1.

Articles of Confederation: No executive, no judicial branch/Supreme Court, No power to collect money, no power of war, and state sovereignty and independence. Only Congress existed with limited powers. Congress had the authority to conduct foreign affairs. The Shay Rebellion & trade barriers w/in the union led to the failure of Articles of Confederation. 1787 Constitutional Convention: much debate centered on how much the central govt should be strengthened in relation to state govt. Great Compromise: creation of a bicameral legislature was one of the changes from AoC. Article 1 was drafted to limit Congress power. Debate over the executive concentrated on whether to have unitary or divided executive branch. Article II granted the president all executive power & made him Commander-in-Chief to take care to enforce the laws. New constitution gave power to Congress to set up inferior courts as necessary and established Supreme Court; it left the issue of slavery unresolved. Federalists Papers were designed to urge support for the Constitution. Bill of Rights was included to guarantee freedom of individuals by limiting national govt power. W/ Marbury v. Madison, the court set its authority to invalidate federal laws as unconstitutional and Martin v. Hunters Lessee granted power to review state law conformity with federal law. The Marshall Court limited the power of the states by using the contract clause of Article I 10 to invalidate state infringements on contractual expectations. After Civil War, three amendments were passed to abolish slavery, establish citizenship rights of former slaves, and give suffrage. Some other amendments came during the Progressive Era. W/ FDR appointment of new judges to replaced retired ones, he transformed the constitutional law: the court stopped reviewing economic legislations, hence facilitation congressional power in the federal system. Judicial Power to Enforce the Constitution (pg 17-31): A) Invalidation of Federal Laws: Marbury took up the constitutionality of Jeffersons refusal to deliver Marburys commission at the next term of Court. It set up judicial review.

2. Marbury v. Madison, (1803)

Facts On his last day in office, President John Adams named forty-two justices of the peace and sixteen new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office. The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of this opinion), but they were not delivered before the expiration of Adamss term as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adamss term. William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury applied directly to the Supreme Court of the United States for a writ of mandamus to compel Jeffersons Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus to any courts appointed, or persons holding office, under the authority of the United States. Issues 1. Does Marbury have a right to the commission? 2. Does the law grant Marbury a remedy? 3. Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void? 4. Can Congress expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution? 5. Does the Supreme Court have original jurisdiction to issue writs of mandamus? Holding and Rule (Marshall) 1. Yes. Marbury has a right to the commission. The order granting the commission takes effect when the Executives constitutional power of appointment has been exercised, and the power has been exercised when the last act required from the person possessing the power has been performed. The grant of the commission to Marbury became effective when signed by President Adams. 2. Yes. The law grants Marbury a remedy.The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual who considers himself injured has a right to resort to the law for a remedy. The President, by signing the commission, appointed Marbury a justice of the peace in the District of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy.

3. Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. 4. No. Congress cannot expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution. The Constitution states that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. 5. No. The Supreme Court does not have original jurisdiction to issue writs of mandamus. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and is therefore a matter of original jurisdiction. Disposition Application for writ of mandamus denied. Marbury doesnt get the commission. How to distinguish political matters from cases involving individual rights? What are reasons for giving the power of judicial review? (oath of office, Framers intent, judicial rile, Supremacy Clause, written Constitution.) Countermajoritarian: judges are not elected & judicial review allows them to overrule a legislative (elected by people.) The conflict arises when it comes to judicial interpretation of constitution & the need of other branches to accept this view. What if Executive disagrees w/ the judicial interpretation. B) Invalidation of State Laws: 3. Martin v. Hunters Lessee: Facts The state of Virginia enacted legislation during the Revolutionary War that gave the State the power to confiscate the property of British Loyalists. Hunter was given a grant of land by the State. Denny Martin held the land under devise from Lord Thomas Fairfax. In an action in ejectment, the trial court found in favor of Martin and the court of appeals (the highest Virginia state court) reversed. The Supreme Court of the United States reversed in favor of Martin, holding that the treaty with England superseded the state statute, and remanded the case to the Virginia court of appeals to enter judgment for Martin. The Virginia court refused, asserting that the appellate power of the U.S. Supreme Court did not extend to judgments from the Virginia court of appeals. Issue: Does the U.S. Supreme Court have appellate jurisdiction over state court decisions involving federal law? Holding and Rule: Yes. U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law. The federal power was given directly by the people and not by the States. Article III, Section 2, Clause 2 of the U.S. Constitution states that in all other cases before mentioned the Supreme Court shall have appellate jurisdiction. This demonstrates a textual commitment to allow Supreme Court review of state decisions. If the Supreme Court could not review decisions from the highest State courts, the state courts necessarily would be excluded from hearing cases involving questions of federal law. It had already been established that state courts have the power to rule on issues of federal law, and therefore the Supreme Court must be able to review those decisions. The Court also held that the Supremacy Clause states that the federal interpretation trumps the states interpretation.

The Court rejected concerns regarding state judicial sovereignty. The Supreme Court could already review state executive and legislative decisions and this case was no different. Story then confronted the arguments that state judges were bound to uphold the Constitution just as federal judges were, and so denying state interpretations presumed that the state judges would less than faithfully interpret the Constitution. The Court stated that the issue did not concern bias; rather, it concerned the need for uniformity in federal law. The Supreme Court concluded that the decision by the Virginia court of appeals was in error. Disposition Judgment reversed. 1) People of states have given power to US b/c constitution was established by people & not states; States get power from state constitution, which people have written. Since people gave power to US, states are not willing to submit to people. 2) If no appellate jd extends to some cases entertained by states, then appellate jd of USSC does not extend to all cases as Article III, Sec. 2 says. This is contrary to the manifest intent of Constitution. 3) Pg. 34. USSC can review consituttionality of Executive & Legislative branches actions. Exercise of the same right over state courts is not a higher or dangerous act of sovereign power. 4) No great mischief will result by limiting appellate power of the US because states judges are bound by an oath to support US Constitution. Second, b/c Congress has the power to remove all cases w/in the scope of judicial power from state courts to the courts of US (federal). Constitution recognizes state biases and allows for hearing on the federal court based on diversity of citizenship JD cases. This is why it is not left to the cognizance of state courts. Necessity of uniformity of decisions throughout whole US is the reason why appellate power might be given over state courts. If this is not done, interpretation of different state courts might lead to disharmony and different application of Constitution. Last, constitutiton was designed for the benefit & protection of all people of US and given that state residents might choose state courts, some people might not enjoy the protection and benefits of the Constitution under state courts. Thus, USSC has appellate power. Review by a Supreme Court is not a matter of right but of judicial discretion. C) Sources & Methods of Judicial Decision: Interpretative Techniques: two main schools: originalists (textualists) and non-originalists (purposivists). The former see themselves as agents of the constitutional founders and the latter as partners of those who drafted or ratified constitutional provisions; the latter seeks to interpret the Constitution in accordance w/ its overarching purpose to address needs of contemporary society. Textualists have roots in plain meaning rulewords to be understood in their most usual and plain meaning common. Structural Textualism examines a particular word by looking into the relationship of a word and other provisions of text. Originalists do not like to look into the intention of the text b/c their interpretation will be less subjective. Pragmatists those who reject rigid border around constitutional interpretation techniques; they utilize different approaches in combination to reach a decision. Realists are those scholars who view these techniques as interpretative modes to advance their personal preferences. (Federalist Papers are often used as a source of original intent of framers.) Purposivists look into the mischief that the law addresses, and whose last canon urged canon urged consideration of the reason and spirit of the law. They consider values, concepts, & principles behind the text. Precedentscourts use these interpretative techniques w/in the context of precedents and the law and courts are very reluctant to override precedents. Supreme Court has also relied on Foreign/Intl law to aid in interpretation of the Constitutionvery controversial. Ex: the Supreme Court held that death penalty for offenders under 18 is cruel and unusual punishment in violation of 8th Amend. 4. Limits on the Judicial Power: the Court only has the power of judgment/interpretation; it cannot impress its decisions against the will of elected officials and the people. 1) Congressional Limits: repeals of a statute removes the judicial work of interpreting and enforcing that statute. Congress has the power to expand/contract the budget of the judicial branch of govt. However, Article III, Section 1 limits Congress power by prohibiting the diminution of judicial compensation. Judicial-specific role of Congress appears in Article I, Sec. 8, cl. 9, which allows Congress to constitute tribunals inferior to the Supreme Court. Article III, Sec. 1: Congress may from time to time ordain and establish inferior court. Article III, Sec 2: Gives Supreme Court Appellate JD, both as to law and fact, with such Exceptions, and under Regulations as the Congress shall make. One specific restriction on congressional power to exclude cases from the reach of the court appears in Article I, Sec. 9, cl. 2: the privileges of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it. a) Exceptions to and Suspension of Habeas Corpus: Habeas Corpus is a writ employed to bring a person before a court , most frequently to ensure that the partys imprisonment or detention is not illegal. It was used by Supreme Court to free those held in custody, under or by color of the authority of US. 1867, Congress passed an act to which for the first time provided federal courts with the power to grant writs of habeas corpus in all cases (including state cases) where any person may be restrained in violation of Constitution. Mr.McCardle was arrested for inciting insurrection. He filed for a writ of habeas corpus. He claimed that suspension of his right to jury trial

