Ch.

1 Judicial Review and Constitutional Structure

A. The Origins and Theory of Judicial Review
Marbury v. Madison (Marshall 1803)
Judicial review established; judiciary can declare an act of congress unconstitutional.
Reasons for JR: apart from political process, least dangerous, consistency, orderliness, finality, predictability
Reasons against JR: threatens separation of powers, no accountability, they are also subject to political influence, inefficient

Cooper v. Aaron (Warren 1958)

Held: Court can tell states what the constitution means, sole interpreters via Supremacy Clause

*Dickerson v. US (2000)
Miranda, a constitutional decision of the court, may not be overruled by Congress, USC 3501

B. The Power to Review State Court Judgments

1789 Judiciary Act gave Supreme Court power to review final decisions of state courts on mattes of federal law.

*Martin v. Hunter's Lessee (Story 1816)

Judicial review applies to state court decisions regarding federal law.

C. The Adequate and Independent State Grounds Doctrine

Federal courts cannot interfere with state court decisions based entirely on adequate and independent state grounds.

Michigan v. Long (OConnor 1983)

If a state court appears to rely on federal grounds or fed. interpretations, the door to judicial review is open.

Martin v. Hunters Lessee (Story 1816)

Virginia Supreme Court decision overturned. Vir.S.C. told USSC up yours and stuck to their ruling. Storys decision hinges upon the fact that Article III of the US.Con. gives
the USSC jurisdiction over ALL cases and controversies arising under federal law and sticks it back to Virginia with added insult to injury (he essentially says that state judges are
untrustworthy on matters of Federal interest because they only seek to serve their regions goals/ends).

*Bush v. Gore (Rehnquist 2000)

Held: Art. II sec. 1 leaves it to the legislature exclusively to decide method of appointment, which creates a 'federal question.'

D. The Utility of Judicial Review

E. Methods of Constitutional Interpretation

F. The Uneven Nature of Judicial review:

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Tiered Review and the Unequal Status of Constitutional Claims
1. Minimal Scrutiny
Default level (Scope of Congressional power, Takings, etc.) presumes validity, also called rational basis. Challenger must prove law is not rationally related to a legitimate
government objective.

2. Strict Scrutiny
Laws presumed invalid (facially racially discriminatory, due process), government must prove law is necessary to accomplish a compelling government objective.

3. Intermediate Scrutiny
Presumes quasi-suspect classifications (statutory classification by sex), government must prove actual purpose of law is important and law is substantially related to the
accomplishment of that actual purpose.

Ch. 2 Doctrines Limiting the Scope of Judicial Review

A. Direct Political Controls: Amendment, Appointment, and Impeachment
Political controls on the Supreme Court include: appointing new members, impeach, convict, and remove current members, and amend Constitution to overrule prior decisions.

B. Congressional Power to Control the Jurisdiction of Federal Courts

Ex Parte McCardle (Chase 1869)
When an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed. Plenary Power theory: congress can exclude any
federal issue from the federal courts, but may freeze unwanted legislation into law.

US v. Klein* (Chase 1872)

Held: Congress can change substantive law but cannot effectively force the court to rule in a particular manner.

C. Justiciability: The Proper Role of Federal Courts

1. Advisory Opinions
Art. III requires case or controversy; precludes fed. courts from providing advisory opinions. Justices wrote to Jefferson: advisory opinions are expressly united to the Executive
dept. to avoid interdepartmental embarrassment.

2. Standing
*Valley Forge Christian College v. Americans United for... (Rehnquist 1982)
Standing is non-waivable and requires: 1) Concrete Injury, 2) Causation, 3) Redressability
Rule: Art. III requires the party who invokes the courts authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal
conduct of the defendant, that the injury fairly can be traced to the challenged action, and is likely to be redressed by a favorable decision.

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*Lujan v. Defenders of Wildlife (Scalia 1992)
Rule: Injury in fact must be an invasion of a legally-protected interest which is:
a) concrete and particularized (affecting P in personal and individual way)
b) actual and imminent, not conjectural or hypothetical (lack of provable imminence decided this case because the hippies didnt think to buy a bloody plane ticket).

*Elk Grove School Dist. v. Newdow (handout)

P lacks prudential standing since his standing is based on family law rights in dispute

3. Ripeness
Ripeness: will future events render a decision unnecessary?
To be ripe for decision, a P must:
1) have already suffered harm, or
2) be faced with specific present objective harm, or
3) be under threat of specific future harm

4. Mootness
Have past events made a decision unnecessary? Did something happen during the case that eliminated 'controversy'? (i.e. student about to graduate)
Exception: if controversy is capable of repetition yet evading review
Exception: if D voluntarily remedies situation but is able to reverse their decision, not moot
Exception: if monetary damages are sought, mootness may not be applicable
Collateral consequences: usually criminal; appealing conviction, time already served; not moot

5. Political Questions
Baker v. Carr (Brennan 1962)
Brennan's 6 'political question' factors:
1) textual commitment of an issue to another branch, 2) lack of judicial standards, 3) impossibility of deciding an issue without policy judgments inappropriate for judiciary, 4)
inability to decide without showing disrespect for a coordinate branch, 5) unusual need to defer to prior political decision, 6) need for nation to speak in one voice

Nixon v. United States* (Rehnquist 1993)

Held: Judge Nixon claims Const. requires the case be "tried before the Senate". Issue is political question because 1)Textual Commitment of issue to Leg. Branch (Impeachment
Clause) & 2) no judicial standards (relief was difficult to determine).

