A) History a. Oldest written constitution in existence today (Englands is not one written document). b.

2/3 of constitutions in existence today have been adopted since 1970. c. 1765 French and Indian War left England broke and they looked to colonies for money. d. These taxes led to Revolution because there were no colonial representatives in Parliament resulting in taxation without representation. e. England held that Parliament represented all Englishmen (including colonists). f. First united effort by colonists to protest was Stamp Act Congress. g. United States Constitution went into effect in 1789 (proposed in 1787). h. Sole purpose of Constitutional Convention was to revise Articles of Confederation. i. Bulk of framers were lawyers. j. Strengths: i. opening words (we the people) all governments power originates from people (in England, government had all power) and government only has power we give to it; ii. sets up unique balance of power between existing state governments and national government it created (birth of federalism); iii. government power is defined in broad brush strokes rather than minute detail enabling document to survive for so long (changes with times); iv. separation of powers (three separate Articles) and checks and balances; v. contained provision for orderly change through amendment process (but not too easy) k. Weaknesses: i. slavery was not abolished (would have kept document from being ratified); ii. there was no Bill of Rights (framers were afraid that by enumerating rights, they would exlude those rights that werent enumerated and framers considered Constitution to be document limiting government powers so that they may not infringe rights of citizens);1 iii. concept of limited power doesnt go a long way in protecting individual rights. l. 4 distinct functions our Constitution performs: i. establishes national government (Art. 1,2,3, 6; Amend. 12, 16, 17, 20, 22, 23, 25); ii. federalism - controls relationship between national government and state governments (Art. 1 Sec. 8 and 10; Art. 3 Sec. 2; Art. 4, Amend. 10, 11, 18, 21); iii. defines and preserves personal liberty and deals with issues of equality (Art. 1 Sec. 9 and 10; Art. 3 Sec. 2 and 3; Art.4 Sec. 2; Amend. 1-10, 13, 14, 15, 19, 24, 26); and iv. contains provisions for government to perpetuate itself through orderly change (Art. 5). B) The Federal Judicial Power a. The Authority for Judicial Review
1

James Madison wrote Bill of Rights (Amendments 1-10) shortly after Constitution was ratified.

i. Marbury v. Madison established Supreme Courts authority for judicial review. b. Authority for Judicial Review of State Judgments i. Martin v. Hunters Lessee established that the Supreme Courts authority to review the highest state courts decisions.

C) Limits on the Federal Judicial Power a. Three primary limits on judicial authority exist: i. interpretive limits how Constitution should be interpreted; ii. congressional limits ability of Congress to restrict federal court jurisdiction; and iii. justiciability limits judicially created doctrines limiting types of matters federal courts
can decide. b. Interpretive Limits i. How Constitution should be interpreted and extent to which method of interpretation should limit judiciary arises in all areas of constitutional law. Usually determined between holding strictly to the constitution or by looking beyond the four corners of the document c. Congressional Limits i. Article III provides that Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. ii. Ex Parte McCardle establishes that congress has the power to repeal Supreme Courts appellate jurisdiction. Here congress repealed the Supreme Courts appellate jurisdiction over circuit courts. iii. Separation of powers congress cannot be acting judicially (determining the outcome of cases) and must specifically just be taking away appellate jurisdiction. A) Justiciability (Cases and Controversies) a. Doctrines of Justiciability: An Overview i. In large part from the Case and Controversy requirement of Art. III, the Court has inferred various justiciability doctrines which limit the Courts jurisdiction. ii. Some of these doctrines are constitutionally based and cannot be overridden legislatively. Others are based on prudential concerns and may yield to legislative acts. b. Advisory Opinions i. Federal courts will not render Advisory Opinions because there is no adversarial conflict to bring the controversy into strict focus. c. Standing i. Constitutional Requirements (Allen v Wright) 1. The party bringing a lawsuit must have Standing, i.e. it must show that it has suffered an injury in fact, 2. which was caused by the defendants conduct (causation); and 3. that a favorable judicial ruling would redress that harm. (redressability) ii. Allen v. Wright determines that for a party to have standing they must have a judicially cognizable injury and such injury must be fairly traceable to the government conduct iii. Prudential Requirements (Congress can change) 1. NO 3rd Party Standing

a. Generally a plaintiff must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of 3rd parties. i. Exceptions: 1. Singleton v. Wulff establishes that an action can be brought by a 3rd party a. Relationship between plaintiff and 3rd party is inextricably bound with the activity the litigant wishes to purse (Close relationship to 3rd Party) b. The ability of the 3rd party to assert his own right is obstructed. (likelihood 3rd party can sue on its own behalf) 2. Craig v. Boren a. Vendors and those in a like position are permitting to resist the efforts at restricting their operations by acting as advocates of 3rd parties who seek access to their market. 2. Taxpayers Standing Rule a. Frothingham v. Mellon (General Rule) i. Federal taxpayers do not have standing to challenge acts of congress solely on the basis of their taxpayer status. b. Exception (Flast v. Cohen) i. Logical link or nexus between taxpayer and particular enactment 1. Must allege that there is a violation of Congresss Article I, Section 8(1) taxing and spending powers (appropriation of your funds) ii. Logical link between status as a taxpayer and specific constitutional violation 1. If suit is brought then they must show that there is a specific limitation on the spending power (Establishment Clause) iv. Ripeness 1. Ripeness conveys the requirement that a dispute must have reached a point where the challenged governmental action has a direct adverse impact on the individual making the challenge. Self-executing acts are ripe once enacted; those that require some further action before a legal consequence attaches may be more controversial. At times, courts have held that such laws are not ripe until the further action has occurred. 2. Two Prong Test to Prevent premature adjudication i. Fitness of the issues for judicial resolution ii. Hardship to the parties by withholding the decision right now v. Mootness 1. Must be a live controversy at all stages of federal court litigation. a. Exceptions i. Wrongs capable of repetition but evading review 1. A case is not dismissed, even if it is moot, if the injury is likely to occur in the future.

a. Pregnancy Case and Election Cases ii. Voluntary cessation (suits for injunctive / declaratory relief) 1. A case is not dismissed as moot, if the defendant voluntarily ceases the allegedly improper behavior. The court is free to return to it at anytime if the defendant restarts such improper behavior iii. Class Action Suits 1. A properly certified class action suit may continue even if the named plaintiffs claims are rendered moot. vi. Political Questions (Is it proper for Judicial Resolution?) 1. Political questions are issues which the federal courts will not address because their subject matter is deemed to be not fit for judicial resolution. 2. Baker v Carr determines six ways in which the courts should consider their relationship to the legislative and executive branches, not the states. a. Look at language of Constitution and see if the issue is given to another branch of government for interpretation b. Not easily handled by Judicial decision c. Determination that is not of Judicial discretion d. Will deciding the cause a lack of respect for the other branches e. Unusual need for adherence to a political question already made f. Causes Embarrassment of US to foreign entities B) Article I Congressional Powers a. Implied Powers under the Necessary and Proper Clause: i. The Constitutions structure suggests the existence of implied powers beyond those enumerated in the Constitution. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), Chief Justice Marshall held that the Constitution implicitly authorized Congress to take the means necessary to give effect to the powers granted. 1. The Federalist Papers suggested that Marshalls conclusion was consistent with Madisons intent (see No. 44). ii. In addition the Necessary and Proper Clause provided textual support for Marshalls conclusion. 1. Through an elaborate and ingenious argument, Marshall argued that the Clause expanded rather than limited Congress enumerated powers and conferred power to take action which was useful even though not indispensable. iii. Marshal Established End Means Test: 1. The test for action under the Necessary and Proper clause was stated as follows: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution are constitutional. iv. The Necessary and Proper Clause has proved to be a source of considerable additional powers. It authorizes action regarding not only the powers set forth in Article I but throughout the Constitution. v. Necessary and Proper clause must always be tied to an expressed power as reason for its use. Article 1(8)18 b. S

i. Commerce Power (Article 1(8)3) ii. Spending Power iii. Section 5 of 14th Amendment c. Commerce Clause (Initial Era -1990) i. Introduction 1. The Commerce Clause constitutes the principal domestic power of the federal government. The interpretation of the Commerce Clause has changed over time. ii. Early 19th Century 1890: Broadly Interpreted; Rarely Used 1. Marshalls Conception 2. In Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), Chief Justice Marshall articulated a broad vision of the Commerce Clause. a. Commerce extended beyond navigation to include commercial intercourse. Everything involved with the movement or the effectuation of commerce b. Regulate involved the power to prescribe the rule by which commerce could be governed. No limitations other than those prescribed by the constitution plenary c. Among the states means concerning more than one state iii. 1890s to 1937 Narrowly Defined 1. United States v. E.C. Knight Co. a. Holding: No. Commerce does not include manufacturing of goods meant to travel interstate. 2. Carter v. Carter Coal Co. a. Holding: No. Purely local activities are outside Congress commerce power. iv. 1937 to 1992 Broadly Interpreted 1. Court expansively defined scope of commerce power and refused to use Tenth Amendment as limit on Congress power. 2. Key Decisions Changing the Commerce Clause Doctrine a. NLRB v. Jones & Laughlin Steel Corp. Defines what it means to affect commerce i. Holding: Yes. Congressional power to regulate interstate commerce extends to regulations of intrastate activities that may burden or obstruct interstate commerce. ii. Analysis: Affecting commerce means in commerce or burdening or obstructing commerce or free flow of commerce or having led or tending to lead to labor dispute burdening or obstructing commerce or free flow of commerce. Congress authority to deal with such burdens is plenary, and reaches to source of burden even if it is intrastate activity. b. Wickard v. Filburn Establishes Substantial effects test i. Holding: Yes. Congress commerce authority extends to all activities having substantial effect on interstate commerce, including those that do not have such substantial effect individually but do when judged by national aggregate effects. 3. Civil Rights Cases

