Con Law Gardner 1 of 63 Constitutional Law Professor Gardner

1. Introduction: Thornton
Types of Arguments:

1.) Textual: argument based on meaning of words appearing in the document. 2.) Framers Intent: not good argument if not couple w/ something else that can stand on its own. 3.) Inference from Bad Consequences
4.) Precedent 5.) Democratic Principles 6.) Historical: With this example, they are rejecting British system of representation. In Every SC opinion in recent years can be divided into subsections: I. facts II. argument (threshold argument) III. US Term Limits v. Thornton, Supp. p. 1 Facts: AR adopted a constitutional amendment that prohibits the name of an otherwise eligible candidate for Congress from appearing on the general election ballot if that candidate had already served three terms in the House or Representatives or two terms in the senate (set limits on Congressional terms) The amendment was formulated as a ballot access restriction rather than a disqualification for membership in Congress. A citizen challenged the amendment. Issue: May a state impose qualifications for membership in Congress in addition to those in the Constitution? Holding: No. Constitution forbids states from adding or altering qualifications set out for Congress in the text of the Constitution. This case has every kind of Constitutional argument. In order to explain this conclusion, they used the following arguments: Methodlogicaly the courts first stop in interpreting constitution is precedent. (precedent arguments are very persuasive and important) 1. Uses Powell v. McCormick as precedent because Powell was well reasoned. Holding: Congress cant add or change qualifications. Steps:

1.

The framers historical understanding was based on the English experience: Wilkes affair. Framers knew about it and agreed that qualifications of those serving in Parliament are fixed. This is a historical argument, and speaks to the framers intent so that we can infer what they thought. Framers were British, knew of Wilkes affair, they wrote the Constitiution in such a way that would make a repeat of the affair impossible in America. Describe Democratic Principles a. People should choose who they please to govern themselves and should choose who they think is best 1. Egalitarian 2. Unlimited popular choice

2.

Con Law Gardner 2 of 63 3. Then describe how this applies to the limited power of the States. Powell doesnt end case because it only deals with Congress inability to impose restrictions, the next section deals with STATE imposed qualifications. So by the same reasoning the state does not have the power either. Petitioners try to make an argument based on 10th amendment (all powers not delegated to Fed is reserved for State). They say Amend 73 is appropriate exercise of States reserved power to place additional restrictions on the choices that its own voters make. This is TEXTUAL ARGUMENT.

Court rejects this argument for 2 reasons:

1. Power to add qualifications is not an ORIGINAL power of the states. If states never
possessed power then the powers are not reserved. (cant reserve what never had, States could not have had the power before Constitution because Constitution created Congress) Logical Argument. Page 8 of Supp. Art. I, 4,5,6, this shows that the Constitution must be a document that is a coherent whole where all parts work together to achieve some common objective. 2. Even if they had some power in this area, framers INTENDED Constitution to be exclusive source of qualifications. Use the Federalist papers which show what the arguments were. Federalists did not want this.

2. Historical Context of the framing

Constitutional was formed as result of 2 crises: 1. Oppression of the colonies by Great Britain Taxes, caused revolt eventually Declaration of Independence 2. The failure of the Articles of Confederation Declaration of Independence (DOI) by Thomas Jefferson Talk about divine right of Kings vs. Popular Sovereignty Popular Sovereignty Lockes political theory dealing with individual rights. All men are created equal and have certain rights. To secure those rights, they form governments that are accountable the people. Locke also said that absolute despotism (tyranny) is a violation of our natural rights. Absolute tyranny is a question of fact. Rebellion is justified if King rules with absolute tyranny. Articles of Confederation (AOC)

Article 2: contains important language Article 3: contains language of a treaty Article 5 1 Continental Congress created. State legislatures appoint reps in the Congress
4 each state has ONE VOTE

Article 8: How paid for-- several states supply a federal treasury by taxing their citizens. States pay
into common treasuries (not individuals) thru taxing their people Article 9 6 Limits the power of Congress. Everything had to be done by 2/3 majority in States Article 13 how AOC can be alteredunanimously ratify changes by ALL state legislatures

Con Law Gardner 3 of 63 Problems: 1. Did not create any single sovereign -Rather 13 sovereigns -Could not speak to foreign powers with one voice. Therefore, ineffectual foreign policy 2. Articles lacked a power to nationally levy (charge) taxes -U.S. treasury was always way too low -Unable to obtain loans, credit -1783, Congress fled Philly because afraid of unpaid troops mutiny 3. Lack of national power to regulate commerce between the states -States imposed duties -States engaged in series of bitter trade warstaxes in imports. Bad for prosperity. 4. Congress viewed as joke and consequently lacked qualified candidates/members -Shays rebellion -Fears of anarchy -These events led Congress to rewrite articles Constitution of the United States: State ratifying conventions had many objections to ratifying constitution. Most common objection to Constitution is that it didnt have a bill of rights so they created one. What kind of document is a Constitution? What purpose is it intended to serve?? It tells us exactly what its for in the Preamble --to form a more perfect union, establish justice --they obviously thought constitution capable of doing these things.

To whom is this document intended to apply? -we the people of the US -subsequent generations our posterity -expected to last FOREVER -has been expanded throughout the years What is the United States of America? What are some of its properties? Union of states A government: o has a Congress that can make laws (leg power), court sys (jud power), president (exec power) o look at art 1, sec 8 Has sources of revenue (tax and spend). Written laws. Was never written constitution before this Britain doesnt have formal constitutionits a mixture of magna carta, common law, etc Debts, treaties Constitutional Legitimacy Government can subject us to laws by tacit consent. Locke By living in this society, you are deemed to consent to terms of the social contract we live by.

Con Law Gardner 4 of 63 Federalist 10: Madison Madison said powers of branches needed to be blended and each branch of government needs some way to defend themselves from encroachment of other branches. You must give some of the same powers to other branches a system of checks and balances. The constitution lays out these overlapping powers. This was written to defend the Constitution and respond to criticism. Federalist papers are an important guide to the thoughts of the framers Writers were in favor of the constitution and tried to persuade people to ratify it. Madison wrote about half of the papers. Constitution was criticized for not creating a pure and small democracy, Madison wants to defend a large republic. Whats wrong with Democracy? It leads to factions and conflict. Factions are people who believe all the same things, p. 28. Why do we have factions? It is human nature to be factious. We are jealous, weak, act on impulse and opportunity. People succumb to passions. Therefore we cannot get rid of factions unless we eliminate liberty all together. Minority factions do not worry Madison since they will always be voted down, it is majority factions that worries him. We can control factions with a large republic. Advantages of a large republic: 1. Election of Representatives: select wisest, most virtuous. But what if factions get into office? 2. Even if representatives are bad, large size will guard against majority faction a. The larger the faction, the more fit characters to choose from b. Harder to deceive the many than the few. There are more people to vote for you. c. Factions in large republic are less likely to form and succeed. Why? 1. Greater variety of interests. Large territory and larger diversity of interests 2. Harder for large numbers to successfully conspire How can majority be faction? Isnt majority supposed to represent interests of the people? Need to distinguish what people want between what is good for them Common good doesnt coincide with desires of people. Common good is the objective, never dependent on what the majority wants. How do we know what we know? How does he know what the common good is? Madison: There is something out there that is the true interest of the society in the permanent interest of the society. It may differ from the majority factions interest, the Constitution may be the ultimate example of true interest of society. Dont need to reject this but Jefferson: Said common good could be understood by common people. Ordinary person has innate conception of what is virtuous and good. Jefferson was suspicious of learned class.

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Separation of Powers
Federalist 47: Madison Is liberty a natural state of affairs in an organized society?Madison says no. Its human nature to grab on to additional power. P. 33 of Fed 47. The accumulation of all powers in the same hands is the definition of tyranny. In No. 48, he says power is of an encroaching nature. This is a statement not about government but people. In order to preserve liberty, you need separation of powers. What does it mean to have a separation of powers? Some criticize constitution for not separating powers completely. Madison says youve got it all wrong and looks to Britain (Montesquieu) to explain. Powers in British constitution are quite blended, Madison argues powers MUST be blended to prevent dangerous accumulation of power. They need to check each other and fight off the other branches. Why not just set limits of each branch in the Constitution? Parchment barriers: history has shown that people dont respect whats just written on paper Madisons solution is to give each branch the power to fight off encroaching power of the other branches How each branch co-mingles with the others: TYPE OF POWER Branch Exercising those powers Leg. X Veto Prez proposes laws and budgets Makes treaties (treaties become law once they are signed) Invalidate laws Leg. Exec. Jud Confirms judges Impeach

Declare war (even though engaging in war is a typical exec activity) Confirms high level appointments Can impeach

Exec.

Nominates judges

Jud.

Invalidate executive actions

How do these above principles play out in practice?

CONSTRUING CONGRESSIONAL SILENCE:

Youngstown Sheet & Tube Co. v. Sawyer, p. 333 (Steel Seizure Case) Facts: During the Korean War steel workers went on strike. Citing serious national interest in steel production, Truman ordered Commerce Secretary to seize the steel mills and keep them running. Youngstown challenged seizure as unconstitutional and unauthorized by Congress. Congress had earlier passed Taft Hartley Act, giving President authority to seek injunction against strikes, but rejected an amendment to permit government seizure to avoid serious shut downs.

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Rule: The President cannot seize private property without approval of Congress. The final determination of the constitutional validity of an issue should be made in a case which has proceeded no further than the preliminary injunction stage if there is a showing of irreparable harm. Holding: Power must stem either from an act from Congress or from Constitution itself. Congress gave no power and specifically rejected the means used by President. Presidents authority does not allow seizure too far from theater of war. There is no relevant law to execute, President cannot usurp lawmaking power. Reasoning: Justice Blacks Argument (Majority): Formalistic Approach Presidents power must come from Constitution or directly or indirectly from Congress as a legislative act. The Defense Prod Act and Defensive Service Act do not produce authority the proper authority. Taft-Hartley Act (NLRA) is the relevant labor legislation that deals with unionization, collective bargaining. Specifically the Amendment to give pres power to seize industry was voted down. Therefore, congress thought about this issue and voted it down. Blacks method is a Metes and bounds argument or called formalistic style of arguing. If you want to know what exec power islook into art II; if it fits then he has power, if not then he doesnt. Possible argument President could make that his power is given by the Constitution:

a. Executive Power Argument (Art II, 1, cl. 1): - exec power is to execute law, to take care that law
is carried out. Court says no not a good argument because exec power means youre executing something. A law needs to actually exist before you can execute it. There is no law that allows this.

b. Take care power Argument (Art. II, 3):

Court says that hes not faithfully executing a law because there is no Law.

c. Commander-in-Chief Argument (Art II Sec 2 Cl. 1): President is Commander in Chief of armed
forces and as a result has responsibility and authority to make sure he supplies army with whats needed. Response: Steel industry is not under command of president when he is acting as commander in chief. The Court is concerned that President would overstep his boundaries. If they permit this expansion, he could have power to do everything. If he can seize steel industry, then he could have power to seize other things the army needs (ex. food, clothes, textile). This is a Slippery Slope Argument or a Parade of Horribles. To refute this, you need to draw lines a we dont go all the way downwe just go to here. Justice Jacksons Approach (Concurring): Functional Approach This is the main legacy of the case. Much more influential than Black. Tripartite Analysis: less formal, functional approach branches are blended 1. President acting with Congressional Authority (Express or implied authorization from Congress) Presidential power is strongest b/c hes acting with his own authority + Congressional authority 2. President acts, Congress has taken no action or ambiguous congressional inaction Pres acting with his own powers. Cong hasnt given or forbidden action Presidential power is uncertain 3. President acting in defiance of Cong/ Congress attempts to prohibit Presidential action

Con Law Gardner 7 of 63 Presidential power is weakest b/c acting with his power minus whatever power of Congress

Jackson thinks this situation is in 3rd category because of rejection of Taft Hartley Has Jackson applied his analysis correctly? 4 Possible Congressional actions

1. Legislation enacted that says President may seize No legislation of any kind (doesnt mean Congress has nothing to say about it)
2. Bill 1 (above) introduced, but voted down 3. Legislation enacted that says President may not seize 4. The President acts but Congress does nothing

In Youngstown, #2 happened, but Jackson treats it like #3. He treats 2 as equivalent of 3. Has Congress spoken on the issue? Maybe its a matter of action. # 3 will rarely arise, so how should we construe its silent? When congress speaks it legislates. If they consider a law but dont pass it they have not legislated. When they dont legislate it is difficult to know what they think. Is #4 approval? #4 is really what happened in Youngstown Jackson said it was 3 but maybe its silence could also be construed as approval. What about the Courts authority? SCOTUS this case, throwing its weight for or against one of the other branches, but doesnt examine its own power. Court could have said: this is not our problem, and let other branches fight this out. This is what Madison intended. Justice Vinson (Dissenting) Vinson places an emphasis on history. For 200+ years presidents have been exercising this type of power and no one has complained, the presidents believed they had the power and not trying to grab up more power. Vinson says history reveals the meaning of the constitution. If this is the way everyone understood the constitution until now, then thats strong evidence not conclusive but strong. Justice Frankfurter (Concurring) Believes history is a gloss over constitution making it clearer to us. History cant change the meaning of the Constitution just helps us understand it better. Note: In the aftermath, a 53-day strike ensued and the repercussions Truman was afraid of did not happen. There was no interruption to steel supplied to troops abroad. Court might have been regretting its ruling in Korematsu and was worried about not standing up to executive during times of war. Foreign Relations and Executive Agreements: Dames and Moore v. Regan (1981) (Iran Hostage crisis) Facts: Negotiating the end of Iran hostage crisis, Carter agreed to terminate all legal proceedings in US courts against Iran, and nullify all attachments and judgments to release the hostages, sending them to arbitration. P was owed money by Iran and sued Regan, Treasury Secretary for declaratory relief and

Con Law Gardner 8 of 63 injunctive relief against enforcement on grounds that President exceeded his authority in implementing the agreement with Iran. Rule: A President can issue an order settling legal claims if the order is supplementary to major foreign policy issues and if Congress acquiesces. Holding: Yes. President did not get statutory authority to freeze assets under the IEEPA. (Presidential power is strongest, Jacksons category 1.), but court ruled no, IEEPA does not directly authorize the suspension of law suits or involve Iranian property and neither does the hostage act. But the general tenor of these enactments combined with the International Claims Settlement Act of 1949, which created the International Claims Commission, indicates congressional approval of, or at least acquiescence in, executive agreements settling the claims of US nationals against foreign countries. There fore this situation is in Jacksons 1st category of presidential power (not the second ambiguous category). What is the difference between Dames & Moore and Youngstown? Here congressional silence is interpreted as approval, court is less willing to confer congressional disapproval in foreign affairs. There are also factual distinctions between the two cases and president is supposed to handle foreign affairs. How are we to hear Congressional silence? Silence sometimes construed as agreement.

4. Foreign Affairs
Can President Bush Unilaterally Attack Iraq without going to Congress? War Powers Act of 1973 allows the president to introduce troops into hostile situations only if: 1. Declaration of War 2. Statutory authorization 3. National emergency created by attack upon US, its territories or armed forces ProbablyPresident is the Commander in Chief and has more power in the arena of foreign policy. Congress can be seen as approving based on other acts such as the USA Patriot Act passed after 9/11 and Gulf War resolutions from 1991.

1. Yes, Presidents authority is sufficient because Congress has approved. Would use Youngstown and
Dames as authority. a. There was no express approval b. But express approval is unnecessary: as seen in Dames c. Congress approval is implicit by: i. USA Patriot Act An anti-terrorism measure authorizing the president to use military force to track down those responsible for 9/11. Increased power for surveillance. Greater security at the border, on the airlines, etc. Congress wants to increase presidents ability to fight terrorism. (What POTUS says regarding Iraq is about terror) ii. 1991 Gulf War authorization 1. Shows congressional hostility towards present Iraqi regime 2. Enforcement of previous terms of withdrawal. We set conditions they meet. 2. No: Powers of Commander in Chief are not unlimited a. Congress has not given authority expressly b. Congress has not given implicit authority.

Con Law Gardner 9 of 63 i. USA Patriot Act doesnt express approval. It is to deal with Al Quaeda ad not carte blanche for POTUS to go out and attack anyone. This Act arose from a specific act in a specific instance. (You can interpret facts narrowly vs. broadly) ii. 1991 Gulf War There are lots of distinctions, not the same at all Note: Only analyzes Congresss authorized power. If you go with Congressional silence, must prove that POTUS power is sufficient all by itself. Would use arguments that Truman made in Youngstown.

Congressional Delegation of Legislative Power

Congress can delegate legislative powers to the executive branch because it is necessary in modern administrative state. All agencies are members of exec branch and have some ability to make regulatory laws. There are some limits to delegation: Non-Delegation Doctrine Congress cant give away excessive leg powers, must keep some power This doctrine doesnt have a lot of bite in Con law. All that Congress needs to do is give Intelligible Principle and that will suffice Only twice court has struck down law as not having intelligible principle and upheld nondelegation doctrine. Both in 1935.