*Bush v. Gore (Rehnquist 2000)

Dissent, Breyer: 12th amend. textually commits to Congress authority to count electoral votes; lack of judicial standards, policy judgments inappropriate for judiciary.

6. Abstention
Younger v. Harris (Black 1971)
Fed's should only interfere with state criminal prosecution when no adequate remedy is available
Reasons: comity: respect for state functions; federalism principals

Railroad Commission of Texas v. Pullman Co (Frankfurter 1941)

Fed's should abstain from exercising its jurisdiction when a federal constitutional claim is premised on an unsettled question of state law to avoid unnecessarily deciding a
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constitutional question.

D. The Eleventh Amendment

No state may be sued in federal court unless the state consents, or Congress has clearly abrogated this immunity by exercise of its powers under sec. 5 of 14th amend. A state
official is not a state unless remedy sought would require state to pay compensation for past actions.

Alden v. Maine (Kennedy 1999)

The powers delegated to Congress under U.S. Const. art. I did not include the power to subject non-consenting states to private suits for damages in state courts and that respondent
did not consent to suits for overtime pay and liquidated damages under the FLSA. Reason: States' existed before Constitution; States' did not give up right to sovereign immunity;
could jeopardize states' finances; Hamilton, Madison, and Marshall thought so too.

Ch. 3 The Limits of Federal Power: Judicially or Politically Enforceable Federalism?

A. Implementing Enumerated Powers and Default Rules
1. Necessary and Proper Clause
*McCulloch v. Maryland (Marshall 1819)
Although the Constitution does not specifically give Congress the power to establish a bank, it does delegate the ability to tax and spend, and a bank is a proper and suitable
instrument to assist the operations of the government in the collection and disbursement of the revenue; federal gov. is supreme with consent from people, not states.

2. Default Rules
US Term Limits Inc. v. Thornton (Stevens 1995)
Held: States cannot impose qualifications for prospective members of Congress stricter than those in the Constitution.
Reason: would result in 'a patchwork of qualifications'; inconsistent with Constitutional ideal of uniformity

B. Commerce
Art. I, Sec. 8, clause 3: To regulate Commerce with Foreign Nations, and among the several states, and with the Indian Tribes.

1. General Scope of Commerce Power

US v. Lopez (Rehnquist 1995)
3 Categories of Commerce Congress may regulate:
1. Channels of interstate commerce (Trains, Plains, Automobiles)
2. Instrumentalities of interstate commerce (Lumberjacks wages)
3. Substantially affects, legislation regulating that activity will be sustained. If using aggregate effect, it must be an economic issue (Jones and Laughlin Steel)
4 Factors: economic, jurisdictional element, congressional link, not too attenuated.

U.S. v. Morrison* (2000)

Held: commerce power does not authorize Congress to enact civil remedy provision of the Violence against Women Act, which creates a civil cause of action against a person who
commits a crime of violence motivated by gender.

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2. Historical Development
Gibbons v. Ogden (Marshall 1824)
Commerce clause gives Congress plenary power over all aspects of commercial intercourse between more than 1 state (broad commerce clause interpretation); completely internal
commerce is up to the states

Hammer v. Dagenhart (1918)

Held: Congress cannot regulate manufacturing, only distribution of final product across state lines

NLRB v. Jones and Laughlin Steel (Hughes 1937)

Held: close and substantial relationship on interstate commerce is new source for Congress to have Commerce power
Held: fed laws regulating workers ability to strike has effect on commerce since it slows production
- did away with distinction between manufacturing and distributing

Wickard v. Filburn (Jackson 1942)

Even though the wheat was not going into stream of commerce, aggregate theory says if all farmers overproduced it would affect interstate prices of wheat.

US v. Darby (Stone 1941)

Means affecting Means principle allows Congress to control intrastate commerce when it must reasonably do so to affect its regulatory power over interstate commerce.

*Gonzales v. Raich (handout)

Congress could have assumed there was a nexus between home use and commerce; marijuana is by definition economic activity; allows for regulation of local activity if its related
to a larger regulatory scheme.

10th amendment
Either:
- Natural boundary; nothing inherent in 10th amend. powers, just says anything not done by Feds is up to states
- Affirmative limitation of CC, based on federalism. Says some categories of power are exempted from Cong. authority

3. Limits Imposed by Principles of State Autonomy

Commerce power is subject to several external limits: free speech, due process, etc. Commerce power is also limited when regulating states. States are free to police themselves
and are only subject to the Constitution, valid Fed. law, and their State Constitutions.

*National League of Cities v. Usery (Rehnquist 1976)

Congress cannot regulate States qua States by imposing minimum wage provisions on State employees because States can decide their own policy decisions regarding
"traditional governmental functions." Substantive areas: fire prevention, police protection, sanitation, public health, parks and rec.

