questions remain unanswered. o The Taxing and Spending Power Article I 8 The Scope of The Taxing and Spending Power For What Purposes May Congress Tax and Spend? o Congress has broad authority to tax and spend for the general welfare. United States v. Butler Concerned the constitutionality of the Agriculture Adjustment Act of 1933, seeking to subsidize the production in agriculture. The Court declared the Act unconstitutional on the ground that it violated the Tenth Amendment because it regulated production. o Has never been followed The Butler Courts holding concerning the taxing and spending powers remains good law. o Congress could tax and spend for any purpose that it believed served the general welfare, so long as Congress did not violate another constitutional provision. o Steward v. Davis: Upheld unemployment payments under Social Security Act.

o Helvering v. Davis: Upheld old age pension plan under SSA. The Taxing Power o Direct and Indirect Taxes Neither has any significance today Initial cases, narrowly defined direct tax, allowing Congress broad authority to impose various kinds of taxes. The Spending Power o Broad Scope of the Spending Power To advance the General Welfare U.S. v. Davis: Congress may spend in any way it believes would serve the general welfare, so long as it doesnt violate another constitutional provision. Sabri v. United States: Court upheld federal law that prohibits bribery of a state official of entities that receive at least $10k in federal funds. Congress has the power to bring federal power to bear directly on individuals who convert public spendinginto unearned private gain, not a means for bringing federal economic might bear on a States own choice of public policy. o Conditions to Grant to State Governments The ability of Congress to place conditions on grants to state and local governments. So long as the conditions are expressly stated and have some relationship to the purpose of the spending program. Oklahoma v. Service Commission: Congress has broad power to set conditions for the receipt of federal funds even as to areas that Congress might otherwise not be able to regulate. South Dakota v. Dole: 21 yr old drinking age or else lose money. o Court emphasized that the condition imposed by Congress was directly related to one of the main purposes behind federal highway money: safe travel. The Court recognized that at some point the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion. This was a case of relatively mild encouragement. Even if the federal government cannot impose a national drinking age directly, the Court conclude that encouragement to state action is a valid use of the spending power. Congress possesses expansive power to spend for the general welfare so long as it does not violate another constitutional provision.

Congress may impose conditions on grants to state and local governments so long as the conditions relate to the purpose of the spending and are clearly stated.

o Enforcement Congresss Powers Under the Reconstruction Amendments 13th: prohibits slavery and involuntary servitude, except as a punishment for a crime. Congress shall have power to enforce this article by appropriate legislation. 14th : All persons born or naturalized in the United States are citizens and that no state can abridge the privileges or immunities of such citizens; nor may states deprive any person of life, liberty, or property without due process of law or deny any person equal protection of the laws. o Congress shall have power to enforce, by appropriate legislation, the provisions of this article 15th: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The three Reconstruction Amendments thus contain provisions that empower Congress to enact civil rights legislation. o May Congress regulate private conduct under this authority, or is Congress limited to regulating only government actions? o What is the scope of Congresss power under these amendment? May Congress regulate private conduct? The Civil Rights Cases o SC greatly limited Congresss ability to use its power under the Reconstruction Amendmants to regulate private conduct. Civil Rights Act of 1875 unconstitutional because it applies to private conduct; Congresss power was limited to ensuring an end to slavery; Congress could not use this power to eliminate discrimination. Congress lacked authority to enact it under th fourteenth amendment because it only applies to government action and that therefore it cannot be used by Congress to regulate private behavior. Reminas good law in that the Fourteenth amendment only applies to government action, not private conduct. However, the Court has held that Congress may prohibit private discrimination under the Thirteenth amendment. o The Thirteenth Amendment Congress has the power under the Thirteenth Amendmant rationally to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation. Court seems to give Congress broad power under 2 of the Thirteenth Amendment to prohibit private racial discrimination some private discrimination is subject to special remedial legislation in certain circumstances.

o MS: give free text books to private schools unconstitutional o The Fourteenth Amendment 5 cannot be used to regulate private activity. United States v. Morrison: law allowing civil suits for gender motivated violence. Unconstitutional under 5 because Congress under this provision may regulate only state and local governments. Fourteenth Amendment prohibits only state action. What is The Scope of Congresss Power? o Nationalist v. Federalist Congress may use its 5 authority to expand the scope of rights; vs. Congress cannot create rights or expand the scope of rights o Nationalist: Katzenbach v. Morgan Congress may independently interpret the Constitution and even overturn the Supreme Court. Court believed that the law was a proper exercise of powers granted to Congress by 5 of the Fourteenth Amendment, because it would empower them and help them to eliminate discrimination, and the literacy test denied equal protection. Specific issue before the Court was whether Congress was limited to remedying what the Court had found to violate the Constitution or whether Congress could independently interpret the OCnstitution. Congress was accorded the same broad powers as under the Necessary and Proper clause. o Federalist: City of Boerne v. Flores Rejected view in Katzenbach, and shifted to federalist view that Congress may not use its 5 powers to expand the scope of rights or to create new rights. Act adopted to overturn decision that narrowly interpreted the free exercise clause of the First Amendment. Oregon banning peyote was necessary to achieve a compelling government interest, and it was neutral, and not motivated by desire to interfere with religion. RFRA enacted to overturn decision Unconstitutional because under 5 Congress may not create rights, or expand scope of current rights; rather Congress is limited to laws to remedy or prevent violations of rights recognized by the Supreme Court. o Must be proportional and congruent between the injury and the means to that end. o Need to preserve the Court as the authoritative interpreter of the Constitution