INS v. Chadha, (1983) Legislative Veto Facts: Chadha (P) was an East Indian who lawfully entered the US on a nonimmigrant student visa. After his visa expired, the INS held a deportation hearing. Attorney General authorized in INA to suspend deportations in cases of extreme hardship. One house veto provision. The AG suspended Ps deportation and sent a report to congress as required by the Immigration and Naturalization Act. The act provided that either house of Congress could veto a suspension of deportation. The House adopted a unilateral resolution opposing Ps permanent residence and P was ordered deported. Rule: Congress cannot review the delegation of its constitutional authority to the executive branch by authorizing the use of a one-house veto. Holding: No. Congress violated separation of powers by voting down P with a one-house veto. Even though our governmental processes may be clumsy at times, they are meant to preserve liberty and should be executed according to that principle. There is threat to liberty when Congress tries to usurp power of exec and disturbs balance of power.

Justice Berger (Majority) used a formalist approach Justice Powell (Concurring) Congressional veto bad because it undertook the type of decision that is traditionally left up to other branches (i.e. the judicial branch) Justice White (Dissenting) Functionalist approach White reviews the history of the legislative veto and concludes that it has been an extremely useful instrument. Thinks this decision is mistake and puts Congress in a Catch 22 predicament: either they have to refrain from delegating powers or they have to give lawmaking responsibilities to the executive branch. a. In the midst of modern massive administrative agencies, the congressional veto actually restores the constitutionally appropriate balance of power b/w leg and exec branches. Over the past 200 years, executive branch has gotten huge while Congress has stayed the same. One house veto is a minimal check on these huge administrative agencies. Says we dont want to get rid of these agencies, just devise innovative checks on controlling these agencies. Its not Congress usurping exec power but rather one house veto gives Congress back the power that it has lost over the years.

Con Law Gardner 10 of 63 b. It has never been exploited or misused by Congress. Why didnt they just pass a law? It would be too tedious and time consuming to do so. The Constitution doesnt say if its not convenient, you can do what you want (See p.353). The system is set up for specific reasons and should be followed (See p.354). Delegation of Spending Power Bowsher v. Synar, (1986) (Eliminating the deficit, Congress giving itself Executive Power) Facts: BBED Act (or Gramm-Rudman-Hollings Act) established maximum annual permissible deficits to reduce the federal deficit to zero by 1991. The procedure was as follows: First, OMB and CBO estimate budget each year and submit estimations to Comptroller General. Second, CG evaluates the estimates and reports conclusions to President. Third, President puts into order reports by CG unless Congress within specific time met the deficit goal in other ways. The role of Comptroller General was challenged here. Comptroller General is nominated by President, but removed by Congress for inefficiency, neglect of duty or malfeason. Office of CG created by Budget and Accounting Act of 1921. The Acts constitutionality was challenged on the ground that it imposed exec functions on the Comptroller functions that could not be constitutionally exercised by an officer removable by Congress. System to control budget that doesnt involve Congress b/c whenever this decision is left up to them, they spend too much. Rule: Congress cannot allow a lesser representative of the legislative branch to act on its behalf when it exercises its legislative power. Issue #1: Can Comptroller be entrusted with exec powers since he can be removed by Congress? Holding #1: No. Court concludes that because Congress had retained removal authority over the CG, he may not be entrusted with exec powers. Issue #2: Does the assignment by Congress to the Comptroller General of the US of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 entrust Comptroller General with exec powers? Holding #2: Yes. Interpreting a law enacted by Congress is the very essence of execution of the law

Justice White (Dissenting): Court is basing its opinion on a trivial statute. Must look at the context of separation of powers. Constitution wanted separation but also wanted a workable government! Talks about Chadha and distinguished this case from it.

Problem: is if Congress has power to remove someone who exercises executive privilege then in a sense they are exercising executive power because they can fire guy if they dont like what hes doing! Suppose they gave power to make budget cuts to OMB or Treasury, that would solve problem, seems as though they did intent to exercise power over the executive branch. Court takes a very formalistic view. Bowsher and Chadha show diminishment in power of executive to oversee execution of laws The Removal Power Independent Agencies: Head of agencies can only be removed with cause

Con Law Gardner 11 of 63 President can remove some agency heads at will (his cabinet members) By statute Congress has created independent agencies (FTC, SEC, FDA, FCC)

Myers v. United States, (1926) (Removal of postmaster without senates consent) The Supreme Court held invalid a statute that said that the president could not remove postmasters without Senate approval. The Court state that the president could remove all executive appointees at will even though the appointments originally required advice and consent of the Senate. Humphreys Executor v. US Limited Myers in that it said that officers of administrative bodies created by Congress, were statute specifies the term and causes for removal, may be removed by the president only for those causes that have been specified.

Weiner v. United States, (1958) (Officers performing judicial functions) Further limited the Presidents removal power. The War Claims Commission, established by an act of congress, mentioned nothing about causes for removal. SCOTUS differentiated between officials who were part of the executive establishment and those who should be independent of the presidents removal power. The court held it was unconstitutional to remove a member of the commission without cause, as the commission exercised a judicial function.

Functional Approach to the Constitution Morrison v. Olson, (1988) (Creation of the independent counsel) Facts: Ethics in Government Act provided for the appointment of an independent counsel to investigate and prosecute specified government officials for violations of federal criminal law. Under the Act, the Attorney General conducts a preliminary investigation of possible violations, and then reports to the Special Division, a court created by the Act. If the AG determines that there are reasonable grounds to believe further investigation or a prosecution is warranted, she applies for appointment of independent counsel. The AG may remove the independent prosecutor for cause, otherwise, the counsels tenure expires at the end of the investigation. D issued a subpoena against Olson, who moved to quash the subpoena, claiming that the D had no authority to proceed because the Act was unconstitutional. The problem is that this is not an officer who is nominated by president and confirmed by the Senate. Rule: The provisions of the Act do not violate the Appointments Clause of the Constitution, or the limitations of Article III, nor do they impermissibly interfere with the Presidents authority under Article II in violation of the constitutional principle of separation of powers. Holding: There are two classes of officers; (i) principal officers, whoa re selected by the president with the advice and consent of the senate and (ii) inferior officers whom congress may allow to be appointed by the president alone, by the heads of departments, or by the judiciary. Thus, if D is a principal officer, the act violates the constitution. Prosecution of high executive officials isnt so central to executive function. The President retains substantial authority through supervision of the Attorney General (corresponds with the presidents removal power is limited.) There is no attempt by congress to exercise authority themselves and expand their own powers. TEST - 1. Is the act an impermissible interference w/ Presidential Power? 2. Does the act as a whole violate separation of Powers? Look for a grabbing by Congress of power that they dont have no power grab here. Executive still retains power to remove for good cause.

Con Law Gardner 12 of 63 Justice Scalia (Dissent) There is a remedy for abuse of prosecutorial power by the president, either impeachment or vote him out - thats the balance power. He argues this act eliminates political accountability Mistretta v. US, (1989) (Creation of a sentencing commission) Facts: Congress established the US Sentencing Commission. All members of the commission were appointed by president with senate consent and 3 members must be federal judges. Mistretta was indicted on federal drug charges, he challenged the constitutionality of the guidelines. Issue: May congress create an independent judicial commission to establish sentencing guidelines that are binding on federal courts? Holding: Yes. Congress may delegate its legislative power as long as the person or body receiving the power is directed to conform to an intelligible principle set forth by congress. The delegation of authority to the commission meets this standard. Clinton v. New York, (1998) (Line item veto unconstitutional) Fact: Clinton applied the Line Item Veto Act to cancel sections of two statutes. NYC sued claiming the cancellations were unconstitutional. Issue: May congress grant the president a line item veto that allows the president to cancel legislation after it is duly enacted and signed? Holding: No. Article I, section 7 allows the president to return a bill to congress. This action takes palce before a bill becomes law. By contrast, the cancellation provision in the act occurs after the bill becomes law. A constitutional return applies to the entire bill. These are a big differences. The congress here decides that they cannot decide on how much, so he should decide. The court is unsympathetic. If line item veto were valid, it would authorize the president to create a different law one whos text was not voted on by either chamber of congress or presented to the president for signature. WHERE THERE IS DIMINUTION OF POWER, SHOW ANOTHER BRANCH IS GETTING STRONGER!!

Executive Privilege
The president has no express immunity, but several presidents have claimed implied immunity, and some cases have inferred that such an immunity exists. Recent cases seem to indicate that a limited privilege exists, the boundaries of which must be determined by balancing the interests at stake on both sides. Privilege: absolute v. qualified absolute: cannot be defeated if privilege applies qualified: can be yielded for certain situation Absolute Presidential immunity from civil damages In Nixon v. Fitzgerald, the court held that absent explicit affirmative action by congress, the president is absolutely, rather than qualifiedly immune from civil liability for his official acts. This action was brought by a whistleblower who charged his rights were violated when fired from DoD, court stated that absolute presidential immunity is functionally mandated incident of the presidents office that is rooted in the doctrine of separation of powers.

US v. Nixon, (1974) (Limitations on executive privilege)

Con Law Gardner 13 of 63 Facts: Special Prosecutor for Watergate investigation sought and received subpoena ordering Nixon to produce various tapes and other records relating to presidential conversations and meetings, despite Ds motion to quash. Rule: Presidential Communications are not absolutely privileged. Issue: Does executive immunity give the president an absolute, unqualified privilege of immunity from judicial process under all circumstances? Holding: No. D contends this is an inter-branch dispute between officers of the executive branch and lacks requisite justiciability. However, special prosecutor has been given special authority to pursue the criminal prosecution and has standing to bring this action in court. The doctrine of separation of powers does not preclude judicial review of a presidents claim of privilege, because it is the duty of the courts to say what the law is with respect to that claim of privilege, even if the judicial interpretation varies from the presidents. The presidents need for and the public interest in the confidentiality of communications is accorded great deference. But absent a need to protect military, diplomatic, or sensitive national security secrets, in camera inspection of presidential communications will not significantly diminish the interest in confidentiality. Legitimate judicial needs may therefore outweigh a blanket presidential privilege. Application of a balancing test to the interests involved results in affirmation. P sought subpoena to assure fair and complete evidence in a criminal proceeding, pursuant to the fundamental demands of due process. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. Executive privilege is not specifically in Constitution Nixon gets his argument from separation of powers concept Nixon argues he is Chief Executive and that gives me certain responsibilities and in order to perform these duties effectively, he needs executive privilege This rests solely in the need for candid (privileged) advice from his advisors The court uses a balancing test: Fair administration of justice system VS. need for candor/ability to do his job Court says the fair administration of criminal justice system is quite heftyand the presidents need for candid advice is too attenuated

In camera inspection: judge looks at something ex parte in the privacy, secrecy of chambers Occurs when one side claims a document is privilege party claiming privilege submits document to judge with brief explaining why Clinton v. Jones, (1997) (No presidential immunity for unofficial conduct) Facts: Jones sued Clinton for sexual harassment civil damages while he was president. Rule: President does not have temporary immunity from civil damage litigations arising out of acts committed prior to his presidency. Issues: Must a claim by a private citizen against the president, based on action allegedly taken before his term began, be deferred until the expiration of the presidents term of office? Holding: No. No good reason to grant immunity for unofficial conduct. There is no precedent supporting Clintons position that he should have immunity from unofficial acts purely because of his identity of his office. The president is not above the laws subject to them as a private citizen and publicly by impeachment. Whatever the outcome of this case will not curtail the scope of the official powers of the executive branch. The fact a federal courts action might burden the presidents time does not establish

Con Law Gardner 14 of 63 a constitutional violation. Courts have the authority to determine whether a presidents official actions are within the law. Presidents are subject to judicial process in other areas such as complying with a subpoena. The separation of powers doctrine does not require federal courts to stay all private actions until he leaves office. There is no grant of immunity. A long delay would increase the risk of prejudice to P resulting from loss of evidence, impaired memory, or perhaps death of a party. If greater protection of the president is necessary, congress can provide legislation. Use the balancing test set forth under Nixon. Courts interest is in efficiency. Justice Breyer (Concurring) While there should be no automatic temporary immunity, the courts cannot unduly interfere with the presidents performance of his duties. Schedule must not significantly interfere with the presidents ongoing discharge of official duties.

Impeachment
Two presidents, Johnson and Clinton have been impeached and tried by the senate. Both were acquitted. Article II, 4 The President [or] Vice Presidentshall be removed from office on impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanors. Impeachable offenses There is substantial question as to what constitutes an impeachable offense. Must it be a criminal offense? One view has been that offenses must be of a serious crime Another view is that the offense need not be an actual crime, it is sufficient if there has been a serious breach of trust in the integrity of the office, an abuse of government process or use of power, etc. unfitness for office. SCOTUS has held that matters regarding congressional impeachments involve non-justiciable political questions. Thus, whether the definition of impeachable offenses includes conduct besides statutory criminal offenses, or includes every criminal offense, is left to the judgment of congress. The roles of the house and the senate, beyond the basic principle that the House may vote to impeach and the Senate holds a trial of the charges, are left to the discretion of the respective houses. Even the question of the appropriate sanction in the event of the conviction is left to Congress.

Judicial Review of Congressional acts

Judicial Review Although there is no specific provision for judicial review, the constitution creates an independent judiciary with power equal to the other two departments. Article III creates the SCOTUS and extends the judicial power to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties madeunder their authority. The judiciary was thus responsible to decide the cases using the constitution as supreme law. Marbury v. Madison, (1803) (Establishing Judicial Review) Facts: Marbury was appointed justices of the peace for DC by President Adams and confirmed by the senate on Adams last day of office. His formal commissions were signed but not delivered. Madison, the SoS decided to withhold the appointments. Marbury brought a writ of mandamus to the SCOTUS under Judiciary Act of 1789, which established US courts and authorized SCOTUS to hear writs of mandamus. Rule: The Supreme Court has the implied power from the Constitution to review acts of Congress and to declare them void if they are found to be repugnant to the Constitution.

Con Law Gardner 15 of 63 Issue: Is the Supreme Court empowered to review acts of Congress (here it is the Judiciary Act) and void those that it finds to be repugnant to the constitution? Holding: Yes. Marbury does have a right to commission, he has a legal remedy and is entitled to a mandamus, but the Supreme Court lacks the power to issue it. The facts demonstrate a plain case for mandamus action under the Judiciary Act this court could act. P claims that since the original grant of jurisdiction is general and the clause assigning original jurisdiction to the SCOTUS contains no negative or restrictive words, the legislature may assign original jurisdiction in addition to that specified in the constitution. But Ps contention would render the clause ineffectual, inadmissible construction. The Judiciary Acts grant of unconstitutional jurisdiction is void. The grant of judicial power extends to all cases arising under the Constitution and laws of the US, indicating that the courts must consider the Constitution. Since the constitution is superior to any ordinary legislative act, it must govern a case to which both apply. The Supremacy Clause (Article VI 2) declares that the Constitution and those acts of Congress made in pursuance thereof shall be the supreme law of the land. Thus, the Court must determine when such acts are actually made in pursuance of the Constitution.

a. Judiciary Act, 13 authorizes SCOTUS to issue mandamus in this case b. But, 13 is unconstitutional, violating Article III, 2, cl. 2.
The specific language is: 1. This provision strictly divides original and appellate jurisdiction. To read it differently would make constitution for without substance mere surplusage 2. Article III, 2 cl. 2 allows exercise only of appellate jurisdiction in this type of case 3. this case is of original jurisdiction 4. Therefore statute confers jurisdiction barred by constitution

c. Therefore, this portion of the Act is held void 1. Constitution is fundamental law 2. Fundamental law supersedes oral law
3. Constitutional law would be void

d. Court cant enforce unconstitutional law 4. Court has the power and the duty to say what the law is
5. idea if written Const. Implies judicially enforceable constraints 6. Judges take an oath to support the Constitution (VI, cl. 3) 7. Supremacy Clause (VI,/2) laws made in pursuance of Constitution are supreme Cooper v. Aaron, (1958) (Supreme Court is final interpreter of Constitution) Holding: The Supreme Court is not just the final interpreter of the constitution for the judicial branch, but they are the FINAL arbiter of the Constitution. Other branches interpret the constitution when executing their duties, but it is the decision of the Supreme Court that is binding on the other branches.

Supreme Court Review of State Court Decisions

Martin v. Hunters Lessee, (1816) (Constitutionality of the Judiciary Act)

Con Law Gardner 16 of 63 Facts: Martin was heir to VA estate of Lord Fairfax. VA claimed title to estates in 1777 throught state legislation confiscating property of British loyalists; it had conveyed title to Hunter. Hunters lessee (P) brought an action of ejectment. D defended property by US-British Treaties defending such property. VA Court of Appeals sustained Ps claim but was reversed by SCOTUS. VA court refused to comply with reversal, D appealed again. Issue: Does the SCOTUS have appellate jurisdiction over the highest state courts on issues involving the federal Constitution, laws or treaties? Can SCOTUS review state court decisions? Holding: SCOTUS can review state cases only on questions of Federal Law (did not say they could review ANY state court. State court content related decisions are final. (Think Erie Doctrine). Who has the right to seized land, everyone agrees the Constitution sets up concurrent power between the states and federal courts.