a. The Modern Commerce Clause jurisprudence followed from Darby and Wickard and featured extensive deference to Congress. b. The 1964 Civil Rights Act rested on the Commerce Clause. The Court upheld the Act in Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) even though Congress used the Commerce Clause to address the moral evil of racial discrimination in public accommodations. Used ends means test c. Heart of Atlanta Motel, Inc. v. United States Substantial Effects test used i. Holding: Yes. Racial discrimination in public accommodations exerts substantial burden and harmful effect upon interstate commerce. d. Katzenbach v. McClung, Sr. and McClung, Jr. used ends means test i. Holding: Yes. Restaurants serving food that moved in interstate commerce are subject to Act. 4. Rational Basis Test a. A judicial standard of review that examines whether a legislature had a reasonable and not an Arbitrary basis for enacting a particular statute. v. The Tenth Amendment Between 1937 and the 1990s 1. Darbys approach to Tenth Amendment, it is but truism, was followed until 1976 in National League of Cities v. Usery which was subsequently overruled by Garcia (below): 2. National League of Cities v. Usery a. Holding: No. Congress does not have authorty to regulate states as employers. Pursuant to Tenth Amendment, Congress could not exercise its power under Commerce Clause to force its choices upon states as to how essential decisions regarding conduct of integral governmental functions were to be made. 3. Garcia v. San Antonio Metropolitan Transit Authority a. Holding: Yes. Congress has full authority under Comerce Clause to regulate traditional functions of state and local governments notwithstanding Tenth Amendment. b. Analysis: Courts have struggled with how traditional function is to be distinguished from nontraditional function. Attempt to draw such boundaries is unworkable and inconsistent with established principles of federalism because it invites unelected judiciary to make decisions about which state policies it favors and which ones it dislikes. Thus, National League of Cities v. Usery is overruled. Framers believed state sovereignty could be maintained by structure they adopted: Senate in which each state was given equal representation regardless of its population and electoral college that gave states power to choose electors. vi. 1990s and on Narrowed 1. United States v Lopez: Back to constraints in congresss powers under the commerce clause 2. Congress can only affect a. Channels of Interstate Congress

b. Instrumentalities of interstate commerce (People or things in interstate commerce) c. Those activities having a substantial relation to interstate commerce or Substantial Effect i. Economic Activity: Intrastate activity is such that would affect broader economy ii. Non-Economic: Jurisdictional Effect is effected as such that it would affect the broader economy 3. United States v. Lopez a. Holding: No. Gun-Free School Zones Act is unconstitutional exercise of commerce power. b. Analysis: Congress has power to regulate only: 1) channels of commerce; 2) instrumentalities of commerce; and 3) actions that substantially affect interstate commerce. 4. New York v. United States (1992) a. Holding: No. Congress may not commandeer legislative process of states in order to force them to adopt federal regulatory program. b. Analysis: Congress has plenary power to regulate such interstate commerce as radioactive waste, but take title" provision of Act violates Tenth Amendment and exceeds Congress's power under Commerce Clause. Since provision offers States choice between two unconstitutionally coercive alternatives -- either accepting ownership of waste or regulating according to Congress' instructions -- provision lies outside Congress' enumerated powers and is inconsistent with Tenth Amendment. 5. Printz v. United States (1997) a. Holding: No. Congress is not empowered to require state and local law enforcement officials to administer federal regulations. Allowing federal government to draft police officers of states into its service would increase its powers far beyond what Constitution intends. Act effectively transferred executive branch's responsibility to administer federal laws to thousands of officials who were left to implement program without meaningful presidential control vii. Congress trying to establish power to regulate interstate commerce. a. Enumerated Power b. Necessary and proper c. Does it violate constitutional provision 2. Principles of avoidance by courts a. Avoid question of constitutionality b. If they do have to formulate a constitutional law they tailor it as narrowly as possible d. The Taxing and Spending Power i. Direct and Indirect Taxes 1. Direct Taxes: Article 1(2) &(9):Taxes that can be by apportionment only, taxes on real estate. 2. Indirect Taxes: Article 1(8)(1)

ii. Article I Section 8 states Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for common Defence and general Welfare; but all Duties, Imposts and Excises shall be uniform throughout United States. iii. For What Purposes May Congress Tax and Spend? iv. Is Congress limited to taxing and spending only to carry out other powers specifically enumerated in Article I, or does Congress have broad authority to tax and spend for general welfare? Butler adopts latter view. 1. Two issues in Butler: a. Scope of Congress spending power (remains good law) and b. Whether Tenth Amendment is limit on it (no longer followed). 2. United States v. Butler (1936) a. Holding: No. Congress may not use taxing or spending powers to force compliance in area where Constitution does not give Congress independent power to regulate. Congress is authorized to appropriate and authorize spending for general welfare under Article I, Section 9, Clause 7. This power is not limited by enumerated powers but is separate and distinct from enumerated powers. Thus, Congress has power to tax and spend, limited only by requirement that it be for general welfare. While Act might have been within Congress' power to tax and spend for general welfare, Act was unconstitutional on Tenth Amendment grounds because it was designed to regulate agriculture, activity reserved to states. Tax, appropriation of funds raised, and direction for their disbursement were permissible means to unconstitutional end, to regulate agriculture. 3. Sabri v. United States (2004) a. Holding: Yes. Under Spending Clause, Congress is authorized to appropriate federal funds for general welfare and use all rational means necessary and proper to further its spending power. Congress may use Necessary and Proper Clause to use wide range of means to achieve constitutionally enumerated ends. Statute is rationally related to federal governments goal of protecting integrity of federal funds. v. Conditions on Grants to State Governments 1. Congress may place conditions on grants to state and local governments, even as to areas that Congress might otherwise not be able to regulate, so long as conditions are expressly stated and so long as they have some relationship to purpose of spending program. 2. South Dakota v. Dole (1987) a. Yes. Use of spending power is subject to three requirements: 1) must be used for general welfare; 2) conditions on receipt of funds must be unambiguous; 3) conditions must be related to federal interest in particular national projects or programs being funded; and 4) is there another constitutional that provides an independent bar to the conditional grant of federal funds e. Congress Powers Under the Post-Civil War Amendments i. After Civil War, three amendments were added to Constitution:

1. Thirteenth Amendment prohibits slavery and involuntary servitude except as punishment for crime, applies to private conduct; 2. Fourteenth Amendment provides all persons born or naturalized in United States are citizens and no state can abridge privileges or immunities of such citizens; nor may states deprive any person of life, liberty, or property without due process of law or deny any person of equal protection of laws; and 3. Fifteenth Amendment declares right of citizens of United States to vote shall not be denied or abridged by United States or by any State on account of race, color, or previous condition of servitude. 4. All three amendments provide that Congress has power to enforce them by appropriate legislation (to enact civil rights legislation). ii. Whom May Congress Regulate Under the Post-Civil War Amendments? 1. Under 2 of Thirteenth Amendment Congress may prohibit private racial discrimination. 2. However, Congress cannot regulate private behavior under 5 of Fourteenth Amendment. 3. United States v. Morrison (2000) a. Holding: No. Congress may not regulate private conduct pursuant to Fourteenth Amendment. iii. What is the Scope of Congress Power? 1. Two views as to scope of Congress power to enforce under 5 of 14th Amendment: a. Congress may only prevent or provide remedies for violations of rights recognized by Supreme Court and cannot expand scope of rights or provide additional rights; or b. Congress may interpret Amendment to expand scope of rights or to create new rights by statute where Court has not found them in Constitution, but Congress cannot dilute or diminish constitutional rights. 2. Katzenbach v. Morgan and Morgan2 a. Holding: Yes. Congress may enact laws stemming from its Fourteenth Amendment enforcement power that increase rights of citizens beyond what judiciary has recognized.Analysis: 5 is positive grant of legislative power authorizing Congress to exercise its discretion in determining need for and nature of legislation to secure Fourteenth Amendment guarantees. Under McCulloch v. Maryland standard (rational basis test), Act was "plainly adapted" to furthering Equal Protection Clause and its remedies constituted means consistent with letter and spirit of constitution. 3. City of Boerne v. Flores3 a. Holding: No. Congress may not use 5 to define substantive scope of constitutional rights. b. Analysis: Congress' power under 5 extends only to enforcing provisions of Fourteenth Amendment. This power is remedial. Design of
2 3