Separation of Powers o The Federal Executive Power Express and Inherent Presidential Powers Is there Inherent Presidential Power? o Article II Debate over whther this gives the president inherent powers not expressly enumerated in Article II. o Youngstown Sheet & Tube v. Sawyer: Leading case addressing the scope of inherent presidential power-the ability of the president to act without express constitutional or statutory authority. President ordered seizure of steel mills, ruled unconstitutional. Four approaches in opinions: No inherent presidential power Inherent authority unless the president interferes tith the functioning of another branch of government r usurps the powers of another branch. The president may exercise powers not mentioned in the Constitution so long as the president does not violate The Constitution or a statute. The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated. No approach is dominant, in most cases the approach is implicit rather than expressly defined. Can Congress Expand Presidential Power? The Line-Item Veto o Clinton v. City of New York: federal statute that created authority for a presidential line item veto. Unconstitutional because there is no provision in the Constitution that allows the president to enact, amend, or repeal statutes. The procedures for for enacting and vetoing laws contained in the Constitution must be strictly adhered to and any changes must come from a constitutional amendment and not legislative action. o Difference between formalistic and functional approach to separation of powers. o Highly formalistic in stressing the procedures proscribed in the OCnstitution for enacting laws and

o RFRA prohibits much that would not violate the Constitution and thus was deemed to exceed the scpe of Congresss 5 powers. Congress can authorize suits against states for unconstitutional actions and also has much broader authority to legislate if it is a type of discrimination or a right that receives heightened scrutiny. But if it is a type of discrimination or a claim that receives only raitonal basis review, OCngresss authority to legislate under 5 is very narrow. o The Fifteenth Amendment

eschewing any consideration of the practical benefits of a line-item veto. Delegation of Legislative Power and the problems of the Administrative State o The Nondelegation Doctrine and its Demise The Rise of the Administrative State Creation of federal administrative agencies with broad powers o Possess the legislative power to make rules, the executive power to enforce them, and the judicial power to adjudicate violations of their rules This combination seems to be in conflict with elemental concepts of separation of powers The Nondelegation Doctrine The principle that Congress may not delegate its legislative power to administrative agencies. Panama Refining Co. v. Ryan: Court declared unconstitutional a provision of the National Industrial Recovery Act that authorized the shipment in interstate commerce of oil produced in excess of state imposed quotas. It was an impermissible delegation of legislative power to the president. Schecter Poultry Corp. v. U.S. : Exceeded commerce power, bu also was an impermissible delegation of legislative power. Congress is not permitted to abdicate or to transfer to others the essential legislative function with which it is thus vested. The constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. The Demise of the Nondelegation Doctrine In 60 years since Panama and Schecter, not a single federal law has been declared an impermissible delegation of legislative power. o When OCngress delegates its legislative power it must provide criteria-intelligible principles to guide the agencys exercise of discretion, all delegations, even without any criteria, have been upheld. o Mistretta v. U.S. : 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. Scalia dissents urging the resurrection of the nondelegation doctrine. o Whitman v. American Trucking: the Court unanimously rejected a challenge to the federal Clean Air Act as an impermissible delegation of legislative power.

Congress must have intelligible principles to guide the agency in its exercise of discretion and concluded that the scope of discretion [the statute] allows is in fact well within the outer limits of nondelegation precedents. The statute was enacted to protect public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent. Opposing views that this undermines government accountability as political decisions are made by unelected administrative officials and as undermining the basic philosophy of separation of powers embodied in the Constitution. Or it is essential in a complex world requiring technical and detailed regulations that probably exceed the scope of ability of Congress. o The Legislative Veto Defined A check on the actions of administrative agencies. Requiring legislative action limits the circumstances in which Congress can or will exercise its checking function Unconstitutionality INS v. Chadha: declared legislative veto unconstitutional. o Congress may legislate only if there is bicameralism, passage by both the House and Senate, and presentment, giving the bill to the president to sign or veto. o The legislative veto was legislation without bicameralism or presentment. Did not fit into any of the limited situations under the Constitution where one branch of Congress can act alone. Majority opinion formalistic, dissent functional If ocongress wants to overturn an executive action, there must be bicameralism and presentment. Anything less is a legislative veto, and thus unconstitutional. Other Checks on Administrative Powers Congress controls the purse strings on administrative agencies, and there undoubtedly are informal political checks, such s through overssite comittees. Delegation of Executive power to Congress and Its Officials o Congress cannot delegate executive power to itself or to its agents o Underlying Question: Whether it makes sense for the court to allow OCngress to delegate the legislative power to the executive, but to refuse to allow Congress to delegate the executive power to the legislature.