under martial law is unconstitutional & that application of Reconstruction Act to his editorials violated First Amendment. Fearing that the Supreme Court would hold for Mr. McCardle and declare Reconstruction Act unconstitutional, Congress passed a bill (vetoed by president & overridden by 2/3 of Congress) that attempted to repeal jurisdiction of Supreme Court over the case (retrospectively). Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868). Facts: After the Civil War, Congress imposed military government on many former Confederate States by authority of the Civil War Reconstruction Acts. McCardle (D) was a Mississippi newspaper editor held in military custody on charges of publishing libelous and inflammatory articles. McCardle filed a habeas corpus writ claiming that Congress lacked authority under the Constitution to establish a system of military government. The Act authorized federal courts to grant habeas corpus to persons held in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals. The circuit court denied McCardles habeas corpus writ but the Supreme Court sustained jurisdiction to hear an appeal on the merits. After arguments were heard however, Congress passed an act on March 27, 1868, repealing the portion of the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the Supreme Court of jurisdiction on any such appeals, past or present. Issues 1. Does Congress have the power to make exceptions to the Supreme Courts appellate jurisdiction in cases in which it has already granted jurisdiction? 2. Must the Court always first determine if it is has jurisdiction to review a case? Holding and Rule (Chase) 1. Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to make exceptions to that appellate jurisdiction. 2. Yes. The Court must always determine first if it is has jurisdiction to review a case. The court held that appellate jurisdiction of the Court is not derived from acts of Congress, but from the Constitution, and is conferred with such exceptions and under such regulations as Congress shall make. The court held that when Congress enacts legislation that grants the Supreme Court appellate jurisdiction over final decisions in certain cases, it operates as a negation or exception of such jurisdiction in other cases. In this case, the repeal of the act necessarily removed jurisdiction. Without jurisdiction, the Court cannot proceed; the only thing it can do is announce that fact and dismiss the cause of action. When a legislative act is repealed, it is as if it had never existed except in transactions past and closed. Thus, no judgment can be rendered in a suit after repeal of the act under which it was brought. Dismissed for lack of jurisdiction. Notes In this case, Congress withdrew the right to hear habeas corpus cases only when the Court got a case under the Act of 1867 on appeal from a lower court. The Supreme Court would still have been able to hear an original petition for habeas corpus filed in the Supreme Court. See Martin v. Hunters Lessee for a constitutional law case brief in which the Supreme Court held that it has appellate jurisdiction to review decisions of state courts involving issues of federal law. Boumediene v. Bush: (2008--USSC) Facts of the Case In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy there. The U.S. government classified the men as enemy combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the U.S. leases from Cuba. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due Process Clause, various statutes and treaties, the common law, and international law. The District Court judge granted the government's motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition. The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal but the Supreme Court reversed in Rasul v. Bush, which held that the habeas statute extends to non-citizen detainees at Guantanamo. In 2006, Congress passed the Military Commissions Act of 2006 (MCA). The Act eliminates federal courts' jurisdiction to hear habeas applications from detainees who have been designated (according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants. When the case was appealed to the D.C. Circuit for the second time, the detainees argued that the MCA did not apply to their petitions, and that if it did, it was unconstitutional under the Suspension Clause. The Suspension Clause reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The D.C. Circuit ruled in favor of the government on both points. It cited language in the MCA applying the law to "all cases, without exception" that pertain to aspects of detention. One of the purposes of the MCA, according to the Circuit Court, was to overrule the Supreme Court's opinion in Hamdan v. Rumsfeld, which had allowed petitions like

Boumediene's to go forward. The D.C. Circuit held that the Suspension Clause only protects the writ of habeas corpus as it existed in 1789, and that the writ would not have been understood in 1789 to apply to an overseas military base leased from a foreign government. Constitutional rights do not apply to aliens outside of the United States, the court held, and the leased military base in Cuba does not qualify as inside the geographic borders of the U.S. In a rare reversal, the Supreme Court granted certiorari after initially denying review three months earlier. Issues: 1. Should the Military Commissions Act of 2006 be interpreted to strip federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at the U.S. Naval Base at Guantanamo Bay, Cuba? 2. If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the Constitution? 3. Are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions? 4. Can the detainees challenge the adequacy of judicial review provisions of the MCA before they have sought to invoke that review? Decision: 5 votes for Boumediene, 4 vote(s) against 5. Can foreign nationals apprehended abroad assert the privileges of the writ and seek its protections? Legal provision: Article 1, Section 9, Paragraph 2: Suspension of the Writ of Habeas Corpus A five-justice majority answered yes to each of these questions. The opinion, written by Justice Anthony Kennedy, stated that if the MCA is considered valid its legislative history requires that the detainees' cases be dismissed. However, the Court went on to state that because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for the habeas writ, the MCA operates as an unconstitutional suspension of that writ. The detainees were not barred from seeking habeas or invoking the Suspension Clause merely because they had been designated as enemy combatants or held at Guantanamo Bay. The Court reversed the D.C. Circuit's ruling and found in favor of the detainees. Justice David H. Souter concurred in the judgment. Chief Justice John G. Roberts and Justice Antonin Scalia filed separate dissenting opinions. The court said that the only reason for suspension of the great writ is provided for in Art. I, Sec. 9, cl. 2. The court explained that b/c US has de facto sovereignty over Guantanamo Bay, foreigners have a right to the great writ. The court states that if the other branches of govt were able to move their activity to unincorporated territory, it does not give them the right to govern w/o legal constraint, contrary to the Constitutionthis raises the issue of separation of powers. The provisions of the Constitution are not subject to manipulation by those whose powers it is designed to restrain. Finally, the court identifies three factors relevant in determining the reach of Suspension Clause: citizenship & status of detainees, 2) the nature of the sites where apprehension took place, and 3) the practical obstacles inherent in resolving the prisoners entitlement to the writ. The court derived to these factors from the precedent caseEisentrager. From the analysis of these factors, the court reaches its holdingrefer to pg 73. Holding: petitioners are entitled to seek writ of habeas corpus, DTA review procedures are inadequate substitute for habeas corpus, and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas corpus actions in District Court. The court declared Sec. 7 of Military Commission Act unconstitutional Justice Scalia sees application of judicial review to this case as an abuse of judicial review and a failure to accord proper deference to the other branches of govt. While majority focused on the length and time of detainees incarceration w/o the opportunity for full judicial review, while Justice Scalias dissent focused on the threat privilege of habeas corpus presents to the US: detainees will be released and commit more acts of terrorism on US soil. Minority adopts a strict /de jure definition of sovereignty and that only detainees on US soil are qualified to receive this benefit, while majority takes a loose/de facto definition of sovereignty and thus allows application of the writ to detainees. Reading 5: Supreme Court limits its own power to review cases by declaring them nonjusticiable under Article III. Justiciability encompasses the following problems: 1) Advisory Opinions: Court rejects any request of advisory opinion on matters htat fall outsides of its JDArticle III. (However, what about advisory opinions that are w/in the Ct.s JD.) 2) Standing: whether the P is a proper party to bring the legal action. 3) Ripeness: a controversy is not ripe if it is premature. Factually inadequately developed case or further actions by lower courts, agencies etc might make the case not ripe. 4) Mootness: a case that has become irrelevant because the dispute b/n the parties has ended is moot. An otherwise moot case can be adjudicated if there is controversy concerning damages. 5) Political Question: when the Constitution entrusts a discretionary decision to Congress or the President, rather than the court, the decision is said to be a political question.