adopted first view adopted second view

Amendment and text of 5 are inconsistent with suggestion that Congress has power to decree substance of Fourteenth Amendment's restrictions on States. Legislation which alters meaning of Free Exercise Clause cannot be said to be enforcing Clause. Congress does not enforce constitutional right by changing what right is. It has been given power to enforce, not power to determine what constitutes constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, provisions of Fourteenth Amendment. f. Congress Power to Authorize Suits Against State Governments i. Background on the Eleventh Amendment and State Sovereign Immunity 1. Eleventh Amendment grants sovereign immunity to states, which means states cannot be sued in federal court by its citizens or citizens of another state. 2. Three ways around Eleventh Amendment to hold states accountable in federal court: a. state officers may be sued in federal court (Ex Parte young); b. states may expressly waive their immunity; and c. Congress waives may authorize suits against state governments if it: i. Expressly states as such, and ii. Is acting pursuant to 5 of Fourteenth Amendment 3. Congress Power to Authorize Suits Against State Governments a. Basic Rule: Congress May Authorize Suits Against States Pursuant Only to 5 b. Seminole Tribe of Florida v. Florida i. Holding: No. Congress may not abrogate states immunity for this purpose. Such abrogation is permitted only where it is necessary to enforce rights of citizens guaranteed under Fourteenth Amendment. 4. Cases Denying Congress Authority to Act Under 5 to Authorize Suits Against States a. In three cases between 1999 and 2001, Court found federal statutes could not be used to sue state governments because laws did not fit within scope of Congress 5 power: b. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and United States i. Analysis: Congress must 1) show history or pattern of unconstitutional activity by state giving rise to need for remedial or preventative federal regulation and 2) limit scope of remedy, making it proportionate to constitutional violations giving rise to need for enforcement c. Kimel v. Florida Board of Regents i. Holding: No. Acts substantive requirements must be congruent with and proportionate to unconstitutional actions of state. Remedy does not fit the wrong ii. Analysis: Received Rational Basis Review. ADEA contained clear statement of Congress' intent to abrogate States'

immunity. However, in light of indiscriminate scope of ADEA's substantive requirements, and lack of evidence of widespread and unconstitutional age discrimination by States, ADEA was not valid exercise of Congress' power under 5. d. Board of Trustees, University of Alabama v. Garrett i. Holding: No. Congress had not identified history and pattern of unconstitutional employment discrimination against disabled by states sufficient to abrogate States' immunity. ii. Analysis: Received Rational Basis Review. States were not required by Fourteenth Amendment to make special accommodations for disabled, so long as their actions towards such individuals had rational basis. Thus, if special accommodations for disabled were to be required, they would have had to come from positive law and not through Equal Protection Clause. Congress had not identified history and pattern of unconstitutional employment discrimination by states against disabled on which 5 legislation was required to be based. Even if pattern of discrimination were shown, however, rights and remedies in ADA were not congruent and proportional to targeted violation given ADA's sweeping requirements. 5. Congress Greater Authority to Legislate Concerning Types of Discrimination and Rights that Receive Heightened Scrutiny a. Supreme Court uses heightened scrutiny for some types of discrimination and for fundamental rights. For example, discrimination based on race or infringement of fundamental rights must meet strict scrutiny it must be necessary to achieve compelling government purpose. b. Some types of discrimination must meet intermediate scrutiny they must be substantially related to achieving substantial government purpose. c. Congress has more authority to act under 5 when dealing with types of discrimination and rights that trigger heightened scrutiny. d. Nevada Department of Human Resources v. Hibbs i. Analysis: Congress validly exercised its power under 5 of Fourteenth Amendment by enacting prophylactic legislation in order to prevent and deter gender-based discrimination in workplace. States' record of unconstitutional participation in, and fostering of, gender-based discrimination in administration of leave benefits was weighty enough to justify enactment of prophylactic 5 legislation. This case targets gender discrimination, which is subject to heightened constitutional scrutiny rather than rational-basis review applicable to issues of disability and age discrimination. Because states bear higher constitutional burden to justify gender classifications under heightened scrutiny, it is easier for Congress to establish pattern of constitutional violations, as it is with racial classifications.

FMLA was congruent and proportional to its remedial object, and could be understood as responsive to, or designed to prevent, unconstitutional behavior. e. Tennessee v. Lane i. Holding: No. ADA constituted valid exercise of Congress's authority. To abrogate states Eleventh Amendment immunity, Congress must have unequivocally expressed its intent to abrogate that immunity and do so under valid grant of constitutional authority. ii. Congress Power to Authorize Suits Against State Governments in State Courts 1. Eleventh Amendment has been interpreted to bar suits against state governments in federal courts. Congress also cannot authorize suits against state governments in state court, even on federal claims, without their consent. a. Alden v. Maine i. Holding: No. States sovereign immunity extends to suits in state courts. ii. Analysis: Neither Supremacy Clause nor enumerated powers of Congress authorized Congress to subject nonconsenting states to private suits for damages in state courts. Sovereign immunity of states neither derives from nor is limited by terms of Eleventh Amendment. C) The Federal Executive Power a. Article II Powers Summary i. Section 1 1. Executive powers are vested in the president ii. Section 2 1. Commander in Chief 2. Reprieves and Pardons 3. Treaties (2/3 Senate Advice and Consent) 4. Appointment of Ambassadors, etc. (Advice and Consent 5. Recess Appointments iii. Section 3 1. State of the union 2. Recommend Laws 3. Receive Ambassadors 4. Faithfully execute the laws b. Inherent Presidential Power i. Introduction 1. If President has explicit constitutional authority for particular conduct, then issue is whether President is acting within scope of granted power and whether President is violating some other constitutional provision. 2. If statute authorizes Presidents conduct, question is whether law is constitutional. 3. When may President act without express constitutional or statutory authorization?

4. Some argue President has inherent authority not specifically delineated in Constitution because Article II does not limit President to powers herein granted. 5. Some argue he has no powers not enumerated since unenumerated authority would be inconsistent with Constitution creating government of limited authority. a. Youngstown Sheet & Tube Co. v. Sawyer b. Holding: Yes. President does not have inherent authority to order involuntary surrender of private property to government. c. Analysis: Presidential power exerted here could not be sustained as exercise of President's military power because it was outside theater of war and it is Congress duty to raise and supply armed forces. Seizure could not stand because Congress had exclusive constitutional authority to make laws necessary and proper to carry out powers vested by Constitution. There is no explicit statute or act which authorizes President to act in this manner. Not only is it unauthorized, but Congress refused to act in such manner to begin with, in regards to Taft-Hartley's legislative history. President cannot order policy; he can only suggest it. d. Concurrence: Three categories into which each of Presidents actions may fall: 1) actions have maximum force and authority when he acts pursuant to express or implied authorization by Congress; 2) when Congress is silent, Constitution grants President certain power to act independently or concurrently with Congress unknown area; and 3) power is at its lowest when he acts contrary to will of Congress, express or implied. Seizure of mills falls under third category. ii. The Scope of Inherent Power: The Issue of Executive Privilege 1. One of most important issues concerning inherent power of President is whether and under what circumstances President can invoke executive privilege. 2. Executive privilege refers to ability of President to keep secret conversations with or memoranda to or from advisors. 3. Constitution does not mention authority, but Presidents have claimed it throughout history, claiming it necessary to receive candid advice and to protect national security. a. United States v. Richard M. Nixon, President of the United States i. Analysis: Issues relating to production of documents in pending criminal case were justiciable and were properly heard on interlocutory appeal in case involving President. Because special prosecutor had demonstrated specific need for evidence sought by way of subpoena, it was proper to compel production and to examine material in camera. Legitimate needs of judicial process outweighed executive privilege. Executive Must assert military diplomatic or national security interest and be specific c. The Authority of Congress to Increase Executive Power i. Two views of separation of powers: 1. separation of powers is appropriately resolved, whenever possible, between President and Congress, and if branches agree, courts only rarely should invalidate their actions;

2. separation of powers is constitutionally mandated and therefore envisions crucial judicial role in enforcing its requirements. a. William J. Clinton, President of the United States v. City of New York i. Holding: No. If President wishes to exercise his veto power he must veto bill in its entirety. ii. Analysis: In effect, President has amended two already enacted Acts of Congress by repealing portions of each. Repeals of statutes must conform with Article I. Cancellation authority is different from veto power because it occurs after bill becomes law. Constitutional silence on subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes is equivalent to express prohibition. Thus, cancellations pursuant to Act had no legal force or effect and failed to satisfy procedures set out in Article I, 7. d. The Constitutional Problems of the Administrative State i. One of most dramatic changes in American government since Constitution was written has been growth of administrative agencies. ii. These agencies exercise all of powers of government: legislative, executive, and judicial. 1. The Non-Delegation Doctrine and Its Demise a. Principle that Congress cannot delegate its legislative power. b. A.L.A. Schechter Poultry Corp. v. United States i. Holding: No. Legislature may not delegate executive branch unfettered authority to make law. ii. Analysis: Act prescribed no constitutional method or procedure for ascertaining unfair methods of competition. Instead of prescribing rules of conduct, Act authorized making of codes to prescribe them. Discretion of President in approving or prescribing codes was virtually unfettered and, thus, codemaking authority conferred was unconstitutional delegation of legislative power. c. Panama Refining Co. v. Ryan i. Holding: No. Delegation of power to executive branch must be specific and limited. d. Since Panama (1935), every delegation has been upheld by Court, no matter how broad and even delegation without criteria. e. Whitman v. American Trucking Assn., Inc. i. Holding: No. CAA properly delegated legislative power to the EPA. ii. Analysis: CAA, which required EPA to set air quality standards at level to protect public health with adequate margin of safety, fit comfortably within scope of discretion permitted by precedent. Federal legislation need not establish determinate criterion that sufficiently limit administrative discretion. Statutory mandate to establish air pollutant standards that is no more or less than

necessary to preserve public health falls within legitimate delegation of administrative discretion. f. Congress must have an intelligible principle (congress gives sufficient direction) when delegating to administrative agencies iii. The Legislative Veto and Its Demise 1. In 1930s, Congress created legislative veto as check on actions of administrative agencies. 2. Congress included in statutes provisions authorizing Congress or one of its houses or committees to overturn agencys action by doing something less than adopting new law. a. Immigration and Naturalization Service v. Jagdish Rai Chadha i. Holding: Yes. Legislative action is not legitimate unless there is bicameral approval and presentment to President. ii. Analysis: House's action pursuant to statute was legislative in function and did not fit within any exceptions authorizing one House to act alone. As result, House's action was subject to certain checks on legislative power contained in Article I, such as bicameral requirement, presentment to President, and Presidential veto. Congress must either abide by delegation of authority, which was enacted through proper channels, or expressly revoke it. b. Important Note: When congress can act alone i. House of Representatives alone has the power to impeach officers including President ii. Senate alone has power to conduct trial after impeachment and convict iii. Senate alone has power to approve or disprove presidential appointments iv. Senate alone has power to ratify treaties negotiated by president iv. Checking Administrative Power 1. Congress can control administrative agencies through statutes, can overturn agency decisions by statute by following prescribed procedures for bicameralism and presentment, and controls budget of agencies. 2. President checks administrative agencies through appointment and removal. 3. The Appointment Power a. Article II 2 provides President shall nominate, and by and with advice and consent of Senate, shall appoint Ambassadors, other public ministers and consuls, judges of Supreme Court, and all officers of United States whose appointments are not herein otherwise provided for and which shall be established by law: but Congress may by law vest appointment of such inferior officers, as they think proper, in President alone, to courts of law, or in hands of heads of departments. b. Alexia Morrison, Independent Counsel v. Theodore B. Olson i. Facts: Special Division appointed independent counsel to investigate high-ranking government official. Official claimed appointment of independent counsel was unconstitutional.