o Congressional Control of States States Acting in a Proprietary Capacity The Tenth Amendment Between 1937 and the 1990s o The Court expressly rejected the view that the Tenth Amendment is an independent limit on the legislative power and instead viewed it simply as a reminder that OCngress may legislate only if there is authority undr the Constitution. o United States v. Darby: The Amendment states but a truism that all is retained which has not been surrendered. A law is constitutional so long as it is within the scope of Congresss poer; the Tenth Amendment would not be used as a basis for invalidating federal laws. o National League of Cities v. Usery: The only case in this era to find that a law violated the Tenth Amendment Declared unconstitutional the Act creating the minimum wage because it operates to directly displace the States freedom to structure integral operations in areas of traditional governmental functions. Congress violates the Tenth Amendment when it interferes with traditional state and local government functions. Blackmun concurring stated he saw the majority as adopting a balancing approach that does not outlaw federal power in areas such as environmental protection, where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential. States Acting in A Soveriegn Capacity The Tenth Amendment in the 1990s and Beyond o New York v. United States: invalidated a federal law as violating the Tenth Amendment. It created a statutory duty for states to provide for safe disposal of radioactive wastes generated within their borders. Congress could regulate the disposal of radioactive wastes under the commerce clause Forcing states to accept ownership of radioactive wastes would impermissibly commandeer state governments, and requiring state compliance with regulatory statutes would impermissibly impose on states a requirement to implement federal legislation It was clear under the Tenth Amendment and limits on the scope of Congresss power under Article I: the Federal Government may not compel the States to enact or administer a federal regulatory program. Didnt explicitly overrule Garcia but it appears that if a federal law ompels state legislative or regulatory activity, the statute is unconstitutional even if there is a compelling need for federal action.

Central holding is that it is unconstitutional fo rOCngress to compel state legislatures to adopt laws or state agencies to adopt regulations o Printz v. United States: required state and local governments to conduct background checks on perspective handgun purchasers. Unconstitutional: Impermissibly commandeering state executive officials to implement a federal mandate. Congress violateds the Tenth Amendment when it conscripts state governments. o Reno v. Condon: rejected Tenth Amendment challenge and upheld the federal law. The Court said the law did not violate the Tenth Amendment because it was a prohibition of conduct, not an affirmative mandate. Congress may prohibit state governments from engaging in harmful conduct, particularly if the law applies to private entities as well; but Congress may not impose affirmative duties on state governments. o Direct Constitutional limits on State Power The Dormant Commerce Clause Definition o The principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. Inferred from the grant of power to Congress in Article I f, to regulate commerce. o If Congress has legislated, the question in whether the state law is preempted by the federal law. o If not, the state or local law can be challenged on the ground that it excessively burdens commerce among the states. If Congresss commerce power lays dormant, state and local laws can be challenged as impeding interstate commerce. The doctrine is that the commerce clause, by its own force and without national legislation, puts it into the power of the Court to place limits on state Authority. Should There Be a Dormant Commerce Clause? o Crucial Issue: Whether the judiciary, in the absence of congressional action, should invalidate state and local laws because they place an undue burden on interstate commerce? Overview o Gibbons v. Ogden: NY boat monopoly. When a state proceeds to regulate commerce with foreign nations or among the several States, it is exercising the very power that is granted to Congress, and it is doing the very thing which Congress is authorized to do. The idea appears to be that the power to regulate commerce is the authority to decide that commerce should not be regulated and that

states therefore should not be able to act with regard to commerce unless specifically authorized by Congress. Marshall: Distinction between a states exercise of its police power and state exercising federal power over commerce. o State inspection laws are constitutional even though they have a considerable influence on commerce because they are a portion of that mass of legislation, which embraces everything within the territory of a state not surrendered to the general government. Inspection laws, quarantine laws, health laws of every description, laws regulating internal commerce f a State, and those which respect turnpikes, ferries, etc. Problem: assumes two distinct categories: state laws adopted under the police power and state laws that regulate commerce among the states. When do States, enacting laws under police power, violate the dormant commerce clasue. o Cooley v. Board of Wardens: National Versus Local Subject Mattter Court said crucial question is whether the subject is of the nature that requires uniform national regulation or diverse local regulation. Found that regulating pilots was a local matter because of differences among ports and federal law in 1789 expressly allowed states to do so. Problems: 1) allows state regulations so long as the subject matter is deemed local. 2) no clear distinction between what is national and what is local. Nevertheless it was applied throughout the nineteenth century, and part of the twentieth century. o DiSanto v. PA: Direct vs. Indirect Effects on Commerce Courts drew a distinction between laws that directly affected interstate commerce, and thus were invalid, and those that only had an indirect affect and were permissible. Problem: it falsely assumes that there is a clear difference between laws that directly burden commerce and those that do so indirectly. Burdens are a matter of degree, and the determination is a choice about where to draw the line. Current Balancing Approach Courts balancing the benefits of the lw and the burden that it imposes on interstate commerce. Varies depending on whether the state or local law discriminates against out-of-staters or treats in-staters and out-of staters alike.