Pg 102-106: Massachusetts v. EPA: The Clean Air Act requires the EPA Commissioner to regulate pollutants "which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." A number of States and environmental organizations petitioned EPA to begin regulating CO2 and other greenhouse gases because climate change (aka global warming) was problem likely to endanger the public health. o In response, EPA found that they lacked the authority to regulate greenhouse gasses because they were not pollutants (at least not in the traditional sense). EPA seriously suggested that CO2 doesn't make people sick, and makes plants grow, so it was a good thing, not a pollutant. o EPA further argued that even if they did have the authority to regulate greenhouse gasses, it was within EPA's discretion to choose which pollutants to regulate, and they chose not to. EPA felt that other laws designed to improve fuel economy were good enough. The States (led by Massachusetts) sued the EPA to force them to begin regulating greenhouse gases. o Specifically, Massachusetts argued that: EPA does have authority over global warming and greenhouse gases because of the broad wording of the Statute. EPA's decision not to regulate greenhouse gases exceeded the scope of its discretion under the law. EPA violated the Clean Air Act by not giving it effect. o EPA argued that the petitioners did not have standing to sue EPA because they could not show that they had been harmed by greenhouse gases. (Because in the Republican EPA Commissioner's view, global warming was a just a myth propagated to destroy capitalism.) The Appellate Court affirmed EPA's decision to not regulate greenhouse gas emissions. Massachusetts appealed. The US Supreme Court reversed and found that EPA must regulate greenhouse gas emissions. o The US Supreme Court found that the petitioners did have standing to sue EPA. Massachusetts argued that global warming would cause sea levels to rise and the State would lose valuable beachfront property. But in order to have standing an injury has to be 'imminent'. Was sea level rise really an imminent threat? Also, can Massachusetts show that their sea level rise is directly caused by the emissions that they are asking EPA to regulate? The majority found that Massachusetts had standing because, as a sovereign they had a special duty to protect their citizens. o The Court found that the Clean Air Act does indeed give the EPA the authority to regulate greenhouse gases. "Greenhouse gases fit well within the Clean Air Acts capacious definition of air pollutant." o The Court also found that EPA's rationale for not regulating greenhouse gases was inadequate. If they did a scientific study and found a scientific basis for not regulating, then that would be ok, but they can't decide not to regulate solely on the opinion of the EPA Commissioner. The Court remanded the case back to EPA to make a scientific study and make a factual determination. Despite the fact that the regulation says, "In the Administrator's judgment..." In a dissent, it was argued that the alleged injury that Massachusetts suffered was far too speculative to give them standing to sue. In addition, since CO2 emissions are a worldwide problem. EPA did not have the ability to significantly affect global CO2 levels, therefore it was pointless to bother to regulate it. Also, CO2 isn't a 'pollutant' in the same way that toxic heavy metals are (you can't get sick from breathing it in), so it isn't really covered under the purpose of the Clean Air Act. Issue: Whether a State has standing to sue the EPA for not enforcing the Clean Air Act. Synopsis of Law: In order to have standing to sue in a federal court the petitioner must have; injury in fact, causation, and redressability in the claim, these elements are easier to meet if you are a State rather than an individual. Lujan v. Defenders of Wildlife (1992): Facts: Section 7(a)(2) of the Endangered Species Act of 1973 divides responsibilities regarding the protection of endangered species between the Secretary of the Interior (Manuel Lujan, D) and the Secretary of Commerce. The section requires each federal agency to consult with the appropriate Secretary to ensure that any action funded by the agency is not likely to jeopardize the continued existence or habitat of any endangered or threatened species. Both Secretaries

initially promulgated a joint regulation extending the sections coverage to include actions taken in foreign nations; however, a subsequent joint rule limited the sections scope to the United States and the high seas. The Defenders of Wildlife (P) and other organizations brought a lawsuit in federal district court seeking a declaratory judgment that the new regulation erred regarding the geographic scope of section 7(a)(2), and an injunction requiring Lujan to promulgate a new rule restoring his earlier interpretation that extended the sections coverage to include actions taken abroad. The district court dismissed the suit for lack of standing and the court of appeals reversed. On remand, on cross-motions for summary judgment, the District Court denied Lujans motion renewing his objection to standing, and granted the plaintiffs motion ordering Lujan to publish a new rule. The Court of Appeals for the Eighth Circuit affirmed & Supreme Court granted cert. Issues 1. What must a party invoking federal jurisdiction establish in order to show standing? 2. What must a party show in order to survive a motion for summary judgment for lack of standing? 3. If a plaintiff is not an object of government action, what must a party show in order to show standing? 4. Can Congress pass legislation that allows for the creation of citizen suits that confer standing upon citizens who would not be able to allege an injury in fact? Holding and Rule (Scalia) 1. In order to establish standing, a party invoking federal jurisdiction bears the burden of establishing, among other things, that they have suffered an injury in fact; i.e., a concrete and particularized, actual or imminent invasion of a legally-protected interest. 2. To survive a motion for summary judgment for lack of standing, a party must set forth by affidavit or other evidence specific facts to support its claim. 3. In addition to the above, in order to show standing, a party that is not an object of government action must show facts that the choices made by the independent actors not before the courts have been or will be made in such a manner as to produce causation and permit redressability of injury. 4. No. Congress cannot pass legislation that allows for the creation of citizen suits that confer standing upon citizens who would not be able to allege an injury in fact. The plaintiffs did not demonstrate that they suffered an injury in fact. Assuming that they established that funded activities abroad threaten certain species, they failed to show that one or more of their members would thereby be directly affected apart from the members special interest in the subject. Affidavits of members claiming an intent to revisit project sites at some indefinite future time, at which time they will presumably be denied the opportunity to observe endangered animals, do not suffice, for they do not demonstrate an imminent injury. The court rejected the plaintiffs argument that any person using any part of a contiguous ecosystem adversely affected by a funded activity has standing even if the activity is located far away from the area of their use. The Court of Appeals erred in holding that the Defenders of Wildlife had standing on the ground that the statutes citizen suit provision confers on all persons the right to challenge the defendants failure to follow the proper procedure, notwithstanding plaintiffs inability to allege any concrete injury arising from that failure. A party claiming only a general grievance about government, unconnected with a threatened interest of its own, does not state an Article III case or controversy. Vindicating the public interest is the function of the Congress and Chief Executive. To allow that interest to be converted into an individual right by statute would authorize Congress to transfer from the President to the courts the Chief Executives most important constitutional duty to take care that the laws be faithfully executed. Disposition: Reversed and remanded. Dissent. The Plaintiffs have raised genuine issues of fact as to both injury and redressability. Additionally, the courts enforcement of Congressional Acts through the citizen-suit provision do not violate separation of powers Concurrence. Congress does have the power to create standing where it had not existed before, but must identify the injury it seeks to vindicate and relate that injury to those bringing suit. Discussion. Congresss citizen-suit provision in the ESA was unconstitutional because it created a law where federal courts would be forced to recognize suits where no real world harm had occurred. Three constitutional elements of standing: 1) the P must have suffered an injury in fact, an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent.2) there must be causal connection b/n the injury and the conduct complained of, and 3) it must be likely as opposed to speculative that the injury will be redressed by a favorable decision.

Class 6: Political Questions: Baker v. Carr (1962): Facts Charles Baker (P) was a resident of Shelby County, Tennessee. Baker filed suit against Joe Carr, the Secretary of State of Tennessee. Bakers complaint alleged that the Tennessee legislature had not redrawn its legislative districts since 1901, in violation of the Tennessee State Constitution which required redistricting according to the federal census every 10 years. Baker, who lived in an urban part of the state, asserted that the demographics of the state had changed shifting a greater proportion of the population to the cities, thereby diluting his vote in violation of the Equal Protection Clause of the Fourteenth Amendment. Baker sought an injunction prohibiting further elections, and sought the remedy of reapportionment or at-large elections. The district court denied relief on the grounds that the issue of redistricting posed a political question and would therefore not be heard by the court. Issues 1. Do federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment? 2. What is the test for resolving whether a case presents a political question? Holding and Rule (Brennan) 1. Yes. Federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment. 2. The factors to be considered by the court in determining whether a case presents a political question are: 1. Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e. foreign affairs or executive war powers)? 2. Is there a lack of judicially discoverable and manageable standards for resolving the issue? 3. The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion. 4. The impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government. 5. Is there an unusual need for unquestioning adherence to a political decision already made? 6. Would attempting to resolve the matter create the possibility of embarrassment from multifarious pronouncements by various departments on one question? The political question doctrine is based in the separation of powers and whether a case is justiciable is determined on a case by cases basis. In regards to foreign relations, if there has been no conclusive governmental action regarding an issue then a court can construe a treaty and decide a case. Regarding the dates of the duration of hostilities, when there needs to be definable clarification for a decision, the court may be able to decide the case. The court held that this case was justiciable and did not present a political question. The case did not present an issue to be decided by another branch of the government. The court noted that judicial standards under the Equal Protection Clause were well developed and familiar, and it had been open to courts since the enactment of the Fourteenth Amendment to determine if an act is arbitrary and capricious and reflects no policy. When a question is enmeshed with any of the other two branches of the government, it presents a political question and the Court will not answer it without further clarification from the other branches. Dissent. In a vigorous dissent, Justice Felix Frankfurter argues the political question is inseparable from the equal protection claim and that the Supreme Court has effectively overturned a century of apportionment jurisprudence. In particular, the dissent argues that the Supreme Court has opened up all state districting to judicial oversight. The political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and decide a legal question, not a political question. Legal questions are deemed justiciable, while polit. Qs are nonjusticiable. In the typical case where there is a finding of non-justiciability due to the polit. question doctrine, the issue presented before the Court is usually so specific that the constitution gives all power to one of the coordinate political branches, or at the opposite end of the spectrum, the issue presented is so vague that the constitution does not even consider it. A court will not usually decide if a treaty has been terminated, because on that issue, "governmental action must be regarded as of controlling importance." Given the sensitive problems of holding a war to be illegal, most issues relating to the constitutionality of a war may well be nonjusticiable. "Congress, possessing exclusive power over the amending process, cannot be bound by and is under no duty to accept the pronouncements upon that exclusive power by this Court. The Court has treated the guarantee clause as not a repository of "judicially manageable standards which a court could utilize independently in order to identify a State's lawful government.