ii. Procedural History: Appeals held appointment of independent counsel was unconstitutional. iii. Issue: Whether Constitution requires President to exercise sole and exclusive control over appointment of all executive officers? iv. Holding: No. President does not have exclusive authority to appoint executive officers. v. Analysis: Act did not violate Appointments Clause because independent counsel is inferior officer because she is subject to removal by higher executive branch official, she is empowered only to perform limited duties, and her office is limited in jurisdiction and tenure. 4. The Removal Power a. There is no provision of Constitution concerning Presidents authority to remove executive branch officials. b. In general, President may remove executive officials unless removal is limited by statute. c. Congress may limit removal both if it is office where independence from President is desirable and if law does not prohibit removal but, rather, limits removal to instances where good cause is shown. 5. The Impeachment of Andrew Johnson a. Congress passed Tenure in Office Act to prevent Johnson from removing key members of cabinet when he took over as President after assassination of Lincoln. b. Johnson removed Secretary of War in violation of this Act. c. House voted Articles of Impeachment but vote in Senate was one short of two-thirds necessary for removal and thus Johnson completed his term as President. d. Myers v. United States i. Issue: Whether, under Constitution, President has exclusive power of removing executive officers whom he has appointed by and with advice and consent of Senate? ii. Holding: Yes. President was empowered to remove postmaster from his appointment. iii. Analysis: In absence of constitutional or statutory provision otherwise, President could by virtue of his general power of appointment remove officer on ground power of removal inhered in power to appoint, even though he was appointed by and with advice and consent of Senate. e. Morrison v. Olson i. Facts: Ethics in Government Act provided for appointment of independent counsel to investigate alleged wrongs by President and other high-level executive officials. ii. Issue: Whether Act is invalid under separation of powers? iii. Holding: No. Act did not violate separation of powers principle. iv. Analysis: Act did not violate separation of powers by increasing power of one branch at expense of another. Instead, even though

President could not directly remove independent counsel, person holding office was still Executive branch officer, not under control of either Congress or courts. D) Separation of Powers and Foreign Policy a. Congresses Powers i. Article I (8) Enumerated Powers 1. Clause 3 Regulate foreign commerce 2. Clause 4 Naturalization 3. Clause 10 Define and punish piracies offenses against law of nations 4. Clauses 11-16 Declare war, raise army, provide navy, regulate navy, calling forth a militia, organize and discipline militia. b. Presidents Powers i. Article II 1. President is Commander in Chief of armed forces 2. Shall have the power to make treaties (advice and consent of senate) 3. Appoint diplomats (advice and consent of senate) 4. Receive ambassadors c. Are Foreign Policy and Domestic Affairs Different? i. United States v. Curtis-Wright Export Corp. 1. Holding: Yes. Nondelegation doctrine does not bar Congress from delegating great authority and discretion to President in conduct of foreign affairs. 2. Analysis: There is fundamental difference in role of government in foreign affairs as opposed to domestic affairs. Federal government has both constitutional and inherent authority to conduct foreign affairs as it sees fit. President is sole representative to foreign nations. Therefore, power to make decisions regarding international affairs was vested in President, especially in areas that could lead to embarrassment of or security issues for nation. In addition, President is better able than Congress to judge conditions in foreign countries. d. Treaties and Executive Agreements i. Article II, 2 states President shall have power, by and with advice and consent of Senate, to make treaties, provided two thirds of Senators present concur. ii. Major constitutional issue that has arisen concerns authority of President to use executive agreements rather than treaties for foreign policy commitments. iii. Executive agreement is agreement between United States and foreign country effective when signed by President and head of other government; no Senate ratification needed. iv. Although Constitution does not mention executive agreements, it is well established they are constitutional and can be used for any purpose treaties can be used for. 1. Dames & Moore v. Regan, Secretary of the Treasury a. Holding: Yes. President has power to settle claims by citizens against foreign governments. b. Analysis: President has authority to terminate legal proceedings and settle pending claims of U.S. citizens against foreign governments where such action is necessary to resolution of major foreign policy dispute.

Congress has implicitly approved practice of claim settlement by executive agreement. e. War Powers i. Article I grants Congress power to declare war and authority to raise and support army and navy. Article II makes President Commander-in-Chief. Basic, unresolved questions exist concerning these powers: 1. What constitutes declaration of war? 2. When may president use American troops in hostilities without Congressional approval? a. Congress adopted War Powers Resolution to address these two questions. b. Constitutionality of War Powers Resolution has not been tested. c. It is quite possible that every challenge to Presidents actions as violating War Powers Resolution will be dismissed on justiciability grounds, either for lack of standing or as political question. E) Presidential Power and the War on Terrorism a. When may Executive detain American enemy combatants? b. When, if at all, are military tribunals constitutional? i. Detention 1. Hamdi v. Rumsfeld a. Facts: U.S. citizen was detained in Afghanistan for allegedly cooperating with Taliban. Government labeled him enemy combatant and withheld due process. b. Procedure: Appeals dismissed citizen-detainees petition for writ of habeas corpus. c. Issue: Whether President, under certain circumstances, has authority to detain citizens declared by government to be enemy combatants? d. Holding: Yes. Individual due process rights must be balanced against national security. e. Analysis: Authorization for Use of Military Force (AUMF) authorized detention of individuals in citizen-detainee's circumstances and satisfied requirement that detention be pursuant to Act of Congress. Thus, as long as American troops are at battle with Afghanistan, citizen-detainees continued detention is lawfully authorized by AUMF. However, while Government maintains legitimate interest in removing enemy combatants from military conflict as matter of national security, erroneously detained persons possess equally important liberty interests. Citizen-detainee, seeking to challenge his classification as enemy combatant, was entitled to receive notice of factual basis for his classification, and fair opportunity to rebut Government's factual assertions before neutral decisionmaker. These due process rights cannot, however, restrict Governments ability to administer military conflict under exigent circumstances. Burden-shifting scheme balances individuals due process right to challenge Governments

ii.

classification while protecting Governments ability to make reasoned decisions during time of war. f. Judgment: Vacated and remanded for further proceedings. g. Dissent in Part: AUMF has not been shown to authorize this detention. There was no Congressional authorization for this detainment, so detainment was unlawful. h. Dissent: Only way to accomplish this detainment is to suspend habeus corpus. i. Dissent: Because Executive has exercised his discretion to exercise his war powers according to his military expertise upon Congressional authorization to declare citizen-detainee as enemy combatant, Court is ill suited to question this judgment. Military Tribunals 1. In November 2001, President Bush issued order for military tribunals. Order for military tribunals raises many basic questions: 2. Does President, as Commander-in-Chief, have authority to create military tribunals or is creating courts entirely Congressional power under Constitution? 3. Can government suspend provisions of Bill of Rights in trying noncitizens accused of terrorism or supporting terrorism? 4. More generally, how should Constitution be interpreted during war time? a. Ex Parte Quirin i. Holding: No. President could try them in military tribunal without jury. ii. Analysis: It has long been accepted practice by our military authorities to treat those who, during time of war, pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for commission of hostile acts involving destruction of life or property, as unlawful combatants punishable as such by military commission. Specification sufficiently charged offense against law of war, which the President was authorized to order tried by military commission. Articles of War, enacted by Congress, recognize military commission as appropriate tribunal for trial and punishment of offenses against law of war not ordinarily tried by courts-martial. Germans were alleged to be unlawful belligerents, and under Articles of War, they were not entitled to be tried neither in civil proceeding, nor by jury. b. Hamdan v. Rumsfeld i. Facts: Yemen citizen and driver was captured by militia forces during invasion of Afghanistan and sent to Guantanamo Bay. He was charged with conspiracy to commit terrorism, and Bush made arrangements to try him before military commission. ii. Procedural History: Appeals reversed decision granting writ of habeas corpus.

