Con Law

Why different? Supremacy Clause (Supreme Law of land)

Power derives from theory of Republican gov
People = ultimate governors (any law created is subservient to Constitution
What does it do?
Federal gov must guarantee Republican form of gov for every state (Art. IX)
Judicial
Judicial Review (established in Marbury)
Article III, Sect 2, Clause 2
Original jurisdiction ambassadors, other public ministers and consuls, state as a party
Appellate jurisdiction all other cases
Judiciary Act of 1789, Sect 13 SC shall also have appellate jurisdiction from circuit courts/courts of
the several states, in cases herein after provided: power to issue writs of mandamus to any courts
appointed, or persons holding office, under authority of US
Marbury v. Madison
Three Rules
Creates authority for judicial review of executive actions
Non-discretionary/ministerial = reviewable
Political acts (vetoes) are not reviewable
Art III is ceiling for federal court jurisdiction
Congress cannot expand/modify b/c its the maximum jurisdiction for federal courts
Courts cant gain jurisdiction by consent
Federal courts have authority to review legislative acts
Declares Judiciary Act unconstitutional b/c court interpreted it as authorizing SC to exercise
mandamus on original jurisdiction
Key counter argument is that it the Act only applied to appellate jurisdiction
if it had gone the other way, there would be no judicial review
Marbury would have lost on jurisdictional basis and court would not have had opportunity to create
judicial review
Premise 1 it is emphatically the province of the judicial dept. to say what the law is
Premise 2 power must be independent of Congress
Why should the court have an independent power?
Marshall aspects of Constitution that restrict Congress (can we trust them to abide by them?)
Need judiciary to be mediator between branches, people, enforce Constitution
Counter we need a check but why the courts?
Why no the President w/ vetos?
How far does judicial power extend?
Marshall to all cases arising under the Constitution
i.e. power to review
Counter independent review is not granted, court should be bound by Congress/Presidents view of
what it means
What about the Oath Clause (Article VI, Clause II)?
Marshall judges take oath to defend/uphold Constit.
Counter everyone in public office takes oath
Oath does not privilege such authority
Oath does not expressly give SC authority to independently interpret
Key judicial review = not inevitable - (created by Marshall)
Article VI Supremacy Clause
 The Constitution and laws made in pursuance thereof shall be the supreme law of the land
Section II all statutes made in pursuance must be constitutional, requiring judicial review
Arg against does not say who interprets (no independent authority granted)
Judicial Review Against States
Cooper v. Aaron (governor opposes de-segregation)
Ct SC said segregation is unconstitutional so governor is bound by decision in Brown (SC clearly
superior to states/bound by SC decisions)
Reasoning SC interpretation is supreme
Williams this is an overreading of Marbury
Marbury only establishes an independent authority, not that its supreme over other branches
Authority for Judicial Review of States Judgments
Martins v. Hunters Lessee
Ct Martin should win b/c a treaty negotiated by US is superior to state law by virtue of Supremacy
Clause
VA argues = no jurisdiction, separate sovereigns (no obligation to follow SC commands)
Ct court has constitutional authority to review state court judgments
Infer from structure of constitutional order
Discretion to create lower, federal courts
If not, you would never hear any cases on appeal unless it did not review state court judgments
Uniformity
Cohens v. Virginia
VA regardless of Martin, state courts should be sovereign in criminal cases
SC SC may review state court decisions involving questions of federal law
Supported by framers intent
state courts often cant be trusted to adequately protect federal rights
Article III, 2 gives SC appellate jurisdiction in all cases, whoever may be the parties
Congress can extend SC appellate jurisdiction (why?)
But, cant give more original jurisdiction
Exceptions/Regulations
1) broad powers to remove matters from SCs purview (traditional)
2) limited ability to control SCs jurisdiction (issues of fact only)
3) Congress given authority to limit jurisdiction so long as it does not violate Constitution
(mandatory)
unless, power vested in a lower federal court
Congress Control of Federal Judicial Power
Ex parte McCardle Congress has general power to decide what types of cases SC may hear, so long
as SCs jurisdiction isnt expanded beyond federal judicial power ------ extensive, maybe unlimited
powerok to strip juris.
Ct took text of Exceptions clause at face value (traditional)
Once Congress exercised its power to divest SC of jurisdiction, there was nothing SC could do but
dismiss
Face Value if Congress wants to prevent SC from hearing a case, it may simply exclude from
appellate jurisdiction
Caveat does not divest SC of AJ over habeas corpus cases (only this specific statute)
Structural Limits on Exercise of Exceptions Power
Does anything in the structure constrain this power?
To what extent does separation of powers limit its application?
U.S. v. Klein (pardon for those who lost property in Civ War)(Chase)
 Statute made pardon mean you were disloyal
SC held it was not a proper exercise of Exceptions power
Passed limit separating legislative and judicial power
Two violations usurped judicial function, encroached on Presidential prerogative to issue pardons
Flaw Congress trying to manipulate to achieve particular result
Robertson v. Seattle Audubon Society
SC rejected arg that Congress was directing outcome
Klein does not apply when Congress adopts a new law
Cant control but can circumvent
Judicial Limits
Article III
Original Jurisdiction
1. Lower federal jurisdiction limited to enumerated categories
FQ (arising under), diversity, admiralty, maritime
Appellate Jurisdiction
Review of lower federal courts, state courts, state actions, executive actions, legislative actions
Justiciability Limits (judicially created Article III, 2)
Five Major Justificiability Doctrines (Cases & Controversies)
Prohibition against advisory opinions, standing, ripeness, mootness, political question
All must be met for any fed court to hear a case
Some already found constitutional cant be overridden by Congress
Principles of Avoidance (Justice Brandeis)
The court will not pass upon the constitutionality of legislation in a friendly, nonadversary proceeding
Only in last resort, necessity in determining real controversy
The court will not anticipate a question of constitutional law in advance of the necessity of deciding it
Court will not formulate a rule of con law broader than is required by the precise facts to which it is to
be applied
Court will not pass upon a constitutional question although properly presented by the record, if there is
also present some other ground upon which the case may be disposed of
If con law v. general law, court will use general law
Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is
injured by its operation
The will not pass upon the constitutionality of a statute at the instance of one who has benefited from it
When the validty of an act of Congress is in question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that the court will first ascertain whether a construction of the statute
is fairly possible to avoid the question
Prohibition of Advisory Opinions
To avoid, there must be:
Actual dispute between adverse litigants
Substantial likelihood that fed court decision will bring about some change/effect
Policy non-binding, waste of resources
Hayburns Case may not issue an opinion outside the context of a justiciable case/controvery
Making recommendations regarding pensions is not of a judicial nature might be
revisted/controuled by other branches
Plaut v. Spendthrift Farm (securities fraud lawsuit)
Unconstitutional b/c it would render previous judgment an advisory opinion
Fundamental principle - Judgment conclusively decides case
SC doesnt just rule, it gives conclusive resolution
 Retroactive command to reopen final judgments violates this principle
Congress cant render federal judgment no better or equivalent to advisory opinions
Distinction between all appeals and those still on appeal
Note: unless time for appeal has expired, ruling of lower court is not final
Why cant federal courts give advisory opinions when states can?
If they are asked before hand, they cant decide later
Defeats purpose of checks/balances
The Political Question Doctrine
PQ def allegations of constitutional violations that federal courts will not decide (leave to
executive/legislative)
Test
Does the issue implicate the separation of powers
Baker v. Carr non-justiciability of PQ is primarily a function of the separation of powers
Does the Constitution commit resolution to either President or Congress
Textually committed to a political branch??
Also Baker
Ex. Powell v. McCormick (maj, not 2/3)
Congress textual authority to decide qualifications of members (Art. I, 5) but quals limited to age,
residency, citizenship
No power delegated to deny by majority vote
Not a political question
Courts wont answer question beyond the competence or enforcement capability of judicial
branch
Lack judicially discoverable, manageable standards to decide the case
Key Areas (Court must dismiss)
Challenges to Presidents foreign policy conduct
Goldwater (Rehnquist)
Involves Presidents authority to conduct foreign relations/extent Congress can negate his action
No judicial until Constitutional impasse
Cases under Guaranty Clause (Art. IV, 4)
Non-justiciable since Luther (its for Congress to decide what gov is established in state before it can
determine if its republican or not
Challenges to impeachment and removal