Article I, section 2 of the Constitution states that the House "shall have the sole power of Impeachment," and Article I, section 3 provides that the "Senate shall have the sole Power to try all Impeachments." Because the Constitution placed the sole power of impeachment in two political bodies, it is qualified as a political question. Vieth v. Jubelirer (2004) held claims of partisan gerrymandering nonjusticiable because a discernible and manageable standard for adjudicating them had not been established or applied since Davis v. Bandemer. Justice Breyer, who dissented, wrote in his most recent book that if he could change three of his dissenting opinions (while on the Supreme Court) into a majority, this would be one of them.

Nixon v. United States (1973): Synopsis of Rule of Law. Impeachment trials are nonjusticiable. Facts. The Petitioner, a former Chief Judge of the United States District Court for the Southern District of Mississippi, was sentenced to prison for lying under oath to a federal grand jury. The Petitioner refused to resign from his post and continued to draw his salary while incarcerated. In the ensuing impeachment trial, the Senate invoked Rule XI, which allowed a Senate committee to receive evidence and testimony. The committee provided full transcripts and summaries to the entire Senate and more than the necessary two-thirds voted to impeach on two of the three articles. Nixon now appeals, arguing that Rule XI violates the impeachment trial clause, Art. I Section: 3, cl. 6 of the United States Constitution (Constitution). Issue. Does Petitioner have the right to have the entire Senate receive evidence and testimony? Held. No, impeachment trials are nonjusticiable. The impeachment trial clause of the Constitution states, The Senate shall have the sole Power to try all Impeachments. Sole means that Senate is the only chamber that can impeach; the power is specifically granted to the Legislative Branch and judiciary has no authority to interfere in a polit. Q. Try was not necessarily meant by the framers as to try by judicial trial. Thus, Senate was not obliged to do so. Concurrence: Concurs with the majority but says that the court should be able to review the merits of the case for min. procedural compliance with the impeachment process b/c, for instance, it would be procedurally improper for Senate to toss a coin and decide to impeach in this way. Judicial review, even in polit. Qs. Should be limited to procedural review. Nixon v. United States Nixon (not that Nixon) was a Federal judge. He was convicted of committing perjury and was put in prison. Nixon refused to resign. The House of Representatives impeached him, and sent the matter to the Senate. The Senate appointed a committee to hear the evidence against Nixon, and their report was given to the full Senate, who voted to remove Nixon from office. Nixon sued, claiming that the Senate vote was improper. o Nixon argued that Article I, Section 3 of the Constitution gave the Senate the sole power to try impeachments. Therefore, having a committee hear the evidence wasn't good enough. He wanted a full trial before the entire Senate. The US Supreme Court dismissed the case. o The US Supreme Court found that the courts may not review the impeachment of a Federal officer because the Constitution gives sole authority for impeachments to the Senate. The Court felt that the 'checks and balances' to impeachment was that the Senate could only take up impeachment referred to them by the House. There was no need for the courts to provide appellate review, because basically, the Senate was providing appellate review of the House's decision to impeach. o The Court found that the issue was not judiciable because impeachment is a political question. In a dissent, it was argued that if Congress had significantly deviated from justice, then maybe the Court should intervene. o For example, what if the Senate had determined Nixon's guilt with something unfair like a flip of a coin? Would it still be right for the judiciary to not offer some form of judicial relief? What if they just impeached him because they thought he was too liberal? Vieth v. Jubelirer (2004): After the 2000 census reduced the size of the Pennsylvania Congressional delegation by two members, the Republican-controlled State legislature passed a redistricting plan that clearly benefited Republican candidates. Several members of the Democratic Party sued in Federal Court, claiming that the plan was unconstitutional because it violated the one-person, one-vote principle of Article I, Section 2 of Constitution, the Equal Protection Clause, the Privileges and Immunities Clause, and freedom of association. The Trial Court dismissed all but the Article I, Section 2 claim.

The Trial Court found that the voters bringing the suit had not proved that they would be denied representation, only that they would be represented by Republican officials. o Because they were not denied the right to vote, to be placed on the ballot box, to associate as a party, or to express their political opinions, their political discrimination claims failed. o However, the Trial Court found the plan was unconstitutional because it created districts with different numbers of voters, thereby violating the one-person, one-vote principle established in Baker v. Carr (369 U.S. 186 (1962)). Because the plaintiffs had shown that it was possible to create districts with smaller differences, and because the defendants had failed to justify the disparities resulting under their plan, it was therefore unconstitutional. In a split decision that had no majority opinion, the US Supreme Court decided not to intervene in this case because no appropriate judicial solution could be found. o The US Supreme Court found that they should declare all claims related to political (but not racial) gerrymandering nonjusticiable, meaning that courts could not hear them. o The Court found that because no court had been able to find an appropriate remedy to political gerrymandering claims in the 18 years since they decided Davis v. Bandemer (478 U.S. 109 (1986)), which had held that such a remedy had not been found yet but might exist, it was time to recognize that the solution simply did not exist. In a concurring opinion (which provided the deciding fifth vote for the judgment) it was argued that that the Court should rule narrowly in this case that no appropriate judicial solution could be found, but not give up on finding one eventually. o The concurrence admits that the State legislature is doing a bad thing, but felt that there was no way to come up with a remedy. The Political Question Doctrine would say that the real remedy should be that if people didn't like it, they should vote the Republicans out of the State legislature and replace them with people who won't gerrymander.

III) Distribution of National Powers: A) Executive Authority: separation of powers refers to noninvolvement of branches that do not possess a specified power (in the Constitution), and checks and balances refers to the division and dispersion of a specified power b/n the branches. The purpose behind these two elements of the Constitution is to prevent tyranny and promote efficiency of administration. The modern complaint, however, is that this system creates inefficiency. Two dominant modes of analysis of separation of powers issues under the constitution: 1) Formalism: demands adherence by each branch to the powers granted that branch (Congress makes laws, the executive enforces etc). 2) Functionalism: commands fidelity to the purposes of the distribution of power. Formalists generally look at separation of powers as specified in the text and structure of the Constitution, whereas functionalists view separation of powers as a component of fulfilling Constitutional goals. Functionalists are more pragmatic. Federal agencies pose a classic example of diverging formalists b/c it violates separation of powers by allowing the executive branch to make laws. A pure formalist would conclude that such agencies are unconstitutional. Youngstown Sheet & Tube Co. v. Sawyer: Facts The Korean war effort increased the demand for steel. Disputes arose between steel industry management and labor that culminated in an announcement of a strike by the union. President Truman authorized Secretary of Commerce Sawyer to take possession of the steel industry and keep the mills operating. Issue Does the President of the United States have executive power under the war powers clause of the U.S. Constitution, or any implied powers gleaned therefrom, to authorize the Secretary of Commerce to seize the nations steel mills? Holding and Rule (Black) No. The President does not have implicit or explicit executive power under the war powers clause of the U.S. Constitution, or any implied powers gleaned therefrom, to authorize the Secretary of Commerce to seize the nations steel mills. The presidents power must stem either from the act of Congress or from the ConstitutionRule The court held that there was no explicit statute or act of Congress which authorized the President to act in such a manner. The only two statutes which authorized the acquisition of personal and real property were not met here. Not only were