iii. Issue: Whether military commission convened to try him was legal? iv. Holding: No. Military commission to try plaintiff is illegal and lacking protections required under Geneva Conventions and United States Uniform Code of Military Justice. v. Analysis: Neither act of Congress nor inherent powers of Executive laid out in Constitution expressly authorized sort of military commission at issue in this case. Absent that express authorization, commission had to comply with ordinary laws of United States and laws of war. Geneva Convention, as part of ordinary laws of war, could therefore be enforced along with statutory Uniform Code of Military Justice. Hamdan's exclusion from certain parts of his trial deemed classified by military commission violated both of these, and trial was therefore illegal. vi. Judgment: Reversed and remanded for further proceedings. F) Checks on the President a. President can be held accountable by informal mechanisms such as through pressure of public opinion and checks by Congress such as through budget process. b. Two primary formal mechanisms exist: civil suits and criminal proceedings against President, and impeachment. c. Suing and Prosecuting the President i. When may President be civilly sued? There have been two Supreme Court cases dealing with this issue: 1. Richard Nixon v. A. Ernest Fitzgerald a. Holding: Yes. President is immune from suit from his official acts. b. Analysis: President must be empowered with maximum ability to deal fearlessly and impartially with duties of his office. Grant of absolute immunity to President would not leave President with unfettered power. There are still protections against Presidential misconduct. President is subject to constant scrutiny by press. Vigilant oversight by Congress also serves to deter presidential abuses of office, as well as to make credible threat of impeachment. Other incentives to avoid misconduct include desire to earn reelection, need to maintain prestige as element of presidential influence, and President's traditional concern for his historical stature. 2. William Jefferson Clinton v. Paula Corbin Jones a. Holding: No. Sitting President is not immune from suit for nonofficial acts. b. Analysis: President argued that in all but most exceptional cases, Constitution requires federal courts to delay such litigation until President's term ends, and that allowing this action to proceed would be tantamount to Judicial interference with Executive Branch. This argument rests neither on history nor precedent. It seems unlikely that deluge of civil litigation for past wrongdoings will ever engulf presidency. Also, separation of powers does not bar every exercise of jurisdiction over

President. Thus, separation of powers did not require federal courts to stay all private actions against President until he leaves office. 3. No case has addressed whether sitting President can be criminally prosecuted. 4. On one hand, there is strong argument that impeachment and removal should be sole remedy against President since criminal prosecution inevitably would interfere with Presidents ability to perform his duties. 5. On other hand, no person is above law. This justifies allowing President to be charged and tried for crimes like all others. d. Impeachment i. Article II 4 provides President, Vice President, and all civil officers of United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. ii. Article I 2 provides House of Representatives has sole power to impeach. iii. Article I 3 gives Senate sole power to try impeachments and prescribes that no person shall be convicted without concurrence of two thirds of members present. iv. Two major issues remain unsolved: 1. What are high crimes and misdemeanors? 2. What procedures must be followed in impeachment and removal proceeding? a. There is no Supreme Court case addressing either, nor is there likely to be since challenges to impeachment and removal pose non-justicable political questions. G) Limits on State Regulatory and Taxing Power a. Limits on state power derive from existence of national government and of other states. b. Two possibilities when considering whether state or local law is invalidated: i. Congress has acted because of Supremacy Clause, if there is conflict between federal law and state or local law, latter is deemed preempted; ii. Congress has not acted even though there is not preemption, state and local laws can be challenged under two principles: 1. Dormant Commerce Clause state and local laws are unconstitutional if they place undue burden on interstate commerce; and 2. Privileges and Immunities Clause limits ability of states to discriminate against out-of-staters with regard to constitutional rights or important economic activities. c. Two arguments about appropriate degree of judicial oversight or of judicial deference to state and local governments: i. state and local governments should be unfettered by federal government as much as possible, preemption restricted to situations where Congress has expressly preempted state and local laws, and there should be no Dormant Commerce Clause; ii. it is essential for judiciary to preserve federal nature of American government, preemption is not something to avoid, and Dormant Commerce Clause is essential restriction on abuses by state governments to preserve free flow of economy. H) Preemption of State and Local Laws

a. Article VI provides Constitution and laws and treaties made pursuant to it are supreme law of land. If there is conflict between federal and state law, federal law controls and state law is invalidated because federal law is supreme. b. No clear rule for deciding whether state or local law should be invalidated on preemption grounds. Supreme Court has identified two major situations where preemption occurs: i. federal law expressly preempts state law or ii. preemption is implied by clear congressional to preempt state or local law; three types: 1. field preemption scheme of federal regulation is so pervasive as to make reasonable inference that Congress left no room for States to supplement it; 2. conflicts preemption compliance with both federal and state regulations is physical impossibility; or 3. where state law stands as obstacle to accomplishment and execution of full purposes and objectives of Congress. c. Express Preemption i. Whenever Congress has authority to legislate, Congress can make federal law exclusive in a field. Thus, some federal laws contain clauses that expressly preempt state and local laws. ii. Lorillard Tobacco Co. v. Reilly 1. Holding: Yes. Federal cigarette advertising regulations preempt conflicting state regulations. 2. Analysis: Historic police powers of States are not to be superseded by Federal Act unless that is clear and manifest purpose of Act. Congress expressly precluded any additional statements on cigarette packaging beyond those required by federal law, and any state regulation based on smoking and health with respect to advertising and promotion of cigarettes. Like FCLAA, Massachusetts regulations seek to protect young people from misleading advertising relating to smoking and health. Massachusetts limitations on location, as opposed to content, of advertisements do not save state regulations from preemption. iii. Implied Preemption 1. Conflicts Preemption a. Field (Domination): If federal and state law are mutually exclusive so that persons cannot comply with both (Impossibility), state law is deemed preempted. i. Florida Lime & Avocado Growers, Inc. v. Paul, Director, Dept. of Agriculture of California 1. Holding: No. When both can be satisfied, federal law does not preempt state regulation. 2. Analysis: State law did not violate Supremacy Clause because compliance with law and Agricultural Adjustment Act was not impossible. Plaintiffs could comply with both state and federal regulations by allowing avocadoes to remain on trees until they reach oil content required by state law. Although regulations are similar, they are not inevitably conflicted.

2. Conflict: Preemption Because State Law Impedes the Achievement of a Federal Objective a. Preemption can also be found if state or local law is deemed to impede achievement of federal objective. Even if federal and state law are not mutually exclusive, preemption will be found if state or local law interferes with attaining federal legislative goal. i. Pacific Gas & Electirc Co. v. State Energy Resources Conservation & Develop. Commn. 1. Holding: Yes. However, state law placing moratorium on construction of nuclear power plants does not impede federal laws objective of developing nuclear energy. 2. Analysis: State law will be preempted if it stands as obstacle to accomplishment of full purposes and objectives of Congress. However, Court will not interfere where there is permissible basis for state law. State law was not preempted by ACE because it was concerned with costs of long-term storage, while ACE pervasively regulated radiological safety aspects of construction and operation of nuclear plants. Congress has left sufficient authority in states to allow development of nuclear power to be slowed for economic reasons. Therefore, state law did not interfere with objectives of ACE. 3. Judgment: Affirmed. 3. Federal Purpose / Objective: Preemption Because Federal Law Occupies the Field a. Even though federal law does not expressly preempt state law, preemption will be found if there is clear congressional intent to have federal law occupy particular area of law. b. Most important example of this is immigration law. i. Hines, Secretary of Labor and Industry of Pennsylvania v. Davidowitz 1. Holding: No. Congress intended federal government to occupy field of immigration regulation. 2. Analysis: Both state Act and recently enacted federal Act set forth comprehensive scheme for registering aliens living in United States. State's power to legislate in area of foreign relations was subordinate to federal government's power to do so under Supremacy Clause. Because federal government had enacted comprehensive scheme, state statute had been preempted. I) The Dormant Commerce Clause a. Even if Congress has not acted or no preemption is found, state and local laws are unconstitutional if they place undue burden on interstate commerce. Court has inferred this from grant of power to Congress in Article I, 8 to regulate commerce among states.
4

a.k.a Negative Commerce Clause

b. Dormant Commerce Clause is not the only way of challenging state laws that burden interstate commerce. If state or local government discriminates against out-of-staters with regard to fundamental right or important economic activities, challenge can be brought under Privileges and Immunities Clause or Equal Protection Clause of 14th Amendment. i. Why a Dormant Commerce Clause? 1. Congress has authority under its commerce power to preempt state or local law that it deems to place undue burden on interstate commerce. 2. Critical issue is whether judiciary, in absence of congressional action, should invalidate state and local laws because they place undue burden on interstate commerce. a. H. P. Hood & Sons, Inc. v. Du Mond, Commissioner of Agriculture and Markets of NY i. Holding: No. Licensing statute violated Commerce Clause. ii. Analysis: Statute was attempt to protect New York's commercial interests by restricting export of milk to milk processors in other states that competed with New York milk processors. Statute's primary purpose was not regulation with view to safety but prohibition of competition. ii. Traditional arguments for having Dormant Commerce Clause: 1. framers intended to prevent state laws that interfered with interstate commerce; 2. economy is better off if state and local laws impeding interstate commerce are invalidated; and 3. states and their citizens should not be harmed by laws in other states where they lack political representation. iii. Criticism of existence of Dormant Commerce Clause: 1. has no basis in text of Constitution; 2. makes little sense; and 3. has proved virtually unworkable in application. iv. Theories to support negative Commerce Clause jurisprudence despite lack of textual basis: 1. Commerce Clause itself constituted exclusive grant of power to Congress5; and 2. Congress, by its silence, pre-empts state legislation.6 v. We nonetheless adhere to negative Commerce Clause because we believe it necessary to check state measures contrary to perceived spirit, if not actual letter, of Constitution. vi. Negative Commerce Clause jurisprudence has taken us well beyond invalidation of obviously discriminatory taxes on interstate commerce. Any test that requires Court to assess: 1) whether particular statute serves legitimate local public interest; 2) whether effects of statute on interstate commerce are merely incidental or clearly excessive in relation to putative benefits; 3) nature of local interest; and 4) whether there are alternative means of furthering local interest that have lesser impact on interstate commerce certainly compels Court to act more like legislators than as judges. c. The Dormant Commerce Clause Before 1938
5 6