Hodel v. Virginia Surface Mining (Marshall 1981)

Rule: Substantive Immunity Test requires challenger to prove:
1. challenged statute regulates States as States
2. must address matters that are indisputably attributes of state sovereignty
3. compliance would impair states ability to structure integral operations in areas of traditional government functions.
4. challenge fails if fed. interest justifies state submission

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Garcia v. San Antonio Transit (Blackmun 1985)
Garcia's procedural immunity: Congress can use the commerce power to regulate states in whatever manner it pleases, as long as the regulation is:
1) a clear and unequivocal statement of congressional intent to regulate a state's sovereign functions, and
2) not the product of a political process as dramatically defective

*New York v. United States (OConnor 1992)

The "take title" provision of Radioactive Waste Act violates the Tenth Amendment and exceeds Congress's power under the Commerce Clause because forcing state leg.'s to vote is
commandeering a state sovereignty; diminishes Congress' accountability if they force state officials to enforce unpopular federal regulations.

*Printz v. United States ( Scalia 1997)

Brady bill unconstitutional; although the fed's can require local judges to carry out fed law, this is implicit in the hierarchy and required by the structure of the courts; if Congress
can commandeer states' to execute its laws, it reduces the President's power to execute the laws; difference between purely ministerial reporting from states and compelling states
to adhere to a federal regulatory program; doesn't comply with constitutional scheme

C. Taxation
Congress may tax things it has no power to regulate.

Bailey v. Drexel Furniture (Taft 1922)

Rule: US v. Doremus: law not invalid just because motives other than taxation might have contributed to its passage. However, the tax must be naturally and reasonable adapted to
the collection of the tax and not solely to achieve some other purpose plainly within state power; incidental regulation is okay, but it cannot be primary purpose.

US v. Kahriger (Reed 1953)

Law taxing bookies valid since a federal tax does not cease to be valid merely because it discourages or deters the activities taxed and since tax is not invalid just because the
amount in negligible.

D. Spending
US v. Butler* (1936)
AAA unconstitutional since the heart of the tax law is regulatory; revenue for tax is appropriated to crop control, not made available for general gov. use; even though the
Hamiltonian reading of "general welfare" meaning separate powers from the enumerated powers, the tax invades the rights reserved to the states; the regulation is not voluntary,
but coercive.

South Dakota v. Dole* 1987

Facts: Congress withheld 5% of highway funds to states that did not make the minimum drinking age 21.
Rule: Congress's conditional spending is subject to four restrictions:
(1) condition must promote "the general welfare;" (Congress best to decide what general welfare is)
(2) condition must be unambiguous; (conditions can't be hidden, must provide states' a real choice, not coercive)
(3) condition should relate "to the federal interest in particular national projects or programs;" and
(4) other constitutional provisions may supersede conditional grants.

E. Treaty Implementation
Missouri v. Holland (Holmes 1920)
Although nothing in Constitution says Congress can pass laws to make treaties effective, the Necessary and Proper clause allows them to use necessary and proper means to
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effectuate treaties; Supremacy Clause.

F. Power to Regulate in Aid of War Making

Woods v. Cloyd Miller Co. (Douglas 1948)
Necessary and Proper Clause allows Congress to use war powers even after war to deal with direct and immediate conditions arising from war; allocation of resources to Military
caused a reduction in residential construction.

Ch. 4 Limiting the Scope of State Power Over Interstate Commerce

A. The Dormant Commerce Clause
Cooley v. Board of Wardens (Curtis 1851)
If subjects to the commerce power are national in nature and are best provided for by one uniform system, they are exclusive to Congress. If inherently local, you can act until feds
preempt you.

1. Facially / Overt Discrimination

Maine v. Taylor (1986)
Held: facially discriminatory but valid since absolute ban on importation of fish bait is only way to serve legitimate local purposes that could not be adequately served by
nondiscriminatory alternatives. Strict scrutiny.

Philadelphia v. NJ (Stewart 1978)

Whatever New Jersey's ultimate purpose of taxing out-of-state waste, it may not be accomplished by discriminating against articles of commerce coming from outside the State
unless there is some reason, apart from their origin, to treat them differently.

2. Facially Neutral

a. Discriminatory Purpose
*H.P Hood v. DuMond (Jackson 1949)
Hood distributes milk to Mass. from its three stations in NY. NY denied its license for a fourth station. Law invalid; certainty of free access to every market in the nation is
national interest; law discriminates against interstate commerce for benefit of New Yorkers unconstitutional.

West Lynn Creamery v. Healy (Stevens 1994)

Law taxing dealers of milk (2/3 from out of state) and subsidized local farmers unconstitutional since it discriminates against interstate commerce; encourages inefficient local
markets; neutralized advantage possessed by lower cost producers; tax & subsidy creates discriminatory effect. Scalia Concurrence: allow subsidy to domestic industry only from
the state's general revenue fund.

b. Discriminatory Effect
*Dean Milk Co. v. Madison (Clark 1951)
Law prohibiting sale of milk not processed within 5 miles of Madison invalid because alternatives exist; require producers to either meet local Madison standards or make them
pay cost of travel for inspection. Dissent: no reason Dean Milk can't pasteurize within 5 miles of Madison

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Hunt v. Washington State Apples* (Burger 1977)
Law limiting apple crates invalid even if its purpose was to protect consumers from deceptive marketing; heavy burden on WA (abandon expensive grading system; change
handling procedures, damaged appearance); N. Carolina cannot justify local benefits or unavailability of nondiscriminatory alternatives.

