I.

THE SUPREME COURTS AUTHORITY AND ROLE

1. THE POWER OF JUDICIAL REVIEW Judicial review- the authority of the courts to review decisions, actions, or omissions committed by another agency or branch of government. Nothing in the text of the Constitution actually authorizes judicial review. Argument for Judicial Review is: the judiciary is the most vulnerable branch of government, designed to be an intermediary between the people and the legislature. The interpretation of the laws is the responsibility of the judiciary, and the Constitution is the Supreme Law of the Land. History has supported the authority of judicial acts- the idea is that the three branches of government should be strong enough to check and balance each other. Marbury v. Madison (1803) (Supreme Court review of the constitutionality of actions of a coordinate branch of the federal government) John Adams, outgoing president, created 42 justices of the peace on his last day in office, Sec. of State signed and sealed, etc., but some of the commissions werent delivered in time- including the commission of William Marbury. When Thomas Jefferson came into office, his Sec. of State, James Madison, refused to deliver the commissions and considered them as nullified b/c not delivered. brought suit for writ of mandamus to compel delivery- directly to the Supreme Court, rather than in a state or federal district court and appealing up to the Supreme Court. The Court needed to be able to exercise original jurisdiction over the case in order to have the power to hear it. Marbury's argument was that, in the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions for writs of mandamus. The Court, however, says that Congress does not have the power to extend the Courts original jurisdiction past what was authorized by the Constitution, and therefore the Judiciary Act of 1789 was unconstitutional. The Court found that The Supreme Court has the power, implied from Article VI 2 of the Constitution, to review acts of Congress and if they are found to be repugnant to the Constitution, to declare them void. The Court found that Madison was wrong in refusing to deliver the commission, but that The Supreme Court was the improper court to compel delivery b/c they only had original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and where the state is a party. Mandamus was denied. ***Marshall really could have made this decision on other grounds, but- if he had said that the SC had jurisdiction, and had issued the writ- Madison could have refused to listen. This would basically take away power from the SC and nobody would respect them. Marshall was trying to make a bigger pointthat the Constitution must control when there is a conflict with a statute (b/c created & ratified by the people), and that the SC is the interpreter of the Constitution.

2. SUPREME COURT AUTHORITY TO REVIEW STATE COURT JUDGMENTS Federal courts may hear appeals brought from state court decisions. Martin v. Hunters Lessee (1816) (Supreme Court authority to review judgments of the state courts in matters of federal law). During the revolution, Virginia enacted a law that allowed for the confiscation of property from British subjects. had his land confiscated and he sued for ejectment of , who was living on his land. Virginia courts denied ejectment, and appealed to the Supreme Court, who overruled. Virginia court argued that the US Supreme Court didnt have authority over cases originating in State court. The Supreme Court held that federal courts may hear appeals brought from state court decisions (dealing with constitutional issue). Article III of the constitution grants appellate jurisdiction to the Supreme Court where it does not have original jurisdiction. (States still have final word on state law). A. Further Clashes between Supreme Court and State Court Authority i. Supreme Court review of state criminal cases Cohens v. Virginia (1821) Supreme Court sustained its jurisdiction to review the validity of state laws in criminal proceedings. s were convicted in Virginia of selling lottery tickets. s alleged they were immune from prosecution for selling congressionally authorized lottery tickets, b/c of the Supremacy Clause. Supreme Court ruled against them on the merits, but the main question was whether Supreme Court even had the power to hear the case. Supreme Court held that the judicial power extends to all cases arising under the Constitution or a law of the United States, whoever the parties may be.

3. JUDICIAL EXCLUSIVITY IN CONSTITUTIONAL INTERPRETATION A. The Authoritativeness of Supreme Court Decisions Article VI-Supremacy Clause (i) The Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the US, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. Cooper v. Aaron (1958) (States have to listen to us) After Brown v. Board of Education decision, Little Rock school board ordered de-segregation but the Governor prohibited it and called in the National Guard. The governors argument was that he was not a party to the Brown v. Board of Education decision and therefore is not bound by the outcome. District court issued an injunction against the governor and had the troops withdrawn. School board sought postponement of desegregation, citing chaos, turmoil, etc. The district court granted the postponement and the Court of Appeals reversed. Supreme Court upheld the decision of the appellate court. SC also found that state officials may not refuse to obey federal court orders resting on constitutional grounds. The Constitution is the supreme law of the land and the SC is supreme in the exposition of the law of the Constitution. Decision was based on the Supremacy Clause, Article VI. Constitutional Interpretations by the SC are supreme and binding on all parties. Critique of Cooper: Obviously, a decision of the SC does have binding quality- it binds the parties in a case and also the executive branch for whatever enforcement is necessary. But such a decision does not establish a supreme law of the land that is binding on all persons and parts of government henceforth and forevermore. Dickerson v. United States (2000) (Congress has to listen to us) Upheld the requirement that the Miranda warning be read to criminal suspects, and struck down a federal statute that purported to overrule Miranda v. Arizona. A constitutional decision of the SC may not be overruled by an act of Congress. Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence or procedure that are not required by the Constitution. ScaliaDissent- the Court is not saying that the Congressional Act was unconstitutional in itself, only that it gave a different rule from a previous decision of the court based on a Constitutional issue.

B. Political Restraints on the Supreme Court i. Judicial selection: the nomination and confirmation process The president nominates Justices to the Supreme Court, and Article II 42 provides that he also must have the advice and consent of the Senate. ii. Impeachment Justices hold office during good behavior. Article II 4 provides that an officer of the US (including Justice) may be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes or misdemeanors. (No SC Justice has ever been removed on these conditions). iii. Court-packing Congress sets the size and budget of the SC. Congress cannot diminish the salary of a SC Justice, but may increase the amount of justices in order to diminish each Justices respective power. iv. Court-stripping Article III 2 gives Congress the power to make exceptions to the SC appellate jurisdiction. Ex Parte McCardle (1869) McCardle challenged a provision of the Reconstruction Acts as beyond the Constitutional power of Congress. His petition for habeas corpus was denied and he appealed to the Supreme Court. Congress passed an Act of March 27, 1868, stating that so much of the 1867 Act as authorized an appeal from the judgment of the Circuit Court to the Supreme Court was repealed. The Supreme Court then held that it lacked jurisdiction to hear the case. The appellate jurisdiction of the Supreme Court is not derived from acts of Congress, it is conferred by the Constitution, but it is conferred with such exceptions and under such regulations as Congress shall make. v. Constitutional amendment Article V of the Constitution permits amendment of almost every provision by one of two methods. Either Congress may, by 2/3 vote, propose amendments for ratification by 3/4 of the states, or 2/3 of the states may apply to Congress to call a Constitutional Convention for proposing Amendments. (The state initiation method has never been used). In the past, Constitutional amendments have been made to overturn a Supreme Court decision. 11th Amendment (1798) overruled Chisholm v. Georgia (1793) and gave the states immunity against certain suits in federal court 14th Amendment (1868) reversed the Dred Scott decision (1856) and granted national citizenship to former slaves 16th Amendment (1913) was adopted to circumvent Pollock v. Farmers Loan & Trust Corp. (1895) and permit a federal income tax 26th Amendment (1971) overturned the Courts decision in Oregon v. Mitchell (1970) so as to require states to grant voting privileges to 18-yr olds.

4. CONSTITUTIONAL AND PRUDENTIAL LIMITS ON CONSTITUTIONAL ADJUDICATION Article III 2, cl.1 of the Constitution provides that the judicial power shall extend to a list of enumerated cases and controversies. This affirmative grant of power has long been thought to imply a negative- judicial power does not extend to anything but a case or controversy. A. Advisory Opinions The Supreme Court refuses to issue advisory opinions- opinions on the legality of executive or legislative action that do not involve an actual case. Rescue Army v. Municipal Court of Los Angeles (1947) The Court articulated some of the policy reasons for refusing to issue advisory opinions: Constitutional issues should not be decided on broader terms than are required by the precise facts to which the ruling is to be applied- because of the possible consequence for others. Also, it is necessary for each branch of government to keep within its power (it is the power of other branches to make policy decisions- advisory opinions would amount to policy decisions). B. Standing Standing- whether a party possesses the right to commence suit against another party by having a personal stake in the resolution of the controversy. There are 3 standing requirements: 1. Injury-in-Fact- the plaintiff must have suffered or imminently will suffer injury- an invasion of a legally protected interest that is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic. 2. Causation- there must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. 3. Redressability- it must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury. Partial redress may be sufficient. Lujan v. Defenders of Wildlife (1992) (*the precedential value of this case is questionable- only 4 justices thought plaintiffs had not established redressability, and only 3 justices agreed that there was no injury-in-fact.) , Sec. of Interior, interpreted the Endangered Species Act to apply only in the US or at sea. s, Defenders of Wildlife, sued for an injunction requiring to issue a regulation restoring the interpretation that the Act applied worldwide. s claimed that they would be injured if animals were endangered anywhere in the world, and that anyone with a vocational, educational, or aesthetic interest in an endangered species should have standing. The Court said that Congress cannot create a right of standing based on a generalized grievance against government. A plaintiff must show injury-in-fact, causation, and redressability. Congress may not give power to the courts which the Constitution says the courts do not have. *Here, the court is basically saying We dont want to get involved in political questions of what is and is not good policy- if you dont like a particular policy, wait until the next election and make your voice heard; dont come to us unless you have been personally harmed.

Massachusetts v. Environmental Protection Agency (2007) The EPA refused to enforce the Clean Air Act against motor-vehicle emissions. Massachusetts appealed the EPAs refusal by petitioning for review of the decision. The Court held that a plaintiff has standing if it demonstrates a concrete injury that is both fairly traceable to the defendant and redressable by judicial relief. Here, the Court found that MA had standing to challenge the decision because MA had particularized injury- damage to the states coastline from pollution, and that the injury was fairly traceable to the EPAs refusal to enforce the Clean Air Act. Court also says that it is of considerable relevance that the party seeking review is a state and not a private individual (as in Lujan). A state has an interest in all the earth and air within its domain. Roberts Dissent- any redress of the injuries in this case should be left to the political branches. MAs injury is not concrete and particularized. C. The Constitutional and Prudential Elements of Standing i. The Prudential Elements of Standing In addition to the 3 constitutional requirements, the Court has imposed additional limits which are founded on discretionary or prudential considerations- not mandated by the Article III case or controversy requirement. Congress can override these principles by statute. ii. Third Party standing- the plaintiff must generally assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Generalized Grievances- even if a plaintiff meets the 3 constitutional requirements, the Court will not adjudicate abstract questions of wide public significance- most appropriately addressed in the representative branches. Suits outside a laws zone of interest- the Court must determine whether the plaintiffs injury is of the type Congress contemplated to be protected by the statute. Congressional power to confer standing Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before (Congress has the power to confer standing). Standing and Separation of Powers Conferring standing on citizens to compel government enforcement action unconstitutionally transfers from the executive to the courts the responsibility to take care that the laws be faithfully executed. Standing is a crucial and inseparable element of the separation of powers. Legislator Standing Legislators plainly have standing to claim that they have been deprived of something to which they personally are entitled, such as their seat in the House of Senate, but not when the assertion is based on loss of political power rather than a private right. Raines v. Byrd (1997) Senators and Congressmen who voted against the Line Item Veto Act challenged the constitutionality of the Act. Their argument was that, as a result of the Act, their votes on future appropriations bills would be less effective than before. The Court held that the Congressmen did not have standing to challenge the constitutionality of the Act because their alleged deprivation was not personal in nature and the court should refrain from deciding such a politically sensitive questions. 6

iii.

iv.

D. Mootness and Ripeness Mootness Occurs when litigants who had standing to sue at the outset of the litigation are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after the lawsuit has gotten under way. Actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. Exception- cases that are capable of repetition yet evading review (ex-pregnancy/abortion) Ripeness Seeks to prevent premature adjudication. (The bad thing may never happen- the court does not want to waste its time). E. Political Questions The court will not answer political questions. A political question is an issue that is more appropriately left to the determination of another governmental branch. There are two strands of modern political question doctrine: 1) Constitutional Interpretation- some matters are committed to the unreviewable discretion of the political branches 2) Judicial Discretion- some otherwise legal questions ought to be left to the other branches as a matter of prudence. Baker v. Carr (1962) (Political Questions) Tennessee voters claimed that the apportionment of the TN legislature violated their equal protection rights. Although the state constitution allocated representation on population basis, the population had grown and redistributed substantially since 1901, with no reapportionment. They also alleged that, as a result of the lack of representation in the legislature, political redress was difficult or impossible. The court held that this was not a political question. The fact that a suit seeks protection of a political right does not mean it necessarily presents a political question. Frankfurter Dissent- the Guaranty Clause is not enforceable through the courts. The Equal Protection Clause provides no clearer guide for judicial examination of apportionment statutes than would the Guaranty Clause. Political Questions: -history of management by political branch -lack of judicially manageable standards of resolve -impossible to decide the case without an initial policy determination -impossible to resolve without expressing lack of respect to other branches -need for unquestioning adherence to political decision already made -potentiality for embarrassment from different answers to the same question by different branches.