Nixon v. U.S. (Mississippi senator)
Constitution committed entire impeachment process to Congress
Challenges to partisan gerrymandering
Controlling party draws district to max votes
Note: Factors Court Considers (From Baker, Nixon)
Are there judicially discoverable/manageable standards for resolving the controversy?
Does resolution require an initial policy determination of a kind clearly for non-judicial discretion?
Will judicial resolution express a lack of respect for a coordinate branch of government?
Is there an unusual need for unquestioning adherence to a political decision already made?
Will multifarious pronouncements by various departments cause embarrassment to the government?
Key factors give latitude of discretion to decide whether judicial branch should resolve
Powell v. McCormack
Justiciability Key for any federal district court at any level, P must have standing, case must be ripe,
moot, and not pose a FQ
Legislative
 Federalism
Confederations super government has no independent sovereignty of its own
Authority vested in constituent members
Federal mixture of federal/confederate
Federal authority given based on states assent
Unitary single, centralized tier of government
The Federal Legislative Power
Necessary and Proper Clause
McCulloch v. Maryland (MD passes law banning BUS)
Does Constitution empower Congress to create BUS?
Not express power but implied (omission is not dispositive) supplements enumerated powers
Must be allowed to facilitate power in best way
Allowed to select the means allowed to make laws that are necessary and proper
Whats the source of authority?
Necessary and proper clause independent ground of authority, end must be legitimate, means must
be plainly adapted to that end, not prohibited by Constitution
States arg clause designed to limit Congress to most direct/simple means
Marshall necessity doesnt mean absolute necessity (may just need reasonable to attain goals)
Not single means, but any means
Can MD tax the BUS?
No, intergovernmental immunity (state should yield)
No power to impede the operations of Constitutional laws enacted by Congress in execution of its
vested powers
Note: neither sovereign can tax the other unduly
Key Questions
Should it be the role of the judiciary or political process to protect state prerogatives?
Some oppose judicial protection of states as a limit on Congressional authority
Court should not circumscribe Congress authority or use 10th amend to invalidate federal laws
Other favor judicial use of federalism as constraint on Congress power
Decrease chance of federal tyranny
Increase democratic rule (gov closer to people)
States become labs for new ideas
How important is the protection of state sovereignty/federalism?
One judicial enforcement of federalism is unnecessary
Political process is adequate
Other questionable that state sovereignty is protected by Congress
Note: clause grants Congress power to provide other branches with means necessary to achieve their
Constitutional duties
The Commerce Clause (Article I, 8)
Language Congress shall have the power to regulate Commerce among the states
Three Questions Courts Consider
What is commerce?
What does among the several states mean?
Does the 10th amend limit Congress?
What is Interstate Commerce (Threshold Q)
Gibbons v. Ogden
Between the states: Could include intrastate if it substantially effects the interstate commerce
Focus on practical physical & economic effects
 Congress may regulate (Lopez, Morrison)
Use of channels of interstate commerce (roads, rivers, internet)
Instrumentalities (RR, airlines, trucking)
May impose safety standards on carriers
Articles moving in interstate commerce (Reno v. Condon)
Any economic activity that has a substantial relationship with interstate commerce or that
substantially effects that commerce
substantially affects test
Defining the Commerce Clause
Early Era (broadly defined, low use)
Gibbons v. Ogden
Interstate (Between the states) could include: intrastate if it substantially effects interstate commerce
Commerce = intercourse affecting economic activity
Expansive definition of commerce power (no 10th amend)
Power vested absolutely in Congress
Plenary authority over commerce extends to internal concerns which affect the States generally (not to
those completely within state)
Must: affect other states, be necessary to interfere, purpose of executing some general power
What is Commerce?
1890s-1937 (narrow def, 10th amend as limit)
hostile toward federal economic regulation
U.S. v. E.C. Knight (D created monopoly)
SC Sherman Act is constitutional but manufacturing is not commerce
Manufacturing + local, in state, pre-commerce
Congress cant regulate
Felt-Need argument
If line not drawn, Congress could regulate everything, leaving nothing to states
Felt they needed this line
Accurate? States regulate marriage, etc
Problem line is arbitrary
Dissent there is a substantial effect
Carter v. Carter Coal Co.
Difference between intercourse of production and of trade
Intercourse for purpose of trade = commerce
Intercourse for purpose of production (wages, work conditions, collective bargaining) = not commerce
Local evils, no control to Congress
Secondary, indirect effect on commerce
What Does Among the States mean?
Shreveport Rate Case
Sustained statute authorizing ICC to prohibit a RR from higher rates for interstate than for similar
intrastate service
Rule Congress has power to regulate intrastate activity that has close, substantial relationship w/
interstate activity
When government of one involves control of another, its Congress that prescribes final rule
Schechter Poultry v. U.S.
Strike down a Congressional act that regulated the hours/wages of employees in the poultry business
Restrict only to intrastate w/ direct effect on interstate commerce
Authority over indirect effects on interstate would be too expansive, subrogate state authority
 Doesnt overturn previous cases
Note: no principled way to apply this rule
No historical, textual argument
Just the courts reasoning
Champion v. Ames (out of state, buy in IL, take back)
Constitutional protecting states from each other, commerce b/c its shipment
Argument Congress motive is to stop lotterys
BUT MOTIVES ARE IRRELEVANT
Hammer v. Dagenhart
Ct Congress cant prohibit the interstate transportation of goods manufactured with child labor
Enclave of manufacturing immune
Thought regulation was of conditions goods were manufactured and not regulation of commerce
Apply 10th Amend this is commerce but the 10th amendment is a limit to commerce power b/c
Congress cant use the commerce power to infringe on state power
state police power to regulate local manufacturing
How different than Champions?
One regulates morals, one regulates commerce
One affects just in state (child labor), one affects out of state (lottery)
Holmes (better reading of 10th)
When they seek to send products across state lines, they are no longer within their rights
Now belongs to Congress
1937-1990s (Broad Federal Commerce Power)
not one federal law unconstitutional during this period
NLRB v. Jones & McLaughlin Steel
Ct abandoned direct/indirect test (departs from prec)
Overturns Carter Coal/E.C. Knight
applies close and substantial relationship formula
upholds NLR Acts regulation of local activity that affected interstate commerce
production is not determinative
key is the affect of labor practice on interstate commerce
Wickard v. Filburn (planted more wheat than allowed)
P purely homegrown, cant regulate intrastate
Ct disagrees does not affect interstate commerce but if many did same thing, it would
Aggregation Principle behavior of individual alone may not affect but if part of class that could
affect as a whole, Congress may regulate
Williams loves it (right interpretation, makes power real/effective)
U.S. v. Darby
Manufacturing alone is not interstate but their shipment is interstate commerce
Came within granted powers to regulate channels of interstate commerce
Overrules Hammer, implicitly overrule Schechter
May compel in-state manufacturers to adopt federal standards so long as it regulates interstate
commerce
Regulation of local commercial activity (wages/hours) is a permissible exercise of commerce power
(N&P clause)
Satisfies substantial effect test
Regulation = appropriate means to ensure effectiveness of prohibition on interstate shipment of goods
made under substandard labor conditions
Consistent with Gibbons 10th amendment has no independent limitation on Congress
 Two Important Developments
substantially effects broadens reach of commerce power
essentially destroyed enclave theory and notion that certain activities were automatically off-limits
Net Effect (Post Darby) == broadening
Congress may regulate
interstate commerce itself and
any local economic activity that substantially effects it
The Meaning of Commerce Among the States
Heart of Atlanta Motel v. U.S.
Provision of CRA making race discrim by hotel wrong
Ct reasonable for Congress to think racial discrimination of interstate travelers will substantially
affect interstate commerce
Katzenbach v. McClung
Ct burden on interstate commerce, albeit indirect, was sufficiently substantial to unleash Congress
power to prohibit such discrimination under CC
depressant effect on general business
rational basis = enough, must accept
affirmed in Hodel (Rehnquist)
But, concerned that modern apps risk obliterating principle that Congress power to regulate is
limited
Same concept in Perez by Stewarts dissent
These Two key question is whether the practice of racial discrimination by such businesses affected
interstate commerce
Question Does this practice, when engaged in by an industry affecting commerce, substantially
affect interstate commerce?
Focus particular activity being regulated
Note: likely that court could uphold presumed determination of Congress w/o specific findings
Deferential approach