Exxon v. Governor of Maryland* (Stevens 1978)

Md. statute prohibits producers or refiners of petroleum products cannot operate retail service stations within state. Stations operated by producers received preferential treatment
during shortage. Valid, statute does not only affect interstate companies; several interstate marketers of oil compete with local sellers and are not affected because they don't refine;
does not distinguish between in or out of state companies, no added costs, doesn't prohibit flow of goods. Dissent: burden falls mostly on out of state refiners/sellers; that the state
did not intend to discriminate doesn't matter.

3. Facially Neutral w/ Burden on Interstate Commerce

Pike v. Bruce Church (Stewart 1970)
Although the State's interest to promote and preserve the reputation of Arizona growers by prohibiting deceptive packaging is recognized, it does not outweigh the burden on
interstate commerce requiring P to change his packaging methods. Incidental burdens on instate transactions only invalid if burdens on trade are clearly excessive in relation to
the putative local benefit.

Southern Pacific Co. v. Arizona (Stone 1945)

Pike Balancing Test: when statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld
unless the burden on commerce is clearly excessive in relation to benefits.
Train law invalid, safety concerns weighed against burden on interstate commerce
Factors:
- what is burden?' (Re-connecting and more dangerous)
- what is national interest? (No retaliation, efficient commerce, need of uniformity)
- what is state interest? (Safety)

Kassel v. Consolidated Freightways (Powell 1981)

Held: Iowas truck length law invalid; state failed to meet burden of proof concerning safety effect; large burden on interstate commerce.

4. Market Participant
*South-Central Timber Development, Inc. v. Wunnicke (White 1984)
Alaska statute required buyers of state-owned timber to partially process the timber in state before shipping it out of state. Market participant theory permits a state to influence "a
discrete, identifiable class of economic activity in which it is a major participant." Law invalid since downstream restrictions have a greater regulatory effect than limitations on
the immediate transaction; Ala. only participant in lumber sale, not lumber processing.

B. The Privileges and Immunities Clause of Article IV

Toomer v. Witsell
Law imposing higher fees on out of state shrimp boat licenses invalid since its discriminatory based on residency, goal of conservation can be achieved in different way (lottery),
and out-of-staters not proven to be worse than instate fishers.

Zobel v. Williams
Invalid, Alaska law giving cash to residents based on years of residency denies non-Alaskans settling in the state the same privileges afforded long-term residents.

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United Building and Construction Trades Council v. City of Camden (Rehnquist 1984)
Camden, NJ requires at least 40% of employees working on city construction projects be Camden residents.
Two Step Inquiry:
1) does law burden a P&I protected by clause (pursuit of common calling)
2) is out-of-state interest sufficiently fundamental to promotion of interstate harmony
Standard of Review: heightened scrutiny; between strict scrutiny and balancing test

C. Preemption and Consent: Congress Has the Final Word

Descending Categories:
1. Express Preemption
2. Implied Preemption
a. field preemption
b. conflict preemption
i. obstacle preemption

Gade v. National Solid Waste Assn.* (OConnor1992)

D sought to enjoin enforcement of the Ill. laws, claiming they were pre-empted by OSHA requirements. Law invalid because of implied conflict preemption; statutory intent to
avoid subjecting workers to duplicate regulation.
Two types of implied preemption:
1. Field preemption: fed. regulation is so pervasive to infer Congress left no room for states to supplement it
2. Conflict preemption: when compliance with state and fed. law is impossible, or where state law stands as an obstacle to purposes and objectives of Congress.
Rule: courts presume that Congress does not intend to preempt; burden on litigant to explain why Congress did want to preempt

Geier v. Honda* (2000)

State tort law was an obstacle to Congress' intent to phase in an airbag auto standard, thus it was preempted.

Edison v. Montana (1981)

Held: Montana's tax on coal does not conflict with federal laws that promote production and consumption of coal.
Rule: conflict preemption is not normally found where conflict is between state law and general, broad abstract federal objective.

US v. Locke (2000)
WA law regulating oil tankers in its waters preempted because 'the state regulates in an area where there has been a history of significant federal presence'.

Ch. 5 Separation of Powers

A. The Reasons for Separated Powers
Minimize concentration of powers, checks and balances (vetos, confirmation, judicial review).

B. Executive Action
Art. II: "The executive Power shall be vested in a President"; "he shall take care that the Laws be faithfully executed"; "he shall be Commander in Chief of the Army and Navy"

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1. In Domestic Affairs
Youngstown v. Sawyer (Black 1952)
Invalid, President Trumans executive order taking steel mills since only Congress can make laws taking private property; Congress refused to allow such takings in the Taft-
Hartley Act (dealing with labor relations), and President's acts have legislative quality to them.