F. Distinguishing Legal from Political Questions i. Congressional Qualifications Powell v. McCormack (1969) The House of Representatives refused to seat a representative, Powell, on the grounds that he had diverted House funds for the use of others and himself and made false reports of expenditures. Powell alleged he had met all the formal requirements- age, citizenship, and residence. McCormack, speaker of the house, argued that the Constitution, in Article 1 section 5 granted each house the right to be the judge of the qualifications of its own members, and that if the court decided the issue it would lead to a potentially embarrassing confrontation b/t the two branches. The Court found the matter justiciable, finding that textual commitment only meant that each house could judge the qualifications set out in the Constitution (age, etc). ii. Treaty Abrogation Goldwater v. Carter (1979) s, Goldwater and other members of Congress, challenged , President Carters power to unilaterally nullify a treaty that had been signed with China. s claimed that needed approval from the Senate. The Constitution sets forth procedures for the Senate to participate in treaty ratification, but is silent as to any Senate role in treaty abrogation. The court refused to decide the question of whether the President had the authority to terminate the treaty unilaterally, because it was a dispute between coequal branches of our government, each of which has resources available to protect and assert our interests, resources not available to private litigants outside the judicial forum. iii. Impeachment Proceedings Nixon v. United States (1993) Constitution says that, when it comes to impeachment, the House has the sole power of impeachment, and the Senate has the sole power to try all impeachments. The question wascan the Senate appoint a committee to hear impeachments, or must it be done by the entire body? The Court held that this was a political question- on both grounds (constitutional interpretation, and judicial discretion). First, the common sense meaning of the word sole from the text of the Constitution is that it should be the Senates decision, not for the judiciary. Also, there would be a lack of finality and the difficulty of fashioning relief. iv. The Constitutional Amendment Process Coleman v. Miller The question of what is a reasonable period of time for ratification by the states of a constitutional amendment proposed by Congress under Article IV is a non-justiciable question. v. The Presidential Election Process Bush v. Gore (2000) The 2000 Presidential election was thrown into controversy because the vote in FL resulted in a near statistical tie between the two candidates. The Court held that recounts of the votes, because conducted under nun-uniform standards, were unconstitutional under the Equal Protection Clause of the 14th Amendment. 8

II.

THE NATION AND THE STATES IN THE FEDERAL SYSTEM

Federalism is a scheme of government whereby the power to govern is divided between a central and localized governments. The framers aimed to create a stronger national government (than under the Articles of Confederation), but not one that was too powerful. The success of federalism depends upon maintaining the balance between the need for the Supremacy and Sovereignty of the federal government and the interest in maintaining independent state government and curtailing national intrusion into intrastate affairs. US federal structure allocates power between the nation and the states by enumerating the powers delegated to the federal government and acknowledging the retention by the states of the remainder. The Tenth Amendment reserves those powers not expressly delegated to the federal government or prohibited to the states, to the states or the people. Doctrine of Implied Powers Although the federal government may only assert those powers specifically enumerated in the Constitution, the Necessary and Proper Clause (Article I, 8) grants Congress the power to make all laws that are necessary and proper for carrying out the enumerated powers. McCulloch v. Maryland (1819) (still the rule today) A Maryland statute prohibited any bank from issuing bank notes except on paper stamped by the state (for a fee), unless the state gave specific permission. A cashier for a MD branch of the U.S. Bank (fed gov) issued bank notes in violation of the law. The first issue in the case was whether or not Congress even had the power to incorporate a bank. The Court held that Congress did have the power, implied from the Necessary and Proper Clause, to enact the means to perform the duties imposed upon it (the end), as long as the end is legitimate and within the scope of the Constitution (and the means are rationally related). The Constitution does not exclude incidental or implied powers. In common usage, the word necessary frequently means convenient, useful, etc., and not always indispensable. The next issue was whether the state had the power to impose fees on the operation of an institution created by Congress pursuant to its constitutional powers. The Court held that no, the federal Constitution and the laws made pursuant to it are supreme and control the constitution ands and the laws of the states. The states are not truly sovereign. The Constitution derives its authority from the people not from the states. A. The Background and Meaning of McCulloch v. Maryland Two competing theories of Constitutional Interpretation: Structural (Hamilton) - looks at our structure of government in the interpretation of the Constitution. The creation of the bank was constitutional. It was the intent of the framers to give liberal latitude to the exercise of the specified powers. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and it is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of national authority. Intent argument- the failures of the articles of confederation were meant to be solved by the new Constitution- the articles of confederation failed because the power of the central government was too weak. So the framers probably didnt intend to limit Congress power with the necessary and proper clause. Constructionist (Jefferson) - looks to the text and nothing more 9

The creation of the bank was unconstitutional. The Necessary and Proper Clause did not justify the creation of the Bank- a bank was not necessary, and therefore not authorized by the phrase. U.S. Term Limits, Inc. v. Thornton (1995) (very close case- 5-4) Arkansas adopted an amendment limiting the tenure of state and federal officials. The League of Women Voters challenged the provision relating to the federal officials, as contrary to the Constitution. The Court held that states may not limit the terms of members of Congress. The qualifications for sitting in the US Congress are stated in Article I of the Constitution. The states have never had power over federal elections- not a pre-existing right. Kennedy Concurrence- National citizenship has privileges and immunities protected from state abridgement by the force of the Constitution itself. Thomas Dissent- The Constitution is silent as to whether the people of each state may prescribe eligibility requirements for congressional candidates. Where the Constitution is silent, it raises no bar to action by the states or the people. The qualifications listed in Article I of the Constitution should be considered the minimum qualifications and the states should be free to add. The individual states, acting as states, have no power to restrict the federal government. Members of Congress, though coming from the separate states, are members of the federal government- the states have no right to place limits on them additional to those contained in the Constitution. Permitting individual states to formulate diverse qualifications for their congressional representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the framers envisioned and sought to ensure

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III.

THE COMMERCE POWER AND ITS FEDERALISM-BASED LIMITS

Commerce Power- the power delegated to Congress by Article 1, section 8, clause 3 of the Constitution, to regulate commerce between the states and with foreign countries. 1. THE COMMERCE POWER BEFORE THE NEW DEAL Before 1887, the Commerce Power operated as a restraint upon state powers. Most cases that came up regarding the Commerce power dealt with states trying to pass a law that interfered with interstate commerce, not with any exercise of the Commerce power by Congress. The purpose was initially to help end hostile state restrictions, regulations, and tariffs- in an effort to promote a national market. Gibbons v. Ogden (1824) NY legislature granted Fulton (who gave to Ogden) a monopoly to operate steamboats in NY for 30 years. , Gibbons also owned a ferry business, and was authorized under federal law to operate his ferry between NY & NJ. received an injunction to stop from operating his ships in NY. appealed to SC. claimed that the federal government did not have exclusive jurisdiction over commerce, but that states retained the power to regulate commerce within their own states. contended that Congress had exclusive power to regulate interstate commerce. The Court held that, if a state law conflicts with a Congressional act regulating commerce, the Congressional act is controlling. Congress has the power to regulate navigation within the limits of every state. The Court dismissed s suit for injunction. A. Judicial Limits on the Commerce Power Large-scale commercial regulation by Congress did not begin until 19th century developments in industrialization, transportation, and communication gave rise to legislation. Three principle judicial approaches emerged with regard to limitations on Congressional authority over commerce: The direct/indirect effect test- a distinction should be made between production and commerce. Production is a purely local activity, even if the materials produced would ultimately end up being sold in interstate commerce. Production does not directly affect interstate commerce. The question is not the extent of the effect produced on interstate commerce, but the existence or non-existence of a direct logical relation between the production and the interstate commerce. The substantial economic effects testHouston E. & W. Texas Railway Co. v. United States (The Shreveport Rate Case) (1914) The Interstate Commerce Commission, after setting rates for transport of goods between Shreveport, LA and various points in Texas, sought to prevent railroads from setting rates for hauls totally within Texas which were less than the Shreveport rates. The theory was that the lower Texas rates would unfairly discriminate against the Shreveport rates. The railroads argued that it was beyond Congress control to set rates exclusively within Texas. The Court upheld the ICCs right to regulate- the Commerce power necessarily includes the right to regulate all matter having such a close and substantial relation to interstate traffic that control is essential or appropriate to the security of that traffic. 11

The stream of commerce test- Justice Holmes developed this test. Under his theory, an activity could be regulated under the Commerce power, not because it had an effect on commerce, but rather because the activity itself could be viewed as being in commerce or as an integral part of the current of commerce. In Swift Co. v. United States (1905), he stated, commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business. Police Regulation Congress began, in the early 20th century, to use the Commerce power to deal with problems of morality and criminality. Congressional sanctions were imposed on interstate movement, but the real harm sought to be alleviated was primarily local. (Remember that the federal government does not have a general police power like the state governments do). Champion v. Ames (The Lottery Case) (1903) Congress passed the Federal Lottery Act of 1895, which prohibited the interstate shipment of lottery tickets. The Court upheld the Act as constitutional- finding that since Congress regulated only the interstate shipment of these evil articles, it could not be said to be interfering with intrastate matters reserved for state control. Fullers Dissent- to hold that Congress has a general police power would be to hold that it may accomplish objects not entrusted to the General Government, and to defeat the operation of the 10th Amendment The Court was more hostile to Congressional interference with the employer-employee relationshipwhich the Justices saw as an unwarranted interference with the free-market system. Hammer v. Dagenhart (The Child Labor Case) (1918) Congress passed a law prohibiting the shipment in interstate commerce of any products of any mills, mines, or factories which employed children. Proponents of the law argued that the regulation was necessary because of the unfair advantage possessed by manufacturers in states with less stringent child labor laws. The Court held that the making of goods and the mining of coal are not interstate commerce, even if they are later shipped or used in interstate commerce. The goods shipped are themselves harmless. The production of articles intended for interstate commerce is a matter of local regulation. Holmes Dissent- a law is not beyond Congresss commerce power merely because it prohibits certain transportation. There is no legal distinction between The Lottery Case and the evils of premature and excessive child labor. The court has no right to substitute its judgment of which evils should be controlled. *After this case, Congress sought to regulate child labor through the taxing power (struck down). Congress then submitted a proposed Constitutional amendment (never ratified). US v. Darby overturned Hammer in 1941.

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2. THE COMMERCE POWER AND THE NEW DEAL FDR took office in 1933, in the midst of the Great Depression. Congress enacted a dramatic set of remedial measures under FDRs New Deal. The government sought to justify these measures under the Commerce Clause. The Court increasingly rejected these efforts. Railroad Retirement Board v. Alton Railroad Co. (1935) The Court decided that Congress lacked the power to establish a compulsory retirement and pension plan for all carriers subject to the Interstate Commerce Act. The law was not in purpose or effect a regulation of interstate commerce within the meaning of the Constitution. Schechter Poultry Corp. v. United States (1935) The National Industrial Recovery Act of 1933 authorized the President to promulgate codes of fair competition for the trade community (regulating wages, hours, prices, etc). , Schecter Poultry, was charged with violation of the wage and hour provisions. bought and resold poultry exclusively within NY. challenged the Act as unconstitutional. The Court held the law unconstitutional because it delegated legislative power, and the application of Act to intrastate activities exceeded the Commerce power. s intrastate activity was not in commerce, and did not directly affect commerce. Carter v. Carter Coal Co. (1936) The Court invalidated the Bituminous Coal Conservation Act, which also regulated wages and hours in coal mines. The Court found the Act unconstitutional, holding, we find no grant of power which authorizes Congress to legislate in respect of these general purposes unless it be found in the Commerce Clause.The effect of the labor provisions of the act primarily falls upon production and not upon commerce. The court went on to say that the evils the Act was trying to alleviate were local evils over which the federal government has no legislative control. After the 1937 election, FDR launched a counter-attack against the Supreme Court- The Court-Packing Plan. He sought Congressional authority to appoint an additional federal judge for every judge who was 70 years old and had served on the court for at least 10 years. If approved, the plan would have added 6 new Justices to the Supreme Court. The Plan was ultimately struck down, but the Court reformed itself beginning in 1937. FDR claimed to have lost the battle but won the war.