Court has long since repudiated this rationale. This, too, has long since been rejected by Court.

i. State laws burdening commerce will sometimes be upheld as valid exercises of police power. Other times they will be invalidated as violation of dormant Commerce Clause. ii. In Gibbons v. Ogden, test was police power versus commerce power. State laws burdening commerce should be upheld if valid exercises of police power. 1. Aaron B. Cooley v. The Board of Wardens of the Port of Philadelphia a. Holding: No. Congressional power is not exclusive of all state powers to regulate commerce. b. Analysis: Grant to Congress of power to regulate commerce did not deprive states of power to regulate pilots. Although Congress was granted such power, nothing required that exclusively Congress should exercise it. This was fair exercise of legislative discretion. 2. Cooley establishes selective exclusiveness test if subject of regulation requires national uniformity, then Congressional power is exclusive, but if subject matter is of purely local concern, state may regulate subject, providing there are no competing federal regulations. d. The Contemporary Test for the Dormant Commerce Clause i. The Shift to a Balancing Approach 1. Rigid police/commerce power test of Gibbons and local/national subject matter test of Cooley have not been expressly overruled, but modern approach is based on courts balancing benefits of law against burdens that it imposes on interstate commerce. a. South Carolina State Highway Dept. v. Barnwell Bros., Inc. i. Holding: No. State regulations did not violate commerce clause. ii. Analysis: Few subjects of state regulation are so peculiarly of local concern as is use of state highways safely and economically. As long as state action did not discriminate against interstate commerce, burden on interstate commerce was one which constitution permitted because it was inseparable incident of exercise of legislative authority, which, under constitution, had been left to states. There was adequate support for legislative judgement that led to enactment of Act, and measures taken by state were within its legislative power. b. Southern Pacific Co. v. Arizona ex rel. Sullivan, Attorney General i. Holding: Yes. State law that puts significant burden on interstate commerce, yet provides no real improvement in safety, will be found to violate commerce clause. ii. Analysis: When regulation of matters of local concern is local in character and effect, and its impact on national commerce does not seriously interfere with its operation, and consequent incentive to deal with them nationally is slight, such regulation has been generally held to be within state authority. Here, state law went too far, having seriously adverse effect on transportation efficiency and economy, and having only slight safety advantage. 2. In recent years, some Justices have objected to this balancing test and have argued in favor of upholding all state laws that are deemed non-

discriminatory because weighing governmental interests of State against needs of interstate commerce is task squarely within responsibility of Congress and ill suited to judicial function. e. Determining Whether a Law is Discriminatory i. Framers were most concerned about stopping protectionist legislation, where state would discriminate againt out-of-staters to benefit its citizens at expense of out-of-staters. ii. Protectionist laws are most likely to interfere with economy. 1. If law applies to in-staters and out-of-staters equally, at least some of those affected by law are represented in political process. iii. Balancing test varies depending upon whether state or local law discriminates against out-of-staters or treats in-staters and out-of-staters alike. iv. If Court concludes state is discriminating, there is strong presumption against law and it will be upheld only if it is necessary to achieve important purpose. v. If Court concludes law is non-discriminatory, presumption is in favor of upholding law, and it will be invalidated only if it is shown that laws burdens on interstate commerce outweigh its benefits. vi. Laws can be facially discriminatory, drawing distinction between in-staters and outof-staters by their terms, or facially neutral but motivated by desire to help in-staters at expense of out-of-staters or having discriminatory impact on those from other states. 1. Facially Discriminatory Laws a. City of Philadelphia v. New Jersey i. Holding: Yes. Statute banning waste from entering state to be disposed of was unconstitutional. ii. Analysis: Statute was protectionist measure and not law directed to legitimate local concerns with only incidental effects upon interstate commerce. Where simple economic protectionism is effected by state legislation, virtually per se rule of invalidity has been erected. Purpose of protecting local environment and public health, safety, and welfare of its residents could not be accomplished by discriminating against articles of commerce coming from outside state unless there was some reason, apart from their origin, to treat them differently. Statute both on its face and in its plain effect violated principle of nondiscrimination because it imposed full burden of conserving state's remaining landfill space on out-of-staters. b. C & A Carbone, Inc. v. Town of Clarkstown, New York i. Holding: No. Local ordinance requiring all waste to be processed at local transfer station violates commerce clause. ii. Analysis: Local government could not use its regulatory powers to favor local enterprises and discriminate against non-local competitors. Ordinance here is financing measure, and by itself, revenue generation is not local interest that can justify discriminating against interstate commerce. Town's ordinance gave preference to local private industry and was thus unconstitutional under Dormant Commerce Clause. c. Hughes v. Oklahoma

i. Holding: Yes. Statute was repugnant to Commerce Clause. ii. Analysis: Burden is on challenging party to show statute at issue discriminates, but when discrimination against commerce is demonstrated, burden falls on state to justify it both in terms of local benefits flowing from statute and unavailability of nondiscriminatory alternatives adequate to preserve local interests at stake. Statute was discriminatory on its face because it overtly blocks flow of interstate commerce at States borders. Statute does not serve legitimate local purpose as last ditch conservation measure because it placed no limits on numbers or disposition of minnows within state but forbade their export for sale outside state. 2. Facially Neutral Laws a. Facially neutral laws can be found to be discriminatory if they either have purpose or effect of discriminating against out-of-staters.7 i. Hunt, Governor of the State of NC v. Washington State Apple Advertising Commn. 1. Holding: Yes. Challenged statute burdened and discriminated against interstate sales of apples. 2. Analysis: Law raises of costs of doing business in North Carolina for Washington apple producers, since they would be forced to change their marketing practices, while leaving in-state growers unaffected. Law has effect of stripping away from Washington apple industry competitive and economic advantages it has earned through use of its grading system. Law requires Washington to downgrade its apples, thus protecting instate apple growers from out-of-state competitors. Commerce Clause was designed to prohibit this. Statute does little to eliminate confusion in marketing of foodstuffs and does not direct its efforts at consumers at large but at wholesalers. State also did not demonstrate unavailability of nondiscriminatory alternatives adequate to preserve local interests such as labeling both grades. ii. Exxon Corp. v. Governor of Maryland 1. Holding: No. State statute did not burden or discriminate against interstate commerce. 2. Analysis: Law does not discriminate between in-state and out-of-state refiners because there are no in-state refiners. Just because burden falls upon some out-ofstate companies does not, by itself, establish discrimination against interstate commerce. Statute did not violate Commerce Clause because it did not prohibit
7

This is different from analysis under Equal Protection Clause (Chapter 7) where there must be both.

flow of interstate goods or distinguish between in-state and out-of-state companies. b. Facially neutral laws can also be found discriminatory if they were enacted for protectionist purpose: helping in-staters at expense of outof-staters. i. West Lynn Creamery, Inc. v. Healy, Commissioner of Mass. Dept. of Food and Agriculture 1. Holding: Yes. State pricing order discriminates against interstate commerce. 2. Analysis: State may not use its legitimate powers to tax and to subsidize state businesses to effect illegitimate aim of burdening out-of-state competitors to benefit of instate businesses. Pricing order is funded mostly from taxes on sale of milk produced in other states to assist local farmers. Local farmers who would normally lobby against tax since it increased price of milk thereby reducing demand for it were in favor of tax because of subsidy they received. Therefore, states political processes could no longer be relied upon to prevent legislative abuse. ii. State of Minnesota v. Clover Leaf Creamery Co. 1. Holding: Yes. If state law purporting to promote environmental purposes is really simple economic protectionism, virtually per se rule of invalidity applies. 2. Analysis: Statute did not discriminate between interstate and intrastate commerce because it regulates evenhandedly by prohibiting all milk retailers from using plastic containers without regard to whether milk, containers, or sellers are from outside state. Controlling question then is whether incidental burden imposed on interstate commerce was clearly excessive in relation to local benefits. Statute's burden on interstate commerce was relatively minor since milk products can continue to move freely across state border and changes in packaging will be only slight inconvenience and burden on out-ofstate plastics industries is not clearly excessive in light of substantial State interest in solid waste disposal problems. 3. Analysis if a Law is Deemed Discriminatory a. Crucial initial inquiry in dormant Commerce Clause cases is whether law is discriminatory against out-of-staters. b. Dean Milk Co. v. City of Madison, Wisconsin illustrates rigorous scrutiny used when laws are deemed discriminatory: i. Dean Milk Co. v. City of Madison, Wisconsin