Argument in Favor of SCOTUS Review: Uniformity - Important to allow the SCOTUS to review state court decisions otherwise we could have 51 different rulings (each of the 50 states and the SCs) Lack of trust in state judges Dont trust state judges with federal law, they might have other motives to subvert federal law Virginias arguments (and how Story rebuts them) SCOTUS appellate review may insult state sovereignty This restriction on state sovereignty is incompatible with Constitutional plan (Supremacy clause) Compromises independence of state judiciary (they are not ind., have to follow federal law) SCOTUS might abuse this power (where there is ultimate power, always possibility of abuse) Sufficient state judges take an oath to support Constitution (Const. presumes bias (ex. diversity jurisdiction creating impartial out of state forum), even honest opinions may differ in uniformity) Structure of Review: Fed US SCt State

US Ct. App

State Sup. Courts

US Dist Ct F F=federal question S=state question S F S

State lower Courts

HYPOTHETICAL: Supreme Court Jurisdiction: Voluntary prayers in public schools and public buildings NOTE: DO NOT ACCEPT STRUCTURE OF OPPONANTS ARGUMENT, MAKE YOUR STRONGEST ARGUMENTS FIRST!!!!!

Con Law Gardner 17 of 63 Questions: 1. Does Congress have the authority to X (Constitutionality of law?) Looking for evidence in the Constitution to pass this law 2. If they do have the authority to pass this law, is it barred by any limitation? Amendments, etc.

FORConstitutional because: -Constitutional exercise of Congressional power to: -limit SCts appellate jurisdiction

I. II.

Congress HAS the power to limit the Supreme Courts appellate jurisdiction i. Article III, 2, cl. 2 tell us that Congress can make exceptions. ii. McCardle: valid repeal of formerly granted jurisdiction This law is a valid exercise of that power i. Because this law creates an exception within the meaning of Article III ii. Eliminates appellate jurisdiction of the court over one class of cases (those relating to prayer in public school) iii. McCardle: valid repeal of formerly granted jurisdiction

AGAINSTThis law is not a valid exceptionbecause I. Congress does not have power to make any exceptions to Supreme Courts appellate jurisdiction i. Judicial power extends to all cases ii. Article III/2/cl.1 II. Congress cant make this kind of exception to Supreme Courts appellate jurisdiction III. Congress cant make this particular exception to SCOTUSs appellate jurisdiction

Supreme Court jurisdiction

Exparte McCardle, (1869) (Congressional withdrawal of jurisdiction during consideration) Facts: After Civil War, Congress imposed military government on former confederate states. McCardle was held in military custody and sought a writ of habeas corpus pursuant to an 1867 Act of Congress, but the federal court denied the petition. P appealed to SCOTUS as provided by the Act. After a hearing, but before the final decision, Congress repealed the portions of the Act that permitted the appeal. Issue: Does congressional negation of previously granted jurisdiction preclude further consideration of matters brought to the SCOTUS based on that jurisdiction? Holding: Yes. Supreme Courts jurisdiction is conferred by the constitution subject to make exceptions and under such regulations as Congress shall make. The first congress established the federal courts and prescribed regulations for jurisdiction. Here congress has expressly removed jurisdiction previously granted. The Court may not inquire into the motives of Congress; without jurisdiction, the Court cannot proceed to consider the case. No judgment can be rendered in a suit after the repeal of the act under which it was brought and prosecuted. Judicial duty requires rejection of ungranted jurisdiction as much as it requires exercise of valid jurisdiction.

Con Law Gardner 18 of 63 Note: This was the 3rd major attempt to have the court review the Reconstruction Acts. McCardle has never been directly reexamined by the Court, although Justice Douglas doubted whether its rationale would prevail today. Limits on Congressional authority Two theoretical limits on congresss authority over the Courts jurisdiction. 1. Congress should not be able to interfere with the essential role of the Court in the constitutional scheme. This would include interference with the Courts independence as by altering appellate jurisdiction in response to specific court opinions. 2. Congress should not curtail jurisdiction in a manner that impairs the rights of litigants, ex. limits on jurisdiction should not violate litigants due process and equal protection rights. Modern attempts to limit the Courts jurisdiction In modern times, legislation to limit the Courts jurisdiction has been introduced in response to particularly controversial decisions, ex. Miranda decision, busing decisions, school prayer and abortion decisions. To date, these proposals have not succeeded.

Powers of Congress
Legislative Power Article I, Section I lodges all legislative power to congress. This is the power to make laws and to do all things needed to enact them (such as hold hearings, conduct investigations) Delegated Power The powers of congress are specifically enumerated. Federal government is of delegated powers only, and every federal statute, therefore must have as its basis one of these enumerated powers. Article I, Section 8 sets forth many of Congress powers, such as power to lay and collect taxes, regulate interstate and foreign commerce, declare war, etc. Certain other provisions of Constitution and amendments grant powers to congress. (ex. 14th Amendment guaranteeing due process and EP). Necessary and Proper Clause The specific powers of Congress may be enlarged.

McCulloch v. Maryland, 1819 (Establishing a National Bank) Facts: Federal government created a banking system that competed against Marylands chartered banks and Maryland tried to tax the federal bank, federal government said, states couldnt tax federal government. Rule: (1) Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the necessary and proper clause. (2) The Constitution and the laws made pursuant to it are supreme and control the Constitution and the laws of the states and cannot be controlled by them. Issues: 1. Can Congress incorporate a bank under a doctrine of implied powers? 2. Is federal government supreme over states so it is immune from taxation by states? Holding: Yes to both. I. Congress has the power to charter a bank A. Members of the 1st Congress thought that the Const conferred this power on Congress A lot of these people had had a hand in drafting the Const., so this should carry some weight

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B. State power NOT supreme: Constitution is delegation from the people

C. The power to charter a bank is implicit 1. No express power to charter a bank 2. Express enumeration is unnecessary 10th Amendment: speaks only of powers delegated to the US i. the word expressly is omitted unlike Articles of Confederation (2) Constitution must be read differentlynot a legal code 3. A grant of power implies grant of means of execution (still has to prove grant of power) Constitution grants Congress lots of powers that couldnt be accomplished without bank (powers to tax, borrow, make war) D. This is a Constitutional use of the necessary and proper clause (N&PC) txtual arg. 1. Necessary means convenient or useful not indispensable a. Common usage/ plain meaning p. 90 Common usage arg. (if you need to find the common usage of a word used in the constitution, need to use dictionary from that time only one is Samuel Johnson) b. Article I/10/2 says absolutely necessary this sounds like indispensable so just necessity cant have that same intensity and degree in its meaning. c. Narrow construction dangerously limits Congressional power This is an argument based on bas consequences d. Marylands reading has other flaw, makes proper redundant

2. Clause = grant of power, not a limit upon it

Article I/8 is laundry list of granted powers, including necessary and proper clause

3. Clause enlarges the granted powers, not restrict them 4. This passes the relevant test
a. TEST: Means/ Ends i. ends: legislature within scope of Const. ii. means: appropriately and plainly adapted to end Marshall never says which of these powers is relevant and therefore never really identify the Congressional ends b. Court defers to Congress on degree of necessity II. State cant tax federal bank A. State taxing power is not absolute Article I/10/2

B. This limitation is implicit in the Constitutional plan

1. Supreme Court 2. Power to tax is the power to destroy 3. Political incongruity in a state taxing the federal government Ultimate check on abuse of power is political (an electoral check). If Congress passes a law creating a bank, then assumed that people of U.S. want a bank

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Appropriate political constraint on the fedl govt must be exercised by federal polity (by people of U.S. not people of one state)

US Term Limits v. Thornton,(Dissent) (Changing Congressional Qualifications) Majority: Follows II (B) under McCulloch Dissent: Issues that divided Court: What is the extent of the state power and how do we determine it? Justice Thomas States have all powers except those EXPRESSLY denied them

Federalism
Vertical separation of powers We have federalism to protect liberty Gives powers incentive to be competitive rather than cooperative Federal system creates a double security At one level you have national govt But its separated into 3 different branches that struggles against one another and it creates one level of security We also have state govt that struggles against fedl govt further within state govt have 3 branches similar to federal govt that struggle against each other to provide another level of security however this system also institutionalized inefficiency It is not always clear what power is allocated to federal govt and what power is allocated to state govts

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Commerce Clause
Article I, 8, Cl. 3 Early Commerce Clause Decisions
Gibbons v. Ogden, (1824) (Steamboat Licensing) Yes. Congress exercises a power to create a licensing scheme for coastal trade. People could apply to the federal government if they wanted to engage in interstate commerce by boat. Court says congress has power for this. U.S. v. E.C. Knight, (1895) (Antitrust Act preventing sugar company merger) No. Antitrust prosecution under Sherman act to stop merger of sugar companies that controlled 98% of sugar refining in US. SCOTUS defined federal power by defining scope of the words commerce and interstate. Essentially limited commerce to transportation across state lines (narrowing Gibbons), holding manufacturing and production were not interstate commerce. This narrow definition of commerce has not survived. Shreveport Rate Case, (1914) (RR charging higher rates for interstate travel) Yes. Court ruled that the congressional interstate commerce power necessarily embraces the right to control the operation of all matters having a close and substantial relation and effect on interstate traffic and commerce; this power includes regulation of the intrastate rates of an interstate carrier that discriminated against interstate railroad traffic. Because the RR was charging higher rates for interstate distances than for equal distances within the state, the intrastate trade benefited. Court stated that whenever the interstate and intrastate transactions of carriers are so related that the government of one involves the control of the other, Congress, and not the state, must regulate the transactions. The focus on the practical impact of state regulation differs from Knight emphasis on logical nexus. Stafford v. Wallace, (1922) (Prohibited unfair and deceptive practices in meat packing industry) Yes. Regulation of local stockyard was upheld on theory that they were a throat through which the stream of beef production flowed from one part of the country to another. Champion v. Ames, (1903) (Congress can limit interstate movement of lottery tickets) Yes. Court relied on Commerce Clause holding that lottery tickets are subjects of traffic and therefore are subjects of commerce in prohibiting interstate shipment of tickets in violation of federal law. The Court reasoned that just as a state may protect its residents by forbidding all lottery ticket sales, say may Congress protect US citizens from lottery tickets by legislating state to state traffic. Hammer v. Dagenhart, (1918) (Child Labor case) No. Refused to allow its reasoning in the Lottery case. Concentrated on the character of the transported products in ruling that the power to regulate commerce is not a congressional police power. The law is not regulating interstate transportation, but rather an attempt to regulate the ages of children working in manufacturing and mining industries within the state, which is solely a local matter. Overruled by Darby.

13. Commerce Clause the national economy

NLRB v. Jones & Laughlin Steel Corp., (1937) (Labor relations affecting commerce) Facts: National Labor Relations Act provided for union-employer collective bargaining in all industries affecting interstate commerce. Steel manufacture claimed congress has no power to regulate its industry. D was an integrated company owning subsidiaries all over US, 75% of product was shipped out of state. NLRB ordered D to comply with provisions.

Con Law Gardner 22 of 63 Rule: Congress can regulate any activity that has a significant effect on interstate commerce. Holding: Affecting commerce means burdening or obstructing commerce or the free flow of commerce, or leading or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. Labor strife could conceivably cripple entire interstate operation of company. Justice McReynolds (Dissent +3) Claim arose out of discharge of 10 men for union activity out of 10,000 men who work at Ds factory. Effect on interstate commerce is highly indirect and remote. Regulating by prohibiting commerce: United States v. Darby, (1941) (If dont comply with minimum wage cant ship interstate) Facts: Fair Labor Standards Act prescribed maximum and minimum wages for works who manufactured goods for interstate commerce and prohibited interstate shipment of goods made by workers not employed in compliance of the act. Darby violated the act. Rule: Congress can regulate the hours and wages of workers who produce goods that will become interstate commerce and can prohibit the shipment of those goods. Holding: Interstate shipment of manufactured goods is clearly subject to congressional regulation. Congress has in the past prohibited interstate shipment of various articles pursuant to public policy; and the Court has no control over legislative judgment of public policy. Prohibition of interstate shipment of goods is constitutional as long as the labor standards involved are properly within federal scope of power. Congress may choose appropriate means of accomplishing their labor standards policy. Federal power extends to intrastate activities directly affecting interstate commerce. This overrules Hammer v. Dagenhart. Aggregation of Local Activities: Wickard v. Filburn, (1942) (Grew excess wheat for his personal use) Facts: Wickard, Sec. of Agriculture, imposed a marketing penalty upon the portion of Filburns crop grown in excess of his allotment under the Agricultural Adjustment Act. P sued claiming application of marketing quota to him was beyond Congresss commerce power, sine he used all the wheat on his own farm. Rule: Congress may regulate individual home production based on the substantial effect on interstate commerce of the aggregate of such local activity. Holding: The purpose of the Act is to restrict supply of wheat in order to maintain price and the power to regulate commerce includes power to regulate prices at which commodities are sold. Commerce among the states in wheat is large and important, so the subject is clearly within Congresss power. Even if the activity is local and not regarded as commerce, it may be reached by Congress if it exerts a substantial economic effect on interstate commerce. The Ps effect is trivial, but that is irrelevant because together with many others similarly situated the effect is far from trivial. (No one would buy wheat if they could produce it themselves.) Heart of Atlanta Motel v. US, (1964) (Prohibits racial discrimination in private motels) Fact: Owner of hotel refused to rent rooms to African Americans, sought judgment that Title II of Civil Rights Act of 1964 was unconstitutional. Issue: May congress prohibit racial discrimination by private motels that accept out-of-state business?

Con Law Gardner 23 of 63 Holding: Yes. Civil Rights Act contains many examples of how racial discrimination places burden upon interstate commerce, which comprehends the movement of persons through more than one state. Congress may regulate commerce that concerns more than one state and has a substantial relation to the national interest. Doesnt matter hotel was local, if it is interstate commerce that feels the pinch, then it does not matter how local operation that applies the squeeze. Determinative Test Determinative test of the exercise of power by the congress under the CC is simply whether the activity sought to be regulated is commerce which concerns more States than one and has a real and substantial relation to the national interest.

Katzenbach v. McClung, (1964) (Restaurant cant exclude African Americans) Facts: McClung owner of a restaurant that excluded African Americans from its dining accommodations, challenged Title II of the Civil Rights Act. Rule: Congress may use its commerce power to forbid racial discrimination by a restaurant on the sole ground that slightly under one-half of the food it serves originated from outside states. Holding: Discrimination in restaurants results in fewer sales of interstate goods and interstate travel was obstructed directly. Once the court finds a rational basis for finding a chosen regulatory scheme necessary to the protection of interstate commerce, the only inquiry is whether the facts fit the scheme. P serves food, a substantial portion of which has moved in interstate commerce. Standard of Review Rational Basis. Connection needs to be demonstrated between the movement of food and its effect on interstate commerce. Court does not take a close look, like McCulloch it is very deferential to Congress. Use of commerce power to fight crime: Perez v. U.S., (1971) (Commerce power to fight loan sharking) Facts: Consumer Credit Protection Act contained a provision that extended federal criminal jurisdiction to extortionate credit transactions (loan sharking). Perez was convicted under the act, he tests its constitutionality. Rule: Congress may use the commerce power to define and regulate a class of activity that might include individual acts unconnected with interstate commerce. Holding: Congress may define a class of activities having an effect on interstate commerce, provided it appropriately considers the total incidence of the practice on such commerce. Even purely intrastate activities may affect interstate commerce. Congresss definition of the class here is supported by adequate findings that loan sharking provides organized crime substantial revenue with which to affect interstate commerce in many forms. Congress did not have to prove that Perezs actions themselves affected interstate commerce. A class of activities is enough to prove and government just has to show that D is a member of that class. Dissent by Justice Stewart: No rational distinction between loan sharking and other crimes, unconstitutionally infringes on state power to define and prosecute local intrastate crimes.

New Limits on Commerce Power since 1995

Con Law Gardner 24 of 63 U.S. v. Lopez, (1995) (Gun-Free School Zone Act is unconstitutional) Facts: Congress passes Gun Free School Zones Act making it illegal for any person knowingly to possess a firearm in a school zone. Lopez carried a gun to school and was convicted. Rule: Congress only has the power to regulate those activities having a substantial relationship to interstate commerce such that the activities substantially affects interstate commerce. Holding: This Act is a criminal statute that has nothing to do with commerce. Possessing a gun in a school zone does not arise out oaf a commercial transaction that substantially affects interstate commerce. Congress argues possession of a firearm in school zones does affect interstate commerce because it might result in violent crime. This imposes costs on society, which are borne throughout the country in insurance rates. It disrupts the educational process, leads to less productive society. If either of these arguments are accepted there would be NO LIMITATION on federal power. They are pilling inference upon inference and result would uphold a general police power of congress. For the first time in 60 years congress lacked the power to pass the law.

1. Its not commercialnot economicits VIOLENCE 2. No jurisdictional limit 3. No findings, no reasons given to what the link is between this act and commerce (maybe if they 4.
had explained it, Court would have been a little more supportive) if Congress can do this, there would be no limits, creates police power

Justice Souter (Dissent): Court should not be placed in position to make determination of what affects commerce, should defer to congress. Justice Breyer (Dissent): Congress can regulate local activity, must consider cumulative effect of all instances similar to the one in the specific case. U.S. v. Morrison, (2000) (Violence Against Women Act) Facts: Morrison raped a female student and made vulgar remarks about women. P sued under the Violence Against Women Act, which provided a damage remedy for a victim of gender motivated violence. D claimed civil remedy was unconstitutional. US intervened to defend the Act under the Commerce Clause or section 5 of the 14th Amendment. Rule: Congress may not provide a federal civil remedy for a violent crime on the ground that the aggregate effect of such crimes substantially affect interstate commerce. Holding: The Court applies the Lopez test: 1. Not commercially motivated violence its just violence 2. No jurisdictional limit (on a train, on a plane, on a stationary campus) 3. Congress made extensive findings demonstrating that it had a rational basis to believe that there was an affect on interstate commerce (court here said in this case were not impressed findings alone are insufficient. 4. Link between violence and women is too attenuated Police power should be left to the states. Congress has no power to regulate non-economic, violent criminal conduct based solely on the aggregate effect in interstate commerce.