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3. THE COMMERCE POWER AFTER THE NEW DEAL Beginning in 1937, the Court began to show great deference to Congressional action under the Commerce power. From 1937 through 1941, FDR made seven appointments to the Court- cementing the dominance of a deferential judicial stance toward Congresss Commerce power. No law was struck down as exceeding the reach of the Commerce power for nearly 60 yrs (1995 case- Lopez) NLRB v. Jones & Laughlin Steel Corp (1937) The National Labor Relations Board found that J&L (Steel Corp) had engaged in unfair labor practices by preventing union organization at two steel plants in PA. The Board brought suit to enforce a cease and desist order against J&L. J&L argued that, since the plants were not engaged in interstate commerce, the cease and desist order from the National Board was unconstitutional. The Board argued that, since the company was a large manufacturing company with subsidiaries in several states and nationwide sales, the operations at the PA plant affected interstate commerce. The Court held that, under the Commerce Clause, Congress has the power to regulate any activity, even intrastate production, if the activity has an appreciable effect on interstate commerce. Congress has the power to protect interstate commerce by all appropriate types of legislation; the controlling question is the effect on interstate commerce, not the source of the interference. Congress has the power to act if the intrastate activity bears such a close and substantial relation to interstate commerce that control is appropriate for the protection of commerce. McReynolds Dissent- the possible interference in this case on interstate commerce is obviously only remote and indirect, and not subject to federal regulation. United States v. Darby (1941) (overruled Hammer v. Dagenhart) Darby, , manufactured lumber, some which was later shipped in interstate commerce. Fair Labor Standards Act prohibited the shipment in interstate commerce of products produced under substandard labor conditions (wage & hour). was arrested for violation of the FLSA, and he claimed the Act was an unconstitutional regulation of product manufactured within the state. The Court held that Congress has the power to regulate the hours and wages of workers who are engaged in the production of goods destined for interstate commerce and can prohibit the shipment in interstate commerce of goods manufactured in violation of the wage and hour provisions. The shipment of goods across state lines is interstate commerce and the prohibition is regulation of commerce. Congress may regulate wholly intrastate activities which so affect interstate commerce as to make regulation of them an appropriate means to the end. The employment of workers in substandard conditions will lead to goods being lower priced than goods produced under adequate conditions, and would hasten the spread of substandard conditions and produce a dislocation of commerce and the destruction of many businesses in states with adequate conditions. Wickard v. Filburn (1942) (the outer limits of the substantially affecting commerce rationale) , a dairy farmer, sued , Secretary of Agriculture, challenging the constitutionality of the Agricultural Adjustment Act of 1938, which imposed a penalty for exceeding a market quota for wheat. Congress argued that without regulation, the price of wheat would drop across the country. A unanimous Court upheld the Act, even though it extended federal regulation to production not intended in any part for commerce, but wholly for consumption on the farm. Even if appellees activity be local and though it may not be regarded as commerce, it may 14

still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce. Also, the stimulation of commerce is a use of the regulatory function quite as definitely as the prohibitions or restrictions thereon. The Commerce Power and Civil Rights Title II of the Civil Rights Act of 1964 prohibited discrimination on the ground of race, color, religion, or national origin in certain places of public accommodation. A facility was covered if its operations affect commerce, or it discrimination is supported by state action. Congress focused on the Commerce Power as the relevant source of Congressional authority. The law defined establishments affecting commerce as including any establishment that offers to serve interstate travelers or a substantial portion of the food it serves has moved in commerce. Heart of Atlanta Motel v. United States (1964) A motel in downtown Atlanta challenged the law as unconstitutional. A unanimous Court upheld the law, based on the burdens that discrimination by race or color places upon interstate commerce. The determinative test of the exercise of power by Congress under the Commerce Clause is simply whether the activity sought to be regulated is commerce which concerns more states than one and has a real and substantial relation to the national interest. Katzenbach v. McClung (1964) The Court upheld a similar challenge from a restaurant in Alabama that was 11 miles from the highway (no evidence that an appreciable part of its business was in serving out-of-sate travelers) but that bought about 46% its food from a supplier who bought from out-of-state. The court held that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce, thus giving Congress the ability to regulate the restaurants. The Court gave great deference to Congress, saying, where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. Perez v. United States (1971) (outer limits of affecting commerce rationale for criminal law) The Court upheld a federal prohibition of extortionate credit transactions (loansharking enforced by threats of violence). The Court held that even where extortionate credit transactions are purely intrastate in character, they nevertheless directly affect interstate and foreign commerce.

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4. THE REHNQUIST COURTS REVIVAL OF INTERNAL LIMITS ON THE COMMERCE POWER The deferential judicial stance toward Congress has continued, but some limits do exist. United States v. Lopez (1995) 1990 Gun-Free School Zone Act made it a federal offense for a student to carry a gun onto campus. Lopez, , was convicted under the Act. He argued that the Act was beyond Congresss Commerce Cause regulatory powers. The Court agreed and, in a 5-4 decision, held that the Act exceeded the Commerce Clause powers- the federal government is one if limited, enumerated powers. Rehnquist Majority-For Congress to legislate, it must do so under an express Constitutional provision. The Commerce Clause is not a general grant of police power. A law passed under the Commerce Clause must relate to: 1) a channel of interstate commerce; 2) an instrumentality of interstate commerce; or 3) an activity having a substantial effect on interstate commerce. In this case, the regulated activity was a purely local matter- it did not affect a channel, an instrumentality, or an activity having a substantial effect on, interstate commerce. The Court pointed out that the activity being regulated was not itself a commercial activity, and was not part of a larger regulation of economic activity (like wheat growing in Wickard). Kennedy Concurrence- Matters relating to the Commerce Clause are best left to the political sector. Only when an exercise of power under the Clause unduly upsets the balance of power b/t the states and the national government should the Court intervene. Activities that have traditionally been left to the states to regulate should be further off-limits to the federal commerce power than activities that had not been so limited. Thomas Concurrence- The substantial effects test goes far beyond the original intent of the framers and grants Congress something approaching the general police power. Breyer Dissent- The education of our youth clearly has a major impact on the national economy and is a proper subject for Commerce Clause regulation. The test was whether Congress could have had a rational basis for finding a substantial connection between gun-related school violence and interstate commerce. A. Commerce Clause Review after Lopez United States v. Morrison (2000) A female university student sued two male students and the school for violation of the Violence Against Women Act. The student argued that the VAWA was constitutional because it fell under the third category of the Lopez test- substantial effect on interstate commerce. The Court held, in a 5-4 decision, that Commerce Clause regulation of intrastate activity may only be upheld where the activity being regulated is economic in nature. The Constitution requires a distinction between what is truly national and what is truly localThe regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the states. Souter Dissent- Congress has the right to regulate activities that, in the aggregate, have a substantial effect on interstate commerce. The fact of the substantial effect is a question for Congress, not the Courts. 16

Breyer Dissent- the economic/noneconomic distinction would be a hard one to implement reliably and there was no reason for attaching such importance to that distinction in situations where non-commercial local activities have a large effect on interstate commerce. B. The Limits of Lopez and Morrison Gonzales v. Raich (2005) Congress passed the Controlled Substances Act which forbid possession or manufacture of marijuana for any reason. CA law allowed use of marijuana for medicinal purposes. s, CA residents, claimed serious medical conditions and sued for injunctive and declaratory relief to prohibit the CSA from being enforced against them. The Court denied the injunction and held that Congress has the power, under the Commerce Clause, to criminalize marijuana even if state law would allow it. When Congress is engaged in broad regulation of a commercial activity, it may regulate purely non-commercial and intrastate instances of that activity, if it reasonably believes that failure to regulate these instances would jeopardize the success of the overall regulatory scheme. (Stevens relied heavily on Wickard) Scalia Concurrence- Unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, Congresss regulatory authority over such activities derives from the Necessary and Proper Clause. OConnor Dissent- The states police powers have always included the authority to define criminal law and to protect the health, safety, and welfare of their citizens. This case is virtually indistinguishable from Lopez. C. Commerce Clause Review after Raich Where the transaction being regulated is itself a clearly commercial or economic one, the Court will probably continue to allow Congress to regulate, even if its a completely intrastate activity, as long as it is part of a class that, in the aggregate, substantially affects commerce. Where the activity is essentially a non-commercial one, the Court apparently will not regard the aggregate impact on interstate economy as sufficient unless the causal link is extremely short and direct, or the item being regulated crosses state lines or enters the stream of interstate commerce.

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5. EXTERNAL LIMITS ON THE COMMERCE POWER: FEDERALISM AND THE TENTH AND ELEVENTH AMENDMENTS A. State Autonomy and the Tenth Amendment The Tenth Amendment provides, the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. National League of Cities v. Usery (1976) Congress attempted to make federal minimum-wage/overtime rules applicable to state and municipal employees. By a 5-4 decision, the Court held the extensions within Congresss commerce authority, but nonetheless unconstitutional. When Congress seeks to regulate directly the activities of states as public employers, it transgresses an affirmative limitation on the exercise of its power akin to other commerce power affirmative limitations contained in the Constitution. From 1976-1985, the Supreme Court treated the Tenth Amendment as imposing an important limit on federal power by barring the federal government from doing anything that would impair the states ability to perform their traditional functions. Garcia v. San Antonio Metropolitan Transit Authority (1985) (still good law today) The issue was whether the minimum-wage and overtime provisions of the federal Fair Labor Standards Act should apply to employees of a municipally-owned-and-operated mass-transit system- the basic question was whether municipal ownership of a transit system amounted to a traditional government function. Blackmun stated that, since National League of Cities, it was difficult if not impossible to draw the line between traditional governmental function or not, and led to subjectivity by unelected justices to make decisions about which state policies it favors and which it dislikes. Again in a 5-4 decision (Blackmun changed sides), National League of Cities is overruled. After Garcia, once Congress, acting pursuant to its Commerce power, regulates the states, the fact that it is a state being regulated has virtually no practical significance- if the regulation would be valid if applied to a private party; it is also valid as to the state. New York v. United States (1992) Congress passed an act requiring every state to find a way to dispose of its own waste. The Act provided 3 incentives for compliance- states with existing disposal facilities could impose a surcharge or could deny access to other states, and states with no facilities had until 1992 (from 1985) to take title to all waste generated in their state. NY sought to invalidate the act as violative of state sovereignty principles of the 10th amendment. The Court held that the federal government may not order a state government to enact particular legislation. The federal government may provide incentives (funding), but may not force a state to take action. The strength of the federal interest is irrelevant. The court held that the 1st 2 incentives were okay, but the 3rd (forced compliance) was unconstitutional. **although the act was a compromise amongst the states, the states may not constitutionally consent to give up sovereignty. 18

White Dissent- The Acts were the product of cooperative federalism- the states bargained amongst themselves. 10th amendment limits on the commerce power are procedural limits, designed to prevent federal destruction of state governments, not to protect substantive areas of state autonomy. The national government may act as a referee to prevent states from bullying one another. B. The Scope and Limits of the Anti-commandeering Principle Printz v. US (1997) The Court held invalid, by a 5-4 decision, provisions of the Brady Handgun Violence Prevention Act that required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. The federal government may not compel state/local officials to perform federally-specified administrative tasks. Steven Dissent- The Commerce Power gives Congress the right to regulate handguns and the Necessary and Proper Clause gives them the right to implement the regulation by requiring local police officers to conduct background checks. New York and Printz both rejected Congresss authority to dictate, through federal prescription, how the states regulate their own citizens. But neither questioned Congresss ability to regulate the states own conduct under general laws that also regulate the similar conduct of private actors. Reno v. Condon (2000) A unanimous Court upheld a federal law limiting the commercial vending of personal data by the states (DMV). The Court explained that the Act at issue did not require the states in their sovereign capacity to regulate their own citizens. The state is not required to enact any laws or regulations and is not required to enforce on its citizens a federal statute.