Frankfurter, concurring: There have been instances of Presidential seizure; but not when Congress specifically denied this power (Taft-Hartley Act). "a systematic, unbroken,
executive practice, long pursued to the knowledge of the Congress and never before questioned, may be treated as gloss on 'executive power' under Art. II sec. I."

Douglas, concurring: Since Congress has power to raise revenue to compensate for a 'taking', they should be only branch authorized to make lawful a taking.

Jackson, concurring:
Three categories of Presidential authority vis a vis Congress, ranked in descending order of legitimacy:
(1) those cases in which the President was acting with express or implied authority from Congress,
(2) cases in which Congress had thus far been silent, and (twilight zone)
(3) cases in which the President was defying local governmental or congressional orders.

Burton, concurring: Congress has reserved for itself the power to seize property

Clark, concurring: recognizes some emergencies may extend Executive power to the extent not granted to Congress or barred by Constitution. But when Congress has laid down
certain procedures for certain emergencies, the Executive must follow them.

Vinson, Reed, and Minton, dissenting: these are extraordinary times; Congress has enacted large body of legislature supporting Korean War; President has duty to execute the
legislature, requiring large amounts of steel. Constitutional law history allows Presidents to act without explicit statutory authorization. If President must be a messenger boy to
Congress before enforcing a Congressional act, he may not be able to preserve legislative programs.

a. Appointment and Removal Power

Humphrey's Executor v. US (Taft 1935)
President does not have removal power if agency is independent (the Fed), the purpose was independent or monetary, or mixed executive power (investigations, fact finding, etc.)
President needs to control positions central to the functioning of his executive duty. Not positions ancillary to his functions.

Bowsher v. Synar (Burger 1986)

Held: Congress cannot remove any executive officer except by impeachment.

Morrison v. Olson (Rehnquist 1988)

Act creating Independent Counsel to investigate crimes of the Executive does not violate appointments clause since: I.C. is inferior rather than principal officer and
the Constitution allows Congress to appoint inter-branch officers.
Scalia dissent: I.C. is principal and violates separation of powers

2. In Foreign Affairs

a. General Principals
*United States v. Curtiss-Wright Export (Sutherland 1936)

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Act allowing President to ban exports to warring countries valid since foreign power of fed. gov. does not stem from Constitution but from the crown, handed to USA and since
foreign affairs is included in plenary power of executive.

b. Scope of Presidential Authority

Dames and Moore v. Regan* (Rehnquist, 1981)
When settlement of international claims is necessary to resolution of major foreign policy and Congress has informally approved of the President's action, President is acting
within his executive power under Art. II, Sec. I.

C. Legislative Action and the Administrative State

1. General Themes
Mistretta v. U.S.* (Blackmun 1989)
Sentencing Guidelines valid since Congress laid an intelligible principal to conform to. N power may be delegated to Judiciary that "are more properly accomplished by other
branches" or from Judiciary that "impermissibly threaten the institutional integrity of the Judiciary.
Scalia Dissent: Guidelines have force and effect of laws; Congress cannot make agency solely to create laws. Congress can only delegate discretion to execute law; not to make
law since Congress will be encouraged to delegate lawmaking power in the future; no accountability; a Jr. Varsity Congress.

2. Specific Limits

a. Nondelegation
Art. I: Congress shall have all legislative powers.

Opp Cotton Mills (1941): Congress must declare a policy and define the circumstances in which its command is to be effected.

J.W. Hampton (1928): Legislation must at least set forth an intelligible principle to which the person or body authorized to take action is directed to conform. Policy reasons:
accountability, predictability, fairness.

b. Bicameralism and Presentment

Bicameralism and Presentment Clause: Article I, Section 7: every law must be passed by two houses, presented to President for signature or veto (if nothing, it becomes law within
10 days).

INS v. Chadha* (Burger 1983)

One House veto power unconstitutional since Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch consistent with the
bicameralism principle and Presentment Clause of the United States Constitution. Constitution provided express procedures that must be followed; action of House is legislative in
nature because it alters rights of individuals outside leg. branch.

White Dissenting: contemporary need for legislative veto power; veto power does not give power to pass laws without bicameralism or President sig.; it gives power to veto
executive suggestions.

Clinton v. NY* (Stevens 1998)

Line Item Veto unconstitutional since President would have power to change a statute, not just modify spending or veto it and because no circumstances changed between passage

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and cancellation.

Scalia, Dissent: no difference between Congress letting President cancel spending and using Presidential discretion to spend.
Rule: Train v. NY held Congress can confer discretion upon President to withhold funds, even if appropriated for specific purpose.
Reason: spending on Presidential discretion has long history

Breyer, Dissent: Congress' intent to give President power to effect some spending is constitutional
Held: no difference between having each statute say 'law invalid if President determines x,y,z' and passing the Line Item Veto act.

D. Immunities and Privileges

1. Legislative Immunities:
Speech and Debate clause: members of Congress shall not be questioned in any other Place for any speech of debate in either House. Strict immunity from suits based on
'legislative acts.'