such acts unauthorized, Congress specifically refused to grant such authorization. The court held that in order for the President to have this authority, it must be found somewhere explicitly in the Constitution, or implicitly in some historical context or foundation. The President cannot order policy; he can only suggest it. Congress can approve any proposal for regulation, policy, settlement of disputes, wages, and working conditions. None of this is delegated to the President. Under a textual approach to interpreting the Constitution the Presidents powers are curbed in this extension. Dissent (Vinson, Reed, and Minton) Many presidents have taken such action before, most notably Lincoln (Civil War, naval blockade, Emancipation Proclamation), Hayes and Cleveland (authorization of the use of the military to settle strikes) without state or legislative authority. Concurrence (Frankfurter) FDRs actions during the Great Depression resulted in extensions of executive authority, but his authority was not violative of the Constitution. Three laws had already been enacted by Congress when FDR enacted his policy, and six others were only enacted after Congress declared war, thereby falling under the war powers. Concurrence (Jackson) In determining whether the executive has authority, there are three general circumstances: 1. When the President acts pursuant to an express or implied authorization of Congress, the Presidents authority is at its greatest. 2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority. When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3. When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest. Justice Jackson stated that this case falls into category three. If the Presidents argument were accepted the executive branch could exert its authority over any business or industry. Notes The most important part of this case is the three part test set forth in Justice Jacksons concurrence. This case is also cited as Youngstown v. Sawyer and as Youngstown Sheet Tube v. Sawyer. United States v. Curtiss-Wright: Facts: Congress passed a joint resolution authorizing the President to embargo Bolivia and Paraguay who were fighting in Chaco. Curtiss-Wright was indicted for conspiracy to violate the embargo. Procedural Posture: Curtiss-Wright challenged the resolution as being an unconstitutional delegation of legislative power to the President. The lower court sustained the challenge. Issue: Whether the resolution is unconstitutional as a delegation of legislative power to the President. Holding: No. Reasoning: The resolution may have been unconstitutional if it related solely to internal domestic powers, where the Presidents power is more constitutionally limited. However, the origin and nature of the Presidents domestic and foreign powers is very different. The Presidents foreign power is not dependent solely upon the affirmative grants of the constitution. The President has the power to negotiate treaties, and is the representative of the U.S. in international relations. He is in a better position than Congress to handle foreign affairs because he is privy to classified information. Thus, it is unwise to narrowly limit the Presidents foreign power. Notes: The War Powers resolution of 1973 now provides that Congress shall be consulted beforehand in every possible instance when the President is introducing troops into situations where hostilities are imminent. Afterwards, he must report within 48 hours the reasons and constitutional or statutory basis for his action, and any other information that Congress may request. Also, he must continue to consult with the Congress on a periodic basis. Then, if Congress does not declare war, or otherwise granted statutory power, the President must remove the troops within 60 days, or immediately if directed by Congress.

Dames & Moore v. Regan 453 U.S. 654 (1981) When Iranian revolutionaries took power and seized US hostages, President Carter invoked the International Emergency Economic Powers Act (IEEPA) and froze Iranian assets in the US. Iran and the US came to an agreement to release the hostages and o The agreement terminated all legal proceedings against the Iranian government and created an independent Claims Tribunal. The Algerian Accord. o Basically, that meant that if someone had a claim against the Iranian government from before the revolution, they could not get their money in a US court. They would have to go to the independent Claims Tribunal in the Netherlands, and try to win their case there. o This action was done via executive order. Dames & Moore had an outstanding judgment against Iran for $3M from before the revolution. They were annoyed that they had already one their case, and now this executive order was saying they had to re-litigate the issue in the Claims Tribunal. So they sued to get the executive order thrown out. o Dames & Moore claimed the executive order was beyond the scope of Presidential power. The US Supreme Court upheld the IEEPA. o There were two separate issues. Whether the President could transfer Iranian assets, and whether the President could suspend legal claims. o The US Supreme Court found that IEEPA constituted a specific Congressional authorization for the President to order the transfer of Iranian assets. Compare this to the decision in Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579 (1952)) where Congress specifically chose not to authorize a power to the President. o The Court found that although the IEEPA itself did not authorize the Presidential to suspend of legal claims, previous acts of Congress had implicitly approved of executive control of claim settlement. The Court emphasized the narrowness of its ruling, limiting the decision to the facts of the case. o The Court noted that Dames & Moore were not without legal recourse. They could always go to the independent Claims Tribunal and try to get their money there. And if they failed there, they may have a recoverable claim against the US. Even if Congress passed a Statute allowing the President to have this power, would it still be unconstitutional? o It has been held numerous times that even when branches of government agree, there can still be Constitutional issues. o The Constitution is here to protect the American citizens from tyranny of their government. Even if Congress and the President conspire to override a Constitutional provision, that provision still exists. You can't change the Constitution except through the Constitutional amendment process. See Buckley v. Valeo (424 U.S. 1 (1976)) and New York v. United States If Dames & Moore's judgment is considered property, isn't this a taking and a violation of the 5th Amendment, which forbids seizing private property without just compensation? o If it is a taking then Dames & Moore would have a recoverable claim against the US. The President made an international that directly impacted the release of US hostages. If, after the hostages had been released, the Courts had blocked the agreement made by the President, it would have considerably reduced the capability of the President to make international agreements. o This is not a legal argument, but it certainly was a factor. Sometimes, real politick takes precedent over legal arguments. This is probably the reason why the Court attempted to narrow the ruling, in a similar way to how they narrowed the ruling in Bush v. Gore. They were attempting to avoid establishing a legal precedent. o How does this case compare to Missouri v. Holland (252 U.S. 416 (1920)) in which a treaty was allowed to override constitutional arguments? Of course, this wasn't a treaty, it was just an executive agreement. Executive agreements are not subject to ratification by the Senate. Executive agreements can't override laws previously passed by Congress. Although apparently in this case, they can override the Constitution! Issue 1: Does the President have the authority to transfer Iranian assets and to void legal claims against Iran? Issue 2: Does the President has authority to suspend claims pending in American courts?

Medellin v. Texas: Medellin inmate was one of 51 Mexican nationals named in a decision of the International Court of Justice (ICJ) as being entitled to reconsideration of their convictions based on violations of Vienna Convention on Consular Relations art. 36. The President had issued a memorandum determining that state courts were to give effect to the ICJ decision. The Texas court found that the inmate was not entitled to habeas relief because he failed to timely raise his Vienna Convention claim. United States Supreme Court decision which held that while an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing"; that decisions of the International Court of Justice are not binding domestic law; and that, absent an act of Congress or Constitutional authority, the President of the United States lacks the power to enforce international treaties or decisions of the International Court of Justice Supreme Court President does not have unilateral self-executing power o The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. o The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. Treaties may be seen as 'self-executing', in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require 'implementing legislation'a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. Issue: 1. Whether the President foreign policy making power allows him to enact an international treaty that was not approved by the Senate? o No. Article 2, section 2 says the [President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur 2. Does the Constitution require state courts to honor the treaty obligations of the U.S. by enforcing a decision of the International Court of Justice? o No, the decision was not self-executing and not binding as a matter of domestic law. Facts: Vienna Convention o The United States was a signatory of the Vienna Convention on Consular Relations. o This convention obligates signatories to inform detained foreign nationals of the right to request assistance from the consul of their states. Optional Protocol o United States was also a signatory [signed agreement or treaty]. o The International Court of Justice (ICJ) would have jurisdiction to resolve disputes arising out of the interpretation or application of the convention. Medellin o Mexican Citizen. o Convicted or murder in state court. o Sentenced to death. o He claimed that he had not been informed of his consular rights in violation of the Convention. State and Federal Court o Rejected his request on the ground that he had failed to raise the claim earlier. IJC (Medellin and 50) Decision o Medellin and 50 other foreign nationals claimed that they had not been informed of their consular rights. IJC US is obligated o Held the United States was obligated "to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals without regard to state procedural default rules Supreme Court o Granted certiorari to review the lower courts decision denying Medellins claim. President Bush issued his Memorandum o Provided that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision. Supreme Court o Medellins second application was denied by the state court. o Granted certiorari.