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C. State Sovereign Immunity and the Eleventh Amendment The Eleventh Amendment provides, the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the united states by citizens of another state, or by citizens or subjects of any foreign state. The Eleventh Amendment imposes important limitations in the jurisdiction of the federal courts. A state cannot be sued in federal court by any private citizen- whether of its own state, another state, or a foreigner; and whether it be a federal question or diversity suit. Exceptions A private citizen may sue a state official for violation of a federal law. He may sue for an injunction or for money damages to come out of the officials own pocket- a stat cannot be made to pay damages to a private individual. The 11th amendment does not bar suits by the federal government against a state. Also does not bar suits against cities or other subdivisions of a state. Does not bar suits by one state against another The 11th amendment protections can be waived by a state Seminole Tribe of Florida v. Florida (1996) Congress passed a statute governing aspects of gambling operation run by Indian tribes. The law allowed an Indian tribe to sue in federal court if it thought that a state was not complying with the provisions of the Act. The Court, by a 5-4 vote, held that this statute violated the 11th amendment. Even when the Constitution vests in Congress complete law-making authority in a particular area, the 11th amendment restricts the judicial power under Article III; Congress cannot circumvent to Constitutional limitations places upon federal jurisdiction (Congress cannot authorize federal-court suits against the states). (This principle applies to all legislation pursuant to any power other than the post-Civil War amendments- 13th, 14th , 15th). Souter Dissent- the 11th amendment only applies to suits based solely on diversity. Alden v. Maine (1999) Congress had said that the Fair Labor Standards Act applied to the states as employers, just as it did to private employers; and that states employees could bring FLSA suits against the state in state court. Maine workers did bring suit in Maine courts. Again by a 5-4 vote, the Court held that Congress has no authority to force the Maine courts to hear the workers suit, even though the suit was based on a federal right that Congress had the authority to confer upon the workers. The doctrine of sovereign immunity generally prevents Congress from subjecting the states to private suits in their own courts, even where the right sued on is federal.

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IV.

OTHER NATIONAL POWERS

Article I 8 states: The Congress shall have power to lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States. 1. THE TAXING POWER AS A REGULATORY DEVICE Under the Taxing Power, Congress is given a far-reaching ability to tax in order to raise revenue. Congress may also regulate via taxation. Even if Congress principle motive is to regulate rather than tax, so long as the tax produces some meaningful revenue and any regulatory provisions are reasonably related to the taxs enforcement, the tax will be upheld. Child Labor Tax Case- Bailey v. Drexel Furniture Co. (1922) Congress passed Child Labor Tax Law, which provided that any company employing children in violation of its policies had to pay a tax equal to one-tenth its net profits for the year. Plaintiff violated the provisions of the act and had to pay a fine of $6,312.79. paid the tax but then brought suit. The Court held that a law passed by Congress under the pretext of executing its powers, but which is for the accomplishment of objects not within congressional power, is unconstitutional. The purpose of the law was to regulate the employment of children within the states, which is exclusively a state function. The tax was being imposed as a penalty, not with the primary motive of obtaining revenue. (But taxes imposed with primary motive of revenue will not lose character b/c of incidental motive of discouraging taxed activity). United States v. Kahriger (1953) Upheld the constitutionality of a federal occupational tax imposed on gambling. The claimed that Congress was imposing the tax to regulate, under the pretext of exercising its power to tax. The Court responded that an intent to curtail and hinder, as well as tax, was also manifest in many cases upholding a tax. A federal excise tax does not cease to be valid merely because it discourages or deters the activity taxed. The only type of tax which might be held invalid as a regulatory tax is one enacted with specific conditions and written in a way that the tax does not apply unless the taxpayer has violated certain conditions.

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2. THE SPENDING POWER AS A REGULATORY DEVICE Article I 8 gives Congress the power to pay the debts and provide for the common defense and general welfare of the United States. The power to spend is linked to the power to tax- money may be raised by taxation and then spent. Congress may place conditions on its spending power as a kind of regulation. This is true even if Congress cannot regulate in an area directly. United States v. Butler (1936) (federal regulation of local matters through taxation.) In the Agricultural Adjustment Act of 1933, Congress sought to raise farm prices by cutting back agricultural production. The plan was to induce farmers to reduce their acreage in return for benefit payments. The payments were to be procured from the impositions of a processing tax on cotton. opposed the tax, claiming that it unconstitutionally sought to control agricultural production- an activity that was the province of the states. The Court held that the power to tax and spend for the general welfare existed as a separate enumerated power. However, Congress does not have an independent power to provide for the general welfare, apart from the power to tax and spend. Congress may not regulate in a particular area merely on the ground that it is thereby providing for the general welfare. Congress does not have the right to regulate areas of essentially local control, including agriculture. A tax is an exaction for the support of the government, not an expropriation of money from one group for the benefit of another. Stone Dissent- It is contradictory to say that here is a power to spend for the national welfare, while rejecting any power to impose conditions reasonably adapted to the end which justifies the expenditure. If appropriation in aid of a program of curtailment is constitutional, and it is not denied that it is, payment to farmers on condition that they reduce their crop acreage is constitutional. **if the tax and the appropriation provisions had not been so closely tied together, it is doubtful that the court would have invalidated the tax. It appeared to have a valid revenue raising purpose. A. The Spending Power after the New Deal Charles C. Steward Machine Co. v. Davis (1937) In a 5-4 decision, the Court sustained unemployment compensation provisions of the Social Security Act. The Act established a national taxing structure designed to induce states to adopt laws for funding and payment of unemployment compensation. The Court found that the tax was not void as involving the coercion of the states in contravention of the 10th amendment. There is a line between duress and inducement. Helvering v. Davis (1937) The Court upheld the old age benefits of Social Security Act. The Act imposed federal taxes on covered employers and employees in order to fund the payments. The Court held that the act was constitutional because it was for the common benefit, not merely a local purpose, and the laws of the separate states cannot deal with it effectively. 22

South Dakota v. Dole (1987) (current view-Congress may regulate with a carrot where it cannot directly regulate.) Congress passed a law withholding 5% of federal highway funds to states with a minimum drinking age of less than 21. South Dakota challenged the law, claiming that it was unconstitutional, because the 21st amendment specifically leaves regulation of drinking age to states. The Court says that Congress may use the spending power to induce cooperation where it cannot directly legislate. The Congressional condition of highway funds is merely a "pressure" on the State to comply, not a "compulsion" to do so, because the State's failure to meet the condition deprives it of only 5% of the highway funds it may obtain. There are four limitations to the spending power: The exercise of the spending power must be in pursuit of the general welfare (Court should defer substantially to Congresss judgment on this) Congress must make the condition of federal funds unambiguous, allowing the states to exercise their choice knowingly Must be related to the federal interest in particular national projects or programs Other Constitutional provisions may provide an independent bar to the conditional grant of federal funds. (Congress may not violate Due Process, etc) OConnor Dissent- the law is not reasonably related to the federal highway system; it is an attempt to regulate alcohol, which Congress may not do. B. The Spending Power after Dole Most spending conditions will meet the first two conditions of Doles four-part test- that Congress has a purpose to serve the general welfare and has made a clear statement of the funding condition. The last two are not as clear.

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3. THE WAR AND TREATY POWERS AND IMPLIED POWER OVER FOREIGN AFFAIRS Article 1 8 gives Congress the power to declare war, to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of land and naval forces, and to provide for organizing, arming, disciplining, and calling forth the militia. A. The War power and Federalism The War powers impact on federalism has principally arisen in the context of economic regulation during wartime. Woods v. Cloyd W. Miiler Co. (1948) Federal government is suing a landlord for injunction of violations of the Housing and Rental Act of 1947. After WWII, Congress enacted rent control regulation based on the war power. A federal district court held the legislation unconstitutional on grounds that the war was over. The Supreme Court held that Congress has the power, pursuant to the War Power, to attempt to remedy situations which were caused by the War, even after hostilities have ceased. Here, the housing shortage was caused by the war, b/c during the War, supplies were going toward the War and were not being used to build houses, and then when the troops came home, there was not enough housing for all of them. Jackson Concurrence- the US is still in a state of war. But I would not be willing to hold that the war powers last as long as the effects and consequences of war, because they are permanent. B. The Treaty Power The President may make a treaty with a foreign nation, but it must be ratified by two-thirds of the Senate. A validly ratified treaty is the rough equivalent of a federal statute. Missouri v. Holland (1920) US entered into a treaty with G. Britain to protect migrating birds. State of Missouri is suing the Federal game warden, claiming that the Bird Treaty Act was unconstitutional interference with the rights reserved to the states by the 10th Amendment. Before the treaty had been entered into, Congress had attempted to regulate the killing of migratory birds and that statute had been declared unconstitutional. The Supreme Court held that Congress can constitutionally enact a statute, under Article I 8, to enforce a treaty created under Article II 2, even if the statute by itself is unconstitutional. As long as the treaty itself is valid, Congress may enact legislation that is necessary and proper to enforce the treaty. C. Executive Agreements The Constitution does not explicitly prohibit the President from entering into international agreements without Senate consent; Presidents have traditionally frequently done so. These ungratified agreements are called Executive Agreements. However an executive agreement, unlike a treaty, cannot override a prior Act of Congress. But like a treaty, an executive agreement will have priority over conflicting 24

state laws. The Constitution, as a general principle, vests all control over international affairs in the federal government.

V.

FEDERAL LIMITS ON STATE REGULATION OF INTERSTATE COMMERCE

Article I restraints on state regulation arise in two situations: The Dormant Commerce clause, where Congress has taken no action, express or implied, to make federal policy on a given subject matter, the objection to state regulation rests on negative implications of the Commerce Clause, on the unexercised commerce power itself, and the presumptive free trade values it embodies. Where Congress has exercised the Commerce Power and the challenge to inconsistent state action rests on both the exercise of the Commerce Power and the preemptive effect of the federal legislation under the Supremacy Clause. 1. THE DORMANT COMMERCE CLAUSE The federal Commerce Power is concurrent with state power over commerce within the state. Hence, the Court has been asked many times to define the line between federal and state power to regulate commerce. The Dormant Commerce Clause prohibits state and local regulations that impose relatively direct, overt burdens on interstate commerce. The Court has always given great weight to the purpose behind the federal Commerce Clause- the creation and nurturing of a common market among the states, and the abolition of trade barriers. Gibbons v. Ogden (1824) (See above) One argument- an affirmative grant of power is not exclusive, unless by its own nature it be such that the continued exercise of it by the former possessor is inconsistent with the grant. (Just because Congress was granted the right to regulate interstate Commerce that does not mean that the states cant also regulate the same thing). Opposite argument- full power to regulate a particular subject, implies the whole power, and leaves no residuum; that a grant of the whole is incompatible with the existence of a right in another to any part of it. (Because the power to regulate interstate Commerce was granted to Congress, there cant be any power of the states to do the same). argued that the federal government did not have exclusive jurisdiction over Commerce, and that states retained the power to regulate within their own states, and his right to operate his ships within NY concerned only intrastate Commerce. argued that Congress had exclusive power to regulate interstate commerce and NY had attempted to regulate interstate Commerce by granting the exclusive right to . The Court held that, if a state law conflicts with a Congressional act regulating commerce, the Congressional act is controlling. However, it is possible for states to pass regulations which may affect some activity associated with interstate commerce, but it must be based on something other than the Commerce power. In Gibbons, Marshall discussed, in dicta, the possibility that NY might not have the authority to regulate interstate ship traffic in the first place, thus sketching his view of the negative implications of the Commerce Clause for state authority over commerce. Wilson v. Black Bird Creek Marsh Co. (1829) 25

Cooley v. Board of Wardens (1851) violated a state law requiring all ships using the local port to hire a local pilot. challenged the right of the state to impose the regulation, because it interfered with interstate commerce. relied on a 1789 Congressional act that stated that all pilots should continue to be regulated in conformity with existing state laws and laws that states shall enact for that purpose, unless Congress enacts a contrary law. The Court held that the states may regulate those areas of interstate commerce which are local in nature and do not demand one national system of regulation by Congress. Some subjects of commerce demand a single uniform national rule and therefore Congress has exclusive jurisdiction over those areas. However, there are some subjects that are primarily local in nature and therefore require many different rules to meet the local necessities. **the local/national interest distinction is still used today. If a local interest outweighs the national interest and does not discriminate against interstate commerce, the states are allowed to regulate. B. The Meaning and Implications of Cooley i. Cooleys national-local distinction ii. The effect of congressional consent iii. The aftermath of Cooley and the rise and fall of the direct-indirect distinction iv. Three modern categories of Dormant Commerce Clause challenge a. State laws that facially discriminate against out-of-state commerce b. State laws that are facially neutral but that have an impermissibly protectionist purpose or effect. c. State laws that are facially neutral but that have a disproportionate adverse effect on interstate commerce. C. Facial Discrimination against Out-of-State Commerce Philadelphia v. New Jersey (1978) (re-affirms Dean Milk) NJ enacted a statute which prohibited the importation of solid or liquid waste which was collected or originated in another state. The law was challenged by private landfill owners in NJ. Trial court held that the law unduly burdened interstate commerce. NJ Supreme Court reversed, holding that the law advanced legitimate health and safety concerns and thus did not unduly burden interstate commerce. SC held that the law was unconstitutional because it was protectionist in nature and unduly burdened interstate commerce. Even if NJs purpose was to protect the health and safety of its citizens, it may not accomplish that goal by discriminating against article of interstate commerce. Rehnquist Dissent- NJ should have the power, under its police power, to enact a law to protect the health and safety of its citizens. 26