o If discriminating, strong presumption against the law and it will be upheld only if necessary to achieve an important purpose o If nondiscriminatory, preumption to uphold the law and it will be invalidated only if the laws burdens o interstate commerce outweigh its benefits. o Central Question: Is the state discriminating against out of staters? Importance of Determining Whether a Law is Discriminatory Threshold question: Whether the state or local law affects interstate commerce? o If so, the dormant commerce clause may be applied. Key initial question: Whether the state law discriminates against out-of-staters or whether it treats in and out of staters alike? o Discriminatory rarely upheld; non are infrequently invalidated Facially Discriminatory Laws The statute expressly draws a distinction between in-staters and out-of-staters. Sometimes states attempt to keep their natural resources and thus limit their accessibility to out-of staters. o Philadelphia v. New Jersey: kept landfills in New Jersey exclusively for NJs use by preventing the importation of any out of state wastes. o Reciprocity requirements, state allows out-of staters access to market resources only if their states grant similar benefits to their citizens, are facially discriminatory. o Local regulations that treat out of staters in a dispirate manner will be treated as discriminatory even though they also discriminate against those in other parts of the state. Deans Milk v. Madison Facially Neutral Laws At times, the Court has foud that the proof of a discriminatory impact against out of staters is sufficient for a law to be regarded as discriminatory o Hunt v. Washington Apple Ad Commission: NC law requiring all apples sold or shipped into the state have no grade other than the applicable U.S. grade or standard. Discriminatory because of its effects on the sale of Washington apples. Washington had a system for grading apple different from and more stringent than the federal standard.

o C&A Carbone v. Clarkstown:City ordinance requiring all nonhazardous solid waste in the town to be deposited at a transfer station. Applied to all, but discriminatory because it allows only the favored operator to process waste that is within the limits of the town. In other cases, the Court found that the proof of a discriminatory impact is not enough o United Haulers v. Oneida-Herkimer: Distingusished from Carbone, because Carbone required trash to be brought to a private facility, and Haulers the ordinance required trash to be brought to a state created public benefit corporation. The distinction made the difference Laws that favor the government but do treat all alike, are not discriminatory o Exxon v. Governor of Maryland: Law not discriminatory, even though it greatly harmed out of state oil companies and favored local business. Ct: Does not put barriers on independent dealers; does not prohibit the flow of interstate goods; o Minnesota v. Clover Leaf Creamery: Prohibiting the sale of plastic milk cartons. Discriminatory because Minnesota had a substantial paper industry, but no plastic. Ct: Not Discriminatory, does not effect simple protectionism but regulates even-handedly, regardless if sellers are in or out of state. o In making sense of these cases, it is important to note that they do not disagree as to the legal standard: All of the cases indicate that proof of discriminatory impact is sufficient for a facially neutral law to be deemed discriminatory. The cases turned to the Courts appraisal of the particular facts and its assessment of whether there was discrimination. The court will assess each situation and decide whether there is sufficient evidence discriminatory purpose or effect o Important Factors: A law is likely to be found discriminatory if: o 1) its effect is to exclude virtually all out of staters from a particular state market, but not if it only excludes onegroup of out of staters. o 2) It imposes costs on out of staters that in-staters would not have to bear.

o 3) it believes that a law is motivated by protectionist purpose, helping instaters at the expense of out of staters. o Analysis when a State Law is Not Discriminating Balancing Test The court balances the laws\s burdens on interstate commerce against its benefits. Pike v. Bruce Church: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce, are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. A finding that a law is nondiscriminatory is not an assurance that the law will be upheld. o Bibb v. Navajo Freight Lines: Court declared unconstitutional a state law that required that all trucks in the state use curved mudguards to enhance road safety. Court ruled it put a substantial burden on interstate commerce because straight mudguards were legal in 45 states , no safety benefit. Must the State Use the Least Restrictive Alternative? Generally includes, but the Court has never invalidated a nondiscriminatory law on the ground that the goal could be achieved through a means that is less burdensome on interstate commerce. o All that have been declared unconstitutional on this ground were discriminatory. o Least restrictive alternative generally is used only when heightened scrutiny is involved. Conclusion The balancing test, no matter how subjective and unpredictable, is firmly established and frequently applied o Analysis When A State Law is Discriminating Presumption Against Constitutionality Discriminatory law will be upheld only if it is proved that the law is necessary to achieve an important government purpose o Invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives. o Ends: A law that discriminates will be upheld if it is necessary to achieve a legitimate local purpose.

Cases indicate that more than a legitimate local purpose is necessary in order for the law to be upheld; it must serve an important purpose. Means: the purpose could not be served as well by available nondiscriminatory means. Deans Milk v. Madison: Ensuring safe milk could be achieved in less discriminatory ways than outlawing out of towners. i.e sending inspectors to importing producers Hughes v. Oklahoma: Unconstitutional preventing minnows from being shipped out of state. Ct: no limit on the numbers of minnows that can be taken by minnow dealers, etc. The test is not always fatal: Maine v. Taylor: Upheld law prohipbiting the importation of live baitfish. It protected Maines unique and fragile fisheries from significant threats. There was no less discriminatory way to prevent these threats Laws That Limit Access to In-State Resources Will be invalidated unless the state identifies a valid purpose that cannot be achieved in a less discriminatory way. It is extremely difficult to identify any legitimate reason why in-staters should have exclusive use of a states resources. Also, a discriminatory fee to use a states resources will be invalidated. Laws that Limit Access to Local Markets States attempt to gain an economic advantage for its citizens by limiting the ability of out-ofstaters to compete in the state markets. Hunt v. Washington Apple: Increased costs for Washington Apple producers, thus helping instate growers gain an advantage. Maine v. Taylor: Ct. perceived the Maine objective not as economically helping the Maine baitfish industry at the expense of out-of-staters, but as protecting Maines fragile marine ecology. Laws that Require the Use of Local Business Carbone: Attempting to help in-state businesses at the expense of out-of-staters is exactly the type of protectionism forbidden by the dormant commerce clause.