10th Amendment (1937-1990)

until now, courts have followed Darby which said 10th amendment is just a truism, a reminder that
Congress cant act w/o authority under Constitution
National League of Cities v. Usery
Does this mean states are immune?
No, Congress cant regulate integral state government functions (police, fire)
Integral government functions test!
Why did court come up w/ this limitation?
If no line drawn, power would expand too far
Felt-need (not textual, historically based)
Key Applies only to regulation of state governments, not of private conduct
Garcia v. San Antonio Metro (overrules Usery)
Key example of SC narrowing the protection of the 10th Amendment
Usery overruled b/c unsound in principle
Impossible for court to decide who has integral government function (too subjective)
States can defend themselves in Congress via political process
1990s to Present (Closer Judicial Scrutiny)
 Commerce power = narrowed, 10th amend as constraint = revived
What is Congress Authority to Regulate Commerce Among States?
U.S. v. Lopez
Ct possession of a gun in a school zone was not substantially related to interstate commerce
this is not economic activity
(1) Where economic activity substantially affects interstate commerce, regulation is sustained
To be economic activity:
Activity must itself be economic in nature or
Regulation of the activity must be an essential part of a larger regulation of economic activity
Here, no to both
Note: if economic, Wickard applies
(2) Even if characterized as economic, the activity must also have substantial relation to or
substantially affect interstate commerce
Independent evaluation --- mere effect is not enough, no deference to Congress judgment
Interpretations
No exercise of commerce power will be validated unless both elements (economic, substantially) are
satisfied
Two elements are not necessarily dependent but are different perspectives
If not economic, court is less deferential but may still be possible to convince that activity
substantially affects
U.S. v. Morrison (Rehnquist)
Ct congressional findings alone dont give Congress right to act
Must be economic
Regulation of intrastate violence not directed at instrumentalities/channels/goods is in province of
states
To give power to Congress will supplant states police power
Reject arg that Congress may regulate noneconomic violent conduct based solely on its aggregate
effect on interstate commerce
Problem no way to characterize activity as nonl-economic or economic
Whether or not findings are enough = arbitrary
Quick note Gregory v. Ashcroft = first indication of revival of 10th amendment --- ruled that federal
law imposing substantial burden on state gov will only be applied if Congress clearly wanted the law
to apply
New York v. U.S.
Ct not constitutional, 10th amend forbids Congress from commandeering state legislatures by directly
compelling them to enact and enforce a federal regulatory program
Justifies w/ historical argument
Framers created fed gov that acts upon people, not states
Problem there is an intrusion on authority of states, nothing to keep them from exerting power over
states
Congress may encourage attach conditions, give option between state regulation according to fed
standards or have fed law pre-empt state law (coop federalism)
Printz v. U.S. (cant force sheriffs to enforce federal gun laws)
Similarly, there is no authority for Congress to commandeer state executive officers for service of
federal regulatory ends
Ct hints that limitation is implicit in 10th amend
Problem Congress relies on state officals to enforce federal regulations all the time (emissions, cant
refuse to hire b/c of race) unconstitutional?
 Reno v. Condon
Ct - No, thats not what we said
Rule: Congress can regulate state officials with regard to state operations but:
Violation of Anti-Commandeering rule if: It regulates in order for state officials to in turn regulate
private citizens
service of federal regulatory ends is key
distinguishes this from Printz
you can tell DMV official he cant distribute private information (regulate state, not citizen)
but, you cant require state official to implement a federal regulatory program against private citizens
Administrative actions to comply w/ federal standards regulating activity is common --- not a constit.
defect
Gonzales v. Raich
Held - Commerce clause gives Congress authority to prohibit local cultivation/use of marijuana,
despite state law to the contrary (follows Wickard, Lopez, Morrison)
firmly established commerce clause power to regulate purely local activities part of class of
activities with substantial effect on interstate commere (national marijuana market)
local use affects supply/demand
regulation essential to regulating national market
Eleventh Amendment as Independent Authority
11th Amend The judicial power shall extend to any suit in law/equity, commenced against one of the
United States by citizens of another state
unconsenting states cant be sued in fed courts by private parties
adopted to overrule Chisholm v. Georgia
clear language of Art. III authorizes suits against state by citizen of another state
Congress Power to authorize suits against state governments
Disagreement over 11th Amend Interpretation
Some its apart of a broader Constitutional limitation on federal court jurisdiction created by
sovereign immunity
Other restricts only the diversity jurisdiction of federal courts
Does not bar suits against states (notably, FQ
All claims of state violations of constitution/federal laws could be heard in federal courts
Three ways around 11th Amend
State officers may be sued, even when state cant
States may waive 11th amend immunity, may consent to suit
Congress may authorize suits against state govs
When may Congress abrogate state sovereign immunity?
Fitzpatrick (state employment discrimination)
Congress has abrogation power pursuant to 5 of 14th amendment, may authorize suits against states
14th amend prohibits states from denying equal protection, modified 11th amend by authorizing
Congress to subject states to suit in federal/state court if necessary to enforce Equal Protection Clause
Basic rule Congress may authorize suits against states pursuant to 5 of the 14th Amendment
Limits the 11th amendment, principles of sovereign immunity
Must be appropriate legislation
Seminole Tribe of Florida v. Florida
Held Article I cannot be used to circumvent the constitutional limitations placed on federal
jurisdiction
Two requirements for ABROGATION
 (1)unequivocally expressed intent to abrogate state immunity
(2) acting pursuant to a valid exercise of powers
May authorize suits only pursuant to 5 of 14th
If within authority, states can be sued
If not within authority, states are immune
Why does the 14th amendment have abrogation power but not the commerce clause?
Its a restriction on state authority, therefore its ok to abrogate under this when the amendment itself
abrogates state power
Problem entire original Constitution was a restriction on state authority (how far would this go?)
Alden v. Maine (most recent)
Held Congress cannot authorize a suit against a state government in state court
State governments cannot be sued in state court even on federal claims w/o the states consent
11th amendment comes into effect unless the amendment is a valid exercise of Congress power to
abrogate
Effect of Alden
We have a system of state sovereignty that does not protect against federal regulation w/ respect to
employment relationships but the state may not be sued for violations by private citizens
The only remedy is that the states may be sued by the President b/c that doesnt violate constitutional
state sovereignty (impractical)
All about protection of states from un-consented litigation
Not a textual/historical/structural argument
Completely court made
Note: it makes more sense to say that once they can be regulated by federal law, citizens should be
able to sue once that federal law is violated
Congress can only: act to prevent or remedy violation of rights already recognized by courts
Must be narrowly tailored
Cannot create new rights/expand scope of rights
Commerce Power NOW
Congress has ample means to ensure compliance with valid federal laws but it must respectful of state
sovereignty
Plus, immunity does not bar all judicial review
government may seek state consent
immunity does not extend to lesser entities
Today, broad conception of Congress power
Limited by 10th amendment (anti-commandeering) and 11th amendment (state sovereignty)
Power to regulate many facets of American life
Expanse of regulatory power is a by-product of deep integration of American economy
Taxing and Spending Power
Taxing Power
Art. I, 8 Congress has the power to lay and collect taxes
Independent source of Congressional power
may extend to reach conduct beyond other sources of Congressional power, i.e. commerce power
For what purposes may Congress tax and spend?
Regulation Congress can probably regulate under the guise of taxing, so long as theres some real
revenue produced
Ex. cant use for regulatory means penalty in Bailey
Constitutional limitations
Direct taxes must be allocated among the states in proportion to population
 Uniformity all customs duties and excises taxes must be uniform
No taxes on exports from any states
Note: A tax may inevitably involve restraint and regulation but it must not be a regulatory penalty for
departure from specified course of conduct
Cant be a penalty to coerce people of a state to act as Congress wishes in respect to business of state
government
Bailey v. Drexel
Restrictions pay for general debt or general welfare
Must be naturally and reasonably adapted to the collection of a tax
Not solely to achieve some alternative purpose that plainly falls w/in state power
United States v. Butler
View Congress has broad authority to tax and spend for the general welfare
Taxing power is independent of commerce clause and can be broader
Congress can tax items it cant regulate
Issues
Scope of taxing/spending power (still good law)
Clause confers a distinct/separate power, so Congress has a substantive power to tax and spend, so long
as its for the general welfare
Is the 10th amendment a limit on spending (no longer followed)
Note: even if spending is coercive, regulatory, it may be validated under the commerce clause b/c it
may be economic activity that substantially affects interstate commerce
Ex. farming for profit
United States v. Kahriger
Law has changed since Bailey
Textual limitations on power to tax: general welfare, pay public debt, uniformity
Williams not much of a limitation
Doesnt limit taxing power as it does commerce power
some sort of revenue motive is irrelevant so long as revenue of some amount is generated
A revenue-raising tax may still be penal or prohibitory
But, presumption that measure is true tax is hard to overcome
Not invalid simply because it discourages or deters activities taxed
Courts are powerless to limit Congress power unless it goes beyond its power to tax
Conflict hobbling Congressional choice of policies v. allowing Congressional power to expand to
any subject of public interest
South Dakota v. Dole
Affirms Congress power to place conditions on grants to state/local governments
Requirements for Conditional Spending Measures
Conditions are expressly stated
Have some relationship to the purpose of the spending program
Relate to federal interest in national projects
Whether it passes from pressure to compulsion
Never been applied + even if coercive, it may be upheld as a valid regulation under Commerce
Clause
Court questions whether general welfare is a judicially enforceable restriction at all
WAR POWERS Woods
Court affirm its power to review exercises of the war powers
But, court will rarely strike down domestic war powers legislation as beyond the scope of
Congressional power
 Congress war power extends to the effects/consequences of war
Limitation of direct, immediate requirement is minimal
THE TREATY POWER Missouri v. Holland
Article II, 2, cl. 2 grants President the power by and with the advice and consent of the Senate, to
make treaties, provided two thirds of the Senators present concur
Treaties pre-empt state law inconsistent w/ terms of treaty
Self-executing establishes enforceable domestic law w/o any further action by Congress
Non self-executing -- requires legislative implementation before its provisions can be of any effect as
domestic law
Provides Congress with the power to enact legislation to implement provisions of the treaty,
pursuant to the Necessary and Proper Clause
Even if, in the absence of the treaty, Congress wouldnt have had the power to do this
A valid exercise of the treaty power could not be limited by the 10th amendment
Treaties/powers to enact legislation necessary and proper to carrying out treaties are expressly
delegated to the United States
No limitation on Congress power once a valid treaty is place
national interest requirement is easy to pass

State Regulation of the Economy

Dormant Commerce Clause
Def: restriction prohibiting a state from passing legislation that improperly burdens or discriminates
against interstate commerce
Deduced from Commerce Clause
Commerce power is held exclusively by Congress
Relied on by Hamilton/Madison to distinguish it from tax clause
Necessarily deprives states of same authority
Conflicting state laws are struck down by Supremacy Clause/pre-emption
***Even where Congress has not acted (and CC is dormant), state laws that burden or
discriminate against interstate/foreign commerce will be invalidated
Early Cases
Gibbons v. Ogden Police power v. Commerce power
If completely internal to state commerce, then state can regulate
Policing state regulations that fall w/in scope of Congress commerce power, but are still
Constitutional
Health, safety, morals of people
Distinction between policing power and commercial power
If completely intrastate, and no impact on other states, then theres no necessity for Congressional
interference
Cooley v. Board of Wardens Local subject matter v. National subject matter
Except in areas which by their nature require a uniform national rule:
The states retained concurrent power to regulate local activities that affect interstate commerce until
such time as Congress chose to regulate itself
When Commerce Clause is dormant, states retain authority to regulate most local activities
Distinction between national and local subject matter
Exclusive zone Congress has exclusive power to regulate
any state activity is barred
Concurrent zone - (CC is dormant, states may regulate until Congress chooses to act
 Modern Test Three Types that Run Afoul
Laws whose purpose is to regulate interstate commerce or whose effect is to control out-of-state
transactions
Laws that discriminate against interstate commerce
Laws that do not discriminate against, but nonetheless burden interstate commerce

Three Part Test

Issue does judiciary have power to invalidate state/local laws absent Congressional action, because
they impose an undue burden on interstate commerce?
Initial Question --- Is it discriminatory?
If discriminating against out-of-staters:
Strong presumption against the law and it will be upheld only if it is necessary to achieve an important
purpose
Strict, rigid standard
If non-discriminatory (incidental):
Presumption in favor of upholding the law and invalidated only if the laws burdens on interstate
commerce outweigh its benefits
Must satisfy (3)
Must pursue a legitimate state end
If the state is promoting its residents own economic interests, this will not be a legitimate state
objective (automatically violates DCC)
Modern Test (when looking at Protectionism)
Is the law discriminatory?
Discriminatory = favoring in-state interests over out-of-state interests
facially law itself discriminates
by effect law is neutral, but it discriminates through its effect
in purpose purpose to discriminate
If discriminatory, is it per se protectionist?
Yes, but there can be justifications relating to local interest
Strict standard for justification
Rule: If discriminatory,
***State must***
Demonstrate a legitimate non-discriminatory purpose, and
No other non-discriminatory alternative to serve the same purpose
Maine (baitfish) discriminatory but justified (environmental reasons)
Dean Milk discriminatory and legitimate purpose but non-discriminatory alternative means available
Granholm if discriminatory, justification requires the clear showing =
To prove alternatives unworkable, the state must prove w/ concrete record evidence that
demonstrably justifies their discrimination
Maine and Granholm mere speculation is insufficient
Note: cant justify a discriminatory law on the basis that its cheaper than non-discriminatory law
Must be rationally related to that legitimate state end and
Minnesota v. Clover Leaf once a legitimate purpose is identified, it is highly probable that the
measure will be struck down on the basis that it is not reasonably adapted to that end
The regulatory burdened imposed by the state on interstate commerce must be outweighed by the
states interest
Balancing test
Pay attention to the less restrictive means available to the state
 Courts will apply the discriminatory standard but if they find that the law is not simple
protectionism, but is even handed, then the court will consider whether the burden is excessive as
compared to the states benefit