D. The Nondiscrimination Principle i. The historical origins of the Dormant Commerce clause ii. The political foundations of a presumption against discriminatory state laws iii. The economic foundations of a presumption against discriminatory state laws iv. The role of governmental purpose v. Permissible facial discrimination vi. State hoarding of natural resources vii. Facially discriminatory taxes viii. Facially discriminatory subsidies E. Home Processing Requirements Dean Milk Co. v. Madison (1951) Milk distributing company challenged an ordinance that prohibited the sale of milk as pasteurized unless it had been processed and bottled at an approved pasteurization plant located within 5 miles of the city. The milk company claimed that the ordinance unduly burdened interstate commerce (they had plants further than 5 miles outside city, and sold in Illinois and Wisconsin. The Court found that the ordinance was unconstitutional because, in practical effect, it prevented out-of-state sellers from competing with local producers. The court also stressed that reasonable alternatives to the ordinance existed to protect the health and safety of the people. The Court held that a locality may not discriminate against interstate commerce, even to protect the health and safety of its people, if reasonable alternatives exist which do not discriminate and are adequate to conserve legitimate local interests. Black Dissent-The ordinance was a good faith attempt to safeguard the public health- it should not matter if other alternatives existed. C&A Carbone, Inc. v. Clarkstown (1994) Town mandated that all solid waste leaving the town be processed through one transfer station. , a recycling center in the town, attempted to ship its waste to another state to be processed. town filed for injunction. argued that the ordinance was contrary to the commerce clause. The Court held that discrimination against interstate commerce in favor of local business is per se invalid unless the municipality can demonstrate under rigorous scrutiny that it has no other means to advance a legitimate local interest. had nondiscriminatory alternatives- so ordinance is unconstitutional. OConnor Concurrence- the law here favors one business above all others- not simply favoring local business over nonlocal business. However, still violates Commerce Clause. 27

Souter Dissent- the town may legitimately subject local and non-local investors to the same economic constraints.

United Haulers Assn v. Oneida-Herkimer Solid Waste Management Authority (2007) County enacted an ordinance requiring all trash to be delivered to a state-created public benefit corporation. sued claiming it should be able to deliver trash to out-of-state facilities (lower costs). Court says the ordinance did not violate the dormant Commerce Clause, because it is requiring the trash be delivered to a public facility. Laws benefitting local government may serve several legitimate purposes instead of economic protectionism. Public and Private facilities are not equal under the dormant Commerce Clause. Proper remedy is through the local political process. Alito Dissent- this case is just like the Carbone case- the distinction b/t public and private facility here is minimal. Also, the ordinance here does not serve any legitimate goals unrelated to protectionism- benefits local employees of the public facility. F. The Dean Milk-Carbone-United Haulers Trilogy G. The Market Participant Exception South-Central Timber Development, Inc. v. Wunnicke (1984) Alaska offered to sell a large amount of timber to different buyers, including , if they agreed to process it within state lines. wanted to ship it to Japan to be processed, and challenged the constitutionality of the in-state processing requirement, based on dormant Commerce Clause grounds. The Court held that the market-participant doctrine allows a state to impose burdens on interstate commerce w/i the market in which it is a participant but allows it to go no further. The state may not impose conditions that have substantial regulatory effect outside of that particular market. The Court says that the state of Alaska is a participant in the market of timber but not processing. So Alaska can say it will only sell its timber to its own residents, but cannot restrict where it is processed. Alaska has no say in what the buyer of the timber does with it once it is bought. Alaskas in-state processing requirement burdens interstate Commerce, and is per-se invalid. Rehnquist Dissent- Alaska could have chosen a number of constitutionally valid ways of requiring the buyers to process the timber within the state. H. The Theory and Limits of the Market Participation Exception If the state acts as a market participant, spending money to run a proprietary enterprise or to subsidize a private business, dormant Commerce Clause analysis will not be applied, and the state may favor local citizens over out-of-state economic interests. Some reasons for the market participant exception: Text- the Commerce Clause gives Congress the power to regulate interstate Commerce- one argument is that when the state is a participant, they are not regulating Economic effect- state expenditures are self limiting because, unlike regulation, they require the spending of public funds, and therefore will face in-state political safeguards 28

Parity with private actors- when the state is acting as a market participant, it should be free contractually to pick and choose its counterparties, as do private actors Federalism- exempting a state from judicial scrutiny when it acts as a market participant may be a means of respecting state sovereignty and the role of states as laboratories for experiment.

I. Facially Neutral Laws with Protectionist Purpose or Effect A state may not, in its dealings with another, place itself in a position of economic isolation- essential to the maintenance of a union of states. Baldwin v. G.A.F. Seelig, Inc. (1935) NY established minimum producer-to-dealer prices for the sale of milk in-state, and prohibited sale of milk bought out-of-state for lower prices. , milk dealer, bought milk from Vermont for lower price and NY refused to give him license to sell it in-state. sought injunction, claiming the statute was unconstitutional interference with interstate commerce. NY court said the milk that was bottled out-ofstate could be sold, but the milk that was bought out-of-state and bottled in-state could not, because it had passed outside the stream of interstate commerce. Supreme Court held that a state violates the Commerce Clause when it attempts to regulate intrastate prices by prohibiting the importation of less expensive goods in interstate commerce. The injunction should extend to all the milk. H.P. Hood & Sons v. DuMond (1949) , a MA milk distributor, was denied a license to open a 4th receiving and processing depot in NY State. NY claimed that the license would tend to create destructive competition in an area already adequately served; that it would draw milk supplies away from other existing processing plants and would tend to deprive the local market of an adequate supply of milk. The Court held that restrictions, imposed for the purpose (and with the effect) of curtailing the volume of interstate commerce to aid local economic interests, will not be sustained. Black Dissent -NY seeks to promote health and protect NY farmers from destructive competition within NY. Frankfurter Dissent- What is essentially a problem of striking a balance between competing interests (interstate commerce and local interests of health and economy), should not be treated as an exercise in absolutes. K. Facially Neutral Laws with Disproportionate Adverse Effect on Commerce Kassel v. Consolidated Freightways Corp. (1981) Iowa passed a statute restricting the length of vehicles that could drive on its highways (55-60ft). All other states around Iowa allowed for 65ft. claimed the statute unconstitutionally burdened interstate commerce. Court says that the statute is unconstitutional. Although the purpose of the statute was for safety, the safety purpose must be weighed against the degree of interference with interstate commerce. Here, Iowa could not show that 55ft was any safer than 65ft. Also, the statute substantially affected interstate commerce b/c trucks over 65ft would have to drive around Iowa, or the companies would have to use smaller trailers. Brennan Concurrence- the burdens imposed on commerce must be weighed against the regulatory purposes. Protectionist legislation is unconstitutional, even if its purpose is to promote safety rather than economic purposes. 29

Rehnquist Dissent- a state safety regulation is invalid if it is merely a pretext for a discrimination against interstate commerce. The statute here is a valid regulation. **States are free to pass public safety regulations restricting the use of highways and railway facilities. The regulations should be struck down only when a marginal increase in safety causes a substantial burden on interstate commerce. 2. THE INTERSTATE FOF ARTICLE IV Article IV, 2 privileges and immunities clause accords the advantages of citizenship equally to the citizens of each state; out-of-state citizens must therefore be given the same privileges as a states own citizens. United Building and Construction Trades Council v. Mayor and Council of Camden (1984) Camden NJ, , enacted an ordinance requiring contractors and subcontractors working on city construction projects to employ a minimum of 40% Camden residents. argued that the ordinance discriminated against non-city residents, in violation of the privileges and immunities clause. claimed the privileges and immunities clause did not apply, because the ordinance discriminates equally between NJ residents outside of Camden, and out-of-state residents. The Court held that the Privileges and Immunities Clause applies to ordinances which discriminate on the basis of municipal residence. NJ residents could remedy the problem politically, while out-of-state residents could not. The case was remanded to determine whether the economic interest was great enough to warrant the discrimination. Blackmun Dissent- there is no textual or historical support to expand the Privileges and Immunities Clause to apply to intrastate discrimination. A. The Scope and Limits of Interstate Privileges and Immunities 3. CONGRESSIONAL ORDERING OF FEDERAL-STATE RELATIONSHIPS BY PREEMPTION AND CONSENT A. Congressional Preemption of State Regulation The dormant Commerce Clause limits state regulatory power in the absence of congressional action. The Commerce Clause is not dormant when Congress affirmatively exercises that power. When Congress exercises a granted power, the federal law may supersede a contrary state law b/c of the Supremacy Clause. Problems arise when the federal legislation does not clearly disclose its intended impact on state laws. Pacific Gas & Elec. Co. v. State Energy Resources Conserv. & Development Commn (1983) CA law (1976) dealt with the problem of finding a long-term solution for disposing of nuclear wasteimposed a moratorium on the certification of nuclear energy plants. The federal Atomic Energy Act (1954) implemented a policy decision that the national interest would be best served if the government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes, under a program of federal regulation and licensing. , PG&E claimed that the federal Act preempted the state law. The court held that, in passing the Atomic Energy Act, Congress preempted state regulation of the radiological safety aspects involved in the construction and operation of nuclear plants, but intended for the states to retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, cost, and other related state concerns. Congress legislated here in a field which the States have traditionally occupied so we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. 30

Compliance with both the AEA and the CA law was possible, and the CA law did not interfere with the objective of the AEA. Blackmun Concurrence (in part)- states may prohibit the construction of nuclear power plants if the state is motivated by concerns about the safety of such plants- motivation does not have to be economic in nature- as long as it does not conflict with Congresss objectives or purposes. B. Modes of Preemption Analysis Types of preemptionCongress may preempt state power to regulate in three ways Express preemption- When preemption is express, the only issue is whether a state statute falls within the area preempted. Field preemption- The Court requires a clear showing that Congress meant to occupy the field and so displace the states from regulation on that subject matter. The question in each case is what the purpose of Congress was. If Congress legislates in a field which the States have traditionally occupied, start with the assumption that the historic police powers of the State were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Conflict preemption- Where the federal government has enacted a complete scheme of regulation and has therein provided a standard for regulation, states cannot, inconsistently with the purpose of Congress, conflict of interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations. Second strand of conflict preemption- where compliance with both federal and state regulation is a physical impossibility. Preemption and the foreign affairs power In foreign affairs, the President has an intended authority to speak for the US among the worlds nations in developing a comprehensive, multilateral strategy to bring democracy to and improve human rights practices. Federal foreign policy will always preempt a state law, because of the need for the country to speak with one voice on matters of foreign policy. A failure to provide for preemption expressly may reflect nothing more than the settled character of implied preemption doctrine, and in any event, the existence of conflict under the Supremacy Clause does not depend on express congressional recognition that federal and state law conflict.

31

VI.