Exceptions

Congressional Approval o If Congress ordains that the States may freely regulate an aspect of interstate commerce, any action taken by a State within the scope of the congressional authorization is rendered invulnerable to Commerce Clause Challenge. o Congressional approval does not excuse a violation of equal protection, or the privileges and immunities clause, or other provisions besides the DCC. Metropolitan Life Insurance v. Ward: discriminatory state tax violated equal protection, even though a federal law permitted such discriminatory taxes. Market Participant Exception o A state may favor its own citizens in dealing with government-owned business and in receiving benefits from government programs. Still subject to constitutional challenges under other provisions, i.e. equal protection Hughes v. Alexandria Scrap Corp: Ct upheld a MD law designed to rid the state of abandoned cars by having the state pay for inoperable cars. Reeves, INc. v. Stake: SD owned cement company allowed to sell cement cheaper to SD residents. o One Limit: State businesses may favor in-state purchasers, but they may not attach conditions to a sale that discriminate against interstate commerce. i.e. Alaska selling timber at discount requiring it to be processed in Alaska. o The Privileges and Immunities Clause Intro Article IV, 2 o Ct interpreted as limiting the ability of a state to discriminate against out-ofstaters with regard to fundamental rights or important economic activities o Most cases involve challenges to state and local laws that discriminate against out-of-staters with regard to their ability to earn a livelihood. Only allowed if it is substantially related to achieving a substantial state interest. o Discrimination against out-of staters is a prerequisite for application of the privileges and immunities clause Corporations cannot sue under this clause Relationship to DCC Overlap, both can be used to challenge state and local laws that discriminate against out of staters Key Differences o P and I clause can be used only if there is discrimination against out-ofstaters. o Corporations and aliens can sue under the DCC o Exceptions to DCC do not apply to the P and I clause Analysis Under the Privileges and Immunities Clause

2 basic questions: o Has the state discriminated against out-of staters with regard to privilegs and immunities that it accords on its own citizes? o If so, is there a sufficient justification for the discrimination? What Are the Privileges and Immunities of Citizenship Definitions o Corfield v. Coryell: The clause protects interests which are fundamental; which belong, of right, to the citizens of all free governments. They may be comprehended under the following general heads: Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety;subject nevertheless to such restraints as the government may prescribe for the general good of the whole. o Court has applied it in two contexts: When a state is discriminating against out-of-staters with regard to constitutional rights. When a state is discriminating against out of staters with regard to important economic activities . Usually with regard to their ability to earn a livelihood The Court has refused to apply the clause where the discrimination against out-of-staters has involved neither constitutional rights nor important economic activities Constitutional Rights o Can be used, but generally the Fourteenth amendment is used to protect constitutional rights as applied to the states. o Doe v. Bolton: States cant restrict ou-of-staters from getting abortions in their state. Establishes that a state cannot discriminate against out-of-staters with regard to access to the constitutionally protected rights Also medical care, even thought there is no constitutional right to medical care Important Economic Activities o Most cases under P and I regard the ability of out-of-staters to earn a livelihood. SC of NH v. Piper: Unconstitutional to prevent OOS lawyers from being admitted to the state bar. Toomer v. Witsell: SC law requiring out-of-state residents to pay 2500 for shrimp boat license while in-state was only 25. One of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with citizens of that State. Not applicable to leisure activities Baldwin v. Fish and Game Com. Of Montana: Upheld discrimination in Elk Hunting License. What is Sufficient Justification for Discrimination?

o The Test Only if there is a substantial reason for the difference in treatment, and only if the law is closely related to the justification The Clause does not preclude discrimination where: (i) there is a substantial reason for the difference in treatment; and (ii) the discrimination against nonresidents bears a substantial relationship to the States objective. In deciding whether the discrimination bears a close or substantial relationship to the States objective, the Court has considered the availability of less restrictive means. IV. Liberties, Rights, Guarantees, Privileges and Immunities o The Incorporation of Enumeration The 14th Amendment Privileges and Immunities Clause The Application of the Bill of Rights To The States o The Rejection of Application Before the Civil War Issue arose as to whether the Bill of Rights applies to state and local governments o Barron v. Mayor of Baltimore SC expressly held that the Bill of Rights was a restriction on federal actions, not state and local conduct The constirution was ordainedand established by the people of the United States for themselves, for their own government, and not for the government of the individual states. The Fifth Amendment was intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the States. At the time it made sense because of the faith in state constitutions and because of the shared understanding that the Bill of Rights was meant to apply only to the federal government. o A False Start: The Privileges and Immunities Clause and the Slaughter-House Cases Justice Hugo Black: the words No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States. The Slaughter-House Cases Several Butchers brought challenge to the granting of a monopoly by New Orleans. o Argued that the restriction created involuntary servitude, deprived them of their property without due process of law, denied them equal protection of laws, and abridged the privileges and immunities as citizens Court recognized the importance of the decision