Con Law Gardner 25 of 63 Justice Thomas (Concurring): The notion of substantial effects test is inconsistent with the Constitution. Let congress act with virtually no limits.

HYPO PROBLEM: COMMERCE POWER Economic v. Commercial. Economic is broader than commercial. Commercial is more like trade, buying and selling, economic is far more broader. Birds are not economic actors. There is a structural problem, a race to the bottom giving states incentive not to do it and to the extent that congress really can regulate pollution as a problem. It is less direct than interstate regulation. Economic actors are the people who follow around the birds as they move from place to place. SWA: Exceeds congressional power I. Law regulates non-commercial activity even though the court has not articulated a clear test, it was concerned about something, we need to find what that something is. Certainly one part is that the activity regulated has to be commercial. A. This regulates environmental activity this is not commercial. B. The link to economic activity here is too attenuated i. birds not economic actors ii. Economic activity is one step removed comes from people who follow birds iii. This principle has no limit, the chain can go on forever. You want to say you said commercial, this is not commercial. Commercial activity follows the heals of. Army Corps.: the Law is OK I. Wickard: In the aggregate this substantially affects commerce II. This does regulate economic activity A. Migratory birds is a multibillion dollar business III. There is a subs effect on interstate commerce A. It is billions of dollars B. The link is even more direct than in Lopez and Morrison we have an industry dependent on these . In Lopez there is no industry dependent on guns in school zones and Morrison has no industry dependent on beating of women.

State sovereignty
National League of Cities v. Usery, (1976) (Cant have set minimum wage of state workers) The court struck down Fair Labor Standards Act amendments that would have extended minimum wage and maximum hour protection to state employees. Court held congress impermissibly interfered with integral government functions of states because it would have displaced state policies regarding the manner in which states chose to deliver the services their citizens require. Four justices dissented. This was overruled by Garcia 9 years later. Garcia v. San Antonio Metropolitan Transit Authority, (1985) (Cong. can enforce min. wages on state) Facts: Transit authority received substantial federal assistance. After Usery, thought FLSA no longer applied to them. Dept of Labor says it they are not immune from FLSA. Garcia sued for overtime pay. Rule: Congress may enforce minimum wage and overtime requirements against local governments mass transit authority.

Con Law Gardner 26 of 63 Nothing in FLSA destroys state sovereignty. States have political influence on congress, especially in the senate where each state is equal. Court wants states to resort to political process. States argue that congress is invading the state budgetary process. What does it mean to be sovereign if you cant spend at a certain rate? States dont want to raise taxes to pay for minimum wages. Unless there is some failure of the political process, then the Court will go back to helping states. Limit on Congressional regulatory authority New York v. United States, (1992) (Radioactive waste disposal in NY) Facts: Low level radioactive materials needs to be disposed in different states, no one wants to do it. NIMBY (Not In My Back Yard) problem. New York does not want to dispose of waste. Rule: Congress may encourage states to provide for the disposal of radioactive waste generated within their borders, but it may not compel them. Holding: Congress cannot directly compel states to enact and enforce a federal regulatory scheme. Congress may create incentives to adopt legislative proposals. Congress has done so by attaching conditions on the receipt of federal funds. This does not compel state action. Congress creates 3 incentives, third incentive requires states that do not regulate according the incentives to take title to and possession of waste generated in their borders. This is not permitted. This commandeers state governments into the service of federal regulatory purposes. The goal is ok, method is bad. This was an exception to Garcia and they do not let the political process handle it. Justice White (Dissent): There was a bargain by the states, states wanted to handle it. The states wanted the federal government to handle this, now NY is backing out of the deal. Limit on congressional power to use state officers directly Printz v. U.S., (1997) (Gun bill makes local law enforcement enforce federal law) Facts: Federal Brady gun act required a national system to instantly check backgrounds of prospective handgun purchasers. Act required, while pending establishment of a national system, that CLEO chief law enforcement officer of each local jurisdiction conduct the background checks. Sheriff challenged statute under NY v. US. Rule: Congress cannot compel state officers directly to enforce a federal regulatory program Holding: No constitutional text addresses congressional action compelling state officers to execute federal law. Historical practice has required state judges to enforce federal prescriptions, but courts commonly apply law of other sovereigns. Commandeering executive branch is no good 1. disrupts state/ federal balance by allowing the federal government to conscript state police 2. disrupts separation of power on the federal level because Congress can by pass the executive and the President 3. Political incongruity blurs the line of political accountability Testa v. Katt requires state courts to enforce national laws.

Con Law Gardner 27 of 63 Reno v. Condon, (2000) (Drivers license personal information use) Court held that drivers personal information gathered by state motor vehicle departments is a thing in interstate commerce because it is used by insurers, manufacturers, marketers, and others engaged in interstate commerce to contact drivers customized solicitations. Court unanimously held Congress had authority to limit disclosure of this information by state authorities. State sovereign immunity limits on congressional power Seminole Tribe of Florida v. Florida, (1996) (Indian tribe gambling in Florida) Facts: Seminole tribe sought to conduct certain gambling activities in FL. Indian Gaming Regulatory act allowed such activity only in conformance with a valid compact between a tribe and the D. Act requires states to negotiate in good faith with Indian tribe toward forming such a compact, and authorizes tribe to sue a state in federal court to compel negotiations. P sued D in federal court to negotiate. Rule: The 11th Amendment prevents Congress from making the State capable of being sued in federal court. Holding: Under 11th Amendment, federal judicial power does not extend to a suit against a state brought by citizens of another state or by subjects of a foreign state. Amendment reflects the principle that each state is a sovereign entity and that a sovereign entity is not amenable to the suit of an individual without its consent. Congress may abrogate states sovereign immunity where it intends to do so and acts pursuant to a valid exercise of power. The language of this act expresses the intention to abrogate state immunity. Court traditionally found only 14th Amendment gives Congress power to abrogate state immunity. Alden v. Maine, (1999) (Probation officers suing for violations under FLSA) Facts: State employees sue the state for violating the FLSA and sought compensation. Rule: Powers delegated to Congress did not include the power to subject non-consenting states to private suits for damages in state courts. Holding: Respondent didnt consent to suites for overtime pay under FLSA. What recourse do state employees have if the state refused to pay minimum wage? Court is not overruling Garciathey are saying that state employees have no way of enforcing these provisions US can still bring suit against the state Federal government can still sue for employees (not likely) Justice Souter (Dissent) state sovereign immunity isnt as a mater of historical record a significant constitutional principle, but has the fallback argument that even if the constitution does embody such a principle, it doesnt apply in this case because sovereign immunity means that if a sovereign state passes a law, it cannot be sued from its own law that it issues from its own sovereignty. It has no application to law suits from different sovereigns or higher sovereigns like federal law. Three ways to justify Sovereign Immunity: Common Law Cannot sue the crown without its consent. Dissent says we are not monarchy. Natural Law States cant have their sovereign immunity taken from them. Constitutional Sovereign Immunity A system of positive law. Majority says congress has lots of ways to regulate state activities: 1. Voluntary Compliance 2. States can waive sovereign immunity

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3. 14th Amendment 5 Congress can abrogate in civil rights and due process cases
4. Can sue local governments Doesnt enjoy states immunity (doesnt help state employee) 5. Sue state officers for monetary damages 6. U.S. can sue directly Kimel v. Florida Board of Regents (2000) Court held that Congress could not subject state employers to litigation brought by private individuals, even under 5 of the 14th Amendment. Garrett Cannot sue under disabilities act unless state waves sovereign immunity. Federal Maritime Commission v. South Carolina State Ports Court gives states permission to do what they please, federal agencies do not wield judicial powers, but are part of the executive branch because of enforcement.

The Spending Power

U.S. v. Butler, (1936) (Taxing to regulate agricultural production) Facts: Agricultural Adjustment Act extended benefit payments to farmers who agreed to reduce their planted acreage in an attempt to stabilize farm prices. Processors of the covered crops were to be taxed to provide a fund for the benefit payments. Butler was a receiver for a processor who paid the tax and brought suit to recover it on grounds that it was part of an unconstitutional program to control agricultural production. Issue: May Congress use its taxing and spending powers to operate a self contained program regulating agricultural production? No. Holding: Appropriations cannot be made as a means to an unconstitutional end. Regulation of agricultural production is not a power granted to congress, therefore it is left to the states. Attainment of such a prohibited end may not be accomplished through the use of granted powers, here the taxing powers. The scheme, purportedly voluntarily, in reality involves purchasing, with federal funds, submission to federal regulation of a subject reserved to the states. It may not be done indirectly through the taxing and spending power. Note: This narrow view of the federal commerce power and expansive view of the 10th Amendment has not survived. The following year the court flipped. Federal influence over state regulation through the spending power South Dakota v. Dole, (1987) (19 year olds trying to buy beer) Facts: South Dakota permitted anyone 19 years old or older to purchase beer. Congress adopted a statute withholding 5% of federal highway funds from any state allowing someone under 21 to purchase alcohol. Rule: The independent constitutional bar limitation on the spending power is not a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Holding: Congress has authority to impose conditions on the receipt of federal funds, even to attain objectives it might not be able to attain directly. The spending power is limited in four ways: 1. it must be used to the pursuit of the general welfare

Con Law Gardner 29 of 63 2. any conditions imposed must be unambiguous, so the state may make knowing choices 3. the conditions must be related to the federal interest in particular national programs 4. the conditions must not be barred by other independent constitutional provisions Here, the statute is consistent with the first three limitations as it is intended to promote safe interstate travel. P claims it violates the fourth limitation (barred by 10th Amendment). However the independent constitutional bar limitation does not mean Congress may not indirectly achieve objectives it could not achieve directly. The bar prevents Congress from inducing states to engage in otherwise unconstitutional behavior. Because a state may constitutionally raise its drinking age, Congress is not barred from imposing such a condition on the expenditure of funds. Justice OConner (Dissent): This condition is not reasonably related to the expenditure of funds for highway purposes. At best it is tangentially related to highway safety. Congress can now interfere in virtually all aspects of state government merely by citing some effect on interstate travel. SPENDING POWER HYPOTHETICAL PROBLEM Suppose Congress enacts the Gun-Free School Zones Act of 2004. The Act provides: "Any state that fails to provide for the felony punishment of the possession of a gun within 1000 feet of a school shall forfeit annually five percent of its allocation of federal highway funds." Is this law constitutional? This is an attempt to do indirectly what congress cant do directly. Isnt invalid for that reason alone? No. Dole Test: 1. in pursuit of general welfare (deferential to congress) 2. Conditions must be unambiguously expressed this is something known as clear statement rule. Conditions on the spending of federal money is disfavored. 3. The conditions if there are any have to be related to some federal interest 4. No other constitutional bar (this is sort of obvious, dont understand why it is here) 5. No coercion The two issues are if the conditions are related to the federal interests and whether the law is coercion. States will be deprived of federal highway funds. You want to argue that there is no link between school safety and highway funds. The link is much more tenuated. The best way to do this is to give me education funds. How could argue that it is coercive? You can say it is not, it is too small and to really complete that argument you refer to the Dole case. You can argue that it adds up. It would be one thing if this was the only law states have to deal with. But congress has conditioned federal highway funds in many ways. There is drinking laws upheld in Dole, and there are speed limit laws. There is also a mandatory seat belt law. The threat of loss not the hope of gain is the essence of coercion. Congress can accomplish anything it wants using the spending power. Powers of the States Dormant Commerce Clause (CCArticle I, 8)

Con Law Gardner 30 of 63 Can a state pass a particular law that regulates commerce if Congress has been silent and not enacted something on point? Cooley v. Board of Wardens (1851) (Regulating boat pilots in the Delaware River) Facts: PA passed statute requires vessels entering Philly to accept local pilots in Delaware River. Rule: Congress permits the states to regulate aspects of the commerce that are primarily local in nature. HYPOTHETICAL PROBLEM There is a crisis in NY Dairy industry and small farms are folding on a massive scale, the state is concerned so it passes the following law which limits the amount of milk dairy farms may produce. There is a state guaranteed price and stiff violations for violation of the quota. Is the STATE law VALID under the Constitution? 1. Could Congress pass a law that did these things? Yes, under aggregation theory, provided there is a link to economic activities Congress = inter 2. Is this example of regulating intrastate or interstate commerce? This hypo is state regulating INTERstate commerce under the aggregate theory 3. Can the states regulate it anyways? 4. Is power to regulate Interstate Commerce exclusive or concurrent? Gibbons: regardless of whether the power is exclusive or concurrent, if there is valid federal law existing, it trumps state law (SUPREMACY) Cooley: piloting into harbor the court says the power is CONCURRENT i. The states can regulate something that is inherently local in nature and state cannot regulate something by their nature are NATIONAL 1. LOCAL: piloting into harbors within state are inherently local 2. NATIONAL: exclusively Congressional for things that need to be uniform (need to create uniformity) National argument NY is one of the largest dairy producing states and this regulation by state could effect other states. Inherently local v. inherently national definition is an outdated way to define powers. However if this was 100 years ago: could only be state issue because 100 years ago, couldnt ship milk anywhere before it spoiled. Say Congress has not enacted a law contrary to the NY law in the field of dairy Does this mean Congress has done NOTHING? Maybe Congress didnt pass a law deliberately and that meant they intended this area to be unregulated. Leave it as private unregulated area Just because Congress hasnt regulated the area doesnt mean that Congress intended the states to regulate it.

State protectionism
Pike v. Bruce Church, Inc., (1970) (Modern balancing test)

Con Law Gardner 31 of 63 The Court set forth the modern balancing test: If a state has a legitimate local purpose for regulating and the effects on interstate commerce are merely incidental, the regulation will be upheld unless the burden clearly exceeds the local benefits. Philadelphia v. New Jersey, (1978) (Environmental discriminatory policy) Facts: NJ passed a law prohibiting importation into the state of solid or liquid wastes, in order to protect public health, safety and welfare from the consequences of excessive landfill developments. Philadelphia and other cities, as well as NJ landfill operators, challenged the law under the CC. Rule: A state cannot enact a facially discriminatory ban on out of state articles of commerce without a legitimate state interest. Discrimination against interstate commerce in favor of local business or investment is per se invalid. Holding: Ds reason for passing law may be legitimate, but the evils of protectionism can reside in the legislative means used as well as the legislative ends sought. Ds ultimate purpose may not be achieved by discriminating against out-of-state items solely because of their origin. D failed to show any valid reason for discrimination. NJs facially discriminatory statute requires out of state commercial interest to carry the burden of conserving Ds remaining landfill space in an attempt to isolate itself from a problem shared by all. Protection against such trade barriers serves the best interest of all states, and may even work to the advantage of NJ in the future. Test: Philadelphia/ Pike Test 1. Is the law protectionist? Can be protected through its ends and its means Trying to favor your own state at the expense of others (ends) Means by which they wanted to try to achieve if it is protectionist most likely struck down however, they may apply virtual per se rule of invalidity

2. Even handed
Is there a legitimate local purpose Are the effects on Interstate commerce incidental? If have 2 things abovethenBALANCING TEST Must do a cost benefit analysis test: C >> B Cost = burden on interstate commerce Benefit = 1. Nature of the local interests 2. Any less burdensome alternatives

In Philadelphia this is environmental law so this is not protectionist in its ends, but is discriminatory on its face and its means. Is it discriminatory in effect? Ask: who benefits? i. NJ waste producers who have garbage to dispose of (because there is room for their garbageno one else is allowed to dump) therefore, cost decreases. ii. Out of state landfill operators (because there is one less source of landfill so those who are shut out of NJ have to shop around at a high price) Ask: who loses:

Con Law Gardner 32 of 63

1. NJ landfill operators (because they can no larger charge high price, artificially 2.
decrease business) Out of state waste producers (have to pay more to get rid of garbage

Court does not look at any of the above---Court construes dormant CC to assume protectionist laws are unconstitutional: Today: NJ closes its landfill to outsiders, tomorrow: PA closes its to outsiders. Court is concerned about the possibility of retaliation. NJ has another option if concerned about landfills filling up: close or reduce access to them to everyone (and now NJ waste producers are lumped with those who lose above) Protectionist test: Laws that affirmatively discriminate are subject to more demanding scrutiny. In order for them to be upheld, one of the two must exist 1. Legitimate local purpose 2. No indiscriminate alternative Maine v. Taylor, (1986) (Court allows discrimination for baitfish use) The Court upheld a Maine statute prohibiting the importation of live baitfish because of the adverse biological consequences of nonnative species and parasites. The Court has upheld express discrimination against interstate commerce where the statute serves a legitimate local purpose that cannot be served as well by an available nondiscriminatory means.