New Deal Approach Benefits/Burdens

Courts: benefits of the law versus the burdens imposed on interstate commerce
Courts tend to use the balancing test only if it imposes considerable burdens on interstate commerce
and the benefits are low
South Carolina State Highway Dept v. Barnwell
State interest outweighs small burden to interstate commerce
Use of highways is a local concern
Southern Pacific Co. v. Arizona
Its not the courts job to weigh whether one regulation is better than the other
Concluded heavy burden on interstate commerce, benefits quite low
Purpose was for safety, but caused more accidents
Problem this test depends on when you look at the issue
May be more of an economic benefit today than then
Standard Examples of Protectionism
You cant bring your goods into our state
You cant take goods out of our state into your state
Embargos of natural resources laws preventing scarce natural resources from moving out of state
are closely scrutinized
Even if protectionist, courts will strike down if less-discriminatory alternatives
Environmental Regulations City of Philadelphia
States may not protect their environment at the expense of their neighbors, unless there is no non-
discriminatory alternative they can use
Cant accomplish objectives by discriminating against out-of-staters

Modern Courts Five Inquiries

Is the law rationally related to a legitimate state purpose? Hood
Does the law discriminate against out-of-staters?
C & A Carbone discrimination against interstate commerce is per se invalid except for narrow class
of cases in which the state can demonstrate, under rigorous scrutiny, that it has no other means to
advance a legitimate local interest
Problem all laws become discriminatory, subject to rigorous 2nd step of rule (alternatives)
Plus its harming local residents too
Exxon simple burden to interstate commerce is not enough to make it discriminatory
Exxon v. Maryland not discriminatory even though heavy benefit for state, heavy burden toward
out-of-state
Not about in state versus out of state
Law is favoring local companies at the expense of big corporations
Types of Discrimination
Facially Discriminatory
Def: very terms draw a distinction between in-staters and out-of-staters
City of Philadelphia: protectionist purpose because there were no restrictions on NJ citizens
The means were directed toward protectionism
Hughes v. Oklahoma facially discriminatory by blocking interstate commerce at its borders (cant
sell in-state minnows out of state)
 Discrimination in effect
Def: law is facially neutral but whose practical effect is to place greater burdens on out-of-state
economic interests than on local competitors
Hunt v. Washington Apple Commission
not facially discriminatory but discriminatory in effect
NC is trying to help local growers at expense of WA apple growers
Disproportionate burden on out of state growers, local growers do business as usual (benefit)
If the law discriminates against interstate/foreign commerce, does it represent the least
discriminatory means for the state to achieve its purpose?
Rule if a state law is found to discriminate, it will be invalidated under the DCC unless there no less
discriminatory ways to achieve the states goals
In City of Philadelphia, the state did not use a non-discriminatory alternative (i.e. some option to
handle land fill in state)
The least-discriminatory test is useful where there may be doubt as to the states true purposes
Hughes v. Oklahoma May be a legitimate local purpose but the court applies the strictest scrutiny
This is not a last ditch effort here --- other non-discriminatory conservation methods are available
which would likely serve the states purpose
State must prove that their method is less effective

Does the law represent the least burdensome means for the state to achieve its goal?
Minnesota v. Clover Leaf even though it was urged that there were less burdensome alternatives, the
court said these were either more burdensome or less effective
More Cases
West Lynn Creamery v. Healy by so funding the subsidy, the state assists local farmers but also
burdens interstate commerce (giving money back only to local farmers)(non-discriminatory tax +
subsidy)
Violates cardinal principle that a state may not benefit in-state economic interests by burdening out-
of-state competitors
Not facially discriminatory b/c it applies to a raw milk
Burden (2/3) outweighs state benefit (1/3)
Dean Milk v. City of Madison

Notes: Arguments against DCC

Textual could have been included by framers
Separation of powers Congress can act, not for judiciary
Federalism minimizing where state, local laws are invalidated
Rehnquist overstepping our limited authority, intruding on state rights to secure safety of citizens
Purpose of sensitive consideration test is determine whether the safety justification, albeit rational, is
a pretext for discrimination

Balancing
Non-Discriminatory laws (not per se Constitutional)
Must apply balancing test (less demanding)
Upheld so long as the benefits to the government outweigh the burdens to interstate commerce
Pike v. Bruce Church
Rule: To be unconstitutional, burden must be clearly excessive to the putative local benefits
Here, marketing benefit doesnt justify extreme cost on cantaloupe grower
Bibb v. Navajo when looking at burdens/benefits, its important to look at other existing legislation
 Since IL was the only state to ban, the impact is substantial (costs of installation, interferes w/
operations)
Pikes Test allows for a law that was constitutional at adoption be unconstitutional years later
temporally contingent
Law may become unconstitutional if situation changes
Requires states to continually revisit laws to ferret out burdensome laws
geographically contingent
Some states may get away w/ a law that others may not
Is this troublesome???
Problem this test is only applicable to contiguous US
Problem is it problematic to have a test that depends on having a judicial trial?
Rehnquist in Kassel would say yes
CTS v. Dynamics Corp
The Pike Test is problematic because there are times when the courts will get it wrong (too subjective)
Courts cant decide what is clearly excessive compared to putative benefits
Commerce clause does not protect the particular structure or methods of operation in a market
Recent cases invalidating statutes that may adversely affect interstate commerce by subjecting
activities to inconsistent regulations

EXCEPTIONS to the Dormant Commerce Clause

Congressional Authorization Western & Southern Life
Def: Even a clearly unconstitutional, discriminatory state law that violates the DCC will be allowed if
approve by Congress
Why? Congress has plenary authority to regulate commerce
It can confer ability to the states to restrict flow of interstate commerce that they would not otherwise
enjoy
A state is completely free to discriminate or burden interstate commerce if:
Congress gives its permission to do so
Key: only way Congress can override a SC constitutional decision
Note: although a law now wont violate the DCC, it still may be challenged under other constitutional
provisions
i.e. equal protection, Privileges & Immunities
Market Participant Exception
Rule: a state may favor its own citizens in dealing with government-owned business and in receiving
benefits from government programs
In other words, if the state is acting as a private actor in the market (buying or selling), and not as a
regulator, it MAY discriminate in favor of its own residents
Market Participant vs. Market Regulator
Test determines if market participant or DCC applies
General Rule when participating in the market, the Commerce Clause places no limitation on a
States refusal to deal w/ particular parties
Limits
Allows a State to impose burdens on commerce within the market in which it is a participant, but no
further
State may not impose burdens that have substantial regulatory effect outside of that particular market
Key look for conditions set out by the State beyond the transactions ---- i.e. further regulations
South Central Timber
 Why would we want a market participant exception?
Good
w/o it, you would force government out of some markets
state wouldnt undertake public investments
allow citizens in state to recoup benefits of taxes paid
Bad
Capitalist country (Private enterprise would benefit)
Dont want constitutional rule that allows states to own commercial enterprises
Start nationalizing a lot of things
If you own, you can protect
Encourages government intrusions on private sector
No clear distinction between participant and regulator
Reeves, Inc. v. Stake (constitutional restriction of trade)
South-Central Timber Development v. Wunnicke
Attempting to participate and regulate
The State entity is attempting to regulate down-stream commerce---
Cannot regulate beyond the immediate market in which the State is participating
Problematic for state to use its market participation to accomplish indirectly in a different market what
they cant accomplish by regulating that market
Rule is contingent on defining the market
How you define the market will effect the scope of market participation
Rule (Pike Test):
Incidental effect on interstate commerce outweighs the putative local benefit/interest
Dissent distinction between participator and regulator is artificial
Sovereign Protectionism
United Haulers Ass'n. v. Oneida-Herkimer Solid Waste Management
Viewed differently from other Market Participant cases
Because it applies the Pike Test but also relies on traditional Governmental Activity
"Pike" Test
Incidental effect v. putative local benefits/interest
The Trend:
When the market in which the State is participating is a "traditional governmental function," the scale
is tipped in favor of putative local interests.
Courts narrowly define markets so as to keep MP doctrine from swallowing up rule that states may
not impose substantial burdens on interstate commerce

Court has exempted sovereign protectionism

even though regulatory, still constitutional b/c its ok for states to act in protectionist fashion so long as
they are trying to favor government over private
Whats the difference btw private and sovereign protectionism?
Key question - what about regulations/taxes that favor entities that are part public/part private
Plurality in Davis thought that what KY was doing fit w/in market participant exception
If so, theres nothing left w/ DCC
 Privileges and Immunities Clause (Article IV)
How does it differ from DCC?
None of the DCC exceptions apply to PIC
PIC requires discrimination against out-of-staters
PIC only applies to citizens (DCC applies to aliens/corporations too)
PIC applies only to discrimination w/ respect to P&I
What are the privileges and immunities of state citizenship?
Justice Washington protection of government, enjoyment of life/liberty, right to possess property,
right to pursue happiness/safety (broad)
Modern only w/ respect to P & I bearing on vitality of nation as single entity (more narrow)
Only operates w/ respect to rights that are substantially fundamental to national unity
all relate to commerce
right to be employed, right to practice ones profession, right to engage in business
Two Part Test Toomer v. Witsell
A violation of the P & I is not per se unconstitutional
State must show a local evil that justifies the measure
Classic Ends/Means Test
(1) legitimate/substantial end
(2) means have to be substantially related to achieving that
In other words, is the end legitimate and compelling and is the means closely/substantially related to
that end?
End may be legitimate (conserving shrimp supply) but the means (helping in-state shrimpers) is not
closely related
Ultimately protectionist justification
Generally, must show that there are no less-discriminatory alternatives
United Building
Pursuit of common calling fundamental privilege protected by P & I clause
Interest of out-of-staters in doing business on terms of substantial equality w/ citizens of that state
Laws that favor residents of a city necessarily discriminate against citizens of other states
But, if a state/local law discriminates against citizens of other states w/ respect to a fundamental right,
the state must show:
A substantial reason for the difference in treatment
If merely discrimination regarding publicly owned goods/resources, courts will apply relaxed version
of substantial test
Plus, P & I may apply when the state is a market participant
Need to preserve interstate harmony cuts through regulator/participant distinction
Baldwin
Constitutional, neither a P or an I
Clause only comes into play if regarding a fundamental right
Not applicable to recreation pursuit rather than commercial
Any impact on livelihood?
Piper v. Supreme Court
Discriminatory? Does it impact a P or I? Is it justified?
Other possible ends that would be so far reaching, broad
Separation of Powers
The Authority to Make National Policy
Domestic Affairs Youngstown Sheet
The President cant make the laws
 no emergency escape valve in the Constitution, no statute authorizing express grant of authority in
Constitution
an emergency does not excuse the Constitution but creates a necessity to act
Ex. seizure order was an unconstitutional exercise of lawmaking reserved for Congress
Take Care Clause requires that Congress grant
take care to execute laws that exist, not make up new laws
Majority Presidents actions must be traced back to Congressional authorization
Jackson
(1) w/ Congressional statute (support)
highest power, dispositive
(2) ***w/o Congressional grant of authority
relying on independent powers, independent authority
When? Imperative events/imponderables
Viewed in light of situation
Absence of statutory authorization is not dispositive
(3) incompatible w/ statutory measures
lowest ebb of power
President may act, even if prohibited, if the statute is unconstitutional
Constitutionality = dispositive
Concurring (Jackson, Vinson to an extent)
President can act so long as he has not been forbidden by statute/Constitution
Congressional Acquiescence scope of Presidents powers may be somewhat expanded by Congress
consent to an exercise of power
Not dispositive but acquiescence may be enough to make the Court conclude that President is merely
carrying out laws, not making them
Foreign Policy
Note: hard to rely on framers intent (different world today)
U.S. v. Curtiss-Wright (Pres has broad inherent power)
Aggressively enforces the non-delegation doctrine
Congress cannot delegate legislative power to executive agencies
intelligible principle test Court will uphold delegations of the lawmaking power as long Congress
by statute sets forth an intelligible principle to which the person/body is authorized to act
fair and equitable, public interest are enough
court routinely upholds statutes conferring lawmaking authority on the other branches