o Then said that the purpose of the Thirteenth and Fourteenth Amendments was solely to protect former slaves. o They interpreted each provision very narrowly, and solely to achieve this limited goal. o Rejected the application of the due process clause to protect right to practice ones trade. In the late nineteenth century the Court found that the due process clause did protect a right to practice ones trade or profession. Throughout the twentieth century the Court used the due process clause to safeguard privacy and autonomy rights such as the right to marry, custody to ones children, etc. The Courts extremely narrow interpretation of the privileges and immunities clause has never been overruled, and has precluded the use of this provision to apply the Bill of Rights. o Specifically, the Court held the privileges or immunities clause was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws. The privileges or immunities clause was rendered a nullity by the Slaughter-House cases and it has been ever since. o Distinction of being a nullity from one decision w/in 5 years of ratification. The Revival of the Privileges or Immunities Clause: Saenz v. Roe 1999, essentially for the first tie in American history, the SC used the privileges or immunities clause of the 14th Amendment to invalidate a State law. Saenz v. Roe: CA law that limited welfare benefits of new residents to the level of their old states. o The right to travel is a fundamental right, one aspect of this is the right of new residents to be treated the same as longer term residents of a state. Protected by P or I clause of the 14th Amendment. o Not clear what this means for the future, certainly, there will be challenges based on it to other state laws that treat new residents differently from longer residents, i.e. laws that charge less tuition to in-state residents. Will Saenz be used to protect other fundamental rights? o IN the decade since the decision, it has not occurred. o Saenz seems to be an anomaly in applying the privileges or immunities clause. th Amendement Due Process Clause o The 14 A Guarantee of Procedural Fairness

Distinction Between Procedural and Substantive Due Process o 5th and 14th Amendments o Procedural Due Process: refers to the procedures tht the government must follow before it deprive a person of life, liberty or property. o Substantive Due Process: asks whether the government has an adequate reason for taking away someones life, liberty or property. Depends very much on the level of scrutiny used. Rational basis: substantive due process is met so long as the law is rationally related to a legitimate government purpose. Strict Scrutiny: i.e. protecting fundamental rights, will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government interest. Illustration: Right to custody for parents of their children. Proc. DP: Requires gov. provide notice and a hearing, and that there be clear and convincing evidence of a need to terminate custody. Subst DP: Because ir is a fundamental right, the state needs to meet strict scrutiny, must provide that terminating custody is necessary to achieve a compelling interest, such as the need to prevent abuse or neglect of the child. Controversy over Substantive Due Process o There have been major disputes over what constitutes liberty and property interests and what procedures should be required. Some argue that the due process clause denotes procedures and thus it is incorrect to use it to protect substantive rights. A Prohibition on Undue Vagueness A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is permitted. o Unduly vague laws violate due process whether or not speech is regulated o the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

o City of Chicago v. Morales: antigang law that required gang members to disperse if told to do so by a police officer. Voided for vagueness. Left too much discretion as to what is prohibited Doctrine is about fairness; it is unjust to punish a person without providing clear notice as to what conduct is prohibited. Void when they are so ambiguous that the reasonable person cannot tell what expression is forbidden and what is allowed. Coates v. Cincinnati: law prohibiting three people to assemble on sidewalk with annoying conduct. Unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct. A requirement of Minimum Rationality The Rational Basis Test o The minimal level of scrutiny that all government actions challenged under equal protection must meet. Unless the gov. action is a type of discrimination that warrants the application of intermediate or strict scrutiny, rational basis is used. o Lindsley v. National Carbonic Gas: when the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of the state of facts at the time the law was enacted must be assumed. o Hodel v. Indiana: Such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality. The law will be upheld unless the challenger can prove that the government has no legitimate purpose or that means used are not a reasonable way to accomplish the goal. The Requirement for a Reasonable Relationship o The most relaxed and tolerant form of judicial scrutiny Upheld unless the law is clearly wrong, a display of arbitrary power, not n exercise of judgment. o Tolerance for Underinclusiveness Under the rational Basis test, the Court will allow laws that are both underinclusive and overinclusive.

Laws are underinclusive when they do not regulate all who are similarly situated Railway Express Agency v. New York: The Court concluded that the government might have perceived some difference among the ads and that it was immaterial whether the government failed to deal with even greater distractios to motorists. It is not a requirement of equal protection that all evils of the same genus be eradicated or none at all. o Cases Where Laws Are Deemed Arbitrary and Unreasonable City of Cleburne v. Cleburne Living Center: City ordinance that required a special permit for the operation of a group home for the mentally disabled. SC held that rational basis review was appropriate for cases involving gov. actions discriminating against the mentally disabled SC: Reasons offered were not legitimate purposes or the ordinance was not a reasonable way of accomplishing the goals. The justifications were based on prejudices against the mentally disabled and that indulging such private biases was not a legitimate government purpose. Appears the Court was applying the RaationalBasis Plus(with Bite) test Indicates the rational basis is not completely toothless. Yet these are rare exceptions to th cases where laws failed the rational basis test. A Vehicle for Incorporation Because of Slaughtr House Cases, the application of the Bill of Rights to the states could not be done through the privileges or immunities clause. Chicago, Burlington v. City of Chicago: SC ruled that the due process clause of the 14th amendment prevents states from taking property without just compensation Twining v. NJ: the Court expressly recognized the possibility that the due process clause of the 14th amendment incorporates provisions of the Bill of Rights and thereby applies them to state and local governments. o it is possible that some of the personal rights safeguarded by the first eight amendments against National action may also be safeguarded against state