SEPARATION OF POWERS

1. EXECUTIVE VIOLATION OF THE SEPARATION OF POWERS Youngstown Sheet & Tube Co. v. Sawyer (1952) (The Steel Seizure Case) During the Korean War, steel workers gave notice of intent to strike. President Truman ordered the Secretary of Commerce (Sawyer) to seize the steel companies so steel production would not be interrupted. Steel companies sued for injunction & to have the order declared invalid. Mill owners argument: Presidents order amounts to lawmaking, which is a power expressly granted in the Constitution to Congress. Governments argument: The order was made to prevent a national catastrophe- he was acting within the scope of his power as Commander-in-Chief of the armed forces. Black Majority (formalistic approach)- The President, as leader of the executive branch, is bound to enforce the laws within the limits of the authority expressly granted to him by the Constitution, and he cannot usurp the lawmaking power of Congress by an assertion of an unspecified aggregation of his specified powers. The Presidents power to issue an order must stem from an act of Congress or from the Constitution itself. There is no statute that allows the President to take possession of property, and there was no act of Congress. The Government contends that presidential power should be implied from the aggregate of his powers under the Constitution. The presidents war power does not allow him to take private property to prevent a strike- this is essentially a legislative act being performed by the President. The Constitution granted lawmaking powers to Congress, not the President. We cannot with faithfulness to our constitutional system hold that the [Commander in Chief] has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nations lawmakers, not for its military authorities. The 32

Constitution limits the presidents law-making process to the recommendation of laws he thinks wise and the vetoing of laws he thinks bad. Frankfurter Concurrence- the President cannot act in contravention of an express Congressional act, nor may he act where Congress has done nothing. If the President could show a long history of Congressional acquiescence to Presidential practice in this area, the decision may be different. Jackson Concurrence (functionalist approach)1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right, plus all that Congress can delegate. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely solely on the basis of his powers as specified in the Constitution, but there is a zone of twilight in which he and Congress may have concurrent authority. 3. When the President acts in contravention of congressional action, his power is at its lowest ebb, for then he can rely only on his own constitutional powers minus any constitutional powers of Congress over the matter. He may act only where it can be shown that Congress exceeded its constitutional powers and the President is acting in his own sphere of authority. Vinson Dissent- history is replete with examples of needed presidential action in the face of Congressional inaction. The executive is the only branch of government that may act swiftly to meet national emergencies. A. Executive Authority to Make National Domestic Policy B. Executive Authority over Foreign and Military Affairs Executive Agreement- an agreement with a foreign nation that is binding on the country, entered into by the President without Senate approval. Dames & Moore v. Regan In 1979, the American Embassy in Iran was seized and Americans were held hostage. President Carter declared a National Emergency, and froze all Iranian assets in the US. In Jan., 1981, President Carter entered into an Executive Agreement with Iran (ratified by President Reagan in Feb.), and the hostages were released. The agreement included a promise to settle all claims and litigation b/t the countries through arbitration. s, involved in a breach of contract lawsuit with the Government of Iran for over $3million, claimed that the President did not have the power to settle claims against foreign governments through an Executive Agreement. The President believed he had implied consent to dismiss the lawsuits- it has been done before and nobody complained. The Court held that where Congress at least acquiesces in the Presidents actions, the President can settle such claims. When Congress implicitly or explicitly authorizes presidential action, the action is given the greatest presumption of validity (from Jacksons Concurrence in Youngstown). Here, there is no independent Presidential authority to settle claims, but there is a long history of Congressional acquiescence to such settlement of claims- Congress implicitly approved, so the President was acting under the implied authority of Congress. We re-emphasize the narrowness of our decision. We do not decide that the President possesses plenary (unlimited and open; broad) power to settle claims, even against foreign governmental entities. But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we 33

can conclude that Congress acquiesced in the Presidents action, we are not prepared to say that the President lacks the power to settle such claims. C. Dames & Moore vs. Youngstown 2. EXECUTIVE DISCRETION IN TIMES OF WAR AND TERRORISM A. The President, Congress, and War Powers B. Emergency Constitutionalism C. Executive Detention and Trial of Enemy Combatants Ex Parte Quirin (1942) During WWII, Third Reich sabotage agents entered the US by submarine, with explosives. They were not members of the German army, but all were to receive salary payments from the German government for disrupting military targets throughout the US. They were apprehended by FBI and were tried by a military tribunal. They argued that trial before a military tribunal was unconstitutional and sought trial by jury in the civil courts. The Court held that the detention and trial of foreign espionage and sabotage agents within the US during time of war, by a military commission appointed by the President, is Constitutional. The law of war draws a distinction b/t armed forces and peaceful populations, and also between lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war. Unlawful combatants are subject to capture, detention, and trial and punishment before a military tribunal. (Even citizenship in the US of an enemy belligerent does not relieve such person from the consequences). D. The Executive Response to the Events of 9/11 Writ of Habeas Corpus- a proceeding in which a defendant brings a writ to compel judicial determination of whether he is lawfully being held in custody. Hamdi v. Rumsfeld (2004) was a US citizen deemed an enemy combatant by the government. He was placed in indefinite detainment, and sued for habeas corpus. The Court held that Due Process requires that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for detention before a neutral decision maker. The US may detain for the duration of hostilities any individual determined to be Taliban combatants who engaged in an armed conflict against the US, but the writ of habeas corpus remains available to every individual detained w/i the US. Scalia Dissent- the very core of liberty in our system has been freedom from indefinite imprisonment at the will of the Executive. is entitled to release unless criminal proceedings are promptly brought or Congress has suspended the writ of habeas corpus. Souter Concurrence and Dissent- The Non-Detention Act requires to be released. There must be a balance between the will to win and the cost in liberty on the way to victory. E. The Scope of Hamdi Hamden v. Rumsfeld (2006) 34

, a Yemeni national was captured in Afghanistan and brought to Guantanamo Bay, Cuba. President Bush declared that he was subject to trial by military tribunal, but did not specify for what crime. After a year in detention, was charged with conspiring to commit offenses triable by military commission. sued for writ of habeas corpus. The Court held that a military commission does not have jurisdiction to hear a case if the commissions structures and procedures violate the Uniform Code of Military Justice and the Geneva Conventions. Article 3 of the Geneva Conventions provides that military commissions are permitted only if some demonstrated practical need to deviate from normal courts-martial exists. Military commissions are generally permitted in 3 circumstances- 1) to substitute for civilian law after martial law has been declared, 2) to substitute for civilian law during times of temporary military government, and 3) in a situation usually occurring on the battlefield, to decide whether the defendant has violated the law of war. Guantanamo Bay is not under martial law and is not territory occupied by the enemy. Conspiracy is not known internationally as violating the law of war. Breyer Concurrence- Congress did not grant the President unlimited authority to fight the war on terror. If no emergency warrants the Presidents failure to consult with Congress, then the Courts insistence on such consultation does not undermine the war effort. Kennedy Concurrence- the military commissions structure and procedure in this case raises severe separation-of-power issues. The executive branch tried 1) to perform legislative functions by creating a previously unknown crime subject to hearing by military commission; 2) to perform executive functions by prosecuting the alleged violation of the new crime; and 3) to perform judicial functions by adjudicating the prosecution of the alleged violation of the new crime- all without any oversight or review from the other two branches of government. Thomas Dissent- This decision substitutes the Courts discretion for the Presidents, contrary to our constitutional order. Alito Dissent- the military commission provides trial procedures, administrative review, and even an opportunity for formal appellate review- affords an accused more than summary justice. F. The Aftermath of Hamden Bounediene v. Bush G. Assessing Hamdi, Hamden, and Boumediene 3. CONGRESSIONAL VIOLATION OF THE SEPARATION OF POWERS Bicameralism- the necessity for approval by a majority of both houses of Congress when ratifying legislation, or approving other legislative action. Legislative veto- a statutory provision that contemplates the congressional ability to require the President or another part of the executive branch to act, or to refrain from acting. Presentment- the act of bringing a congressional decision before the President for his approval or veto. A. Congressional Control over the Actions of the Executive Branch INS v. Chadha (1983) 35

Congress granted the Attorney General the power to allow a deportable alien to remain in the US. Later, a federal statute authorized either House of Congress, by resolution, to invalidate that decision. The AG made the decision to allow to stay in the country, but a one-house veto overturned that decision and he was to be deported. challenged the constitutionality of the one-house veto statute. The Court held that the statute was unconstitutional. The Constitution does not permit Congress to statutorily authorize a one-house veto of a decision the AG makes. Such an action is clearly an exercise of legislative power, which makes it subject to the bicameralism and presentment requirements of Article I. Such requirements were built into the Constitution to act as enduring checks on each branch. Powell ConcurrenceWhite Dissent- todays decision sounds the death knell for nearly two hundred statutory provisions in which Congress has reserved a legislative veto. Now Congress must either refrain from delegating necessary authority, or must abdicate its lawmaking function to the executive branch and independent agencies. If Congress can delegate lawmaking power to executive agencies, it is most difficult to understand Article I as forbidding Congress from simply reserving a check on legislative power for itself. B. Bicameralism and Presentment Clinton v. New York (1998) The Line Item Veto Act of 1996 allowed the President to cancel provisions that had been signed into law. In 1997, Clinton used his authority to cancel a provision of the Balanced Budget Act of 1997. NY and several private s challenged the constitutionality of the Act. The Court held that the cancellation provisions authorized by the LIVA were not constitutional. Although the Constitution expressly authorizes the President to veto a bill under Article I 7, it is silent on the subject of unilateral Presidential action that appeals or amends part of a duly enacted statute. Constitutional silence should be construed as express prohibition. Scalia Concurrence and Dissent- If the LIVA authorized the President to decline to spend any item, rather than cancelling it, it would have been constitutional. There is only a technical difference between the two. The LIVA does not offend the constitution. Breyer Dissent- Congress cannot divide bills into thousands of separate bills for the President to veto or sign. The LIVA may help the government work better. C. Congressional Control over Executive Officers Bowsher v. Synar (1986) The assignment of executive powers to an agent or officer of the legislative branch violates the doctrine of separation of powers. The Constitution does not contemplate an active role for Congress in the White Dissent- The Act itself represents a Congressional choice as to how to execute the Act, and the President has chosen not to upset the choice. There is no threat to the balance of authority and the Act is constitutional. Morrison v. Olson (1988) Congress passed the Ethics in Government Act, which created the office of the independent counsel, and mandated that, upon receipt of certain information, the AG may determine whether evidence of official 36

wrongdoing warrants appointment of a special prosecutor, given broad investigative powers. , a subject of inquiry by a special prosecutor, challenged the Act as violative of the Appointments Clause (Article II, 2, clause 2 of the Constitution confers power on the President to appoint ambassadors, public ministers and consuls, judges of the Supreme Court and all other officers of the US with the advice and consent of the Senate) and separation of powers. The Court held that Congresss creation of the independent counsel was not an unconstitutional usurpation of power. The Appointments Clause mandates that only the President may appoint principal US Officers, but Congress may invest in the Judiciary the power to appoint inferior officers. Independent counsels are inferior officers. Also, the Act does not violate separation of powers. In passing the Act, Congress did not attempt to usurp executive or judicial authority. Rather than take the authority unto itself, it created an executive and judicial office not unduly indebted to itself. Scalia Dissent- The Act is a clear violation of the concept of separation of powers, because the investigation/prosecution of a federal crime is an exercise of purely executive power, and the statute deprives the President of exclusive control over the exercise of that power. D. The Aftermath of Morrison v. Olson 4. EXECUTIVE PRIVILEGES AND IMMUNITIES United States v. Nixon (1974) After a grand jury returned an indictment charging 7 defendants with various offenses relating to Watergate, Special Prosecutor Jaworski moved for the issuance of a subpoena duces tecum (a court mandate compelling the production of documents under a witnesss control) to obtain Watergate-related tapes and documents from , President Nixon. Jaworski claimed that the materials were important to the governments proof at the criminal proceeding against the seven defendants. The subpoena was issued, and turned over some materials. His lawyer then moved to quash the subpoena. contended that the separation of powers doctrine precludes judicial review of a presidential claim of privilege and that the need for confidentiality of high-level communication requires an absolute privilege as against a subpoena. The Court held that the President does not possess an absolute executive privilege which is immune from judicial review. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances does not exist. argued that the courts lacked jurisdiction to issue a subpoena because the matter was an intra-branch dispute w/i the executive branch. The Court affirmed the holding from Marbury v. Madison: it is emphatically the province of the Judicial Department to say what the law is. It is true that the need for confidentiality justifies a presumptive privilege for presidential communications. However, our justice system depends on a complete presentation of facts. The allowance of privilege based on only generalized interest in confidentiality to withhold relevant evidence in a criminal trial would cut deeply into the guarantee of due process and cannot prevail. A. The Scope and Limits of Executive Privilege Clinton v. Jones (1997) , Jones, worked as a state employee at a conference for which , President Clinton gave a speech. claimed that a state police officer persuaded her to go to s hotel room, where proceeded to make sexual advances toward her. allegedly experienced on-the-job retaliation because she rejected those advances. When was elected President the next year, claimed she was defamed when spokesman for denied her allegations, branding a liar. sued in district court and filed a motion to dismiss based on presidential immunity. SC held that Presidential immunity does not apply to civil damages litigation arising out of unofficial events occurring prior to the assumption of office. could not 37

claim Presidential immunity, because his actions occurred in an unofficial capacity during a time prior to the assumption of the presidency. With respect to the separation of powers, the litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be President poses no perceptible risk of misallocation of either judicial power or executive power. Breyer Concurrence: Although he does not have unconditional immunity, a federal judge may not interfere with Clintons discharge of his public duties once Clinton sets forth and explains how they conflict with judicial proceedings. B. The Implications and Aftermath of Clinton v. Jones VII. THE BILL OF RIGHTS AND POST-CIVIL WAR AMENDMENTS