State Regulation of Transportation

South Carolina State Highway Dept. v. Barnwell Bros., (1938) (Width and weight of trucks) Prior to the adoption of the Pike balancing test, the Court upheld a state statute regulating the width and weight of interstate carriers on its highways. Since Congress had not acted in this area, a state may impose a nondiscriminatory restriction and it will be upheld if it has a rational basis (here, safety and highway preservation). Southern Pacific Co. v. Arizona, (1945) (Number of railroad cars on trains) Facts: Arizona imposed restrictions on the number of cars permitted on any train operating within the state. AZ sued Southern Pacific Co., an interstate carrier, for violation of the statute. D defended on grounds that statute unconstitutionally burdened interstate commerce. Trial court found possible safety benefits of the law were outweighed by increased hazards and therefore the law imposed unconstitutional burdens on interstate commerce. AZ SC accepted legislatures findings. Rule: Where a state statute, although adopted as a safety measure, lacks a reasonable relation to safety, and the statute precludes national uniformity of regulation where such uniformity is necessary for free flow of interstate commerce, the statute cannot survive a commerce clause challenge. Holding: Although Congress has refused to pass national legislation regulating train lengths, the state law may violate the CC if it unreasonably burdens interstate commerce without an offsetting state safety benefit. Additionally, state regulation is precluded in those phases of national commerce that, because of the need for national uniformity, demand that their regulation, if any, by prescribed by a single authority.

Con Law Gardner 33 of 63 Constitutional doctrine mandates that the Court, and not the state legislature, is the final arbiter of competing state and national interests under the Commerce Clause. The serious impediment of state car limitations on interstate commerce indicates the need to uniform national legislation on the subject. Congresss inaction must be interpreted as intending that there be no restrictions on car numbers. Balancing Test Total effect of law as safety measure (and reducing accidents and casualties) IS SLIGHT when compared to national interest in keeping interstate commerce free from interferences that would impede it if length was subject to local regulation (as well as lack of conformity!) Upon review, the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interference. Barnwell Brothers distinguishable because it dealt with state highways, which are of more local concern than railroads, and because the record supported safety findings. Bibb v. Navajo Freight Lines, Inc, (1959) (Requiring trucks to have rear fender mudguards) Facts: IL statute requiring all trucks operating within the state be equipped with contour rear fender mudguards which were illegal in another state. Statute prohibited conventional mudguards allowed in 45 states. Rule: State cannot impose unique highway regulations, based on controversial safety advantages, that directly conflict with another states regulations. Holding: State highway regulation is properly subject to local determinations in most cases, and a challenge must overcome a strong presumption of validity. Unlike earlier cases, including Barnwell Bros., the statute here imposes a standard that conflicts with another states standard. The record shows a substantial burden on interstate commerce that surpasses the permissible limits for even safety regulations. State standards out of line with other states are not per se unconstitutional, but to be upheld, there must be a strong showing of compelling safety consideration. Even though the court generally defers to legislative policy decisions, it cannot uphold such decisions in light of severe interstate commerce burdens without a clearer showing than D has made to safety effects. N.Y.S. windshield wiper problem: 1. Burdens on Interstate Commerce Cost to auto manufacturer if this device is something installed in the factory or also the dealer (if the car comes from manufacturer without feature)

2. Benefits:
safety: fewer accidents

3. Does the COST greatly outweigh the BENEFITS??

One approach would to hold a trial and weigh these Suppose you get facts that costs would be $10 million and safety would be $8 million (does the cost greatly outweigh B?)

Preemption and Consent of State Authority

Three Types of Congressional Preemption

Con Law Gardner 34 of 63 1. Express statement 2. Implied occupation of a regulatory field 3. Implied preclusion of conflicting state regulations Pacific Gas & Electric Co. v. State Energy Commission, (1983) (Nuclear power plant in CA) Facts: CA prohibited certification of a nuclear power plant until the State Energy Commission made a finding that demonstrated technology for permanent disposal of high level nuclear waste had been approved by the federal government. PG&E brought argues that the state law was invalid under Supremacy Clause because the Nuclear Regulatory Commission (NRC) had federal authority to regulate use of nuclear energy. Rule: Where federal legislation preempts state legislation as to one aspect of an activity, and a state legislates as to another aspect of the same activity, and where such state legislation does not impede accomplishment of the federal objective, the state legislation is valid. Holding: PG&E made field preemption argument: falls within federal government because it concerns regulations of nuclear plants Court responded by: atomic energy does preempt but it does not preempt entire area of nuclear power (act regulates safety but has left area of economic concerns to states) In these cases, it is important to define the field. Then PG&E makes conflict argument: NRC keeps granting licenses and goal of act is to promote use of nuclear power, CA law goes against this: Court says there is no pre-emption because judgment to grant licenses is a SAFETY judgment and NOT and ECONOMIC judgment Issue: Can a plant that has been licensed by NRC be stopped by the state from building it? The court chooses to read statute narrowly by finding licensing is safety related and building is economicleaving a break for CAL to jump in Consent: This is the flip side of preemption. Congress can gives states power they usually wouldnt have under the dormant CC Congress by statute can authorize states to implement protectionist laws 2 kinds of pre-emption Field Statutory language 2 ways to pre-empt law Express 1. Pervasive scheme Implied 2. Federal interest is dominant (intl trade defense, military, foreign diplomacy) 3. Federal object or the character of its regulatory. Reveals a purpose (conflict preemption) 1. Physical impossibility 2. State law =obstacle to the Congressional purpose Partial Statutory language

Con Law Gardner 35 of 63

REVIEW OF COMMERCE CLAUSE There are two types of questions that can engage us when a question is about interstate commerce. One is when a federal law is at issue and one is when a state law is at issue. I. Validity of a federal law A. Congressional regulation of private parties 1. Congressional power is extremely broad to regulate private parties (Wickard, Heart of Atlanta, Perez). These cases are still valid. 2. Congressional power is not unlimited Lopez, Morrison B. Congressional regulation of states: unclear law seems to be in transition 1. old regime a. general rule: courts wont act Garcia b. exceptions: i. In Garcia, there is an exception when there is a failure of the political process. Court has yet to ever find this. ii. Congress cant commandeer the state legislature (NY) or executive (Printz). iii. Others? 2. New regime? The question is whether it will look like private activity section. - Reno v. Condon private info on drive licenses. Ct. did not use Garcia strategy. It did get involved and said it was ok regulation of state activity. Is there a move toward Wickard/ Lopez? 3. Congressional Enforcement of otherwise state regulated activity: Sovereign immunity bar to private attorney general actions. II. Validity of state law A. Has Congress acted in the field? 1. has Congress consented then it doesnt matter of the state law is protectionist. That is the rule of Rahrer. 2. If not consented, has Congress preempted? (PG&E) B. If not acted in the field by either of the above ways, then we are in the dormant commerce clause. (Phila/Pike) 1. Is the state law discriminatory? (Phila/Pike) i. If it is discriminatory subject to an almost per se invalidity unless it passes a demanding scrutiny (Maine) 2. If the law is not discriminatory and it is even handed, then proceed to cost/ benefit balancing and determine if the law is excessively burdensome?

Con Law Gardner 36 of 63

Individual Rights
Introduction
The Bill of Rights was added to the Constitution to provide an additional protection of both individual and states rights. Originally, the Bill of Rights limited only the power of the federal government; most state constitutions contained their own version of a bill of rights. Through the 14th Amendment, the Bill of Rights has been applied to state action. 14th Amendment 1 No state shallabridge the privileges or immunities of citizens of the U.S., nor shall any state deprive any person of life, liberty or property without due process of law. Procedural Due Process: At issue is whether person had hearing, impartial decision maker etc Substantive Due Process: What individual rights as Americans do we have? When legislation impairs a right, ask: Is this a fundamental personal right? If yes go to (1); if no go to (2) 1. Yes, the right is a fundamental personal right. These are: 1st Amendment rights (speech, press, religion, assembly, petition); interstate travel (international travel is part of liberty and is protected by due process, but not as protected as interstate travel and subject to reasonable regulations); voting; privacy (eg. Marriage, contraception, procreation, raising children, family interest); death; fairness in the criminal process (right to counsel). Here the legislation must meet the compelling state interest test: it must be necessary to promote a compelling governmental interest. 2. No, the right is not a fundamental personal right. (Instead, the statute is merely regulating social or economic interests of lesser importance.) Here, the statute is only subject to the rational relation test: If there is a set of facts imaginable that would make the law a reasonable means to achieve a legitimate state interest, the law is valid. Such laws include: Public health and safety measures and all kinds of business regulations, including trade practices, wage and hour regulations, price controls, and bans on discrimination against union (or non-union) personnel. Rights that are fundamental for substantive due process: First Amendment rights: Speech, press, religion, assembly, petition Interstate travel Voting Fairness in criminal process Privacy (marriage, contraception, procreation, abortion, raising children, family rights, declining unwanted medical procedures.) Pre-Civil War Approach: Barron v. Mayor and City Council of Baltimore, (1833) (Bill of rights only applied to federal government) Rule: Bill of Rights does not accord citizens of the US protection from state acts.

Con Law Gardner 37 of 63 The Civil War Amendments to the Constitution 13th Amendment Forbids slavery and involuntary servitude. 14th Amendment Meant to prevent continued oppressions of slaves, but went much further than the problems of slavery and race. 15th Amendment Prohibited restrictions on the right to vote based on racial grounds The Slaughter-House Cases, (1873) (Narrow interpretation of the amendments) Rule: Civil War amendments do not grant US citizens broad protection from actions of state governments. Civil War amendments must reflect their historical setting. 13th Amendment is limited to personal servitude, not a servitude attached to property. 14th Amendment clearly distinguishes between citizenship of states and of the US. Only those privileges and immunities of US citizens are protected by the 14th Amendment; privileges and immunities of state citizens are unaffected. The Constitution does not control state governments over the rights of their own citizens except to require a state grant equal rights. Equal Protection clause of 14th Amendment was to prevent state discrimination of blacks.

Justice Field (Dissent): Amendments were to protect citizens of the US against deprivation of their rights by state legislation. Note: Majoritys view of privileges and immunities has prevailed to date, so that it protects a few rights of national citizenship but not state citizenship. These include right to travel, to vote for national officers, petition Congress, enter public lands. The rights asserted by the dissenters have come to be protected by the Due Process and Equal Protection Clauses.

The Lochner era Judicial Intervention and Economic Regulation

Lochner v. New York, (1905) (Bakers working more than 60 hours) Facts: Lochner convicted of permitting a bakery employee to work more than the statutory maximum of 60 hours per week. D challenges law as violation of the liberty to contract protected by the 14th Amendment. Rule: The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor. Holding: The general right to contract is part of the individual liberty protected by 14th Amendment. The law here has no reference whatever to health, safety, morals, nor welfare of the public. State claims an interest in workers health but this goes too far, the individuals liberty must impose restraint on police power. This is not a substitution of the courts judgment for the legislatures, but merely a determination of whether the attempted regulation is within the states police power. Justice Harlan (Dissent): Court should take note of bakery conditions. Justice Holmes (Dissent): Constitution should not embody a particular economic view, but framed to express dominant opinions. Substantive Due Process

Con Law Gardner 38 of 63 a) Ends or purposes You must examine the purposes of the legislation. That is, is the object legitimate, appropriate or necessary? Does the law promote in some way the health, safety, welfare and morals of the people? This is answered from the language of the statute, legislative record, history behind the statute and is a question of law for the courts. b) Means Are the means used to accomplish the legislations purpose reasonable and appropriate? Is there a real and substantial relationship between the means used and the legitimate end? c) Effect What is the effect of the law on the liberty of the parties involved, on their property, and on their lives? If the effect is too drastic the law might violate due process. Nebbia v. New York, (1934) (Regulating prices of milk) Facts: NY passed law establishing minimum and maximum retail prices of milk. Purpose was to aid dairy industry which was in desperate situation because prices received by farms for milk were below the cost of production. Nebbia violated the statute. Rule: In the context of business subject to exercise of the police power, Due Process permits a state to regulate a selling price in a manner that is neither arbitrary nor discriminatory, and has a reasonable relation to a proper legislative purpose. Holding: As long as the Court finds the law to have a reasonable relationship to a proper legislative purpose, to be not arbitrary or discriminatory, and to have means chosen that are reasonably related to the ends sought, due process is not offended. No area is outside the province of state regulation for police power purposes, including the direct regulation of prices. Increased Deference - court begins with presumption that legislature is doing something good rather than being suspicious as in Lochner Dissent: (McReynolds) This is not regulation, but management. West Coast Hotel Co. v. Parrish Overruled Adkins by upholding a state minimum wage law for women. The Court found that the only issue for consideration was whether the legislative act was arbitrary and concluded that the legislature had the right to consider minimum wage requirements as an important means of implementing policy of protecting abused workers. Legislation must be reasonable and adopted for a purpose. Williamson v. Lee Optical Co., (1955) (Eye glass laws) Facts: Lee Optical challenged a state law that, among other things, 1) forbids an optician from fitting or duplicating lenses, even replacements, without a prescription from an ophthalmologist or optometrist, 2) prohibits advertising of eyeglass frames, and 3) prohibits optometrists from working in a general retail establishment. Rule: (1) Where a matter is one of public interest, and a legislative measure is one that is rational with respect to pursuing the interest, Due Process is satisfied. (2) Where a legislative measure explicitly (and rationally) addresses a matter that is outside the public interest but implicitly pertains to a public interest Due Process can be satisfied. Holding: Although the law may be a needless requirement in many cases, the legislature, no the courts, must balance the advantages and disadvantages of a new requirement. There is ample reason for the legislative means adopted to correct an actual evil. The law need not be logically consistent with its aims in every respect to be constitutional.

Con Law Gardner 39 of 63 The Court will not strike down state law regulatory of business and industrial conditions merely because they may be unwise, improvident, or out of harmony with a particular school of thought. The people as voters, not the courts are the protection against legislative abuse. Two ends of the spectrum: Substituting its judgment from the legislature improper expansion of judicial role Dont want the court acting as a rubber stamp, no justice either Note: Court has not invalidated any economic regulation on substantive due process since 1937.

The Right to Privacy Contraception and Abortion

Although substantive due process no longer imposes any restraints on economic regulations, Court has revived the notion as a way to protect fundamental personal rights not specifically enumerated in the Constitution, including the right to privacy. Family Rights The right of a personal choice in matters of marriage and the bearing and raising of children is protected from undue governmental intrusion in a variety of contexts and is so fundamental to society that it is afforded protection under the Due Process Clause. Hence, any regulation of familial rights must be justified by a compelling state interest and must be narrowly drawn so as to protect only the legitimate state interest at stake. Griswold v. Connecticut, (1965) (Contraception) Facts: Griswold supplied information and medical advice to married persons on the use of contraceptives. They were convicted as accessories to the crime of using contraceptives in violation of a Connecticut statute prohibiting all such use. Rule: Although the right to marital privacy is not explicitly stated in the Bill of Rights, it is a penumbra, formed by certain other explicit guarantees and rights such as the right to be counseled about contraceptives are protected against any state regulation that is unnecessarily broad. Holding: The specific guarantees in the Bill of Rights have penumbras, or peripheral rights, which make the specific rights more secure. A right of privacy has been noted in earlier cases, and ought to especially protect the marriage relationship. The statute is overbroad and thus void. Right of privacy Penumbral right arising from various rights found in the Constitution: 1st Amendment (association), 3rd Amendment (home), 4th Amendment (person and property), 5th Amendment (privilege against self incrimination), and 9th Amendment (enumerated rights do not deny existence of others not enumerated). The right of privacy is also a form of liberty protected by the 14th Amendments Due Process Clause. Black and Stuart (Dissent) Universe of liberty (all possible liberties) According to dissent, liberties protected by 14th amendment are: Whats provided by Bill of Rights (speech, unreasonable search and seizure) They say that they dont see anything about privacy there Douglas (for Majority) Rights protected are: Bill of rights (1st 4th 5th) but these amendments have emanations and penumbras (to effectuate these rights!) And therefore they have much bigger territory and collectively they create the ZONE OF PRIVACY Goldberg (Concurring)

Con Law Gardner 40 of 63 Uses 9th amendment (we have individually incorporated rights but we also have 9th amendment) 9th amendment does not mention any specific rights but mention other rights not specifically mentioned Framers intent argument How do we know what other is? Look to TRADITIONS and COLLECTIVE CONSCIENCE OF THE PEOPLE Harlan (Concurring) We just have some kind of liberty under 14th amendment The 14th amendment is not limited to bill of rightsit incorporates some of them but ITS NOT CONFINED TO THAT How do we fill in the blanks? History (status quo) Basic values of society (status quo) Separation of powers Federalism 2 Stage Analysis for Individual Rights: 1. Figure out if there is a protected right 2. Has this right been constitutionally infringed here? Rational basis scrutiny test tests that looks at the means and the ends. You can have a right, but if the court chooses to evaluate a right under the rational basis standard, it means the right is a weak one. Strict scrutiny is for a right that is strong, fundamental rights. Standard of Review: Rational Basis (for non-fundamental rights) Ends Means Legitimate Rational Strict Scrutiny (for fundamental rights) Compelling government goal or interest Necessary for the achievement of compelling government interest