action, because of a denial of them would be a denial of due process of law. Powell v. Alabama: SC concluded that the due process clause of the 14th amendment protects fundamental rights from state interference and that this can include Bill of Rights Provisions. Debate over Incorporation o History, Framers Intent o Federalism o Appropriate Judicial Role Current Law as to Whats Incorporated In a sense, the selective incorporationists prevailed From a practical perspective, total incorporationists prevailed, because one by one the court found almost all of the provisions to be incorporated Duncan v. Louisiana: Whether a right is among those fundamental principles of liberty and justice o List of Incorp/not incorp on 516 of Supp Whenever a case involves a state or local violation of a Bill of Rights provision, to be precise it involves that provision as applied to the states through the due process clause of the Fourteenth Amendment. The Content of Incorporated Rights Court has said it rejected the notion that the 14th Amendment applies to the states only a watered-down, subjective version of the individual guarantees of the Bill of Rights Besides requirement of a 12 person jury and a unanimous verdict, the Bill of Rights provisions that have been incorporated apply to the states exactly as they do to the federal government, th Amendment Due Process Clause, Equality, & Reverse Incorporation The 5 Constitutional Provisions Concerning Equal Protection o Equal Protection Clause Brown v. Board of Education: ushered in modern era of equal protection o Application to the Federal Government Brown v. Board: Equal protection applies to the federal government through the Fifth Amendment Implicit requirement for Equal Protection Discrimination may be so unjustifiable as to be violative of due process. Applies to states under Fourteenth and to feds under Fifth. SC expressly stated that analysis is the same The Recognition of Unenumerated Rights and Liberties Those of Predominantly Economic Nature o What

Refer to constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession; and, to acquire, possess, and convey property. o The Initial Rejection of Economic Substantive Due Process Murray v. Hoboken Land Improvement: SC denied a due process challenge to an attempt by the government to collect delinquent taxes. Due Process is met as long as the governments procedures are in accord with the law. Slaughter House: Ct. expressly rejected a substantive due process claim. Emphasized that the due process clause regarded the procedures that government must follow and thus could not be used to challenge the law for interfering with the right to practice their trade. o The Courts Suggestion of Economic Substantive Due Process Beginning in the 1870s, government regulation increased as industrialization changed the nature of the economy. Loan Association v. Topeka: There are limitations on such power which grow out of the essential nature of all free governments. Over the next two decades, the SC rejected due process challenges to economic regulations. Although, SC dicta indicated it would invalidate laws as violating the due process clause if the interfered with the natural principles of justice. Munn v. Illinois: Ct upheld state law setting maximum rates for grain-storage warehouses. But, indicated, under some circumstances regulation of private businesses would be found to violate due process. o Up to the judiciary to evaluate reasonableness Railroad Commission Cases o A state railroad regulation was found to violate due process and held the question of the reasonableness of a rate of charge for transportation by a railroad company is eminently a question for judicial investigation, requiring due process of law for its discrimination. Mugler v. Kansas: if a statute purporting to have been enacted to protect the public health, morals, or safety hs no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts so to adjudge, and thereby give effect to the constitution. o All threes cases were important for articulating that due process was a limin on govevernments regulatory power, even though in each of these cases the Court ruled in favor of the government.

Allgeyer v. Louisiana: SC applied these principles and declared unconstitutional a state law prohibiting payments on marine insurance policies issued by out-of-state companies that were not licensed or approved to do business in the state. o LA interfered with freedom of contract o Moved from dicta of due process limiting economic regulations in previous cases to invalidating a law based on it. Economic Substantive Due Process During the Lochner Era Lochner v. NY: SC declared unconstitutional a law that set the maximum hours that bakers could work. o Violating Due Process of 14th, because it interfered with the freedom to contract, and it did not serve a valid police purpose. o Articulated 3 major principles that were followed until 1937: Freedom of contract is a basic right protected as a liberty and property rights under the due process clause The government could interfere with freedom of contract only to serve a valid police purpose: protect public safety, health and morals. It was the judicial role to carefully scrutinize legislation interfering with freedom of contrct to make sure it served a police purpose Cases Following Lochner o The due process clause was used not to ensure that the government followed proper procedure, but to ensure laws served an adequate purpose. Ct. did uphold many laws as sufficiently related to a valid police purpose. Laws Protecting Unionizing o Court declared laws unconstitutional as prohibiting employers from requiring that employees not join a union. o Coppage v. Kansas: Not a legitimate exercise of police power for the government to attempt to equalize bargaining power between the employer and employee. An individual has no inherent right to join a union.. and still remain in the employ of one who is unwilling to employ a union man. Maximum Hours Laws o Muller v. Oregon: Ct upheld maximum hours for women. Based on womens physicl structure