Congressional authorization is immaterial in foreign affairs

Entering into executive agreements is inherent in the concept of nationhood, exception to the rule that
the powers of national government are enumerated
Authority in foreign affairs Is greater but actions cant be unconstitutional
Note: power comes from Constitution, not sovereignty
Better argument --- structure of express powers implies greater authority
Treaty v. Agreement Dames & Moore
Treaty agreement between USA and a foreign country that is negotiated by the President and is
effective when ratified by the Senate
Executive Agreement (implied from Constitution)
Agreement between USA and a foreign country that is effective when the President and the head of
another government sign it
No senate ratification needed
 Well established as Constitutional
Prevail over state law

War Powers Resolution (President power to commit US forces to combat w/o Congressional
authorization)
Real bite President must withdraw troops w/in certain time period unless authorized by Congress
pursuant to statute/declaration of war
Every Congress/President has complied
Question who gets to decide when American troops are sent to battle?
Note: court will never adjudicate Constitutionality
Does the War Powers Resolution reach balance of authority between Congress power to
make/create war and Presidents commander in chiefs authority?
Is the Presidents power unlimited?
Does Congress have any remedy against abuse or unlimited use?
There are formal checks (impeachment), but as practical matter, will they do anything?
Becomes more of a political matter
Is it constitutional?
Yes
Could Congress require him to withdraw troops? Yes
*****Whats Art. 1, Sect 8 war power for?
****Why would it be in there if commander in chief gives President unilateral authority????
Gives President this power but only to an extent (power is wholly given to Congress)
Argument War Powers Resolution, as practical matter, assigns too much authority
it could take less than 90 days to take down Mexico, for example
could take down sovereign nations easily

Congressional Encroachment on Executives Domain

What is a legislative veto?
Congress can veto an executive action
When Congress has exercised legislative power, the SC has insisted on strict adherence to the
Constitution
INS v. Chadha
Not constitutional b/c it violates the presentment clause
bicameralism and presentment requirements only apply to legislative action on the part of
Congress
Here, action is taken by only one house (violates bicameralism requirement) and it never went to the
President (violates presentment requirement)
Problem must congressional action taken pursuant to a properly enacted law satisfy the
bicameralism and presentment requirements?
White theres no direct authorization or prohibition of the legislative veto so take a fundamental
approach
Whether the legislative veto is inconsistent w/ the purposes of Article I and the principles of separation
of powers reflected in that article and in the Constitution
His opinion not inconsistent goal is to limit the methods for enacting new legislation, not to
restrain the scope of congressional authority pursuant to duty enacted law
But, the veto cant be used to usurp or encroach on inherent functions of other branches
Cant impose a legislative check on an inherently executive function such as initiation prosecutions
 Authority of Congress to Increase Executive Power
Clinton v. City of New York
Line item veto would give the President the unilateral authority cancel certain provisions contained
in bills signed into law
Ex. cancel new spending, cancel new limited tax benefits
Contrast to veto power allows President to reject selected portions of a law rather than
approving/rejecting
Veto exercised after the bill is enacted into law
Here, SC declared it unconstitutional
Gave the executive the practical and legal power to amend acts of Congress unilaterally
Authorized executive to create different law
Violates text, enhances executive powers beyond that envisioned by framers
Would a line item veto make a legislative veto important?
Yes, it would be a necessary check, providing Congress w/ the ultimate authority necessary to fulfill its
role as lawmaker
Executive Privileges and Immunities
United States v. Nixon
Separation of powers protects the executive branch from unwarranted judicial interference
The President possesses an executive privilege against compelled disclosure of presidential/high-level
communications
Assurance of confidentiality
Protect independence of executive branch
Executive Privilege for Communications
Qualified, not absolute --- its a presumptive privilege that may be overcome by the need for
disclosure
If invoked, the court will apply a balancing test
Need for confidentiality v. need for transparency
If military/diplomacy, Exec often prevails
If general interest, privilege may yield
Genaralized interest in confidentiality cannot prevail over fundamental demands of due process
Fitzgerald v. Nixon (establishes absolute immunity)
Absolute immunity complete protection from civil suit for all official actions while in office
Why is President different than doctor? Dont want him questioning his decisions
Rooted in Constitutional tradition of separation of powers
Clinton v. Jones
No immunity here this is not liability attaching to discharge of official conduct
Unofficial conduct
Doesnt extend to conduct before entering office
No dismissal or stay
Any interference w/ the Presidents time and energy was highly unlikely
Separation of Powers doctrine does not shield the President from the judicial process
Rules
Absolute immunity for President regarding conduct while in official, Presidential capacity
If outside official conduct, then not immune
Qualified immunity regarding confidential communication
Weigh need for confidentiality v. need for transparency
Impeachment
As practical matter it is not a sufficient check
 As formal matter
Problem --- Partisan breakdown will make it unlikely that Presidents party will go along w/ removal

The Structure of the Constitutions Protection of Individual Liberties

The Application of the Bill of Rights to the States
Note: we have the right to due process, equal protection, and privileges and immunities of national
citizenship
Pre-Civil War Rejection of Application Barron
Bill of Rights is not directly applicable to states
Structural argument the power is conferred to the federal government, therefore limits are on
federal government
Limit on state legislation = the State Constitution
Protection of civil liberties is entrusted to the States
Rights must be asserted under state law
Essentially, state and local governments were free to violate basic constitutional rights
Faith in state constitutions, Bill of Rights only applies to federal government
Privileges and Immunities Slaughter House, Saenz
14th Amendment major function is to make the Bill of Rights applicable to the States
privileges and immunities of US citizenship
At this point, Bill of Rights is not incorporated by virtue of the 14th amend
P&I of US citizenship considered mutually exclusive from those of state citizenship
Congress would be more powerful in protecting individuals rights, would change the basic structure
Note: blatantly wrong we just fought a war over federalism and federal government won
Therefore, the federal government should have the authority to protect individual liberties
US P & I cannot include individual right to livelihood
Only includes right to travel (outside state )
At this point, state and US P&I
Due Process Twining
Effect of Slaughterhouse application of BOR to the states could not be through the P & I Clause
Effect of 14th Amendment directly imposes on the states/local governments the requirement that
they not deprive anyone of life, liberty, happiness w/o due process
SC has never said the whole BOR applies
Now the Bill of Rights apply to the states --- incorporated into the Due Process Clause
Dont overturn Slaughterhouse in the P & I aspect
But, the Due Process Clause is interpreted as applying some of the Bill of Rights to the states
Only apply if: it applies to fundamental rights and to liberty/justice of free government
Not total incorporation
Frankfurter selective incorporation
Each right is examined to see whether it is of fundamental importance Palko rule
Fundamental as determined by our traditions
If selectively incorporated, its binding on the states
Wouldnt it be easier to overturn Slaughterhouse?
What rights are incorporated?
First, Fourth, some of Fifth
Today states can still violate 2nd (expressly not incorporated), 3rd amendment (quartering troops),
clause of 5th amendment (grand jury indictment), 7th amendment (OR could dispense w/ juries in civil
cases), 8th amendment (excessive fines)
 State Action
State Action Requirement Civil rights Cases
Rule: The Constitutions protections of individual liberties and its requirement for equal protection
apply only to the government
Private conduct generally does not have to comply
Ex. speech criticizing President
If private, 1st amend doesnt apply
If public university, it does
Applies to government at all levels (federal, state, local) and to the actions of government officials at
all levels
Subject matter state action of a particular character, not individual invasion of individual liberties
Congress may: enforce by providing modes of relief against state legislation, state action
Not a power to legislate upon individuals
Individual rights are secured by prohibition against state laws that are subversive to these rights
Rule is Qualified
13th amendment --- directly regulates private conduct
forbids people from being or owning slaves
Pursuant to the Commerce Clause, Government can enact laws that require that private conduct
meet the same standards required of the government
Ex. Civil Rights Act applies to private and government conduct
Pursuant to 5 of 14th amend, Congress cannot regulate private behavior
SC Congress may regulate only state/local governments
No power to regulate private behavior
Exceptions to the State Action Requirement
With these, private conduct must comply with the Constitution
Public Functions Exception if private entity is performing a task that is traditionally/exclusively
done by government, the Constitution applies
Marsh v. Alabama company cannot dispel because they take a functional equivalence of municipal
city district
Running a town is traditionally done by the government
Some privately owned property may be treated as if publicly held
There is a 1st amendment right to access
Amalgamated Food v. Logan Valley accept function idea
There may be regulation to prevent interference w/ use of property but ownership does not mean
absolute ownership
Functional equivalent of a business block --- the more you open yourself up to the public, the more
your rights are circumscribed
Lloyd Corp v. Tanner (enclosed mall)
Handbilling had no direct relation to any purpose for which the center was built/used
There are other reasonable options to convey message
No dedication of privately owned/operated shopping center so as to entitle assertion of 1st amendment
rights
Key - it would be an unwarranted infringement of property rights to require them to yield to the
exercise of 1st amend rights when alternative circumstances exist