Roe v. Wade, (1973) (Abortion) Facts: Roe, unmarried and pregnant, sought declaratory and injunctive relief against Wade, a county DA, to prevent enforcement of a TX criminal abortion statute. Rule: 14th Amendments right to privacy is broad and encompasses a womans decision of whether or not to abort. Holding: Court uses strict scrutiny in abortion regulation. P claims constitutional right to terminate her pregnancy, based on 14th Amendment concept of personal liberty, the Bill of Rights penumbras and the 9th Amendment. D claims a state interest in medical procedures to ensure patient safety and protecting human life. Right to privacy generally relates to marriage, procreation and contraception, and includes the abortion decision, but is not without restraint based on the states compelling interests. The states interest in prenatal life cannot be based on the fetuss right to life, for a fetus cannot be considered a person in the constitutional sense. Pregnant woman cannot be isolated in her privacy. State may decide at some

Con Law Gardner 41 of 63 point another interest, that health of the mother or that of potential human life, becomes significantly involved. States interest in mothers health becomes compelling at approximately the end of the first trimester, prior to which mortality is abortion is less than mortality in normal childbirth. Only from this point may the state regulate the abortion procedure as needed to preserve and protect maternal health. States interest in potential life becomes compelling at viability. A state interested in protecting fetal life after viability may proscribe abortion except when necessary to preserve the life or health of the mother. During 1st trimester: state has no compelling interests During the 2nd trimester: state interest in health becomes compelling and what justifies it is that is approximately the time which the mortality rate of the abortion procedure becomes equivalent to the mortality rate of child birth. During the 3rd trimester, not only is interest in health but the interest in potential life becomes compelling and what triggers this is viability. Decision leaves itself vulnerable to technology: mortality of child birth will push earlier into the pregnancy as safety of child birth improves with technology

Funding and Regulation of abortion

Maher v. Roe, (1977) (abortion funding) Facts: First major case in government funding. The state had excluded non-therapeutic abortions from its Medicaid-funded program, although it did cover childbirth. The Court applied a rationality standard of review instead of strict scrutiny. Holding: Roe v. Wade did not preclude the states from favoring childbirth over abortion, as long as they did not unduly interfere with the womans freedom to choose an abortion. Dissent: Exclusion effectively forced indigent women to bear children instead of procuring a desired abortion. Harris v. McRae, (1980) (Public funding of medically necessary abortions) Facts: Medicaid Act mandates compliance with all its requirements by all states that elect to participate in its reimbursement program, was amended by the Hyde amendments, which denied public funding for certain medically necessary abortions. McRae was in the first trimester of pregnancy and sought an abortion. Rule: Congress may deny public funding for certain medically necessary abortions while funding substantially all other medical costs including the costs of carrying pregnancy to term. Holding: Wade recognized no constitutional entitlement to the financial resources needed to pursue the protected choice, and no entitlement exists. This is a question of constitutional baseline. 1. World without ANY government funding A world of private economic relations, then this law doesnt pose an obstacle to an exercise of a right. The government is only positive help and can never obstruct anything.

Con Law Gardner 42 of 63 2. World WITH government programs government does have an impact, this is an obstacle in this world. This is a baseline based on social expectations (How Justice Marshall characterizes it.) Methodology of constitutional interpretation: 1) Originalism philosophy of interpretation looking at the text of constitution and framers intent. Baseline would be #1 because framers never intended a welfare state. 2) Non-originalism Allows us to look at other things. Look at values of society, bad consequences in addition to framers intent. Rust v. Sullivan, (1991) (Abortion counseling) Facts: Government provided federal funding for family planning services, provided that none of the funds could be used in programs where abortion is a method of family planning. Rule: Government does not need to provide information about abortion indigent women as long as statute doesnt encroach on a doctors ability to receive information concerning abortion related services. Holding: Government has no obligation to subsidize counterpart rights once it decides to subsidize one protected right. Congresss refusal to fund abortion counseling and advocacy leaves a pregnant woman with the same choices as if Congress had chosen not to fund family planning services at all. Ds regulations do not affect a doctors ability to provide information about abortion outside the context of the Title X project. Carey v. Population Services International Court invalidated a NY law that prohibited advertising or display of contraceptives, distribution of contraceptives by other than licensed pharmacists, and distribution of contraceptives to person under age 16. Applying strict scrutiny, Court found statute violated the 1st Amendment and intruded on the right to decide whether to bear children, and the ban on distribution was not clearly relevant to the states interest in discouraging premarital sexual activity among minors. Planned Parenthood of Southeastern Pennsylvania v. Casey, (1992) (State regulation of abortion) Facts: PA act required woman seeking an abortion be given certain info at least 24 hours before the abortion; that the woman informed consent prior to the abortion that if a minor obtained parental consent, if married she certifies she informed her husband, facilities must make a report about each abortion. Rule: The right of abortion protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. Only where state regulation imposes an undue burden on a womans ability to make the abortion decision does the power of the State reach into the heart of liberty protected by the Due Process Clause. Therefore government can regulate abortions performed prior to viability so long as there is not an undue burden on access to abortions. Holding: Three parts of the essential Roe holding are reaffirmed. i. womans right to have an abortion before viability without undue state interference. ii. states power to restrict abortions after fetal viability, so long as there are exceptions to protect a womans life or health iii. the states legitimate interests from the outset of the pregnancy in protecting the health of a woman and the life of the fetus that may become a child Substantive due process claims require courts to exercise reasoned judgment, and the Court must define liberty of all, not mandate a moral code. Roe should upheld on stare decisis because it has not proven unworkable, people have relied on the availability of abortion, under Roe woman have been

Con Law Gardner 43 of 63 better able to participate equally in the economic and social life of this country. Even if Roe is wrong, the error involves only the strength of the state interest in fetal protection, not liberty of women. The plurality affirms the central holding of Roe. Is that what happens? What was the central holding of Roe? That is the question. Is there a right to an abortion of some kind, or just abortion in that case. The Casey outcome is different. The majority affirms the central holding of Roe. They dont think Roe is correct, what is the basis of the due process clause. The majority talks about autonomy, family decisions, precedent, personal dignity. Dissenters view is due process claims no right to abortion, it is text and tradition. They are pointing to different methodology with different results. State may prohibit an abortion when fetus becomes viable. Cannot be determined objectively by number of weeks of gestation, it is determined by womans doctor. States interest in life of fetus becomes compelling. Before viability state may only not put an undue burden on womans ability to decide. Abortion is no longer a fundamental right, and regulations on it will no longer be strictly scrutinized. Generally the state may now regulate to promote important health objectives, as long as there is no undue burden on the right to abort. So some state regulation is clearly allowed. 1. State cannot ban all pre-viability abortions. State cant even forbid all pre viability aboritosn except those necessary to save the life or health of the mother even where abortion isnt needed to protect the mother the state must allow the pre-viability abortion (but subject to regulation and procedures, methods, etc.) 2. The state can probably forbid all post viability abortions not necessary to protect the mothers life or health. 3. The state may impose elaborate informed consent rules (state may require 24 hour advance consent). 4. The state may require that an unemanciapted woman under age 18 obtain parental consent. (But if the state does require parental consent, it must give the girl an opportunity to persuade a judge that an abortion is in her best interests. This is a judicial bypass.) 5. The state cannot require that the womans husband be given notice, or a veto power. 6. The state may forbid the use of public facilities or public staff to perform abortions. (Also state may refuse to pay for abortions for the indigent.)

Sexuality
Bowers v. Hardwick, (1986) (Homosexuality can be illegal) Facts: Hardwick charged with committing sodomy with another adult male in his bedroom in violation of a state law forbidding sodomy by any person. DA did not pursue case, but Hardwick sued anyways. Rule: One does not have a fundamental right to consensual homosexual sodomy. Overruled by Lawrence v. Texas in 2003. Lawrence v. Texas, (2003) (Reverses Bowers) Facts: Reviewed a TX law based upon the SCOTUS decision in Bowers. Holding: There are compelling reasons to overturn Bowers. The central holding of Bowers demeaned the lives of homosexual persons. P were adults at the time of the alleged offense. Their conduct was in private and consensual and entitled to respect for their private lives. The state could not demean their existence or control their destiny by making their private sexual conduct a crime. The Court also noted that the reason and holding in Bowers had been rejected by other nations, and there was no showing the USs governmental interest was more legitimate or urgent.

Con Law Gardner 44 of 63 Recognizes a right of personal autonomy, individual autonomy, some rights protected by due process Majority in Bowers and dissenters in Lawrence argue there is no right: 1) No historical basis to thinking there is a protected right to homosexual sodomy (Bowers) 2) No supporting values 3) There is no precedent The majority in Lawrence, who were the dissenters in Bowers. They say yes, there is a right. 1) They look at precedent 2) They also look at history and interpret it differently 3) they also look at social values and interpret it differently

The Right to Die

Cruzan v. Director, Missouri Department of Health, (1990) (Vegetative state family cant pull plug) Facts: Cruzan was injured in auto accident and entered a persistent vegetative state. Parents wanted medical procedures be terminated causing her death. Friends testified at trial that should would not want to live if she became a vegetable. Rule: State requires clear and convincing evidence of an incompetent patients wishes for the withdrawal of life sustaining medical treatment. Holding: MO has an important interest in protection and preservation of human life. Life and death is deeply personal, state may guard the personal element by requiring a higher standard of proof. The right to refuse medical treatment is a constitutionally protected liberty. Incompetent person has the same right as a competent person, however person cannot by definition exercise that right and it may be exercised on behalf by someone else. Rehnquist placed a large reliance on history of the common law and we have right to be free of unwanted touching (battery) and free from medical treatment. Washington v. Glucksberg, (1997) (Assisted suicide) Facts: Washington enacted a statute that prohibited assisting suicide. Glucksburg a physician occasionally treated terminally ill patients assisting in the end of their life. Brings suit arguing it violates the 14th Amendment because Ps have a liberty interest in a personal choice to commit physician assisted suicide. Rule: There is no liberty interest in ending ones life if you are a terminally ill mentally competent adult. Holding: It is a crime to assist a suicide in almost every state and western democracy. Reflects states commitment to protect and preserve all human life. For over 700 years, common law tradition has punished both suicide and assisting suicide. In modern times, states bans on assisted suicide have been reexamined and mostly reaffirmed. There has been changes in current medical terminology which can prolong life. States permit living wills and surrogate health care decision making and refusal of life sustaining medical treatment. However states continue to prohibit assisted suicide. Ds voters rejected a ballot initiative that would have allowed physician assisted suicide.

Con Law Gardner 45 of 63 Court applied Due Process Clause under Cruzan, due process clause protects the traditional right to refuse unwanted lifesaving medical treatment. However, extension of constitutional protection to an asserted right or liberty interest is only appropriate for those areas rooted in the nations history and tradition, and even then only where there is a careful description of the fundamental liberty interest. To recognize the right asserted by Ps, court would have to reverse centuries of legal doctrine and practice, including policy choices of every state. Given that the right to assisted suicide is not a fundamental liberty interest, the Constitution still requires that Ds ban be rationally related to legitimate government interests. There is an interest in not opening the door to euthanasia. Vacco v. Quill, (1997) (Ban on physician assisted suicide does not violate equal protection) Facts: NY made it illegal to assist suicide, but it was legal for a patient to refuse lifesaving medical care. Rule: A statute that prohibits physician assisted suicide is not violative of Equal Protection. Holding: Equal protection analysis. For the same reason they ruled in Glucksberg the important public interests satisfy the constitutional requirement that the classification bear a rational relation to a legitimate end.

Con Law Gardner 46 of 63

Equal Protection
14th Amendment: No state shall.deny to any personthe equal protection of the laws Slavery: original constitution never mentioned anything specifically about slavery 3/5 Compromise (House of Reps) to determine representation all other persons refers to the slaves Article 1 9, couldnt deal with importation of persons (this was slaves) 20 years after Constitution Fugitive slave clause if they escaped, they would be returned 3 different kinds of intentions: 1. ideological (slavery is against what country was founded uponrights, freedom) 2. political (North v. South) 3. economic the Souths prosperity was dependent on slave labor 1820: Missouri compromisewould Missouri enter as free state or slave state? used to preserve stalemate in Congress 1854 Kansas-Nebraska Act repealed this 1857 Dred Scott Case o Slave taken to Illinois then Minnesota o These two states prohibited slavery within their boundaries o Therefore, Scott said he was free o Court did not agree, they said 1. courts did not have jurisdiction, and that slaves were not citizens, o Decision held that slavery could infiltrate a free state by an action of a slave owner going there and living there Amendments given to Congress to enforce 14 and 15 amendment Shift in an emphasis by which Constitution protects liberties

Methods of Interpretation: Application of equal protection: is it broad or narrow??? -race, gender? -if only race, is it only slavery, only black and white?? Intent of framers???? -did they have specific focus on slavery and reconstruction? Then vs. Now -different problems then when they wrote amendments -can we construe what they wrote then to problems now?? Equality -- entitlement---SUBSTANTIVE DUE PROCESS (isnt that what people are entitled to??? -equality is empty idea -entitlement is just desserts -need to know what people are entitled to on the merits before we can determine or tell if people are being justifiably discriminated against.

Rational basis review

Con Law Gardner 47 of 63 Rational Basis test - Restriction has to be reasonable relation - a fair and substantial relation to the object of the legislation so that all person of similar circumstances be treated alike. - uphold unless NO conceivable sets of facts could justify. Massachusetts Board of Retirement v. Murgia (Police officer retirements) Rational basis standard was applied, wherein the Court explained that Strict Scrutiny is required only when a classification impermissibly interferes with the exercise of fundamental rights or operates to disadvantage a suspect class. Age is not a suspect class nor is a right to continued public employment a fundamental right. A state does not violate equal protection merely because its classifications are imperfect. Is unequal treatment justified? Yes, but the problem with this law is that there is that maybe there is someone who reaches age of 50 who is still physically able. Age is being used as a proxy for fitness. If you want the best job (and this is what you want) because someone who is 55 may be able to clearly outrun the 45 year old!! Then there is a problem with this age standard. Although the states goal is worthy goal, it is going about it in an unexact way. If allow this law to remain, some fit cops will be forced to retired and some who are not fit to remain. If you want to have 100% accuracy rate, then just test each officer individually, however this is not practical. Railway Express Agency v. New York, (1949) (Advertising car around NYC) Facts: NYC passed traffic regulation prohibiting advertising on vehicles except for business notices upon business delivery vehicles engaged in the usual business of the vehicles owner. Rule: Where state legislation is aimed at protecting public safety, and in so doing creates a classification based on advertisements (on vehicles) generally as opposed to such advertisements of products sold by owner of a vehicle, Equal Protection is satisfied. Holding: Ds equal protection argument is based on the allegedly irrational distinction between allowing owner-advertising but banning advertising for hire. However, P may have concluded that the former type of advertising is less distracting and possibly necessary for business. Equal protection questions are answered by such practical considerations based on experience rather than by purely theoretical inconsistencies. Problem: Underinclusive because it does not get all the distracting ads o allows for neon signs in Times Square things that should be prohibited are not Overinclusive because it gets and eliminates ads that are NOT distracting o when you prohibit something that there is no reason to prohibit it U=all ads This is what law looks like:

distracting

Non-distracting

Con Law Gardner 48 of 63

Court upholds this law using a one step at a time analysis court said legislature doesnt have to treat the entire field at onceit doesnt have to deal with all the ads in NYC the ad law is a completely arbitrary distinction Jackson said: underinclusive laws are extremely suspicious because it focuses on a smaller class of people that are responsible -a law that is underinclusive should apply widely if it is a law that discrimination (targeting an unpopular group) badly -if a bad law has to apply to enough people, there can be a bad remedy US Railroad Retirement Board v. Fritz, (1980) (Retirees and SS benefits) Facts: Congress altered the RR retirement system that had been in effect since 1937. Congress acted to place the system on a sound financial basis by eliminating future accruals of windfall benefits, resulting from concurrent qualification for RR retirement and SS. The new system established several classes of employees whose benefits would be computed differently. Fritz (P) represented a class of employees who had between 10 and 25 years of railroad employment but who would be denied windfall benefits because they had no current connection with the RR industry in 1974 or as of the date of retirement. P claimed new system violated equal protection of 5th Amendment. Rule: If there is a plausible reason for a classification based on its language, legislation will be upheld regardless of the actual reason of the statute. Holding: Refused to invalidate economic legislation on equal protection grounds just because it was unwise or inartfully drawn. Congress could have eliminated windfall benefits entirely, so it is not improper to draw lines to phase out such benefits. D advanced plausible reasons for Congresss action. How do you determine legislative purpose (end)? The Court splinters on this question: Majority: 1. Look at plain language of the law and that tells you what Congress DID and THEN you 2. ask if there was a plausible reason Brennan (Dissent): Criticizes this point: use ACTUAL purpose Look at legislative history: what Congress SAID. Complains it virtually immunizes social and economic legislative classifications from judicial review. Rational Basis standard is not toothless. Test requires examination of the purpose of the statute and the relationship of the classification to that purpose. Here Court avoids serious analysis by assuming a purpose from result; disregarding Congresss actual stated purpose for an unsupported justification that conflicts with stated purpose and failing to ascertain whether classification is rationally related to identified purpose. Stevens (Concurrence): Use 1. actual purpose that actually motivated legislature however sometimes you dont know what actual purpose is and that we should use 2. legitimate purpose that court may reasonably presume motivated an impartial legislature

How argue Rational Basis (RB) test (this is a means-ends test)? 1. for D: (usually Govt) a. have to say that the goal is legitimate i. show this by using actual purpose if known and if you dont, then

Con Law Gardner 49 of 63 ii. otherwise invent a plausible purpose b. show that theres a rational relation i. explain the way the law in operation achieves the goal

2. for P, if making argument against a law a. show that there is goal and it is not legitimate
b. best way is to show that law is irrational

Racial discrimination
Suspect Classifications Racial classifications are suspect meaning they have the strictest judicial scrutiny. Other classifications have heightened scrutiny not reaching strictest level. Common of these classifications are: historical lack of political power, history of discrimination, irrelevance to performance. Strauder v. West Virginia (White people on jury duty) State statute indicating that only white persons could serve on juries was held to violate equal protection. Although other cases recognize the particular sensitivity to racial discrimination that the EP clause emphasized, racial classifications were not articulate as being suspect, and hence subject to the most rigid scrutiny. Korematsu v. United States (Japanese internment during WWII is ok) Congress had provided for the creation of military areas where all person of Japanese ancestry were forbidden. Although the law would have been clearly invalid under normal circumstances, the court upheld it because of the exigencies of war and the need for quick action. The classification was reasonable in light of the circumstances. Note that Justice Jacksons dissent argued that the order violated EP because the class was not general enough. American citizens of German or Italian origin were not regulated. Justice Murphy dissented on the ground that there were no reasonable grounds for an order regulating all citizens of Japanese origin. Strict scrutiny: There is a compelling govt interest and law that is narrowly tailors This satisfies the compelling govt interest but is it NARROWLY TAILORED?? Overinclusive because it interns Japanese that are loyal Underinclusive because its not interning other disloyal races Upheld because Court shows great deference to the military. Equal Protection is more than equal application Loving v. Virginia (Interracial marriage) Facts: Loving, a white man, married a black woman in Washington and returned to VA. D convicted of a VA antimiscegenation statute. Claims law violates Equal Protection and Due Process Clauses of 14th Amendment. Rule: A state law restricting the freedom to marry solely on the basis of their racial classification violates the 14th Amendment Equal Protection clause. Holding: Equal protection means more than equal application. Court must consider whether statutory classifications constitute arbitrary and indivious discrimination. Racial classifications, especially in criminal statutes, are subject to the most rigid scrutiny and must be essential to the accomplishment of some permissible state objective to be constitutional.