Privilege from Arrest Clause: temp. immunity from civil or criminal suit during congressional sessions

2. Executive Immunities
President has total immunity for actions taking in official capacity.

Clinton v. Jones (Stevens 1997)

Held: The Constitution does not protect the President from civil litigation involving actions committed before he entered office. Clinton claimed letting Judiciary interfere w/ job of
Exec. is Separation of Powers issue. No SoP issue since suit won't occupy too much time & Youngstown allowed Court to interfere with efficiency of Exec.; not a Const. violation.

Breyer, Concurrence: presidential immunity would apply only if the President could show that a private civil lawsuit would somehow interfere with the President's constitutionally-
assigned duties.

3. Executive Privilege
First case to establish an executive privilege. Art. 2 sec. 2: President can get advice from dept heads, textual evidence of privilege.

United States v. Nixon (Burger 1974)

The Supreme Court has the final voice in determining constitutional questions; no person, not even the President of the United States, is completely above law; and the president
cannot use executive privilege as an excuse to withhold evidence that is demonstrably relevant in a criminal trial. Court limits absolute privilege to security secrets, foreign policy,
etc., not criminal investigation; court can balance countervailing interests, nature of claim vs. need for privacy.

Ch. 6 Due Process

A. Procedural Due Process
1. Defining Interests Protected by Due Process
Three ways to define liberty or property interest protected by procedural due process:
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1. treating gov. benefits as privileges rather than rights (abandoned)
2. treating gov. benefits as entitlements rather than privileges (eclipsed by third approach)
3. deriving the content of property from constitutionally external sources, like contracts or statutes

a. Property

Goldberg v. Kelly (1970)

Old rule: any government benefit that was extremely important to its recipient was a form of liberty or property to which due process attached. (welfare benefits)

Bell v. Burson (1971)

Held: Georgia law automatically suspending drivers license after failure to post bond violates due process because it failed to provide any form of pre-deprivation hearing.

Bishop v. Wood (1976)

Held: importance of benefit no longer sufficient to claim entitlement to due process. Instead, protected property interest must be decided by reference to state law.

Cleveland Board of Ed. v. Loudermill^ (White 1984)

Ohio Statute set out substantive right (employment) and procedural rights, which were followed, but did not include pre-termination chance to respond. Since substantive property
rights are defined by statutes, once a statute defines a substantive right (property) it cannot limit the procedural due process rights. Minimum procedural requirements are a matter
of federal law and cannot be diminished by state statute.

b. Liberty

Paul v. Davis (1976)

A change in legal status equals a loss of liberty. Although Ps name was distributed on a shoplifters list after her charges were dropped, she did not lose any legal status, just
reputation.

Wisc. v. Constantineau* (1971)

Posting Ps name in liquor stores and denying her right to buy alcohol for a year without procedural due process unconstitutional since law deprived her of a right previously held
under state law right to buy alcohol.

Meachum v. Fano (1976)

Held: transfer from medium to high security prison did not involve a liberty interest since P already deprived of her liberty right after conviction.

Vitek v. Jones (1980)

Inmate entitled to procedural due process before transfer from prison to mental ward, as provided in statute since Neb. created by statute and official practice an objective
expectation that a prisoner wont be transferred except under prescribed circumstances, thus creating a liberty interest. Stigma of mental ward created loss of liberty without
procedural safeguards (reason independent of state law).

2. Determining the Process that is Due

Joint Anti-Fascist Refugee Comm. V. McGrath (1915)
Essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it.

*Matthews v. Eldridge (Powell 1976)

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Statute provides valid procedural due process even though it took Ps benefits away without procedural due process. Gov. terminated his benefits based on a questionnaire, Dr.
input, and a response letter from P. P was allowed to recover his benefits (including past benefits) after benefits were terminated.

Rule: consider 3 factors to determine specific dictates of due process:

1. private interest affected
2. risk of erroneous deprivation through procedures used, and probable value of additional procedural safeguards
3. government interest in function; fiscal, and administrative burdens additional requirements would entail

B. Substantive Due Process

Fundamental Rights: travel & privacy

Fletcher v. Peck (Marshall 1810)

Dicta: certain great principles of justice, whose authority is universally acknowledged but not embedded in constitutional text.

1. The Incorporation Doctrine

Selective Incorporation: Cardozo, Frankfurter, Thomas, Rehnquist believe only fundamental rights imposed onto state by 14 th amend.
Total Incorporation: Black, Douglas, Stevens believe entire BoR applicable to states under 14th amend.
Today, the first 8 BoR has been incorporated, except:
- 2nd, 3rd, grand jury indictment clause of 5th, 7th

Barron v. Baltimore (Marshall, 1833)

Ps claim of state violation of takings clause invalid; bill of rights is bar against only fed. power. BoR was a compromise from states against fed. power. States did not intent to
limit their power under BoR. Now 14th amend. applied BoR to states.

Slaughterhouse Cases (Miller 1873)

Plaintiffs, butchers of New Orleans, contended that a state statute was unconstitutional in that it violated U.S. Const. amend. XIV and U.S. Const. amend. XIII. The state had the
exclusive right under its police power to determine the localities where slaughtering for the city could be conducted and the laws of the federal Constitution did not apply.
note: Slaughterhouse held the 14th amend. did not extend the BoR to states. Justice Black and others disagree. If 14th amend.s P&I clause meant to extend the BoR to states,
wouldnt due process under 14th become surplusage?