1. INDIVIDUAL RIGHTS BEFORE THE CIVIL WAR Barron v. Mayor and City Council of Baltimore (1833) sued City for making his wharf in Baltimore Harbor useless. He claimed that the City had diverted the flow of streams during its street construction and that this diversion had deposited earth near the wharf, causing the water to become too shallow for most vessels. claimed that the action violated the Fifth Amendment guarantee that property will not be taken without just compensation. The Court held that state legislation is not subject to the limitation imposed by the amendments to the United States Constitution. The amendments to the Constitution were intended as limitations solely on the exercise of power by the U.S. Government and are not applicable to the legislation of the states. The Constitution and its amendments were established by the people of the United States for themselves, for their own government, and not for the governments of the states. The people of each state establish their own state constitution. The court has no jurisdiction over this action- dismissed. 2. THE POST-CIVIL WAR AMENDMENTS Slaughter-House Cases (1873) A Louisiana law of 1869 granted a monopoly to a slaughter-house company created by the legislature for the three largest parishes in that state. s, Butchers who were not included in the monopoly, challenged the law on the grounds it violated the 13th amendment ban on involuntary servitude and the 14th amendment protections of the privileges and immunities of national citizenship and equal protection and due process of law. The Court held that the 14th Amendment protects the privileges and immunities of national, not state, citizenship. Neither the equal protection, due process, nor privileges and immunities clause of that amendment may be used to interfere with state control of the privileges and immunities of state citizenship. No interpretation of these amendments may be used to prevent the State of Louisiana from exercising its police power here to define particular privileges and immunities of its citizens. Field Dissent- The 14th amendment protects all citizens fundamental rights of free government from abridgment by the states. Equal opportunity to pursue employment is surely one of those fundamental rights. Bradley Dissent- 14th amendment bans state deprivation of life, liberty, or property without due process of law. A. The Meaning of the Slaughter-House Cases 38

Saenz v. Roe (1999) CA enacted a statute limiting the amount of welfare benefits for new residents of CA (less than 1 yr residency) to the amount they would have received in the state of prior residence. challenged the constitutionality of the durational residency requirement, as violation of the right to travel. CA argued that the state had a legitimate interest to save $10 million per year and dissuade people from moving to CA due to higher welfare payments. The Court held that durational residency requirements violate the fundamental right to travel by denying a newly arrived citizen the same privileges and immunities enjoyed by other citizens in the same state, and are therefore subject to strict liability. Article IV, 2 provides that citizens of each state shall be entitled to the same privileges and immunities of citizens in the several states. New citizens of CA are protected based on citizenship in the US. The state has a legitimate interest in saving money, but that does not justify its decision to discriminate among equally eligible citizens. Rehnquist Dissent- the right to travel and the right to become a citizen are distinct. CA has reasonably exercised its power to protect state resources through an objective, narrowly tailored residence requirement. There is nothing in the Constitution that should prevent the enforcement of that requirement. Thomas Dissent- Privileges and Immunities of citizens includes fundamental rights, rather than every public benefit established by positive law. ***Insert somewhere?? Definition of Rational Basis review and Strict Scrutiny-on pg. 75 of study guide.** B. Saenz v. Roe and the Right to Travel 3. THE INCORPORATION OF THE BILL OF RIGHTS THROUGH THE DUE PROCESS CLAUSE (see pg.141-145 of study guide) Selective Incorporation- doctrine providing that the Bill of Rights is incorporated by the Due Process Clause only to the extent that the Supreme Court decides that the privileges and immunities therein are so essential to fundamental principles of due process to be preserved against both state and federal action. One of the major functions of the 14th Amendments Due Process Clause is to make the Bill of Rights (1st 10 Amendments) applicable to the states (not directly). Nearly all of the guaranteed of the Bill of Rights have been interpreted by the Supreme Court as being so important that if a state denies these rights, it has in effect taken away an aspect of liberty. Duncan v. Louisiana (1968) , a LA resident, was charged with battery, punishable by 2 yrs imprisonment. He wanted a jury trial, but LAs constitution granted a jury trial only for crimes punishable by hard labor or capital punishment. appealed his request for a jury trial up to the Supreme Court, who held that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which, if they were tried in federal court, would come within the Sixth Amendments guarantee (crimes punishable by at least two years in prison). Black Concurrence- Both total and selective incorporation of the Bill of Rights are to be preferred to assigning no settled meaning to the term due process. 39

Harlan Dissent- Due Process Clause requires only that state procedures be fundamentally fair in all respects. There is no historical support for the total incorporation theory. The framers intended the meaning of due process to change as does experience. Selective incorporation lacks guiding standards. A. Incorporation since Duncan VIII. THE RECONSTRUCTION AMENDMENTS 1. THE CIVIL RIGHTS STATUTES OF THE RECONSTRUCTION ERA 2. THE REQUIREMENT OF STATE ACTION Civil Rights Cases (1883) The Civil Rights Act of 1875 provided, in 1, that all persons were entitled to full and equal enjoyment of accommodations provided by public inns, public conveyance on land or water, theaters, and other places of public amusement, regardless of race. Five individuals charged with violating the law challenged its constitutionality, arguing that the Fourteenth Amendment does not apply to private acts of discrimination. The Court held that the Fourteenth Amendment does not reach private acts of discrimination but encompasses only state action which is discriminatory. The Constitution gives Congress no power to enact laws reaching private acts of discrimination. The Thirteenth Amendment does reach private action, but only deals with slavery/involuntary servitude, not discrimination. Harlan Dissent The Thirteenth Amendment was designed to destroy any and all burdens and disabilities constituting badges of slavery and servitude, such as racial discrimination. Also, railroads, inns, and public places of amusement can be seen as agents of the state. **Today, the Court continues to hold that the Fourteenth Amendment applies only to state action, but would extend state action to include private actions attributable to the state through agency theories. A. The Scope and Limits of State Action after the Civil Rights Cases Shelley v. Kraemer (1948) A group of neighbors in St. Louis entered into a restrictive covenant not to sell their property to anyone of the Negro or Mongolian race for a period of 50 years. , a black man bought a home in the neighborhood (had no knowledge of the restrictive covenant). , a neighbor, brought suit to prevent from moving in. argued that the restrictive covenant violated the Equal Protection Clause of the Fourteenth Amendment. argued that no state action was involved. The Court held that the state action would be the enforcement of the covenant. Judicial enforcement of a private racially restrictive covenant is considered state action for Fourteenth Amendment purposes. The private covenant itself was not a violation of the Equal Protection Clause, since it was between private individuals. A secondary argument in this case- argued that there was no violation of Equal Protection, since the Court would enforce any valid restrictive covenant, even if it restricted whites from the neighborhood. The Court held that equal protection of the law is not achieved through indiscriminate imposition of inequalities. also argued that he was being denied equal protection if his covenant was not enforced because it applied to blacks. The Court stated that the Constitution does not confer a right to demand action by the state that would result in the denial of equal protection of the laws to other 40

individuals. The enjoyment of property rights, free from discrimination by the states, was among the objectives sought to be effectuated by the framers of the Fourteenth Amendment. B. State Action after Shelly v. Kraemer Jackson v. Metropolitan Edison Co. (1974) s electricity was turned off, for non-payment, by the electric company, without any warning of opportunity to object. argued that her rights to due process were violated. argued that, since it was a privately owned utility company, no state action was involved. argued that was an agent of the state because they were granted a monopoly by the state, were heavily regulated by the state, and paid a tariff to the state. The Court held that evidence showing a heavily regulated private utility, enjoying at least a partial monopoly, which elected to terminate utility service in a manner found by the state public utilities commission to be permissible under state law, does not demonstrate a sufficiently close nexus between the state and the utilitys action to make that action a state action. The actions of all businesses which affect the public interest cannot be called state action. State law imposes no obligation on the state to furnish utility service, so the provision of a utility is not state action. Marshall Dissent- state authorization and approval of private conduct supports a finding of state action. Moose Lodge v. Irvis (1972) Lodge refused service to a black guest of a lodge member. The guest claimed that, although the lodge was a private club, its act was unconstitutional because it held a state liquor license. The Court held that the state was not sufficiently implicates in the lodges discriminatory policies to make its action state action. Dissent- the state was putting the weight of its liquor license, concededly a valued and important adjunct to a private club, behind racial discrimination. C. Limits on State Action after Jackson and Moose Lodge 4. CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER 5 OF THE 14 AMENDMENT
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A. Congressional Protection of Voting Rights Katzenbach v. Morgan (1966) NY had a statute requiring anyone who wished to vote to be able to read and write in English. In the Voting Rights Act of 1965, Congress allowed an exception for an individual who was educated up to grade six in Puerto Rico. A group of NY voters challenged Congresss provision as unconstitutional. The AG of NY argued that the federal legislation would supersede the state law only if the state law violated the 14th Amendment on its own. s also argued that the federal law violated the Equal Protection Clause b/c it discriminated against any non-English speaking citizens who were educated outside of Puerto Rico. The Court held that a federal statute enacted pursuant to the Enabling Clause of the Fourteenth Amendment supersedes conflicting state law by reason of the Supremacy Clause of the US Constitution. The federal statute must be examined to see whether it was plainly adapted to ____, and whether it is consistent with the letter and spirit of the Constitution. The Court found that the law was Constitutional, because it was plainly adapted to furthering the aims of the Fourteenth Amendment. The Court also found that the law was Constitutional because it did not restrict anyones voting rights, but extended the rights to a previously excluded group. 41

Harlan Dissent- the question here is whether the state law is so arbitrary or irrational as to violate the Equal Protection Clause. That is a judicial, not a legislative determination. The majority has validated a legislative determination that a state law is violative of the Constitution- the judiciary is the arbiter of Constitutionality, not Congress. B. The Meaning and Aftermath of Katzenbach v. Morgan City of Boerne v. Flores (1997) , The City of Boerne, denied , Flores, a building permit to expand a church. argued that the denial violated the Religious Freedom Restoration Act, which prohibited the government from substantially burdening a persons exercise of religion, unless the government has a compelling interest and is using the least restrictive means. The Court held that the RFRA unconstitutionally exceeds Congresss enforcement power under the Due Process Clause of the Fourteenth Amendment. Congress was attempting to replace the Courts decision that the compelling interest test was inappropriate in cases involving general prohibitions with free exercise challenges. Congress violated separation of powers. It is the job of the Judiciary to determine the Constitutionality of laws. Congress may enact remedial, preventative legislation that deters violations, but the RFRA does not fall under this category; it is so out of proportion to a remedial or preventative object that it cannot be regarded as a response to unconstitutional behavior. C. The Meaning and Scope of Boerne United States v. Morrison (2000) A female university student sued two male students and the school for violation of the Violence Against Women Act, which provided a federal civil remedy for victims of gender-motivated violence. Every law enacted by Congress must be based on a power enumerated in the Constitution. The Court concluded that the law was not justified under the Commerce Clause, so argued in the alternative that the Act was authorized by 5 of the Fourteenth Amendment. The Court held that the Act may not be upheld as an exercise of Congresss remedial power under 5 of the Fourteenth Amendment. What is 5 and why does not it not apply here? IX. DUE PROCESS The Due Process Clauses of the 5th and 14th Amendments restrict the substance as well as the procedures governmental regulation. The 5th Amendment imposes the obligations of Due Process on the federal government, and the 14th on the states. In general, the two clauses are applied in the same way. Both essentially say that the government may not make a law which shall deprive any person of life, liberty, or property without due process of law. 1. SUBSTANTIVE DUE PROCESS AND ECONOMIC LIBERTIES One of the functions of the Due Process Clause is to limit the substantive power of the states to regulate certain areas of human life. Certain limits on human conduct are held to so unreasonably interfere with important human rights that they amount to an unconstitutional denial of liberty. The doctrine of Substantive Due Process rose from the late 19th century until the early 1930s, then was abandoned with respect to economic regulation in the late 1930s, then came back as primarily applied to privacy.