Con Law Gardner 50 of 63 The state failed to show any legitimate overriding purpose for the distinction between one race and interracial marriages other than individious discrimination. Statute cannot be upheld. Concurring: Impossible for a state law that makes criminality of an act dependent on the race of the actor to be constitutional. Plessy v. Ferguson (Separate but equal doctrine) Facts: Plessy refused to comply with a demand that he sit in the black railway carriage rather than the one for whites. Holding: Law does not imply the inferiority of either race to the other. Only restraint on exercise of state police power is that it be reasonable and intended for the promotion of the general good. The state legislature may properly have concluded that the law would preserve the public peace and good order. Constitution can act to equate civil and political rights of the two races, but cannot affect social standing. The Court applies a reasonableness standard. 1) Based on tradition and custom (bad traditions and customs can be perpetuated) 2) Promotes preservation of public order Dissent (Harlan): Everyone knows the law has its origin in its purpose as to exclude blacks. Brown v. Board of Education of Topeka (Brown I), (1954) (Overrules Plessy w/o explicitly overruling it) Facts: Brown and other school children were denied admission to schools attended by white children under laws requiring or permitting segregation based on race. P challenged separate but equal doctrine. Rule: The segregation of children in public schools based solely on race violate Equal Protection Clause. Holding: The circumstances surrounding adoption of the 14th Amendment are not conclusive to its interpretation, especially here where public education, which barely existed then, is at issue. The effect of segregation on public eduction in its current setting is therefore determinative. Granted that black and white schools are substantially equal in tangible factors, there yet exists an invidious effect when black and white children are segregated. Namely, segregation creates a felling of inferiority, which may significantly affect a childs motivation to learn; separate educational facilities are therefore inherently unequal, and their maintenance by government authority denies equal protection under the law. First looks at framers intent, but nothing there about public education in legislative history during the 90 year period of public education Analysis doesnt end there because court recognizes that education is requirement to being productive in lifethe original intent of framers is irrelevant to this problem The meaning of equality is something that changes overtime so we need to look current political and social context No where in the case does it say that it is overruling Plessy Separate education facilities are inherently unequal (which is unjust?) Segregation violates normative principle of justice In actual social context, segregation is way of separating black persons from mainstream America o Demeaning o Deprives of means to achieve social status and power

Con Law Gardner 51 of 63 Note: This holding applied to the states through the 14th Amendment. Federal government is similarly restrained via the Due Process of the 5th Amendment. Bolling v. Sharpe due process precludes segregation of public schools in DC. Brown II (How to implement desegregation) Facts: Court initially permitted gradual integration of public schools in recognition of the difficulties inherent to school desegregation. Opinion addresses the relief granted in Brown I. Rule: Cases are remanded to the lower courts to enter orders consistent with this court and requiring a prompt and reasonable start toward full racial integration in public schools. Holding: The full implementation of the constitutional principles requires solution of various local school problems, to be solved by school authorities and reviewed by the courts to assure good faith compliance. The cases are remanded to the lower courts, who are to be guided by equitable principles in fashioning decrees. The competing interests involved in Ps rights to admission at the earliest date and the need for systematic, effective, and orderly removal of obstacles to full integration.

Gender Discrimination
The Court declined to make sex a suspect classification in Reed v. Reed. Frontiero v. Richardson (Heightened scrutiny of military benefits plan) Facts: Frontiero, a woman officer in the Air Force sought to claim her husband as a dependent in order to receive the additional benefits attached to such a claim. Male members of the armed services may claim wives as dependents without any showing, but women in the service must show that their spouses are actually dependent of them for over half of their support. P claimed this violated due process clause. Rule: Law involved the very kind of arbitrary legislative choice forbidden because it drew a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commanding dissimilar treatment for men and women who were similarly situated. Holding: Classifications based on sex are included among those which are inherently suspect and therefore subject to close judicial scrutiny. This statute cannot withstand such scrutiny. Its sole justification lies in administrative convenience, which, though important in some circumstances is hardly significant governmental interest closely related to the classification. Brennan (Majority) 1. There is a long history of de jure sexual discrimination. Analogizes position of women to blacks (but blacks are minority, women are numerical majority); 2. There is a reliance on stereotypes; 3. Sex is an immutable characteristic. You cannot change it, to punish them or treat differently is irrational; 4. Frequently it bears no relation to a persons ability. Craig v. Boren, (1976) (Liquor regulation) Facts: Craig a male challenged an OK statute that denied beer sales to males under 21 and females under 18. The states interest was traffic safety, safety is a legitimate government interest.

Con Law Gardner 52 of 63 Rule: A rule that establishes a classification by gender must serve an important governmental objective and must be substantially related to the achievement of that objective to be constitutional under the equal protection clause. Intermediate standard of review for the first time Holding: Classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives to withstand constitutional challenge. The state objective the enhancement of traffic safety is clearly important. However, the relation between this objective and the challenged statute is based on statistical evidence fraught with shortcomings and is inadequate to show that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. Failure to show a substantial relation between gender based classification and achievement of the states objectives requires that the statue be invalidated.

We have strict scrutiny (SS ) and rational basis (RB); now we have intermediate scrutiny (IS) In Intermediate Scrutiny, the end needs to more important than rational basis, but not quite as important as SS, so end has to be important and means substantially related.

Brennan in Frontiero: use strict scrutiny for gender discrimination: 1. long history of gender discrimination 2. sex, like race is an immutable characteristic 3. frequently bears no relation to ability to perform Contra: 1. 2. 3. shouldnt be as suspicious gender discrimination never as bad as racial women are not a minority biological differences Strict Scrutiny Ends Fit between means & ends Compelling Narrowly tailored, necessary (slightly underinclusive) Intermediate Scrutiny Important Substantial relation Rational Basis Legitimate Rationally related ends (can be very over and underinclusive)

Mississippi University for Women v. Hogan (Male wants to attend female nursing school) Facts: State nursing school excludes males. Rule: State schools cannot exclude males from enrolling. Holding: Because Ds policy discriminates on the basis of gender, it is subject to equal protection scrutiny. D must show that the classification serves an important governmental objective and that the discrimination means employed are substantially related to the achievement of those objectives. D claims that its policy compensates for discrimination against women and is educational affirmative action. While a compensatory purpose may justify an otherwise discriminatory classification in some situations, this argument is unpersuasive with respect to nursing school. Women have earned a large majority of nursing degrees. The actual effect of Ds policy to perpetuate the stereotyped view of nursing as a womens job.

Con Law Gardner 53 of 63 D has failed to show that the classification is substantially and directly related to its compensatory objective. D can audit classes, therefore they do not distract women. United States v. Virginia, (1996) (VMI single sex school) Facts: VMI was the only single sex school in VAs public schools. Mission was to product citizen soldiers who are prepared for leadership in civilian and military life. VMI excludes women from the program. D proposed a separate but parallel program for women which would have the goal of producing citizen soldiers for women. Rule: Where a college is financially supported by a state and offers a unique educational opportunity, it violates EP by excluding all women even if they are capable of all required activities. A remedial plan is inadequate if it provides a program that is for women only, and has the same mission but distinct methods of education, relative to the men only college. Holding: Thos who seek to defend gender based govt action must demonstrate an exceedingly persuasive justification for that action. Gender is not a proscribed classification; phycial differences between men and women are eduring. These differences may nto be used to denigrate the members of either sex or to artificially constrain opportunities. D claims single sex education contributes to diversity in education. While that may be true, diversity was not the reason VMI excluded women. Ds plan to provide a unique educational benefit only to males is not equal protection when there is no corresponding plan for females. VMI claim that they would have to destroy their program is unfounded. VMI methodology could be used for some women, and the only accommodation necessary would be in housing assignments and physical training programs. While most women will not choose VMIs adversative method, many men would also not choose it. D simply cannot constitutionally deny entrance to women who have the will and capacity to attend.

30. Other classifications

Alienage got SS in the early 70s and was badly eroded by exceptions Illegitimacy people born out of wedlock Intermediate scrutiny Poverty and Wealth Not suspect classification, rational basis review Mental retardation Cleburne test, applying rational basis test but it seems undefferential. Age See Murgia Thurgood Marshall Need to consider equal protection as part of a scale from highly deferential to the most undeferential review. Romer v. Evans, (1996) (CO tried to discriminate against homosexuals) Facts: CO voters adopt amendment to their constitution prohibiting any protected status for homosexuals. Rule: Where state legislation undertakes classification of persons for its own sake, and where the legislation is divorced from any factual context allowing discernment of a relationship to legitimate state interests, such legislation does not pass the rational-basis test for EP. Holding: D claims amendment simply puts homosexuals in same position as other persons. However, the actual effect is to put homosexuals in a solitary class with respect to transactions and relations both

Con Law Gardner 54 of 63 government and private. It imposes a special disability upon them by forbidding them to seek or enjoy the safeguards against discrimination that other groups enjoy. Legislation that neither burdens a fundamental right nor targets a suspect class will be upheld so long as the classification bears a rational relation to some legitimate end. The amendment here has the peculiar property of imposing a broad and undifferential disability on a single named group and can be explained by nothing but animus towards homosexuals. It lacks the rational relationship. Animus towards a politically unpopular group cannot be a legitimate state interest. Dissent: Such public values should be left to the legislatures and not the courts.

Proving Purposeful Discrimination

De jure discrimination 1) statutes that discriminate by their terms, 2) statutes administered in a discriminatory manner, 3) statutes enacted with a purpose of discrimination De facto Statute is neutral on its face , administered neutrally, no discriminatory purpose yet impact or effect is discriminatory. Equal protection claim (two things are needed)

(1) Classification [based on race] (strict scrutiny)

(2) Disadvantageous treatment to one or more of these classes Washington v. Davis, (1976) (Police discrimination in application test) Facts: Black police officer challenged promotional policies and recruiting practices of DC police. Specifically challenging a qualification test that allegedly discriminates against black in violation of 5th Amendment Due Process Clause. Rule: If a test is race neutral and tests the relevant criteria, it does not violate the Equal Protection clause merely because a disproportionate number of a minority are eliminated. Holding: Government action is not unconstitutional solely because it has a racially disproportionate impact, there must be a racially discriminatory purpose to justify invalidation. Purpose need not be express, but it must exist, whether on the face or in its application. When a disproportionate racial impact is proved, government must show the law is neutral on its face and serves a proper governmental ends, but the burden is not high. The test involved here has a reasonable relation to the need for competent police officers. Evidence of bad purpose (Arlington Heights) Disparate impact the effect of the law falls much more proportionately on one class (usually race) of people than on another Legislative history damning statement in the record Historical background Departure from normal procedure Social context Substantive departures from decision makers (not considered important decision maker we favor a different decision.

Con Law Gardner 55 of 63 Purpose Requirement v. Strict Scrutiny? When SS is appropriate, must a P present evidence of discriminatory purpose? No proof of bad motive needed because, in SS, you are assuming a bad motive (it is PRESUMED!) SS is used when we see a classification that makes us suspicious Burden is on the Ds, on the govt to show that it had no discriminatory motive This tells us that SS and direct evidentiary purpose of discriminatory Are alternative ways of showing discriminatory intent. Equal Treatment between Different Classes? Yes. If there is equal treatment equality of opportunity No. Different results equality of outcome It is not always easy to distinguish between the two equalities discussed. Why? LEGISLATION Discriminatory use strict scrutiny (burden is on government); or Even-handed (legit purpose-effects on race incidental) proof of intent by preponderance (burden falls on P) Personnel Administrator of Mass. v. Feeney (Female loses out to males despite high test scores) Facts: Feeney, a woman and non veteran, challenged Mass. statute that gave veterans an absolute lifetime preference for consideration for state civil service positions. Veterans with passing scores were automatically ranked above all other candidates. 98% of veterans were male. P claims this system discriminated against women and denied P equal protection. Issue: Does a veterans preference program that does not specifically favor males, but in reality benefits males almost exclusively, deny equal protection to women? Holding: No. Although a natural law may have a disparate impact on a group, 14th Amendment guarantees equal laws, not equal results.

Affirmative Action
Purpose of Affirmative Action (1) Programs are part of the governments responsibility to help undo discrimination. (2) To provide services more effectively to the minority and non-English speaking population. (3) Education is a critical reason because it is the future of the nation and important to diversify the profession and to provide better medical/other services to minority and poor population. Regents of Univ. of California v. Bakke, (1978) (Racial quotas cant be used in admissions) Facts: P denied admission, claims school has a discriminatory program intended to assist disadvantaged minorities getting admitted. Rule: State may use race as a factor in its admissions process, but a special admissions program is unlawful (No quotas). Holding: Title VI of Civil Rights Act of 1964 must be held to proscribe on those racial classifications that would violate EPC of the 5th Amendment. D claims that since its procedure does not disadvantage minorities, it should not be subject to strict scrutiny. However, D does disadvantage a specific race whites; equal protection requires that racial and ethnic distinctions of any sort be examined by the most exacting judicial scrutiny. It is incorrect to assert that the 14th Amendment justifies benign preference for one race over another due to past discriminations, since its language is inconsistent with such an interpretation and the kind of variable sociological and political analysis necessary to produce and

Con Law Gardner 56 of 63 enforce such rankings is beyond judicial competence. Such an interpretation would manifestly be unjust. The Court has approved preferential classifications in some instances (school desegregation, employment discrimination) but only after proof of constitutional or statutory violations, absent here, and only when the remedy was closely related to the violation. Use of a suspect classification may be justified if the state can show that its purpose or interest is both constitutionally permissible and substantial and that its use of the classification is necessary to accomplishment of the purpose. Ds reasons for its special admissions process are inadequate under this standard. Although D does have a valid interest in seeking diversity among its student body, its program, focusing as it does solely on ethnic diversity, hinders rather than promotes genuine diversity. An admissions program seeking diversity may properly consider race as one of many characteristics of an applicant that are compared with all other applicants to decide who is to be admitted, such as the procedure used at Harvard. But reservation of a fixed number of seats to a minority group (quota), unnecessarily denies other persons an equal chance of being considered, therefore unconstitutional. Justice Powell argued strict scrutiny applied. AA allowed in some circumstances, just not here. Wants SS, but what is the government interest? Believes you cannot remedy past discrimination without a specific victim for a specific person, requiring a specific finding before hand. Promoting a diverse student body is a compelling government interest according to him. Academic freedom is implicated, this program is not narrowly tailored to achieve its goal because state interest is not in diversity, but diversity of a specific kind. Powell said the Harvard plan was better and would meet his standard of review because it used race as just a plus factor. Brennan and 3 others Intermediate scrutiny should apply whites have no history of discrimination Remedying past discrimination is an important government interest Fullilove v. Klutznick, (1980) (Minority Business Enterprise Program in dispute) Facts: Congress enacted statute requiring federal grants for local public works projects be awarded to applicants who assure 10% of the grant will be spent for minority business enterprises. Rule: Congress may affirmatively require a minimum minority participation as a condition of the expenditure of federal funds. Holding: Program involving racial or ethnic criteria requires close examination, but congress deserves some deference, even where legislation implicates fundamental constitutional rights. The objective was to stop the perpetual discrimination and is within constitutional scope of congresss power. It primarily regulates state action in the use of federal funds. The racial criteria must be narrowly tailored to achievement of the permissible objectives. Congress, of all parts of government, possess the broadest remedial powers. This program is clearly remedial; adverse affect on P is incidental. Congressional legislation represents the culmination of the purpose of our system peaceful compromise of opposing views. Courts must hesitate before unraveling the results of this process, it would remove one of our defenses against domestic disorder and violence. Powell (Concurring): Must be necessary to advance a compelling govt. interest. Passes Bakke test. Wygant v. Jackson Board of Education, (1986) (Laying off non-minority teachers) Supreme Court rejected the role model theory and found that the lay off policies of the school placed a burden on achieving racial equality solely on the non-minority teachers and this often disrupted their lives. The Court also found that the lay-off provision were not narrowly tailored enough to promote a compelling state interest and therefore did not satisfy the demands of Equal Protection. Richmond v. J.A. Croson Co., (1989) (City contracts given to minority workers)