Supreme Court Convention was not self-executing o Convention not self-executing o Not binding on state and federal court as a matter of domestic law. United States Argues President can resolve foreign policy issues Supreme Court Presidents Authority to act (Act of Congress or Constitution) o The President's authority to act, as with the exercise of any governmental power, "must stem either from an act of Congress or from the Constitution itself. Supreme Court President does not have unilateral self-executing power o The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. o The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. Non-self-executing treaty (definition) o A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. o The President is precluded on acting on his own. How Non-self-executing treaty can become domestic law o Non-self-executing treaty can become domestic law only in the same way as any other law--through passage of legislation by both Houses of Congress, combined with either the President's signature or a congressional override of a Presidential veto. President Arg Action valid because of Congressional Acquiescence o Youngstown #3 Category. Court Acquiescence does not exist. President Arg Memorandum is a valid exercise of Presidents foreign affairs authority. o To resolve disputes with foreign nations. Court This is an unprecedented action. o Government has not identified a single instance. o ICJ is not a domestic law. o The President cannot rely on his Take Care [execute laws, not make them] powers. War Powers Resolution: to control future executive military action, Congress required the President to report to Congress and if Congress did not approve the use of troops, to w/draw them. President challenged the constitutionality of the act, arguing that this intruded into the Presidents Article II powers. Courts have never adjudicated an issue on War Powers Resolution. For presidents, it has been easy to comply with this resolution. War on Terror: following 9/11, the Bush Admin. pushed hard with a unitary President theory based on the Vesting Clause. As Guantanamo Bay opened during the war on terror, the judiciary began to assess claims that the executive violated the Constitution in three areas: habeas corpus (Boumediene v. Bushupheld application of habeas corpus to detainees/aliens in Guantanamo Bay); surveillance: President Bush authorized surveillance by NSA of people suspected to have connection to terrorism. Enemy Combatant Designation: concerned the scope of the president to designate individuals as enemy combatants subject to detention until the end of hostilities. C) Legislative Authority: Until New Deal Era, it was generally assumed that Congress could not delegate lawmaking functions other than by establishing an intelligible principle by which others administering the law would thereafter be guided. The last time the Court invalidated Congressional legislative delegation of authority to the AA was in 1935 w/ Schechter. The non-delegation doctrine from then has ended. The Presentment Clause (Article I, Section 7, Clauses 2 and 3) of the United States Constitution outlines federal legislative procedure by which bills originating in Congress become federal law in the United Stateshouse and senate pass, goes to president, if vetoed, then back to Congress etc. INS v. CHADHA: (1983) In one section of the Immigration and Nationality Act, Congress authorized either Chamber of Congress to invalidate and suspend deportation rulings of the US Attorney General and the Immigration and Naturalization Service (INS). o Congress decided that they had the authority to exercise a legislative veto over Executive Branch decisions.

It's important to note here that it allowed either side, House or Senate to make a ruling. It didn't require the two to agree. o In the past, Congress considered private bills, in which a single member of Congress would cut a deal with a private individual for some specific favor (like granting citizenship), and it was passed with a wink and a nod. Private bills were so susceptible to corruption that the power was taken away from Congress and given to the Executive Branch. Chadha was a foreign exchange student had stayed in the US past his visa deadline and was ordered to leave the country. The House of Representatives suspended the immigration judge's deportation ruling. The INS sued for an injunction. o The INS argued that the Immigration and Nationality Act violated separation of powers, since it authorized the Legislative Branch to invalidate decisions of the Executive Branch. o Chadha had no other country to go to. He was born in Kenya of Indian heritage and neither Kenya nor India would take him back. o Congress chose to rule on a few immigrations cases per year, pretty much at random, just in order to maintain the principle that Congress can overrule a Justice Department decision. The US Supreme Court overturned the Immigration and Nationality Act. o The US Supreme Court found that the particular section of the Immigration and Nationality Act was unconstitutional. It violated Article I, Section 7, clause 3. The idea of a legislative veto violated the principles of bicameralism and the Presentment Clause. The Presentment Clause says that bills must be passed in identical form in both the House and Senate and signed by the President. It also mentions that a 2/3 majority overrides a Presidential veto. Bicameralism is the practice of having two legislative bodies, (House and Senate). o The Court felt that the House had taken actions that "had the purpose of altering the legal rights, duties, and relations of persons, including the Attorney General and Chadha." That is making a law. And under the Constitution's Presentment Clause, a single chamber of Congress can't make laws by itself. Of course, following that argument, pretty much every regulation made by an Executive Branch agency could be construed as making a law. It could be argued that all of those regulations are unconstitutional too! Justice White, in a dissent, argued that the Court has allowed Congress to delegate authority to Executive Agencies, which don't follow the rules of bicameralism or presentation; therefore, lawmaking does not always require them. Why should this case be any different? o In a concurrence, it was argued that Congress was exceeding its authority simply on the basis that it violated Chadha's due process. It's almost like a Bill of Attainder, which is clearly unconstitutional. Article I, Section 9, clause 3 prohibits Congress from undertaking legislative trials that lack the safeguards and accountability of judicial trials. Issue: Was the part of the Act authorizing a one House veto constitutional? Dissent. Justice Byron White (J. White) stated that this decision sounds the death knell for nearly 200 other statutory provisions for which Congress retains a legislative veto. The Supreme Court of the United States (Supreme Court) should have decided this case on the narrower grounds of separation of powers. Concurrence. Justice Lewis Powell (J. Powell) stated that the Houses action raises the very danger the Framers sought to avoid the exercise of unchecked power. In deciding whether Chadha should be deported, Congress is not subject to any internal constraints that prevent it from acting arbitrarily to deprive him of his right to remain in this country. Bowsher v. Synar: Congress passed the Gramm-Rudman-Hollings Deficit Control Act of 1985. The Act was designed to eliminate the federal budget deficit by restricting spending during fiscal years 1986 through 1991. o Under the law, if maximum allowable deficit amounts were exceeded, automatic cuts, as requested by the Comptroller General, would go into effect. The US Supreme Court found that the duties which the Congress delegated to the Comptroller General did violate the doctrine of separation of powers and were unconstitutional. o The Supreme Court used a two step process: The Supreme Court felt that that the Comptroller General was subservient to the Legislative Branch. The Act gave Congress the power to remove the Comptroller via means other than impeachment. The power to fire gave Congress de facto control over him.

In order to remove the Comptroller General, Congress would need to have both houses of Congress vote to remove him, and the vote could be vetoed by the President (like any normal bill). Second, in examining the functions that this officer would carry out under the Deficit Control Act, the Court concluded that the Comptroller General was being asked to execute the laws and, thus, was intruding on the prerogatives of the Executive Branch. In a dissent, Justice White's argued that the Act should have been upheld. o Determining the level of spending by the Federal government is a legislative function, not an executive one, he argued. Even if the power were executive, White did not see anything wrong with delegating that power to an agent as long as Congress can only influence him by a means that is subject to the Presentment Clause and Bicameralism Clause requirements. White felt that the Act met those requirements, since the Comptroller can only be influenced by Congress by a joint resolution. Basically, Congress can only write laws, they can't execute the laws. The Deficit Control Act basically had Congress ordering someone to execute laws. Therefore, it violated separation of powers. o This ruling helped to maintain the idea of the Administrative State that was jeopardized by INS v. Chada (462 U.S. 919 (1983)), by arguing that the real problem with INS v. Chada was that Congress, after passing a law, had a continuing role in executing the law, not that having Executive Branch agencies making laws via rulemaking (thereby violating the Presentment Clause and separation of powers). Administrative agencies can make regulations, but Congress can't meddle with those regulations (other than by passing explicit laws, bicamerally and with presentment). Congress cannot be involved in an executive function, vs. Congress can't engage in a legislative function that doesn't meet the standards of bicameralism and presentment. Synopsis of Rule of Law. Because [the legislative branch in the form of] Congress retained removal authority, he may not be entrusted with executive powers. Issue. Whether the Comptroller General is controlled by Congress. Whether the Comptroller General ha[d] been assigned [executive] powers in the Balanced Budget and Emergency Deficit Control Act of 1985. Morrison v. Olson: Issue. Did the Act violate the constitutional principal of separation of powers? The Ethics in Government Act of 1978 (aka the Independent Counsel Act) created a special court and empowered the Attorney General to recommend to that court the appointment of an independent counsel to investigate, and prosecute government officials for certain violations of Federal criminal laws. o An independent counsel could not be fired except for cause. o The appointment was not by the President, and was not subject to the approval of Congress. And independent counsel was appointed to investigate Olson. Olson argued that the Ethics in Government Act was unconstitutional. o Olsen argued that that the independent counsel violated the Appointments Clause because it was an executive branch office that was not appointed by the President. o In addition, it was a violation of Article III and the separation of powers doctrine because it gave judicial powers to a court created by the executive branch. It was sort of a hybrid "fourth branch" of government that was ultimately answerable to no one. o Olsen argued that the broad powers of the independent counsel could be easily abused, or corrupted by partisanship. The US Supreme Court found the Ethics in Government Act to be constitutional. o The US Supreme Court found that the means of selecting the independent counsel did not violate the Appointments Clause, Article III, or the separation of powers doctrine since it did not impermissibly interfere with the functions of the Executive Branch. Since the independent counsel was an inferior officer, his appointment did not have to come from the President. Since the independent counsel could only be fired for cause, subject to judicial review, it's a pretty secure position. The President can fire the Attorney General at will. So, it could be argued that the independent counsel was a principle officer, and should only be appointed by the President. o The Court felt that the Act did not violate the separation of powers doctrine by increasing the power of one branch at the expense of another. Instead, even though the President could not directly fire the