Bunting v. Oregon: Ct upheld max hours for manufacturing jobs. Hard to find the distinction between this and Lochner Minimum Wage laws o Ct. declared unconstitutional many state minimum wage laws Adkins v. Childrens Hospital: declared unconstitutional minimum wage law for women. MW laws do not serve police purpose and interfere with freedom of contract Consumer Protection Legislation o Ct invalidate legislation setting price regulations Weaver v. Palmer Bros.: unconstitutional a law prohibiting the use of shoddy in mattresses. Ct. said could regulate by mandating sterilization, etc. o Economic Substantive Due Process Since 1937 Pressures for Change The Depression: Economic Regulations are essential NO reason to overturn decisions made in the political process FDRs Court Packing planand avoiding it Nebbia v. NY: Ct seemed to question the basic premises of the Lochner era. That the government only could regulate to achieve a police purpose and that the Court needed to review law aggressively to ensure that they truly served a police purpose. o The End of Lochnerism 1937, in two cases, The Court signaled the end of the laissez-faire jurisprudence that had dominated constitutional law for decades. West Coast Hotel v. Parrish: upheld min wage for women, expressly overruled Adkins. The constitution doesnt speak of the freedom of contract. It speaks of liberty without due process of law. Regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. United States v. Carolene: upheld filled milk Act. Economic regulations should be upheld as long as they are supported by a conceivable rational basis, even if it cannot be proved it was the legislatures actual intent. Courts generally presume laws are constitutional. However, this deference would be replace by a more searching judicial inquiry when it is a law that interferes with individual rights, or a law that restricts the ability of the political process to repeal undesirable legislation, or a law that discriminates against a discrete and insular minority.

o Economic Substantive Due Process Since 1937 Not one state or federal economic regulation has been found to be unconstitutional as infringing liberty of contract as protected by the due process clauses of the Fifth and Fourteenth Amendments. Economic regulations will be upheld when challenged under the due process clause so long as they are rationally related to serve a legitimate government purpose. Any goal not prohibited by the Constitution. Any conceivable purpose Williamson v. Lee Optical: SC upheld a statute that prohibited an optician to fit or duplicate lenses without a prescription from an optometrist. Shows that as long as the Court can conceive of some legitimate purpose and so long s the law is reasonable, it will be upheld. Bottom line is that since 1937 economic substantive due process has been unavailable to challenge government economic and social welfare regulations. Those of a predominantly Non-Economic Nature Intro o The Concept of Fundamental Rights The government cannot infringe upon them unless strict scrutiny is met. The government must justify its interference by proving that its action is necessary to achieve a compelling government purpose. All raise the important issue of how the Court should decide whether a liberty should be regarded as a fundamental right. o Due Process and Equal Protection as a Source for Rights Almost all have been protected under DP clauses of Fifth and 14th and/or the equal protection clause of the 14th Amendment. If a law denies the right to everyone, then due process would be the best grounds for analysis; but if a law denies a right to some, while allowing it to others, the discrimination can be challenged as offending equal protection or the violation of the right can be objected to under due process. Framework for Analyzing Fundamental Rights o (1) Is there a Fundamental Right? If right is fundamental, the government usually will have to meet strict scrutiny If not, generally only the rational basis test is applied Framework articulated in Carolene Products Many theories for deciding what is a fundamental right o Originalists: Only those explicitly stated in the text or clearly intended by the framers.

o Nonoriginalists: Permissable for the Court to protect fundamental rights that are not enumerated in the Constitution or intended by its drafters. o (2) Is the Constitutional Right Infringed? SC: Evaluates the directness and substantiality of the interference. Unconstitutional Conditions Doctrine: principle that the government infringes upon a right if it demands that a person forego a right in order to receive a government benefit. o (3) Is there significant Justification for the Governments Infringement of a right? Never Articulated Criteria Not fundamental, only a legitimate purpose is required. o (4) Is the Means sufficiently related to the purpose? Government must show that the law is necessary to achieve the objective NO alternative, less intrusive of the right, can work Rational basis: Only that the law is a reasonable way to achieve the goal Right to Marry o Loving v. Virginia: SC recognized marriage as fundamental right, declared unconstitutional VAs antimiscegnation statute. Opinion: First part: Law violated equal protection. Also, deprived the Lovings, of constitutional protected liberty without due process of law. Zablocki v. Redhail: Ct: it would make little sense to recognize a 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 of family in our society. Right to Control Upbringing of Children o Meyer v. Nebraska: SC declared unconstitutional a state law prohibiting the teaching in any language other than English in public schools. The Ct. by using substantive due process, finding the statute violated the right of parents to make decisions for their children o Pierce v. Society of Sisters: uncon. A law requiring kids to go to public school. Same as Meyer, right to make parenting decisions. o Not absolute, state can interfere if necessary to protect child o Troxel v. Granville: SC declared uc WAs law, no majority opinion, unclear. Did more to confuse than clarify laws in the area of grandparents rights. Right to Procreate o Fundamental Right Gov implementing involuntary sterilization must meet strict scrutiny. Right to Purchase and Use Contraceptives o Griswold v. Connecticut: The right to privacy is a fundamental right.

Rejected this right was protected under the liberty of the due process clause. Found that privacy was implicit in many of the specific provisions of the Bill of Rights. o Eisenstadt v. Baird: Right to purchase and use contraceptives based on a right to make decisions concerning procreation. MA law denied equal protection because it discriminated against nonmarried individuals. Expands Griswold as recognizing the right to control reproduction as a fundamental right. Strict scrutiny must be met if the government attempts to restrict acess to contraceptives Right to Abortion o From Roe to Casey Roe v. Wade: SC: Constitution protects a right for a woman to choose to terminate her pregnancy prior to viability. Gov. regulations of abortions had to meet strict scrutiny