Hudgens v. NLRB (total rejection of Logan Valley)

no constitutional guarantee of free expression
Terry v. Adams (elections)
 Key 15th amendment right protected
Jaybirds are state actors
Holding elections for government, even primaries, are traditionally done by government
Private entity must comply w/ Constitution
Ct purposefully designed plan to exclude Negroes from voting, escape 15th amends command not to
abridge voting rights on account of race
Here, party brings into being/holds the kind of election that the 15th amend seeks to prevent
Evans v. Newton (private property used for public purposes)
If private party opens land to public, they become a state actor
If left for one race w/o state involvement, then OK
Here, heavily integral part of Citys activities
Maintenance, etc
But, private course for whites = freedom of association
Similar municipal course = state preference
Held public character requires it to be treated as public institution (subjected to 14th amendment)
Problem whats the difference between mowing services and police/fire services?
What is the dominant character?
NARROW Jackson v. Metropolitan Edison
SC running a utility is not a traditionally-government run activity, no state action
Business subject to state regulations does not by itself convert action into state action (possible
indicator)
TEST
Whether theres a sufficiently close nexus between the state and challenged action of the regulated
entity so that action of the latter may fairly be treated as that of the State
Ct danger is expanding doctrine so that all businesses affecting public interest are state actors
Entanglement Exception if the government affirmatively authorizes, encourages, or facilitates
unconstitutional conduct, the Constitution applies
If unconstitutional, government must cease involvement or the private entity must comply w/ the
Constitution
Key question what degree of involvement is sufficient to make the Constitution applicable?
Problem entanglement cases are inconsistent
Shelly v. Kramer (courts cant enforce racially restrictive covenants)
Danger transforms all private action into state action
Judges are state actors, judicial remedies are state actions
Everything becomes state action once you seek judicial protection
Courts cant adjudicate private disputes if enforcement would lead to an unconstitutional outcome
Lugar v. Edmondson (pre-enforcement attachment)
Two-Part Approach to Fair Attribution
(1) the deprivation must be caused by the exercise of some right or privilege created by the State or
by a rule of conduct imposed by the state and
(2) the party charged w/ deprivation must be a person who may fairly be labeled as a state actor
state official, obtained significant aid from the state, conduct chargeable to the state
heavy lifting of limiting Shelley
A party that avails itself of a state remedy is a state actor
Rule (Broken down)
Deprivation pursuant to some state law
Deprivation fairly chargeable to the state
Edmonson v. Leesville (peremptory challenges)
 Lugar Test applied
(1)Peremptory challenges are state created
(2)Court/judge significantly aids by granting peremptories
Peremptory challenge system would not exist and serve no purpose w/o the direct participation of the
judge
Judges agreement = sufficient participation
Burton v. Wilmington Parking Authority
Restaurant is state actor even though privately owned
Leasing premises from government
To allow racial discrimination would imply state acceptance
Williams when racist conduct, courts are more likely to label it state action
Cases are fact dependent when is it fair to label private individual as state actor
Moose Lodge v. Irvis lodge is privately owned, funded
No benefits obtained from the state --- does not discharge a function that would otherwise be
performed by the state
Court has never held that discrimination is violative of the 14th amend simply b/c private entity gets
any state service, benefit
Dissent state is responsible when it compels a discriminatory act
Norwood v. Harrison (government subsides)
State is not required to equally assist public and private schools, regardless of private school
discrimination
The state, by tangible aid, gives support
Equal Protection clause would be sterile if states involvement in private activity could be shielded
b/c it has a higher goal
Note: outside context of supporting segregated private schools, courts are unwilling to label
government subsidy as a basis for finding state action
Rendell-Banker v. Kohn
Rule - Acts of public contractors (schools, etc) do not become acts of the government by simply b/c of
their significant/total engagement in performing public contracts
Test whether the function performed has been traditionally the exclusive prerogative of the
state
Fact that its a public function doesnt end the story
Affirm Jackson
Dissent conduct becomes so intertwined w/ government policies/character that it can be considered
state action
Heavily regulated, closely supervised by state
Blum v. Yaretysky
Mere state regulation doesnt equal state action for purposes of 14th amendment
Must show sufficiently close nexus
State only held responsible if exercising coercive power or significant encouragement
Mere approval is not enough
Dissent state involvement may be complex, burdensome but court must perform its important duty
Court ignores the states fiscal interest in the level-of-care determination
Degree of interdependence is event greater than in Burton
Reitman v. Mulkey (initiatives encouraging violation of rights)
Initiative would nullify state anti-discrimination laws, putting the right to discriminate on the states
basic charter
Essentially = support/involvement in private racial discrimination
 Court saw the initiatives as being motivated by impermissible discriminatory purposes, found denial
of equal protection
Dissent under this, state action includes passively permitting private discrimination --- taint of
unconstitutional state encouragement (goes too far)
Brentwood Academy v. Tennessee a private entity is a state actor based on its entwinement with
the government
Private association is pervasively entwined with public institutions, officials
Dissent we have never found state action based simply on entwinement
Majority extends state action too far, encroaches on individual freedoms the doctrine was supposed
to protect
Scope unclear b/c no definition of entwinement
Economic Substantive Due Process
Substantive Due Process -- Introduction
5th = federal, 14th = state
Def: the Due Process clauses limits the substantive power of the states to regulate certain areas of
human life
Certain types of state limits on human conduct have been held to so unreasonably interfere with
important human rights
This = unreasonable denial of liberty
Question to ask whether the law is good, whether the government has an adequate reason for taking
away freedom?
Economic liberties constitutional rights concerning the ability to enter into and enforce contracts, to
pursue a trade or profession, and to acquire, possess, and convey property
Contracts clause, Takings clause, 5th/14th amendments, DP Clause
Whats life, liberty, property?
Any outside of these three are not subject to due process review
Whatever liberty means, states cannot interfere w/o due process
Note: Slaughterhouse cases
Court emphasized that the Due Process clause concerned procedures and could not be used to
challenge the law for interfering w/ rights to practice trade
Dissent saw the DPC as limiting the ability of states to adopt arbitrary laws, especially those that
interfered w/ natural rights
If right is nonl-fundamental, then the state action must only pass the mere rationality test
Pursuing a legitimate government objective (rationally related)
If fundamental, state action must pass strict scrutiny
Must be necessary to achieve compelling governmental objective
The Lochner Era
Freedom to contract basic right under the liberty and property provisions of the due process clause
Prior to Lochner era, it was the Contracts clause
Limits governments ability to impair existing contracts and regulate the content of future contracts
Contracts Clause always restricted to impairing existing contracts
Has there been a deprivation of life, liberty, property?
A deprivation of liberty occurs if:
Theres a loss of significant freedom provided by Constitution or statute
Notice its the written law that create liberty interests
Less obvious examples
Except in emergency, before an adult can be institutionalized, there must be notice in a hearing
Harm to reputation, by itself, is not a loss of liberty
 Prisoners rarely have liberty interests
A deprivation of property occurs if:
A person has an entitlement, and that entitlement is not fulfilled
Prior to 1960s, distinction between rights/privileges
Yes if right
No if privileges
Then discarded
New word = entitlement
Exists if theres a reasonable expectation to continue receipt of benefit
Examples
Process of Questions
Does it implicate a liberty?
Does it comply with due process?
Allgeyer v. Louisiana rejects view that liberty only = freedom from incarceration
Used the DPC to invalidate government economic regulations interfering w/ freedom to contract
Court used substantive review to look at whether its a valid exercise to protect public welfare
Right to make a contract --- is part of the liberty of the individual protected by the 14th amendment
Lochner v. New York
Test for SDC compliance
Reasonableness inquiry
(regarding exercise of police power)
If not reasonable violation of DC
If reasonable no violation of DC
Here, no public welfare purpose
If protecting 3rd party, then it may be reasonable to infringe
State may infringe to protect 3rd party or the public (limited)
Three Lochner Themes (followed until 1937)
Freedom of Contract is a right protected by the Due Process Clauses of the 5th and 14th Amendments
The government can interfere with freedom of contract only to serve a valid police purpose of
protecting public health, safety, or morals
The Judiciary would carefully scrutinize legislation to ensure it served such a police purpose
Both ends and means
Muller v. Oregon (upheld max hours law for women)
How is it different than Lochner?
Paternalism -- trying to take care of women b/c they cant take care of themselves
Legislation designed for her health, isnt necessary for women
Adkins v. Childrens Hospital
Women are equal illegitimate for states to intervene on their behalf
Based on 19th amendment (suffrage)
Minimum wage law impermissibly interfered with freedom of contract (no valid police purpose)
Coppage v. Kansas (laws protecting unionizing)
Applies Adair --- If Congress is prohibited from arbitrary interference with right to contract, then so is
the state by virtue of the 14th amend.
Weaver v. Palmer Bros (invalidated consumer protection legislation)
Even if the end is constitutional, the means must be legitimate
Less intrusive alternative must be used
More intrusive = illegitimate means for legit end
Nearing the End of Lochner Period
 Nebbia v. New York -- upheld price regulations for milk
Still involves liberty to contract, and same tests for SDP
Distinguished from baker law --- public policy rationale
Power to promote general welfare is inherent in Congress
Purpose = prevent the destruction of the price structure
Rule Due Process Requirements are met if:
the law are seen to have a reasonable relation to a proper legislative purpose, and
are neither arbitrary nor discriminatory
The End of Lochner
Why? widespread pressure to end laissez-faire philosophy and belief that government economic
regulations were essential
West Coast Hotel v. Parrish (signaled end of substantive due process)
Expressly overruled Adkins and Morehead
Still involves some deprivation of liberty, SDP, same test
Key Restrictions of Lochner are eased to allow state/Congress to legislate as they will
Judicial deference to legislature
Allows states to interfere
United States v. Carolene
Proclaims the need for judicial deference to government economic regulations
More aggressive judicial review should be reserved for fundamental rights, discrete/insular minorities
New Test
(1) ends must be legitimate
(2) means must be rationally related
** presumption of constitutionality (assume its rational)
** dont have to use least intrusive means
At this point governments purpose can be any Constitutional goal
Need not be narrowly tailored
Court wont substitute their decisions for that of Congress
Still there but restricted (must be irrational)
Defer to Congress but dont abdicate
Reserve a small, deferencial role if necessary to strike down an unconstitutional statute
Williamson v. Lee Optical
Its enough that theres an evil that needs to be corrected and a particular measure might be a rational
way to solve it
Williams court will never find law thats irrational
History (no cases since)
If New Deal cases stand for everything is fair game, this essentially overturns Allgeyers definition of
liberty
Plus, no more substantive due process
Court holds out some chance of minimal check in case democracy goes out of control
Court is now interventionist, not super delegator
Return to Lochner?
Now settled states have power to legislate against injurious practices in their internal commercial
and business
Unless they run afoul of specific federal constitutional prohibitions or valid federal law
Court no longer interprets the DPC to protect right to practice trade or right to contract
BMW v. Gore
Punitive award is unconstitutional
 So excessive that it was deprivation of property (arbitrary)
Cant punish BMW for conduct that is lawful elsewhere and that had no impact on Alabama or its
residents
Limit can legislate w/ regard to conduct that takes place outside your states border
Dissent the DPC does not guarantee against unfairness
No Constitutional warrant for federalizing another aspect of the Nations legal culture
State Farm v. Campbell
Three guideposts point to gross excessiveness of punitive award
Reprehensibility (no), ratio (145:1), related sanctions (minimal)
Court seems to be Lochnerizing again no more legitimate now than when they were deciding what
appropriate regulations were
Doesnt this pass rational basis?
$145 million punitive damages can be rational
Philip Morris such a result would amount to a taking w/o DP
D has no chance to defense against other parties
Unfair to put them on the hook for everyone
Violation of due process
Arbitrariness, lack of notice, and punitive damages can impose one states or one jurys policy upon
another state
DP prohibits use of punitive damages to punish for injuries to non-parties