independent counsel, the person holding that office was still an Executive Branch officer, not under the control of either Congress or the Courts. If the special court was considered part of the Judicial Branch, how could they appoint an Executive Branch official? And how does this decision compare with Myers v. United States (272 U.S. 52 (1926))? In a dissent, it was argued that the law had to be struck down because: o Criminal prosecution is an exercise of "purely executive power" as guaranteed in the Constitution, and o The law deprived the president of exclusive control of that power. The dissent also predicted how the law might be abused in practice, writing, "I fear the Court has permanently encumbered the Republic with an institution that will do it great harm." o The independent counsel basically has no accountability to anybody, and therefore was subject to overzealousness. The dissent may have been right. Since it's inception, the law has been used for many partisan purposes. o There is no remedy, even a political one, for dealing with a highly partisan independent counsel intent on bringing someone they don't agree with down (e.g. Ken Starr) Compare this case to Bowsher v. Synar (478 U.S. 714 (1986)). o In that case, the Court concluded that Congress couldn't be involved in Executive Branch functions, although they could appoint Executive Branch officers. In this case, they concluded that the Judiciary could appoint Executive Branch officers, as long as they didn't meddle with their function. Synopsis of Rule of Law. There is no inherent incongruity in a court having the power to appoint prosecutorial officers.

Missing readings from 11-14 inclusive.

HWK # 14) Limits on Congressional Power: Modern Limitation of the Commerce Clause Power: UNITED STATES v. LOPEZ (1995): Facts The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any individual knowingly to possess a firearm at a place that he knew or had reasonable cause to believe was a school zone. Alfonso Lopez, Jr. (D), a 12th-grade student, carried a concealed and loaded handgun into his high school and was arrested and charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating the Act. The District Court denied Lopezs motion to dismiss the indictment, concluding that the GFSZA was a constitutional exercise of Congress power pursuant to the Commerce Clause of Article I. The Fifth Circuit reversed, holding that the Act exceeded Congress power under the Commerce Clause and was therefore unconstitutional. The Supreme Court granted cert. Issues 1. Does the GFSZA exceed Congress authority under the Commerce Clause? 2. What categories of activity may Congress regulate under its commerce power? Holding and Rule (Rehnquist) 1. Yes. The GFSZA exceeded Congress authority under the Commerce Clause. 2. The three broad categories of activity that Congress may regulate under its commerce power are: a) the use of the channels of interstate commerce; b) Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and c) Congress commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. Synopsis of Rule of Law: The power of Congress to regulate activities extends only to those activities that substantially affect interstate commerce. The Act neither regulates commercial activity, nor contains a requirement that the possession be connected in any way to interstate commerce. The Supreme Court held that the GFSZA exceeded Congress Commerce Clause authority. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The section in question is a criminal statute that by its terms has nothing to do with commerce or any sort of economic enterprise. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Courts cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. The statute contains no jurisdictional element which would ensure that the firearms possession in question has the requisite nexus with interstate commerce. Lopez was a student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. Neither the Act itself nor its legislative history expresses congressional findings regarding the effects of gun possession in a school zone on interstate commerce. To uphold the Governments contention that the Act is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would convert congressional Commerce Clause authority to a general police power of the sort held only by the States.

The activity being regulated must substantially affect interstate commerce. There are three broad categories of activity Congress may regulate under the commerce power. The majority rejected these arguments because under the governments theories, there would be no limits on federal power. The commerce power would extend to any activity that leads to violent crime and any activity related to the economic productivity of individuals. Congress does not have plenary police power. Possession of a gun in a school zone is not an economic activity that affects interstate commerce.
Disposition Judgment for Lopez affirmed. Concurrence (Kennedy) The two lessons to be learned from reviewing prior decisions about the commerce clause are that 1) there is imprecision of content-based boundaries involved such as the distinction between commerce and manufacture; and 2) there is an immense stake in the stability of Commerce Clause jurisprudence. The GFSZA upsets the Federal balance and is an unconstitutional assertion of the Commerce Power. Concurrence (Thomas)

The substantial effects test has eviscerated any notion of federalism. Without boundaries limiting the Commerce Clause to truly commercial activity, we give the federal government a blank check to regulate anything under the guise of the Commerce Clause. Dissent (Stevens) Guns are articles of commerce and can be used to interfere with commerce. The national interest justifies prohibiting their use by children in school. Dissent (Souter) The only inquiry should be whether the legislative judgment is within the realm of reason. Congress should have plenary power to legislate under the Commerce Clause as long as the law passes the rational basis test. Dissent (Breyer) Violence in schools interferes with the quality of education and education is inextricably tied to the economy. Congress could have rationally concluded that the possession of guns in school zones is related to interstate commerce. The majority contradicts well settled precedent that has permitted Congress to regulate noncommercial activity affecting interstate commerce. UNITED STATES v. MORRISON: Facts. Christy Brzonkala enrolled at Virginia Tech in the fall of 1994. Shortly after enrolling, she was allegedly repeatedly sexually assaulted by two varsity football players, including Respondent. After the incident Brzonkala suffered severe emotional distress. She twice participated in academic hearings against Respondent and later dropped out of the school. She finally brought suit against the two male students, including the Respondent & university in Fed District Ct. Issue. Is Section: 13981 of the Act a constitutional exercise of Congress commerce power? Synopsis of Rule of Law. Intrastate actions must be economic in nature to be viewed in aggregate by courts reviewing a Commerce Clause case. Held. No. Congress may not regulate noneconomic, violent criminal conduct based solely on that conducts aggregate effect in interstate commerce. Appeals court ruling affirmed. Applying the three-prong test from Lopez, 514 U.S. 549 (1995), the Supreme Court of the United States (Supreme Court) determined that violence against women does not substantially affect interstate commerce. The Supreme Court further defined the aggregate effects test (see Wickard v. Filburn) by noting that intrastate activities must be considered in the aggregate only if the activities themselves are economic in nature. Rationale: There are 3 major reasons why this statute does not fall under the commerce clause power of the Constitution: 1. Gender motivated crimes are not, in any sense of the phrase, economic in nature. 2. The statute does not have any jurisdictional element that could show interaction between states. 3. Effect of gender motivated violence on interstate commerce are too attenuated (no substantial effect on commerce) According to the court: Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since genger motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.TYRANNY Dissent. Justice David Souter (J. Souter), dissenting, argued that the aggregate effects of sexual assault are economically felt and therefore proper subject for regulation by the commerce power. Concurrence. Justice Clarence Thomas (J. Thomas) concurs, but reiterates his belief that the Supreme Court should develop a new standard for review of Commerce Clause cases. United States v. Morrison makes clear that Lopez is not a speed bump in the Supreme Courts Commerce Clause jurisprudence, but rather a new direction altogether. GONZALES v. RAICH: Facts In 1996, California passed the Compassionate Use Act which gives seriously ill Californians access to medicinal marijuana and exempts them and physicians from criminal prosecution. Respondents suffered from various serious medical conditions and, after several other treatments failed, used medicinal marijuana. In August 2002, county sherrifs and federal DEA agents entered respondents home. The county officials concluded that the respondents use was lawful. However, DEA seized and destroyed all six of their marijuana plants. Arguments Respondents: The categorical ban on marijuanas manufacture and possession exceeds Congresss power when applied to intrastate possession and manufacture. Issues Can Congress regulate a homegrown product that has never and may never enter interstate commerce? Holdings & Court Order: Yes