1. Holding: Yes. States must consider reasonable alternatives when enacting laws intended to protect public health but which also burden commerce. 2. Analysis: Ordinance imposed undue burden on interstate commerce because, in effect, ordinance excluded from distribution in city wholesale milk produced and pasteurized in adjoining state. City had erected economic barrier protecting major local industry against competition from outside state, plainly discriminating against interstate commerce. Furthermore, reasonable and adequate alternatives were available because city could have charged reasonable cost to importing entities to have its own officials to inspect milk. ii. Maine v. Taylor and United States 1. Holding: Yes. Statute that affirmatively discriminates against interstate commerce passes strict scrutiny test where it attempts to prohibit significant damage to states environmental well-being. 2. Analysis: Defendant's conviction was not clearly erroneous since evidence showed that no alternative means existed to promote local purpose without discriminating against interstate commerce. Abstract possibility of developing acceptable testing procedures did not make those procedures available nondiscriminatory alternative. As such, state statute permissibly served legitimate local purpose of protecting states unique and fragile fisheries. 3. Judgment: Reversed. 4. Analysis if a Law is Deemed Non-Discriminatory a. If state law is not discriminatory and treats in-state and out-of-staters alike, it is subject to much less demanding test. b. Non-discriminatory laws are upheld so long as benefits to government outweigh burdens on interstate commerce.8 i. Loren J. Pike v. Bruce Church, Inc. 1. Holding: Yes. Where state statute regulates even-handedly to effectuate legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless burden imposed on such commerce is clearly excessive in relation to putative local benefits. 2. Analysis: State's interest in promoting and preserving reputation of in-state growers did not justify requirement that company build and operate unneeded packing plant in state. Commerce Clause forbids state from requiring business operations be performed in-state that could
8

However, some argue dormant Commerce Clause should not apply in absence of discriminatory law.

more efficiently be performed elsewhere. States interest is minimal at best. 3. Judgment: Affirmed. ii. Bibb, Director, Dept. of Public Safety of Illinois v. Navajo Freight Lines, Inc. 1. Holding: Yes. Court will uphold law unless total effect of law as safety measure is so slight as to not outweigh national interest in keeping interstate commerce free from serious interferences. 2. Analysis: Local safety measure balanced against burden on commerce violated Commerce Clause because mudflap design was so out of line with requirements of almost all other states that carriers assumed great burden to comply with statute; inconsistency of mudflap designs delayed interstate commerce and inconvenienced carriers who were forced to seek ways to comply with statute. Also, safety benefit of state-required mudflaps was slight. 3. Judgment: Affirmed. iii. Raymond Kassel v. Consolidated Freightways Corp. of Delaware 1. Holding: Yes. Although state regulations concerning highway safety carry strong presumption of validity, if furtherance of safety is marginal or burden on commerce is substantial, regulations will be declared invalid under Commerce Clause. 2. Analysis: State failed to meet its burden of showing statistically significant difference in safety between 55foot and 65-foot trucks. Moreover, statute could potentially create more accidents, by forcing shippers to use more small trucks to carry same quantity of goods, or force truck traffic to bypass State, shifting traffic (and higher incidence of accidents) to adjacent states. iv. CTS Corp. v. Dynamics Corp. of America 1. Holding: No. State law that delineated shareholders voting rights and limited effectiveness of tender offers did not violate Commerce Clause. 2. Analysis: 1) Law was equally applicable to in-state and out-of-state offerors, 2) it did not create inconsistent regulation in multiple states, and 3) it applied to domestically-incorporated corporations with substantial resident shareholders. J) Exceptions to the Dormant Commerce Clause a. Two exceptions where laws that would violate dormant Commerce Clause will be allowed: i. Congress approves state law or

ii. market participant exception state may favor its own citizens in receiving benefits from government programs or in dealing with government-owned businesses. b. Congressional Approval i. Constitution empowers Congress to regulate commerce among states and therefore state laws burdening commerce are permissible, even when they otherwise would violate dormant Commerce Clause, if they have been approved by Congress.9 1. Western & Southern Life Insurance Co. v. State Board of Equalization of California i. Holding: Yes. Congress, by its authority to regulate commerce among states, may give states power to enact laws that restirct flow of interstate commerce. ii. Analysis: Act removed entirely any Commerce Clause restriction upon states power to tax insurance business. States action was within scope of this authority. c. The Market Participant Exception i. If state is literally participant in market, such as state-owned business, and not regulator, dormant Commerce Clause does not apply. 1. Reeves, Inc. v. William Stake a. Holding: Yes. States that are market participants in buying and selling of goods, as opposed to market regulators, are not bound by Commerce Clause and thus may favor in-state interests. b. Analysis: There was nothing in Commerce Clause that prohibited state from participating in market and exercising such right in favor of its citizens. Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in national marketplace, and there is no limit ability of States themselves to operate freely in free market. Any restraint in this area is better suited for Congress than courts. 2. White v. Massachusetts Council of Construction Employers, Inc. a. Holding: No. Application of order to contracts did not violate Commerce Clause. b. Analysis: Insofar as city expended only its own funds in entering into contracts for public projects, it was market participant, not market regulator. As market participant, it was not subject to restraints of Commerce Clause. Insofar as order was applied to projects funded in part with funds obtained from federal programs, order was affirmatively sanctioned by pertinent regulations of those programs. c. Judgment: Reversed and remanded. 3. South-Central Timber Devel., Inc. v. Commissioner, Dept. of Natural Resources of Alaska

If Congress has acted, commerce power is no longer dormant and issue is whether federal law is constitutional exercise of commerce power (i.e. does not violate Equal Protection or Privileges or Immunities Clauses). This is one of few areas where Congress has clear authority to overrule Court decision interpreting Constitution because it may enact law approving action that has been deemed by Court to violate dormant Commerce Clause.

a. Holding: No. Although state-owned businesses may favor resident purchasers, they may not attach conditions to sale of products that will burden interstate commerce. b. Analysis: State may not impose conditions that have substantial regulatory effect outside particular market. Alaska is attempting to regulate where timber will be processed. Alaska may not avail itself of market-participant exception to immunize its down-stream regulation of timber-processing market in which it is not participant. ii. Market participant exception has been criticized on several grounds: 1. protectionism should not be allowed regardless of whether state is acting in proprietary or regulatory capacity and 2. there is no clear distinction between when government is acting as regulator and when it is market participant. iii. Market participant exception can be defended on several grounds: 1. allowing citizens in state to recoup benefits of taxes they pay and 2. state spending programs are less coercive than regulatory programs or taxes with similar purposes and they seem less hostile to other states and less inconsistent with concept of union than discriminatory regulation or taxation. K) The Privileges and Immunities Clause of Article IV, 2 (be specific on exam of

which clause you are using)

a. Introduction i. Another provision that limits state and local regulation is Privileges and Immunities Clause of Article IV, 2 which states that citizens of each state shall be entitled to privileges and immunities of citizens in several states. 1. This limits ability of states to discriminate against out-of-staters with regard to fundamental rights or important economic activities. 2. Differences between dormant Commerce Clause and Privileges and Immunities Clause: a. Privileges and Immunities Clause can be used only if there is discrimination against out-of-staters; b. corporations and aliens can sue under dormant Commerce Clause; c. two exceptions (above) to dormant Commerce Clause do not apply to Privileges and Immunities Clause. ii. Analysis Under the Privileges and Immunities Clause 1. Two basic questions when challenge is brough under Privileges and Immunities Clause: a. Has state discriminated against out-of-staters with regard to privileges and immunities it accords its own citizens? b. If there is such discrimination, is there sufficient justification for it? b. What Are the Privileges and Immunities of Citizenship? i. Clause protects interests which are fundamental; which belong, of right, to citizens of all free governments. Comprehended under following heads: protection by government, enjoyment of life and liberty with right to acquire and possess property, and to pursue

and obtain happiness and safety, subject only to such restraints as government may justly prescribe for general good of whole. ii. Court has primarily applied Clause when state is discriminating against out-of-staters: 1. with regard to constitutional rights or 2. with regard to important economic activities a. Toomer v. Witsell i. Holding: Yes. State law that discriminates against out-of-staters violates Privileges and Immunities Clause where it creates commercial monopoly for states residents. ii. Analysis: Clause was intended to outlaw classifications based on fact of non-citizenship unless there is something to indicate that non-citizens constitute peculiar source of evil at which statute is aimed. In this case there is no reasonable relationship between alleged danger to shrimp supply represented by non-citizens, and severe discrimination practiced upon them. Purpose of statute was not conservation of shrimp but discriminatory exclusion of nonresidents and creation of commercial monopoly for residents. b. United Building and Construction Trades Council of Camden County v. Mayor and Council of the City of Camden i. Holding: Yes. Clause prevents states from discriminating against non-residents if: 1) discrimination burdens fundamental privilege, and 2) there is no substantial reason for it. ii. Analysis: Clause applies to municipal ordinance because cities derive their legislative authority from states. Although state residents living outside of city are disadvantaged as much as outof-staters and have no Privileges and Immunities claim, this denial of claims should not be applied to out-of-state residents because in-staters can seek remedy through voting. Employment is one of most fundamental of privileges. c. Lester Baldwin v. Fish and Game Commn. Of Montana i. Holding: No. Hunting is not fundamental right entitled to Privileges and Immunities protection. ii. Analysis: Nonresidents' interest in sharing limited resource on more equal terms with residents simply did not fall within purview of Privileges and Immunities Clause. Equality in access to state elk was not basic to maintenance or well being of union, and whatever rights or activities were fundamental under Clause, elk hunting by nonresidents was not one of them. iii. What Justifications are Sufficient to Permit Discrimination? 1. Supreme Court of New Hampshire v. Kathryn A. Piper a. Holding: Yes. Right to practice law was protected by Privileges and Immunities Clause. b. Analysis: State may discriminate against nonresidents only where its reasons are substantial and difference in treatment bears close or substantial relationship to those reasons. None of reasons offered by