Con Law Gardner 57 of 63 Facts: Citing Fullilove, city of Richmond requires contractors on city projects to set aside 30% of subcontracts to minority businesses enterprises. Program was adopted based on evidence that minority businesses had a significantly lower percentage of contracts than minorities percentage of the city. Rule: A city may not adopt a set-aside program favoring minority owned contractors on city projects when there is no evidence of direct discrimination on the part of the city or its contractors. Holding: Unlike the states and their subdivisions such as P, Congress has a specific constitutional mandate to enforce the 14th Amendment. To enable states to use racial classifications merely by reciting a benign or compensatory purpose would be to give the full power of Congress under 5 of the 15th Amendment and insulate their actions from judicial scrutiny under 1. The objective of the 14th Amendment was to limit the states use of race as a criterion for legislative action and empower federal courts to enforce those limitations. Under EP Clause, a state or its subdivisions may eradicate the effects of private discrimination within its own legislative jurisdiction, but this requires the discrimination be identified with the particularity required by the 14th Amendment. P would have to show it had become a passive participant in a system of racial exclusion practiced by elements of the local construction industry, but failed to do so. Equal Protection Clause protects individual persons; Ps plan denied certain citizens an opportunity to compete for a fixed percentage of public contracts based solely on their race, therefore implicates the personal rights of the excluded persons. Such race based regulations are subject to strict scrutiny, regardless of race of those burdened or benefited by the classification (Wygant v. Jackson Board of Ed). Ps factual predicate for its plan consists of a gnerealized assertion that there has been past discrimination in the construction industry, attributable to a series of racial as well as nonracial factors. P can do no more than speculate as to how many firms would exist absent past discrimination. It cannot show how many minority members are qualified to act as contractors, or how many minority members are eligible for membership in contractor associations. Statistical generalizations cannot substitute for evidence of discrimination. Allowing this would enable local governments to create a patchwork of racial preference without ascertainable limit on size or duration. Metro Broadcasting Inc. v. FCC, (1990) (Minority broadcasting licenses, OVERRULED by Adarand) Overruled by Adarand. Involved FCC programs granting broadcast licenses. Minority ownership both constituted a positive factor in deciding to grant an applicant a license, and qualified for an exception to the general rule against receiving an assignment of a license that is being challenged before the FCC. The policies were not justified as remedy for past discrimination, but can be reflected that minorities were inadequately present in broadcasting. Congress could adopt a policy of minority ownership to achieve greater diversity. These practices have met the important governmental objective and is substantially related to achievement of those objectives. Adarand Construction v. Pena, (1995) (Financial incentives to hire socially disadvantaged people, SS) Facts: Adarand submitted the low bid for a guardrail subcontract on a federal road project. The terms provide for additional compensation if subcontractors were hired were small businesses controlled by socially and economically disadvantaged individuals. Ps competitor, Gonzales construction, certified as such a business received the subcontract although its bid was higher. Rule: The federal government is subject to strict scrutiny to uphold a benign federal racial classification. Holding: 5th Amendment protects against arbitrary treatment by the federal government, but does not guarantee equal treatment. In Croson, the Court held that the 14th Amendment requires strict scrutiny of

Con Law Gardner 58 of 63 all race based action by state and local governments. Thus, any person regardless of race has right to demand that government justify any racial classification subjecting them to any racial classification under strict scrutiny. Metro Broadcasting held that benign racial classification by congress required on intermediate scrutiny. This holding undermined the basic principle that the 5th and 14th Amendments protect persons, not groups. Group classification must be subject to detailed inquiry to assure that personal right to equal protection has not been infringed. Metro Broadcasting is overruled. This holding does not preclude the government from acting in response to the lingering effects of racial discrimination. When race based action is needed to further a compelling interest, it is permitted so long as it satisfies the narrow tailoring test of strict scrutiny. UB ADMISSIONS CRITERIA: 14th Amendment applies because it is a STATE UNIVERSITY Say that a white applicant had a better LSAT and GPA then a black student how would the case hold up under a 14th Amendment case 1st QUESTION: Whats the standard of review? Choices? SS or intermediate scruntiny o SS because its not a fedl program (state school) o AND its a racial classification In order to make SS argument, have to say that education is a compelling govt interest UC Davis/Bakke case wanted to promote diversity but that the quota is not the way to do it. See language of UBLAW admission - What else do we need to know? Need to show that law is transparent racial preference program - Davis: 2 different committees decidedhow many at UB? 2 ways to look at racial classifications:

1. Jesse Jackson/baseball: you cant just overturn 100 years of discriminationlooks at

OUTCOMEsubstantive 2. Scalia model of color blindness: where injustice is the game, turnabout is not fair playsays people are treated differently PROCEDURALLY not substantively or outcome Gratz v. Bollinger (Michigan undergraduate admissions) Facts: University of Michigans undergraduate admissions policy was based on a point system that automatically granted 20 points to applicants from underrepresented minority groups. This is a class action equal protection suit. Holding: The policy made race the decisive factor for virtually every minimally qualified underrepresented minority applicant. As the policy was not narrowly tailored to achieve respondents asserted compelling interest in diversity, it violated the EP Clause. Standard of review is strict scrutiny and Justice Powells approach is affirmed in that redressing past discrimination is not considered a compelling government interest. Grutter v. Bollinger (Michigan law school admissions) Facts: Law school had long been committed to racial and ethnic diversity, especially to the inclusion of students from groups that historically had been discriminated against. Rather than imposing quotas, the law school admissions focused on academic ability and a flexible assessment of applicants talents,

Con Law Gardner 59 of 63 experiences and potential to contribute to the learning of those around them. It did not define diversity in terms solely of race and ethnicity but considered these a plus factors affecting diversity. Holding: The Court found that EP Clause did not prohibit this narrowly tailored use of race in admissions decisions to further the schools compelling interest in obtaining the educational benefits that flow from diversity. The goal of attaining a critical mass of underrepresented minority students did not transform the program into a quota. Because the law school engaged in a highly individualized, holistic review of each applicant, giving serious consideration to all the ways the applicant might contribute to a diverse educational environment, it ensured that all factors that could contribute to diversity were meaningfully considered alongside race. Diversity is compelling because: 1. Promotes cross racial understanding and breaks down stereotypes 2. Livelier classroom discussion when people of varied backgrounds 3. Better training for the realities of todays marketplace. We have a diverse workforce, global economy and if you want to succeed you have to know how to get along with lots of people. 4. Train racially diverse leaders will leave the path visibly open to talented individuals of every race and ethnicity. AA is a way of doing that. The undergraduate program is too mechanistic, law school is holistic and treats applicants as individuals. **This is a rare example of a program surviving strict scrutiny.

Fundamental interests: the right to vote

Harper v. Virginia State Board of Education (Poll tax is unconstitutional) Facts: Harper brought suit to have VAs poll tax declared unconstitutional. Rule: The right to vote is a fundamental and basic right. If one asserts these rights under the EP clause, the Court must closely scrutinize any classifications that may restrain those right. The Court has rationally struck down lines that are drawn on the basis of race, wealth or property. Whenever a state makes the affluence of the voter or payment of any fee an electoral standard it violates the Constitution as voter qualifications have no relation to wealth nor to paying or not paying any tax. Holding: Once the franchise is granted to the electorate, lines may not be drawn that are inconsistent with the EP clause of the 14th Amendment. Lines drawn by the affluence of the voter or by the payment of any fee violate equal protection, which requires equal participation by all voters. Undoubtedly states may impose reasonable voter qualifications, but these must pass careful scrutiny since the franchise is a fundamental political right. Kramer v. Union Free School District No. 15 (Right to vote in school board elections) Facts: Kramer challenged state law that restricted eligibility to vote in certain school district elections to those who either own or lease taxable real property within the district or who are parents of children in the district. Rule: A statute which allows some people but not others to vote is subject to strict scrutiny test, not a rational basis test by the SC. Holding: Statutes denying some residents the right to vote impinge on one of the most fundamental rights of a democratic society. Accordingly, such exclusions must be necessary to promote a compelling interest.

Con Law Gardner 60 of 63 Even if the state interests here are substantial enough to justify limiting the exercise of the franchise to those primarily interested or primarily affected (which is not decided), this statute is not narrowly drawn to effectuate the purpose. It is both underinclusive and overinclusive. Therefore it cannot stand.

Other fundamental interests

San Antonio Independent School District v. Rodriguez (Financing of public education) Facts: Challenge to TX public school financing because it discriminates against the poor. Rule: A state system to finance public education that contains substantial disparities in expenditure amounts between districts and correlates spending per pupil and local taxable property is not subject to strict scrutiny and is not unconstitutional. Holding: No evidence supports a finding that any indigent, persons relatively poorer than are discriminated against and people who regardless of their incomes live in poor areas cannot be considered a suspect class. Education is neither explicitly or implicitly guaranteed. Additionally, Ds system was implemented to extend public education, not interfere with any rights. Courts ought not to interfere with state fiscal policies if not necessary. Strict review is only when there is a fundamental right, education is not one. D concedes that its system is not perfect, yet claims it bears the necessary relationship to a legitimate state purpose. It is therefore justifiable.

State action
Voting Rights Act of 1965 adopted strategies to deal with states staying one step ahead of the federal government in restricting voting rights. Section 5 Dealt with the problem of constantly changing the methods. It identified jurisdictions which were cover jurisdictions where they had a consistent history in racial discrimination and voting. Any state of a political sub division maintained a test or device of the kind which can be manipulated less than 50% of its voting aged population were registered to vote then you are a cover jurisdiction. All of the states of the confederacy fell into this. If you are a cover jurisdiction you cannot change any voting law without getting advanced approval from the USDOJ called pre clearance. This applies to everything, voter registration laws, redistricting. Section 4 contains a blanket ban on literacy tests. Congress excludes the entire category of procedure. South Carolina v. Katzenbach (Congress can use rational means to eliminate racial discrimination) SC sustained the constitutionality of the Voting Rights Act, which had been enacted by Congress pursuant to its power to enforce the 15th Amendment. The Court held Congress could use any rational means of effectuating the constitutional prohibition of racial discrimination in voting; Congress is not limited to forbidding violations of the 15th Amendment; remedies provided by Congress were necessary and proper to Congresss powers under the 15th Amendment; any inconsistent standards must fall under the Supremacy Clause regardless of whether those state standards were in fact aimed at or resulted in racial discrimination in voting. Katzenbach v. Morgan, (1966) (Puerto Ricans made to learn English to vote)

Con Law Gardner 61 of 63 Facts: Morgan, a registered NY voter challenged Voting Rights Act which provides any person who has successfully completed 6th grade in an accredited school in Puerto Rico cannot be denied the right to vote because of lack of English proficiency. Argues it prohibits voting based on English proficiency. Rule: A federal statute enacted pursuant to the Enabling Clause of the 14th Amendment takes precedence over any conflicting state statute. Holding: Congress need not wait for a judicial determination of unconstitutionality before prohibiting the enforcement of a state law. The test for appropriate legislation is whether (i) the end is legitimate, and (ii) the means are not prohibited by and are consistent with the constitution. The act is plainly adapted to the legitimate end of assuring equal protection to all, including non-English speaking citizens. Note: Decision may exempt the 14th Amendment from the principle of Court-Congress relationships enunciated in Marbury v. Madison, thus allowing Congress to act independently. Another view is Congress was merely acting to strengthen the judicially declared right of equal access to government services.

Section 5 of the 14th Amendment

City of Boerne v. Flores, (1997) (Zoning board denial of a building permit to a church) Facts: City of Boerne denied a building permit to enlarge a church, based on an ordinance governing historic preservation. Church leaders challenged the denial under the Religious Freedom Restoration Act that required courts to use a balancing test when interfering with a religious practice. Applying a balancing test if the statute substantially burdened a religion v. the governmental interest. Rule: Congress does not have the power to decree the substance of the 14th Amendments restrictions on the states. Holding: Congressional authority under the 14th is broad, but not unlimited. Congress does not have the power to enforce the constitutional right to the free exercise of religion, since First Amendment liberties are included within in the Due Process Clause of the 14th Amendment. This power extends only to enforcement, however. It does not extend to changing or defining what the right of free exercise is. There is a distinction between enforcement and changing governing law. The power to interpret the Constitution in a case or controversy is in the judiciary not congress. Congress doe not have a substantive, non-remdial power under 14th A. If Congress could define its own powers by altering the meaning of the 14th Amendment, Constitution would no longer be a superior paramount law that cannot be changed by ordinary means. Preventative rules may sometimes be appropriate remedial measures, but the means must be appropriate to the ends to be achieved. Here there was no record of bigotry. United State v. Morrison, (2000) (Gender motivated violence) The Court held that the Commerce Clause did not give Congress authority to enact the federal civil remedy for victims of gender motivated violence under the Violence Against Women Act. The Court also held that the civil remedy could not be upheld as an exercise of Congresss remedial power under Section 5 of the 14th Amendment. The civil remedy in this case was not aimed at proscribing discrimination by state officials, but at individuals.

Con Law Gardner 62 of 63 Final Exam Review Whats the most recent formulation test for a doctrinal based question? Be familiar with the aspects of the Constitution (historical framework, what makes it a constitution, understand the federalist papers, look to inferences of the document). Know some political philosophy. Know reconstructive amendments (look how it affects the US and what the framers intent was). Seperation of Powers Theoretical foundation Why we have it. How does it work? Formulate the problem correctly: whom is encroaching on whom (which branchs power). Contemporary methods of formulating separation of power Blacks formula in Youngstown Jacksons formulation in Youngstown Executive Power in Foreign Affairs. How can he receive and deal with foreign leaders and states? Know judicial review. When should a court defer and why? Executive power FEDERALISM Why do we have it? How is it meant to work? What powers are given to the state and federal governments? Are they strict or flexible? Exclusive or concurrent? COMMERCE POWER Hstoical sweep use to help lapply test, not a substitute for test. Be aware of the differences of analysis of context. (When dealing with Individuals vs. states) Know recent emphasis on state sovereignty. SPENDING POWER Know the test. The question of coercion. DORMANT COMMERCE CLAUSE Where does it come from, why do we have it, whats its purposes? Philadelphia/Pike Test know all the parts and there analyses PREEMPTION Know the different kinds of them, how to recognize them, and what there impact is. DUE PROCES

Con Law Gardner 63 of 63 **Have an opinion and a view about why Lochner was wrongly decided? What is the behavior the court should avoid and why should it? Know rational-basis review HEIGHTENED SCRUTINY/RGIHT TO PRIVACY Origins/evolution to right to privacy How to read the due process clause to understand why it gives this right. Know the std. of review is strict scrutiny what justifies the use of this std. and how it is applied.

Right to Abortion Know Roe v. Wade (what does it protect and how) Sexual conduct The Right to Die Whats the cts methodology and when the ct can encroach on individual rights? What are the tools to make a substantive due process argument? How are they deployed (history, precedent; tradition, etc.)? What are the limits of plausibility to the levels of abstraction (generality) to be able to apply the law to a specific situation. EQUAL PROTECTION Historical background (specific racial roots, jim crow, slavery, civil war, brown v. board) Rational basis line of cases When is rational basis scrutiny used in equal protection cases? What ends can courts aim for by its means?] HOW TO APPROACH AN EXAM QUESTION 1. Answer the question asked. Figure out the question and answer that question. 2. Do not regurgitate. Rule: When you get the exam, you have to write something different from what you could have written than you would before you see the exam. 3. 3 Types of Questions o How does the test apply to this set of facts? o Whats the test? If not sure which test applied, apply both tests. o What should be the test? 4. Keep asking Why? Unless there is a case to prove your conclusory statement, keep asking why and digging further with you reasoning of why. 5. A lot of questions are ambiguous as there can be an argument (make arguments from both sides). 6. Questions that will ask you to construct a certain argument. There will be also issue spotting questions. 7. No page limit. 8. Use citations, but only to the point where the case is recognizable (no bluebook)