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From 1899 to 1937, the Court struck down hundreds of statutes as unconstitutional on due process and similar constitutional grounds. Lochner v. New York (1905) A state labor law prohibited employment in bakeries for more than 60 hours a week or more than 10 hours a day. permitted an employee in his bakery to work over 60 hours in one week, and was fined. challenged the law, claiming that it was not a valid exercise of state police power. The Court held that the general right to make a contract in relation to ones business is part of the liberty of the individual protected by the 14th Amendment. The states do possess certain powers relating to the health, safety, morals, and general welfare of the public; but the 14th amendment limits the states exercise of its police power, otherwise the state would have unbounded power once it stated that legislation was related to health, safety, etc. To be a fair, reasonable, and appropriate use of a states police power, an act must have a direct relation, as a means to an end, to an appropriate and legitimate state objective. The Lochner majority refused to defer to legislative finding of fact that the work at issue was dangerous. Harlan Dissent- There was enough evidence that the statute would promote the health and safety of bakers that the legislatures judgment should have been accepted. Holmes Dissent-the Court had no right to impose its own views on the legislature. Liberty is violated only when a rational and fair man necessarily would admit that the statute would infringe fundamental principles as they had been understood by the traditions of our people and our law. The majority test was extremely stringent- it required a very close fit b/t the statute and its objectives- there had to be a real and substantial relationship between the statute and the goals which it was to serve. There also must not have been a less restrictive measure. Also, only certain legislative objectives were acceptable- regulation of health and safety was permissible, but not economic power. ***The modern court claims to have rejected Lochner. It has withdrawn careful scrutiny in most economic areas but has maintained and increased intervention with respect to a variety of non-economic regulations liberties. A. The Meaning and Implications of Lochner Lochner was subjected to intense criticism in the 30 years following. Turnover in the Court, coupled with FDRs court-packing plan, contributed to a philosophical shift toward greater deference to legislative intervention on economic affairs. Nebbia v. New York (1934) NY established a Milk Control Board, which fixed minimum and maximum retail prices to be charged by stores to consumers. The law was based on the belief that if milk producers did not receive adequate compensations, they would relax vigilance against contamination. The Court held that the Constitution does not prohibit a state from fixing selling prices. Upon proper occasion and by appropriate measures, a state may regulate a business in any of its aspects, including fixing prices. Equally fundamental with the private right to contract is the public right to regulate in a common interest. The 5th and 14th amendments do not prohibit governmental regulation for the public welfare. Due process requires only that the law shall not be unreasonable, arbitrary or capricious, and the means selected must have a real and substantial relation to the object sought to be attained.

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The early attitude of the court had been that the states could regulate selling prices only for industries affecting the public interest. Nebbia held that price control regulation was to be treated the same as other police powers and a rational relation to a legitimate goal was all that was necessary. Nebbia represents the modern position of the Court, which is to presume the propriety of the legislation. B. The Demise of Lochner after the New Deal C. Minimum Rationality Review of Economic Legislation Williamson v. Lee Optical Co. (1955) State law prohibited any person from fitting or duplicating lenses without a prescription from an Ophthalmologist or Optometrist. The Court held that the Due Process Clause will no longer be used to strike down state laws regulating business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought. The people must resort to the polls, not the courts, for protection against abuses by the legislature. The modern Court has withdrawn almost completely from the business of reviewing state legislative economic regulation for substantive due process violations. Since 1937, the Court has not struck down an economic regulation for violating substantive due process. Assuming the objective being pursued by the legislature in an economic regulation falls within the states police power, all that is required is that there be a minimally rational relation between the means D. Closer Scrutiny of Economic Classifications? 2. TEXTUAL GUARANTEES OF ECONOMIC LIBERTIES A. The Takings Clause B. The Public Use Requirement Eminent DomainThe governmental power to take private property for public use so long as just compensation is paid therefore. Kelo v. City of New London (2005) The city of New London, Ct (defendant) had suffered years of decline, and authorized New London Development Corp (NLDC) to propose plans for economic development and to purchase or condemn property in its name for the purpose of its approved development plan. Plaintiff, Kelo, lived in the area of the city that NLDC decided to dedicate to Pfizer. Kelo refused to sell. NLDC initiated condemnation proceedings, even though Kelos property was not deteriorating. Kelo sued New London, claiming the condemnation violated the taking clauses public use restriction. The government cannot transfer private property from one private entity to another even if the first is adequately compensated. The government can, however, take private property from one private entity with just compensation for public use. The Court held that the economic development plan constituted a public use under the 5th amendments eminent domain. The court found that public use does not require a literal translation, but instead opted for a broad interpretation. It is a longstanding tradition of government to promote economic development. This case caused a great amount of controversy- many states quickly passed legislation tightening the state eminent domain laws to restrict the ability of governmental entities to take private property for anything less than blatantly obvious public purposes. 44

C. The Meaning and Implications of Kelo D. Regulatory Takings Pennsylvania Coal v. Mahon Pennsylvania Coal conveyed some land but reserved in the deed the right to remove all coal under the land. The grantee agreed to assume any resulting damage. later acquired the property and was bound by the deed. wanted to prevent any further mining under his land. He relied on a 1922 law that forbade the mining of coal in such a manner as to cause the subsistence of any structure used as a human habitation. s injunction was denied; the court thought the law was unconstitutional. The SC found that a state which, through legislation, destroys previously existing contractual and property rights b/t private parties to the extent of severe dimunition of property value must give compensation to the affected party. While private property may be regulated to a certain degree, a taking under the 5th amendment will be found if the regulation results in a severe dimunition in value. From United States v. Causby- it is the owners loss, not the takers gain, which is the measure of the value of the property taken. E. The Meaning and Implications of Pennsylvania Coal F. The Contracts Clause Article 1 10 prohibits states from passing laws impairing contractual obligations. Home Building & Loan Assn v. Blaisdell In 1933, during the Great Depression, Minnesota enacted a statute authorizing courts to extend the period of redemption from foreclosure sales for additional time as the court deemed just and equitable. The plaintiffs applied for extension. The court granted the extension but ordered them to pay the defendant, the mortgagor on their home, $40 a month through the extended period. Defendant appealed, claiming that the act violated the Constitution by impairing the obligation of Contracts. The Court said that a state may change the existing contractual obligations between two private parties. The reservation of the reasonable exercise of the states protective power is read into all contracts. A state may affect the obligations between two contracting parties so long as: (1) an emergency exists; (2) the legislation is addressed to a legitimate end; (3) the relief afforded and justified by the emergency could only be of a character appropriate to that emergency; (4) the conditions upon which relief is granted do not appear to be unreasonable; and (5) the legislation is temporary in operation The prohibition embodied in the Contract Clause is not an absolute one. The state continues to possess authority to safeguard the vital interests of its people. A rational compromise must be made between public need and private rights, especially when an emergency is found to exist upon judicial review. G. The Scope and Limits of Blaisdel 3. SUBSTANTIVE DUE PROCESS AND PRIVACY There are some aspects of individual decision-making that are deemed too intimate to be regulated by the state. 45

Meyer v. Nebraska (1923) The Court overturned the conviction of a teacher for teaching German to young children. Without doubt, liberty denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Pierce v. Society of Sisters (1925) The Court sustained a challenge by parochial and private schools to an Oregon law requiring children to attend public schools, holding that the law interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control. Griswold v. Connecticut (1965) s, the director of the Planned Parenthood league of CT and a doctor, were convicted under a CT law that made it illegal to counsel married persons to take contraceptives. s claimed that the law violated the right to privacy in the marital relationship. The problem is that there is no language in the Constitution specifically granting a right to privacy in the marital relationship. The Court held that the right to mental privacy, although not explicitly stated in the Bill of Rights, is a penumbra, formed by certain other explicit guarantees. As such, it is protected against state regulation which sweeps unnecessarily broad. (Penumbra-a doctrine whereby authority of the federal government is implied pursuant to the Necessary and Proper Clause; one implied power may be inferred from the conferring of another implied power.) The Court inferred the right based on the 3rd amendments prohibition against peacetime quartering of soldiers, 4th amendment prohibition against unreasonable searches and seizures, the 5th amendments self-incrimination clause, and the 9th amendments reservation to the people of enumerated rights. The 9th amendment says the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Goldberg, Warren, Brennan Concurring I do not accept that the view that Due Process as used in the 14th Amendment incorporates all the first 8 amendments. I do agree that the concept of liberty protects those personal rights that are fundamental. My conclusion that liberty embraces the right to marital privacy though it is not mentioned explicitly in the Constitution is supported by the 9th Amendment. Harlan Concurring In my view, the proper constitutional inquiry in this case is whether this statute infringes the Due Process Clause of the 14th Amendment because the enactment violates basic values implicit in the concept of ordered liberty. (Should have nothing to do with Bill of Rights/penumbra). The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of specific guarantees elsewhere provided in the Constitution. White Concurring This law, as applied to married couples, deprives them of liberty without due process. A law that deals substantially with regulation of the intimacies of marriage bears a substantial burden of justification when attacked under the 14th Amendment. The nature of the right invaded is pertinent only b/c those regulating areas of liberty deserve strict scrutiny, but if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application, are not invalid. Black, Stewart Dissenting There is no constitutional provision guaranteeing a right to privacy in general. The government has a right to invade privacy unless prohibited by some specific constitutional provision. 46

Stewart, Black Dissenting The Ninth Amendment was simply to make clear that the adoption of the Bill of Rights did not alter the plan that the federal government was to be a government of express and limited powers. A. Substantive Due Process and Contraception Eisenstadt v. Baird (1972) This case was decided on equal protection grounds rather than due process, but opinion contained an important statement that clarified the nature of the right of privacy in a way that later was read to have expanded the arguably narrow ruling in Griswold to the unmistakably broader one in Roe. It is true that the Griswold right to privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with separate intellectual and emotional make-up. If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Roe v. Wade (1972) Roe, plaintiff, was a single woman who wanted an abortion. Other challengers to the Texas abortion laws were a childless couple (not pregnant), and a doctor with criminal charges pending. Only Roe was found to be entitled to maintain an action. Although her 1970 pregnancy had been terminated, her case was not found moot since pregnancy could be capable of repetition, yet evading review. Roe claimed that the right to privacy included a womans right to choose to terminate her pregnancy. The Court agreed and held that, although the Constitution does not explicitly mention any right to privacy, such a right has been recognized. The right of privacy found in the 14th amendments concept of personal liberty and restrictions upon state action is broad enough to encompass a womans decision whether or not to terminate her pregnancy. A statute regulating a fundamental right, such as the right to privacy, may be justified only by a compelling state interest and such statutes must be narrowly drawn. Prior to viability, a doctor is free to consult with a pregnant woman regarding abortion, without interference from the state. Subsequent to viability, the state, in promoting its interest in the potentiality of life, may regulate, except where necessary to save the mothers life. Carey v. Population Services (1977) A divided court struck down a NY prohibition against the sale or distribution of contraceptives to minors under 16. Court said that strict scrutiny was required, and noted that minors do have constitutional rights, but that state power over children is greater than over adults. When a state burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some significant state policy requires more than a bare assertion that the burden is connected to such a policy. B. Substantive Due Process and Abortion Planned Parenthood of Southeastern Pa. v. Casey The PA abortion control act required doctors to persuade women against abortion, 24 hr waiting period, woman had to sign saying husband knew, etc, public report of every abortion. 5 clinics, including planned parenthood, and 5 doctors sued PA (governor Casey), claiming the act was unconstitutional on its face. The SC held that a law is unconstitutional as an undue burden on a womens right to an abortion before fetal viability, if the law places substantial obstacles in the path of a woman seeking to exercise her right. Applying the undue burden standard to the facts of the PA law, the court 47

held that the husband-notification requirement was unconstitutional, but the rest of the statute was validall other aspects had valid purpose and were reasonably directed to those purposes. ViabilityThe point at which a fetus is said to be an independent life, so that the states interest in protecting it then outweighs the mothers decision-making interest. It is the point at which a newborn child is capable of existing outside the womb. Stevens Concurrence and Dissent A burden is undue if it is too severe or lacks legitimate justification. The information, waiting period, parental consent, and husband-notification requirements are all invalid. Blackmun Concurrence and Dissent A womans right to an abortion is fundamental and any state-imposed burden upon it should be subjected to the strictest judicial scrutiny. None of these requirements would survive a strict scrutiny standard of review. Rehnquist Concurrence and Dissent Roe v. Wade was wrongly decided and should be overturned. The undue burden test is unworkable. The 14th amendment does not incorporate an all-encompassing right to privacy. States should be able to regulate abortion in ways that rationally relate to a legitimate state interest. All provisions of the PA law do so and are constitutional. Scalia Concurrence and Dissent The entire statute should be upheld- applying the rational basis test. The Court also affirmed Roes holding that after viability, the state may regulate, or even forbid, abortion, except where it is necessary to preserve the life or health of the mother. **It appears that this is the first time the Court down-graded a fundamental right to a protected liberty, and by doing so removed the usual strict scrutiny standard of review. C. The Meaning and Implications of Casey Gonzales v. Carhart Congress passed the Partial-Birth Abortion Ban Act criminalizing doctors performance of partial-birth abortions. A doctor who performed partial-birth abortions sued for an injunction to prohibit the Act from being applied against him. The SC found that the partial-birth abortion act does not place a substantial obstacle to late-term, but pre-viability abortions. The Act respects human life- an objective that lies within the legislative power. D. Substantive Due Process and Marriage and Family Relationships

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