state bar for its refusal to admit nonresidents -- nonresidents would be less likely to keep abreast of local rules and procedures, to behave ethically, to be available for court proceedings, and to do pro bono and other volunteer work in State -- meets test of substantiality, and means chosen do not bear necessary relationship to State's objectives. L) The Structure of the Constitutions Protection of Civil Rights and Civil Liberties a. Introduction i. There was no Bill of Rights in original Constitution. Text of Constitution contained few provisions concerning individual liberties.10 ii. Framers feared that by enumerating rights, they would exlude rights not enumerated.11 iii. Also, framers considered Constitution to be document limiting government powers so that it would not infringe rights of citizens. iv. James Madison wrote Bill of Rights shortly after Constitutions ratification. b. The Application of the Bill of Rights to the States i. The Rejection of Application Before the Civil War 1. Bill of Rights is first ten Amenments to Constitution. First eight protect individual rights. 2. First Amendments protection of freedom of speech and religion and criminal procedure protections of Fourth, Fifth, and Sixth Amendments are subjects of frequent litigation. 3. Others, such as Third Amendment protection against quartering soldiers, have no contemporary significance. 4. Tenth Amendment provides that powers not delegated to U.S. by Constitution, nor prohibited by it to States, are reserved to States respectively, or to people. 5. Issue arose early as to whether Bill of Rights applies to state and local governments. a. Barron v. Mayor and City Council of Baltimore (1833) i. Holding: No. Bill of Rights applies only to federal government. ii. Analysis: Provision in Fifth Amendment declaring private property should not be taken for public use without just compensation was intended solely as limitation on exercise of power by government of United States and was not applicable to legislation of states. Each state has its own Constitution, with its c. A False Start in Applying the Bill of Rights to the States: The Privileges or Immunities Clause and the Slaughter-House Cases i. Fourteenth Amendment, adopted after Civil War, declares no State shall make or enforce any law which shall abridge privileges or immunities of U.S. citizens.

10

Article I, 9: writ of habeus corpus shall not be suspended and no bill of attainder or ex post facto law shall be passed; Article I, 10: no state shall pass any bill of attainder, ex post facto law, or law impairing obligation of contracts; Article III, 2: trial of all crimes, except impeachment, shall be by jury and shall be held in state where crime was committed; Article II, 3: treason shall consist only in levying war against U.S. or in adhering to enemies or giving them aid and comfort, no person shall be convicted unless on testimony of two witnesses or confession, and traitors family cannot be punished; Article VI: no religious test shall be required as qualification to any office of public trust. 11 Ninth Amendment was added to address this concern and provides that enumeration in Constitution, of certain rights, shall not be construed to deny or disparage others retained by people.

ii. It might be argued that Fourteenth Amendment was meant to apply Bill of Rights to states since Bill of Rights would seem to be most basic privileges or immunities of citizenship. iii. Argument was foreclosed in first Supreme Court case to interpret Fourteenth Amendment: 1. Slaughter-House Cases (1873) a. Facts: State statute was passed to protect health of city and forbade slaughtering of animals for food within city, giving one company sole privilege of slaughtering animals. Plaintiff butchers contended state statute violated Thirteenth and Fourtenth Amendments. b. Procedural History: State Supreme Court dismissed action. c. Issue: Whether Thirteenth and Fourteenth Amendments make Bill of Rights apply to states? d. Holding: No. Thirteenth and Fourteenth Amendments apply only to former slaves. e. Analysis: State had exclusive right under its police power to determine localities where slaughtering for city could be conducted, and laws of federal Constitution did not apply. Thirteenth and Fourteenth Amendments were designed to remedy grievances of blacks and do not apply to all servitudes. If Privileges and Immunities Clause were meant to protect citizen of State against his own states legislation, drafters would have used that language as they did in previous sentence. Clause protects only privileges and immunities of U.S. citizens, not of citizens of states. Like Article IV Privileges and Immunities Clause, 14th Amendment protects fundamental rights, and privileges and immunities of citizens of States are within power of States. Rights claimed by butchers are not privileges and immunities of U.S. citizens. f. Judgment: Affirmed. g. Dissent: Fourteenth Amendment assumes certain privileges and immunities exist and that States may not abrogate them. If Amendment only protects those privileges and immunities that existed before it was adopted, it was vain and idle enactment. iv. Supreme Courts narrow interpretation of Due Process Clause of Section 1 of Fourteenth Amendment was overruled relatively quickly. v. By late nineteenth century, Court found Due Process Clause did protect right to practice persons trade or profession. vi. Throughout twentieth century, Court used Due Process Clause to safeguard privacy and autonomy rights such as right to marry, right to custody of ones children, right to purchase and use contraceptives, and right to abortion. vii. Courts narrow interpretation of Equal Protection Clause lasted into twentieth century. viii. Equal Protection Clause has now been applied to prevent discrimination based on characteristics such as gender, alienage, and legitimacy, as well as race. ix. Courts narrow interpretation of Privileges and Immunities Clause lasted until recently: 1. Saenz v. Roe (1999)

a. Facts: Plaintiffs filed suit challenging durational residency requirements of Personal Responsibility and Work Opportunity Reconciliation Act which provided lower benefits to families who have lived in State for less than 12 months, contending residency requirements imposed unconstitutional burden on certain class of citizens based upon their length of residency. b. Procedural History: Appeals affirmed district court's issuance of preliminary injunction. c. Issue: Whether statutes residency requirement violates Privileges and Immunities Clause? d. Holding: Yes. State must provide same benefits to new residents as it does to other residents. e. Analysis: Protections afforded to citizens under Fourteenth Amendment imposed limitation on states' powers and statute impermissibly affected rights of newly arrived citizens as to same privileges and immunities enjoyed by other citizens of same state, in violation of Fourteenth Amendment. Privilege and Immunities Clause protects right to travel. Right to travel includes citizen's right to be treated equally in his or her new state of residence. Right to equal benefits is protected by new residents status as citizen of State and as citizen of United States. f. Judgment: Affirmed. g. Dissent: Court has relied on Privileges and Immunities Clause only once before, and decision was overruled five year later. States law is reasonable and is good-faith residency requirement. h. Dissent: Framers did not intend meaning majority attributes to Privileges and Immunities Clause. We should reevaluate Clauses meaning in appropriate case. M) Incorporation of Bill of Rights into Due Process Clause of Fourteenth Amendment a. Because of Slaughter-House Cases, application of Bill of Rights to states could not be through Privileges or Immunities Clause, so Supreme Court suggested alternate approach: some Bill of Rights provisions are incorporated into liberty protected from state interference by Due Process Clause of Fourteenth Amendment (i.e. freedom of speech, taking property without just compensation, and Sixth Amendment due process) b. The Debate Over Incorporation i. There was major debate over which liberties are safeguarded: 1. Total incorporationists believed all of Bill of Rights should be deemed to be included in Due Process Clause of Fourteenth Amendment. 2. Selective incorporationists believed only some of Bill of Rights were sufficiently fundamental to apply to state and local governments. (When alleging that a State has violated an incorporated right you must site both the right violated and the 14th Amendment. c. The Current Law as to Whats Incorporated i. Supreme Court has never accepted total incorporationist approach, but Court has found almost all provisions to be incorporated. 1. Duncan v. Louisiana

a. Facts: Defendant was charged with simple battery, misdemeanor punishable by maximum of two years imprisonment and $ 300 fine. Defendant sought trial by jury, but because State Constitution grants jury trials only in cases in which capital punishment or imprisonment at hard labor may be imposed, trial court denied request. b. Procedural History: Defendant was convicted and sentenced to serve 60 days in parish prison and pay fine of $ 150. State Supreme Court denied his petition for writ of certiorari. c. Issue: Whether Fourteenth Amendment Due Process Clause makes Sixth Amendment right to jury trial applicable to states? d. Holding: Yes. Sixth Amendment right to jury trial is fundamental and is applicable to states pursuant to Due Process Clause of Fourteenth Amendment. e. Analysis: Under Fourteenth Amendment, states may not deprive any person of life, liberty, or property without due process of law. Court looks to Bill of Rights for guidance on what constitutes due process of law. Court has based its determination as to whether Fifth or Sixth Amendment right is applicable to States through Fourteenth Amendment on whether right is fundamental right, essential to fair trial. Trial by jury in criminal cases is fundamental to our scheme of justice to prevent oppression by government and arbitrary law enforcement. f. Judgment: Reversed and remanded for further proceedings. g. Concurrence: Entire Fourteenth Amendment, including Due Process Clause and Privileges and Immunities Clause, make entire Bill of Rights applicable to States. d. Four provisions of Bill of Rights have never been incorporated and do not apply to state and local government: i. Third Amendment right to not have soldiers quartered in persons home case has never reached Supreme Court; ii. Fifth Amendment right to grand jury indictment in criminal cases states need not use grand juries; iii. Seventh Amendment right to jury trial in civil cases states can eliminate juries in some or even all civil suits; and iv. Eighth Amendment prohibition of excessive fines Court has never ruled on this. e. Bill of Rights still applies directly only to federal government, so whenever case involves state or local violation of Bill of Rights provision, to be precise, it involves that provision as applied to states through Due Process Clause of Fourteenth Amendment. f. The Content of Incorporated Rights i. Court has ruled some Bill of Rights provisions apply differently to states than to federal government (state need not have 12-person jury nor unanimous verdict in criminal cases). ii. From practical perspective, Bill of Rights provisions that have been incorporated apply to states exactly as they apply to federal government. N) Application of Bill of Rights and Constitution to Private Conduct a. The Requirement for State Action

b. Constitutions protections of individual liberties and its requirement for equal protection apply only to government at federal, state, and local levels and to actions of government officers at all levels. c. State action doctrine private actors generally do not have to comply with Constitution.