Contracts Clause
Art. I, 10 No state shall pass any law impairing the obligation of contracts
Firmly established only applies if state/local law interferes w/ existing contracts
Does not apply to federal government
Challenges to federal interference must be brought under DPC
But they still get rational review basis
Public contracts if the state is trying to escape its own financial obligations, the court will closely
scrutinize
stuck down unless reasonable and necessary to support an important public purpose
Middle level review
Private contracts when the state is re-writing contracts made by private parties, the court is not so
stringent
Even a substantial modification will be allowed if reasonably in pursuit of a legitimate public purpose
Mere rationality test
If incidental effect on contracts, Contracts Clause doesnt apply
Modern Use of the Contracts Clause
Home Building & Loan Assn
States economic interests may justify the exercise of continuing and dominant protective power,
unless it interferes
Constitutional prohibition doesnt prevent limited/temporary interference if necessary
Reservation of state power appropriate for extraordinary conditions
Limits
Must be a proper occasion to use the reserved power
adequate basis
Legislation must address a legitimate end
basic interest of society
Conditions must be reasonable
 The legislation is temporary
Government interference with Private Contracts
Energy Reserves Group v. Kansas Power & Light
Threshold question whether the state law has, in fact, operated as a substantial impairment of a
contractual relationship
If so, state must have a substantial public purpose
Must be exercising policing powers, not benefiting special interests
Unless the state itself is a contracting party, courts properly defer to legislative judgment regarding
necessity/reasonableness
Here, KA is protecting its consumers from hardships of higher gas prices
Test Part Test
(1) is there a substantial impairment of a contractual relationship
(2) if so, does it serve a significant and legitimate public purpose?
If so, is it reasonably related to achieving the goal?
** similar to traditional rational basis review
Allied Structural Steel v. Spannaus
(only case to declare state law unconstitutional)
(has not been followed)
Sudden, totally unanticipated, and substantial retroactive obligation
Does not even purport to deal w/ any broad, generalized economic or social problem
Did not operate in an area already touched by state regulation
Severe, permanent alteration (not temporary)
Dissent nothing in the law that denies due process
Government Interference with Government (Public) Contracts
United States Trust v. New Jersey
Government interference with government contracts will be subjected to heightened scrutiny
Takings Clause
Note: both the federal and state governments have the power of eminent domain --- authority to take
property where necessary for government activity
But, the 5th Amendment is a limit: Nor shall private property be taken for public use w/o
compensation
Diminution in value not dispositive but greater reduction of value leans toward taking
Four Questions
Threshold question -- Is it a taking?
Possessory taking the government confiscates or physically occupies property
Loretto v. Teleprompter
Permanent physical occupation is per se a taking w/o regard for public purpose it may serve
Own category!!!!
Temporary physical invasions (balancing test) v. permanent physical occupations (per se taking)
When government mandates 3rd party can occupy your land, thats equivalent to the government doing
it themselves
Regulatory taking government regulation leaves no reasonable economically viable use of property
Pennsylvania Coal v. Mahon a taking can be found if government regulation of property use went
too far
Too far = beyond common law of nuisance
Strong public desire to change public condition is not enough
Dissent restrictions will deprive owners of rights
But restrictions to protect the public are not takings
 Miller v. Schoene no taking b/c state was under the necessity to make a choice --- state doesnt
exceed powers by choosing the one w/ greater public value
Cedar trees = nuisance to apple trees
If nuisance, no compensation required
Note: government regulation is not a taking simply because it decreases the propertys value, so long
as it leaves reasonable economically viable uses
Penn Central
Three Criteria of Significance
(1) the economic impact of the regulation on the claimant
(2) the extent to which the regulation has interfered with investment-backed expectations (most
important)
(3) the character of the governmental actions (little practical effect)
Formal apply all three (2nd weighs heavier)
Practical Penn only applies to regulatory takings, not possessory takings
Why isnt it a taking?
First Prong economic impact
Diminution in value is not automatically a taking
Here, depriving client of big payoff but not depriving them of making money
Theres still value/can be for intended use
Kindof for and against taking
Second Prong disruption in investment-backed takings
No b/c the bought it as train station and it can be used a train station
Strongly against taking
Note Penn Central able to sell air rights to other developers
Third Prong nature of government regulation
Lucas v. SC Coastal Council
Rule: if it takes all economic value away, its a taking unless nuisance law/property law apply
Nearly per se compensable:
Physical intrusion (Loretto)
Denial of all economically, beneficial use of land (Lucas)
What if the government allows development of property, but subjects it to specific conditions?
Dolan v. City of Tigard
Test regarding conditions
Essential nexus between legitimate state interest and exacted condition
Degree of connection (roughly proportional)
Impact of condition v. the impact of development
Adopts reasonable relationship test
Rationality is too deferential
State isnt taking land to make pathways, but is instead conditioning a private parties use of property
on adherence to regulations
Dissent court injects its own judgments
State must show rationality
Takings: Subsequent Buyers
Palazzolo v. Rhode Island
Claimant does not waive his right to challenge a regulation as an uncompensated regulatory taking by
purchasing property after the enactment of the challenged regulation
Under states rule, the post-enactment transfer of title would absolve the State of any obligation to
defend any action restricting land use
 It would put an expiration date on the Takings Clause
Still must apply Penn Central
When, under Penn Central, will P have a Takings claim?
Land speculator = never, no disruption of investment backed expectations
Stupid P = maybe, possible disruption
Temporary Moratorium on Takings
Tahoe-Sierra v. Tahoe Regional Planning
P any deprivation of all economic use, no matter how brief, constitutes compensable taking
Ct This cant be sustained
Must apply Penn Central
Is a moratorium per se a taking?
No, there is a temporal impact on value but Lucas doesnt apply
Is it property?
5th amendment doesnt apply unless its property
Is the taking for public use? (broad approach)
If no, the government must give the property back
**very broadly defined --- only needs to pass rational basis test
If rationally related to a conceivable public purpose, then a compensated taking will survive the
Public Use clause
Ex. Hawaii Housing Authority v. Midkiff
Court has a narrow role in reviewing legislative judgments regarding what constitutes public use
Regulating oligopoly is within policing power
Ex. Kelo v. New London
State cant take for purpose of private benefit or take under pretext of public purpose but w/ the intent
to bestow private benefit
Here, Takings are pursuant to a carefully considered plan
Public use not a literal requirement that the land be used by the general public
Public use = public purpose
Deference to state knowledge of public needs
No basis for exempting economic development from broad understanding of public purpose
Pursuit of public purpose may benefit private citizens
Dissent under the guise of economic development, all private property is not vulnerable -- blurs
the line between public/private
Judiciary must be a check court here is affords legislature insurmountable deference
Private use into new private use
There are no constraints
No compensation is enough for subjective value
Is just compensation paid?
Measure in terms of the owners loss
Doesnt matter what they gain
Brown v. Legal Foundation of Washington
Fair market value, not what government gained
Government is not responsible for any increase in value that occurs solely b/c it decides to take the
land
Land owner can bring an inverse combination suit

Non-Economic Substantive Due Process

Introduction
 Fundamental rights government cant infringe unless strict scrutiny is met
Action must be necessary to achieve a compelling purpose
Due process protection whether the governments interference is justified by a sufficient purpose
Generally applied when the law denies a right to everyone
Equal Protection whether the governments discrimination as to who can exercise the right is
justified by a sufficient purpose
Generally applied when the a law denies a right to some, but allows others
9th Amendment used as a textual justification for the Courts protection of non-textual rights (i.e. the
right to privacy)
Right Creates Burdens
Substantive must show that the infringement is sufficiently related to an adequate justification
In other words, strict = necessary to achieve compelling purpose
Procedural when government takes away life, liberty, or property, it must provide adequate
procedures
First Issue Is there a fundamental right?
If yes, strict scrutiny
If no, rational basis
**based on originalism, non-originalism, moderate originalism (general intent), deeply rooted in
Nations history and tradition Griswold
depends on level of abstraction

Second Issue Is the Constitutional right infringed?