Raenz v. Roe (Stevens 1999)

Held: Right of newly arrived citizens to a state is guaranteed under P&I clause of 14th amend.
Thomas dissent: original meaning of P&I referred to original settlers guaranteed under state constitutions, the fundamental rights given in England; court should not invent new
rights based on false intent of framers of 14th amend.

Palko v. Connecticut (Cardozo 1937)

Although fed courts cannot appeal criminal cases based on Double Jeopardy clause, states can because 14th amend. only imposed fundamental upon the states.

2. The Rise and Fall of Economic Rights as the Substance of Due Process
*Lochner v. N.Y. (Peckham 1905)
NY law bared employees from working 60 hrs per week. Unconstitutional since the general right to make a contract in relation to one's business, and the right to purchase or to
sell labor, was part of the liberty protected by the Fourteenth Amendment. Now overruled, since economic rights are not always included in substantive due process.
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3. The Modern Revival: Privacy Rights
Is there a fundamental right? Is the right infringed? Is the infringement justified by a sufficient purpose? Are the means sufficiently related to the ends? Undue burden analysis
applies to last three questions.

a. Contraceptives
*Griswold v. Connecticut (Douglas 1965)
Bill of Rights guarantees have penumbras, 1st 4th 5th and 9th form a zone of privacy. Goldberg concurring: 9th amend. guarantees additional fundamental right to marital privacy.
Tradition and collective conscience make marital privacy right fundamental. Harlan concurring: 14th amend. application of 4th amend.s due process right need not be assured by
the letter of the BoR.

Black dissenting: 9th amend. argument fails because judges dont have const. authority to declare what is fundamental or even resources to do so even if they could. Neither due
process or 9th amend. or any other mysterious formula is appropriate to guarantee rights not listed in Const except amendment! 9th, like 10th, is just a statement of procedure,
not substantive

Eisenstadt v. Baird (1972)

Expands Griswald to include single couples privacy interest.

b. Abortion
Roe v. Wade (Blackmun 1973)
Fundamental right to choose abortion premised on Constitutional right of privacy from personal liberty in 14th amend. due process clause. Only personal rights can be deemed
fundamental; right to privacy has some extension to family relationships and child rearing. Fundamental rights may be limited only by a compelling state interest under strict
scrutiny.
Held: first trimester, abortion decision left to doctor
Held: second trimester, abortion can be reasonably regulated by states related to maternal health
Held: third trimester, state can ban abortion except to preserve life of mother

Rehnquist dissent: Roe not seeking privacy, but an operation. Right to abortion not fundamental since most states ban it; framers of 14th amend did not mean to include right to
abortion.

Planned Parenthood v. Casey (OConnor 1992)

Spousal notice requirement law invalid based on undue burden test for determining whether State regulation has the purpose or effect of placing substantial obstacles in the path of
a woman seeking an abortion before viability. Women have a protected privacy interest in choosing to have an abortion before viability. After viability, a State may regulate, and
even proscribe abortion except where it is necessary to save life of Mother. Spousal notice requirement invalid since it required a married woman to provide a reason for her
failure to provide notice to her husband. Informed consent requirement valid since not undue burden or substantial obstacle. 24 hr waiting period valid, particularly burdensome
but not substantial obstacle.

Scalia dissent: abortion is a 'liberty' but not constitutionally protected because: a) Constitution does speak about it, b) longstanding American tradition has allowed it to be
prohibited.

c. Family Relationships
1. What are the fundamental interests in kinship? (marriage, sex, choice)
2. Limitations?
3. Where do rights come from? (Tradition, common law, const.)
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4. Rights associated with familial relationships?

Moore v. City of East Cleveland (Powell 1977)

Although state has leg. interest, state has chosen to use the family makeup as a proxy to solve the problem, which is fundamental. 14th amend. substantive due process; right to
privacy; right to have kids extends to right to live with kids; law doesn't promote 'family values'. Law doesn't serve goals of minimizing traffic and burden on school system.
Stewart dissent: right to live with extended family members not fundamental like right to start family and have kids.
White dissent: court should not extend due process to cover right to live with grandchildren

Michael H. v. Gerald D. (Scalia 1989)

P claimed: statutory presumption violated his 14th amend. due process rights to maintain a parental relationship. Law valid based on historical fundamental privacy right to
presume parenthood of children born to wife; adultery has been historically prosecuted. Brennan Dissent: traditional privacy rights change with blood tests, bastards not frowned
upon.

Stanley v. Ill. (1972)

Facts: unmarried couple with three kids fights statute that would make children wards of the state because their Mother died unwed. Father claims equal protection violation since
a married father would have right to keep kids.

Loving v. Vir. (1967)

Held: law barring interracial marriage invalid; equal protection and due process grounds.