Whens is burdening a right also an infringement?
Court considers the directness and substantiality of the infringement
Third Issue Is there sufficient justification for the infringement?
If fundamental, must be compelling
Government must persuade that its truly vital
Fourth Issue Is the means sufficiently related to the purpose?
Under strict scrutiny, law must be necessary
It could not achieve the goal through any other less intrusive means
Reproductive Freedom --- Constitutional Protection for Family Autonomy
Note: Three Recognized Rights
Right to Pro-Create -- government imposed involuntary sterilization must meet strict scrutiny
Skinner
Marriage and pro-creation are fundamental
Sterilization would forever deprive individual of basic right
Discrimination against criminals violates Equal Protection

Right to purchase/use contraceptives Griswold/Eisenstadt

Most intrusive means used maximum destructive impact
May not be achieved by means that sweep unnecessarily broad
Individuals have a zone of privacy
Birth control law = unconstitutional intrusion on right of marital privacy
Right is no explicit, but inferred
Liberties protected 5th/14th arent restricted to those in first eight amendments
Right of privacy emanates from Constitution as a whole
Implicitly flows from specific guarantees in BOR (1st, 3rd, 4th, 5th, 9th)
 Note: can still forbid adultery, homosexuality, etc
Dissent in Griswold no right to privacy, unbounded judiciary
In Eisenstadt, the court says the effect of the law has at best a marginal relation to the objective
Rights must be the same for married/unmarried
Implication of a fundamental right evokes strict scrutiny
Dissent no flat prohibition here, just a regulation
Court has passed from specific guarantees to personal predilections (preferences)
Currently, strict scrutiny!!

Right to abortion
Roe v. Wade -- To what extent if any mat a state regulate/prohibit the right to abortion?
First trimester no, woman has right
State interest doesnt trump right to privacy
State can prohibit at birth or any point past viability
Woman has right to choose
Second trimester reasonably related to maternal health
After first trimester, state can regulate to preserve/protect mothers health
State now has a legitimate interest in the fetus now
May regulate facilities, doctor qualifications
Third trimester viability
States interest now trumps mothers interest b/c the state has an interest in protecting the fetus rights
Is resolution appropriate? Underprotect? Overprotect?
Beyond its role become a legislature
Good rule gives right to privacy but makes it static in that it weighs the options (viability, etc)
Cant allow legislature to decide on what has been determined a fundamental right (womans right to
privacy)
Womans control over own body is absolute

Present State Planned Parenthood v. Casey

Why did they think Roe was wrong?
States interest was not adequately protected
States can now regulate in the 1st trimester
A woman has a constitutionally-protected privacy interest in choosing to have an abortion before
viability
The state has a somewhat countervailing interest in protecting potential life even before viability
No right to ban all pre-viability abortions
State may not forbid all pre-viability abortions except those necessary to save the life/health of the
mother
However, the state has a far greater ability to regulate after Casey
May regulate unless undue burden on right to choose
Undue burden = substantial obstacle
Right to abortion is no longer a strictly scrutinized fundamental right
Planned Parenthood v. Danforth
State may not require spousal consent
Cant delegate to spouse a veto power which the state is absolutely prohibited from exercising
State cant require that she give notice to spouse either
If at 50/50, mother gets benefit of doubt b/c shes carrying the child
Maher v. Roe
 Court upheld the ability of the government to deny funding for non-therapeutic abortions (not
performed to protect mother)
State may encourage alternatives
Does this cross the line into direct interference?
Greatly restricts access to many women
Bellotti v. Baird
State may require parental notice and/or consent for an unmarried minors abortion
Can require informed consent even if this requires in-person visit by the parent or a 24-hr waiting
period
But, only if it creates an alternative procedure
Judicial bypass if the state does require parental consent, it must give the girl the chance to
persuade the judge that its in her best interests
may prove she is sufficiently mature/emancipated
Stenberg v. Carhart
The state cant ban partial birth abortion method, unless it gives an exception for cases where that
method is the safest for the mother
Gonzales v. Carhart
Upheld a federal law prohibiting partial birth abortion
Applies to both pre-viability and post-viability
in tact is not ok b/c it happens outside
doesnt ban D&E when it comes out in parts
act is not vague, no undue burden
Punishes knowingly performing
Intent to delivering fetus to anatomical landmark
Delivered for purpose of committing overt act of killing
Purpose protect human dignity
No need for a medical exception
Notes
Some extension of privacy to:
Procreation, contraception, abortion
Standards of Review
Right to custody of children = strict scrutiny
Right to keep family together = strict scrutiny
Right to contraceptives = strict scrutiny
Right to pro-create = strict scrutiny
Right to abortion = not strict scrutiny
Family Autonomy
Right to Marry Loving
Act deprives liberty under the due process of law
Freedom to marry is a vital personal right (no matter what race)
To deny this fundamental right on such unsupportable basis as racial classifications = a deprivation of
liberty
Violate 14th amendment
In Zablocki
critical examination court essentially applies strict standard b/c this is a significant interference
w/ a fundament right (to marry)
substantial, direct interference if so, it cannot be upheld unless it is supported by sufficiently
important state interests
 Dissent no fundamental right to marry
States may interfere w/ marriage (no marrying siblings, no marrying 14 yr olds)
Should be a rational basis review, not strict
Right to Custody of Ones Children Stanley v. Illinois
Parents have a fundamental right to custody of their children
To terminate, the state must have a very substantial reason
Some showing of unfitness, etc
DPC of the 14th amendment, the EPC of the 14th amendment, and the 9th amendment protect the
integrity of the family unit
Note: Lehr v. Robertson mere biological link may not warrant Constitutional protection
In Michael H. v. Gerald D.
Due Process must be fundamental and rooted in tradition
Nothing in older sources giving the natural father the power to assert paternal rights when a child is
born to a woman married to another man
To provide protection to an adulterous natural father would be to deny protection to a marital father
Dissent no objective means to determine what tradition is
Right to contraceptives, freedom from corporal punishment were not interests traditionally protected
by our society
Constitution is a living charter, not stagnant, archaic
Biological link + substantial parent-child relationship may establish a parental stake
Right to Keep the Family Together Moore v. East Cleveland
The family is not beyond regulation but when the government intrudes on choices concerning family
living arrangements, the court must use strict scrutiny in examining its importance
Here, tenuous relationship between means and end
Fearful of Lochnerizing but wont abandon
Constitution protects the family b/c the family theme is deeply rooted in American tradition/values
Dissent claim of association to family does not elevate to a level invoking Constitutional protection
Any definition would produce hardships
Cant use the Constitution to correct inequity anytime it arises
Key individuals must be related to each other to be a family
Right of Parents to Control Upbringing Troxel
Parents have a qualified right to make decisions regarding the upbringing of their children
State can interfere if necessary for the childs protection
Ex. exploitation (Prince)
But, courts are deferential toward parents
Ex. compulsory school v. Amish (Yoder)
Here, no allegations of unfitness no reason for state to inject itself
Best Interests standard --- deference, protection to parents

Sexual Orientation and Activity Lawrence

There is no general fundamental right to engage in adult consensual sexual activity
Therefore, court generally use rational basis review
Court has struck down all state laws that criminalize homosexual sodomy
Grounds such laws demean the lives of sexual persons
In this case, the law is totally irrational even though non-fundamental
State cant use an interest in promoting morality to disadvantage a certain group
Notwithstanding Lawrence, the state can almost certainly prohibit:
Adultery, incest, bestiality, bigamy --- probably harmful and their prohibition is not merely an
 irrational expression of moral disapproval

Privacy Generally Whalen v. Roe

A basic aspect of privacy is the ability of people to control information about themselves
Little support for such a right from the SC
Remote possibility of potential abuses is not enough to make it an invasion of privacy
Why are the courts deciding issues of confidentiality?

Protection against Harm

Due Process prohibits the government from harming you when it shocks the conscience
When does it shock the conscience? County of Sacramento
Must harm w/ certain mens rea
Intentional harm, regardless of level of harm, is unconstitutional
What happens if its a legitimate enforcement purpose?
Courts fearful of imposing recklessness standard
Might lead to under-enforcement of the law b/c cops are avoiding liability
When is the governments failure to protect a person from privately inflicted harm a deprivation?
Deshaney
Majority does impose duty of care to protect individuals from private harm, but only those in
custody
Special relationship
No affirmative obligation to ensure protection of one private citizen from invasion of another private
citizen
No general right to government aid under DPC even if necessary to ensure life, liberty, property
There must be a deprivation
If the government creates the situation, they must protect
Right to Refuse Medical Treatment Cruzan
Generally, there is a right to refuse medical treatment (not absolute)
Not fundamental so mere rationality applies
Problem state ability to interfere too strong
Problem funamental right would overly restrict states
Can be regulated by the state
No specific right to die but can refuse treatment
Based on tradition?
Long history of making un-consented touching unlawful
Why so vague?
Some laws (suicide) would be struck down strict scrutiny
If vegetative state, the state may require clear and convincing evidence of intent to refuse treatment
If not, measures continue
But, the state probably must honor living wills or health care proxy
Justification for this standard
Guard against potential abuses
Interest in avoiding mistake
Interest is not to keep person alive, generally
Counter risk that someones kept alive against will
No business elevating evidentiary standards
Problem the consequence of erroneous dying is greater than consequence of keeping alive
Right to Physician Assisted Suicide Washington
 Terminally-ill patients do not have a general liberty interest in committing suicide
Nor do they have a constitutional right to recruit a 3rd party to help them commit suicide
Ex. a state may make it a felony for a physician to knowingly prescribe a fatal dose of drugs for the
purpose of helping a patient commit suicide
Deeply rooted in tradition
Counter interfering w/ individual autonomy
Majority not a fundamental right, tradition defines scope
Note: in both of these, states have a countervailing, unqualified interest in the preservation of
life
Rational basis review will apply

Definitions of Levels of Scrutiny

Rational basis test law is upheld if it is rationally related to a legitimate government purpose
Ends - legitimate
Means reasonable, rational way
Challenger = burden of proof
Intermediate scrutiny a law is upheld if substantially related to important government purpose
Purpose = more than legitimate, must believe it is important
Look only at governments actual purpose, not conceivable
Means must be substantially related
Must be a very good way to achieve objective
narrowly tailored
dont have to be best, least restrictive alternative
government = burden of proof
Strict scrutiny a law is upheld only if it is necessary to achieve a compelling government purpose
Objective must be more than legitimate, important
End must be vital, crucial
Means must be necessary
Least restrictive analysis is used if no, then necessary
Government = burden of proof