Zablocki v. Redhail (1978)

held: law prohibiting re-marriage of men who owe child support invalid; equal protection and substantive due process.

d. Right to Die
4 Types of Right to Die:
1. Suicide, otherwise healthy
2. Withdrawal of life support (Cruzan)
3. Self administered physician assisted suicide (Wa.)
4. Physician euthanasia by doctor

Cruzan v. Miss. Health Dept. (1990 Rehnquist)

Valid, law requiring clear and convincing evidence of final wishes. Right to refuse medical treatment based on liberty interest under Due Process.
Brennan dissenting: right against treatment is fundamental; patients choice can be drawn without a living will, she made statements to family and friends

Washington v. Glucksberg (Rehnquist 1997)

Assisting suicide is not fundamental; use rational basis. Law valid since reasonably related to states interests of preserving human life, AMA's healing v. harming principles, risk
of abuse.

Vacco v. Quill (Rehnquist 1997)

Held: valid, NY law allowing withdrawal of life support but prohibiting assisted suicide.
Reason: no equal protection problems; everyone has choice to withdraw support, logical distinction

e. Consensual Sexual Choices

Bowers v. Hardwick (White 1986)
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Georgia sodomy law valid since no fundamental liberty interest in gay sex. Under minimal scrutiny since no fundamental right, law rationally related to Georgia's legitimate
interest in declaring gays immoral and unacceptable. Not connection to family, marriage, or procreation; not deeply rooted in history or tradition.

Blackmun Dissent: decisional (intimacy) and spatial (bedroom) right to privacy

Stevens Dissent: 1. tradition cannot override the Constitution, 2. intimacy, whether pro-creative or not, is protected by 14th amend. DP.

Lawrence v. Texas (Kennedy 2003)

Texas sodomy law invalid since in addition to Casey rights (family, child birth, etc.) liberty now includes right to beliefs, meaning, the universe, etc.

Scalia Dissenting: court too scared to declare gay sex a fundamental right; instead uses rational basis review (instead of strict scrutiny)
held: Bowers rejected 'rational basis challenge' because it's impossible to distinguish between bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery,
fornication, bestiality, obscenity, etc.
Reason: if sexual morality cannot pass rational basis review, what can?

Ch. 7 Economic Rights: The Takings and Contracts Clauses

A. The Takings Clause
1. Public Use Requirement
*Hawaii Housing Authority v. Midkiff (O'Conner 1984)
Held: Act condemning residential lots and re-selling them to the tenants meant to invigorate housing market is for public use.

Kelo v. City of New London (Stevens 2005)

Held: Because city plan was not adopted to benefit a particular class of identifiable individuals, economic development included in broad definition of "public purpose.

2. Regulatory Taking
Lucas v. S. Car. Coastal Council (Scalia 1992)
Rule: Two Categories of regulatory action where gov. must always compensate:
1. Physical intrusion onto property; always accompanied by compensation
2. Regulation denies all economically viable use of land (burden on property owner to prove)

Penn Central v. NYC* (Brennan 1978)

Rule: ad hoc factual inquiry factors:
1) economic harm (denominator Q)
2) benefit/burden (general welfare, health, safety)
3) investment backed expectations (vested rights - paid higher purchase price, ground braking, architect bills)

Tahoe-Sierra v. Tahoe Regional Planning Agency* (Stevens 2002)

Held: Temporary moratorium on building not taking because adoption of a categorical rule that any deprivation of all economic use, no matter how brief, constituted a
compensable taking would impose unreasonable financial obligations upon governments for the normal delays involved in processing land use applications and would improperly
encourage hasty decision making.

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3. Conditional Regulatory Taking
*Dolan v. City of Tigard (Rehnquist 1994)
Rule: there must be an essential nexus existing between the legitimate state interest and the permit condition by the respondent. If a nexus existed, then exactions imposed by
respondent must be roughly proportionate to the projected impact of the proposed development.

B. The Contracts Clause

Home Building and Loan Assn. v. Blaisdell (Hughes 1934)
Temporary statute postponing mortgage sales valid because a contract remedy may be delayed when no substantial right secured by the contract is impaired. The Act had been
enacted pursuant to the state's police power with regard to an emergency economic crisis and that the legislation was addressed to a legitimate end.

1. Public Contracts
*U.S. Trust Co. v. New Jersey (Blackmun 1977)
Rule: Public Contracts should be subject to heightened scrutiny since state is acting with self interest, rather than pure public interest.

2. Private Contracts after Blaisdell

*Allied Structural Steel v. Spannaus (Stewart 1978)
Law requiring employers to provide pensions violated the Contract Clause because it operated as a substantial impairment of a contractual relationship since the law was not
enacted to deal with a broad generalized problem, was not temporary, and was retroactively imposed.

Energy Reserves Group v. Kansas Power and Light* (Blackmun 1983)

First ask: is state law a substantial impairment of a contractual relationship? Then ask: If so, does state have significant and legitimate public purpose behind regulation? Next ask:
Does regulation appropriately serve public interest? (Unless state is a party to contract, defer to leg. judgment)
Held: the Kansas Act did not violate the Contract Clause because the natural gas industry was highly regulated in order to protect consumers and the Kansas Act was rationally
related to that goal of protection.

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