Reasoning (Stevens) When Congress decides that a practice in aggregate threatens a national market, it has power the regulate the entire class. The Court doesnt need to determine whether respondents activities, taken as a whole, substantially affect interstate commerce, but needs to determine whether there is a rational basis for such a conclusion. Since it is inherently difficult to distinguish between marijuana grown locally and grown elsewhere, there is no difficulty in determining Congress had a rational basis for deciding that it needed to regulate the intrastate manufacture and possession of marijuana in order to prevent a loophole in the CSA. The CSA regulates the production, distribution, and consumption of substances for which there is an interstate market. Prohibiting the possession and manufacture of a product is a rational means of regulating commerce in a product. (Supremacy Clause provides that if there is any conflict b/n federal & state law, federal law shall prevail and Congress can pre-empt state law based on Supremacy Clause if its interests are substantial affected) Scalia dissenting: The Commerce Clause alone doesnt give Congress the power to regulate activities that are not part of interstate commerce, even if they substantially affect interstate commerce. The authority to regulate such activities comes from the Necessary and Proper Clause. As Lopez stated and this Court affirms today, Congress may regulated an activity when the failure to regulate such activity would undercut the regulation of interstate commerce. OConnor, with CJ and Thomas, dissenting: The Court distinguishes this case from Lopez primarily by the fact that Lopez was a single subject statute, while the CSA is large, over-arching framework of regulation. The Court reasons that the placement of a local activity in a comprehensive scheme proves it is essential to the scheme. Even if intrastate manufacture and possession of medicinal marijuana can be classified as economic, it hasnt been shown to substantially affect interstate commerce nor that regulating it is essential to the interstate drug control scheme. The Court reasons that when an interstate commodity market exists, regulating the intrastate manufacture or possession of the commodity is constitutional because that intrastate activity is itself economic, or because regulating it is a necessary part of regulating its market. The government has not shown that possessing and using medicinal marijuana substantially affects interstate commerce nor that regulating it is necessary to its interstate regulatory scheme. Characterizing this case as falling under the necessary and proper clause doesnt change that Congress must exercise its authority in a manner consisted with the constitution. Congress needs more than mere assertion to justify having power over a local activity that does not have a self-evident connection to an intrastate market. Otherwise, the Necessary and Proper Clause will always be a loop hole for unconstitutuional legislation. There is no evidence that, in aggregate, homegrown medicinal marijuana users have a large enough class to have a discernable or even substantial affect on interstate commerce. Thomas dissenting: Respondents use marijuana that is never bought or sold, never traveled interstate, and has no discernable effect on the interstate market. If Congress can regulate this under the commerce clause it can regulate anything, and the federal government no longer has limited power. Regulating respondents actions is not necessary to execute Congress regulations on interstate drugs. Thus neither the Necessary and Proper Clause, nor the Commerce Clause, authorize Congress to regulate the conduct. HWK # 15a) Article I Powers and Their Limits: D) Federalism Limits on Article I Powers: consider when it is unconstitutional for Congress too much into state authority even if the law is w/in Congress power and when such intrusion is excessive. 1) The Tenth Amendment and Regulation of the States: GARCIA V. SAN ANTNIO MTA (1985): Justice Blackmun The San Antonio Metropolitan Transit Authority (SAMTA), claimed it was exempt from the minimum-wage and overtime requirements of the Fair Labor Standards Act (FLSA). o SAMTA argued that it was providing a traditional governmental function, which exempted it from Federal controls according to the doctrine of federalism established in National League of Cities v. Usery (426 U.S. 833 (1976)). Usery had held that such regulation of the activities of State and local governments in areas of traditional governmental functions would violate the 10th Amendment. o SAMTA also argued that the money that the States have in their treasury would be significantly drained by if they had to pay people minimum wage. That effects the general population with regards to higher taxes, less public funding for services and infrastructure, etc. Garcia, an employee of SAMTA, sued for overtime pay under the FLSA. The Trial Court found for SAMTA. Garcia appealed to the US Supreme Court. The US Supreme Court remanded the case back to the Trial Court for reconsideration based on their ruling in United Transportation Union v. Long Island R. Co. (455 U.S. 678 (1982)). o In United Transportation Union the Court had held that some transit operations were not a traditional function of government, and therefore not covered by the 10th Amendment.

The Trial Court once again found for SAMTA. Garcia again appealed to the US Supreme Court. The US Supreme Court found for Garcia. o The US Supreme Court found that Congress had the power to regulate SAMTA under the Interstate Commerce Clause. o The Court found that the principles of federalism they established in Usery were unworkable because they was too subjective. The Court found that rules based on the subjective determination of integral or traditional governmental functions provided little or no guidance in determining the boundaries of Federal and State power. What makes a government function 'traditional'? There are no hard rules. o The Court found that the structure of the Federal system itself, rather than any discrete limitations on Federal authority, protected State sovereignty. This case represents in many ways the high-water mark for the Court's expansive reading of the Interstate Commerce Clause to favor centralized national government as opposed to the more decentralized version of federalism, in which the 10th Amendment limits the authority of the Federal government. Ct. Rationale: Local public transit authority was not immune from minimum wage and overtime requirements of the Fair Labor Standards Act because there was nothing in those requirements that was destructive of state sovereignty or violative of any constitutional provision. The attempt to draw the boundaries of state regulatory immunity in terms of "traditional governmental functions" is not only unworkable but is also inconsistent with established principles of federalism. Synopsis of Rule of Law: The division between Congressional regulatory power under the commerce clause and state sovereignty is defined by political action, not judicial review. Dissent. Justice Lewis Powell (J. Powell) attacks the decision on two grounds: (1) stare decisis it has been only 8 years since National League of Cities and (2) that the political process is insufficient in itself to maintain the federalist structure of government. The majority leaves the power to limit authority to political officials who themselves invoke Commerce Clausethe court, according to the dissent, forgot the most important lesson of the history established by Marbury and downplays the importance of 10th Amendment to simple rhetoric. Justice William Rehnquist (J. Rehnquist) joins both dissents and adds, I am confident [that state sovereign restraints on the commerce power will], in time again command the support of a majority of this Court. Justice Sandra Day OConnor (J. OConnor) dissents on the ground that state autonomy is a relevant factor in assessing the means by which Congress exercises its powers. NEW YORK v. UNITED STATES: (1992); Justice OConnor: The Low-Level Radioactive Waste Management Act Amendments of 1985 required States (alone or in compacts with other States) to dispose of radioactive waste within their borders. o This was a proposed solution to the NIMBY problem (not in my backyard). New York State and Allegany and Courtland counties were unable to comply with the law due to resistance from residents to proposed radioactive waste sites and a lack of cooperation from neighboring States. New York filed suit against the Federal government, questioning the authority of Congress to regulate State waste management. o Oddly, a lot of New York State officials were in favor of this law. Of course, that doesnt matter. Constitutional law isnt about getting people to agree, its about what the law says. You cant violate the Constitution, even if you get the relevant branches of government to all agree to do it. The US Supreme Court upheld two of the three provisions of the Act under review, reasoning that Congress had the authority under the Interstate Commerce Clause to use financial rewards and access to disposal sites as incentives for state waste management. o First provision was financial rewards. Basically the States that dont accept waste (or are not part of compacts) are charged a surcharge by States that have disposal sites. But they dont get the money, the money gets filtered through the Secretary of Energy and provided back to the States creating the waste if they were able to build a disposal site or get into a compact before the 1993 deadline. States cant tax interstate commerce! But this is coming directly from the Federal government, and the States doing the taxing dont get the money, so its ok. o Second provision was access. The surcharges will increase every year, and at some point access would be completely denied.

Third provision, the take-title qualification, stipulated that States must take legal ownership and liability for low-level waste by 1996. Alternately, they could enact legislation to enact the Federal proposal. The Court found that this crossed the line distinguishing encouragement from coercion. Either type of Federal action, wrote Justice OConnor, would commandeer State governments into the service of Federal regulatory purposes, and would for this reason be inconsistent with the Constitutions division of authority between Federal and State governments. Basically, with the first two provisions, the States would have had pay more $$$, but would have a choice if they wanted to participate or not. The third provision though didnt give the States a choice. No choice = coercion. In addition, this provision would give the Federal government regulatory authority over who owned the waste. The Federal government had no Constitutional authority to regulate wastes. The part of the third provision, where the States were told to enact the Federal program, was an attempt to get the States to acquiesce to increased Federal authority to regulate something that they couldnt Constitutionally regulate. Federal government cant force States to enact State legislation. th o The Supreme Court found that take-title qualification violated the 10 Amendment. o In a dissent, it was claimed that history is by no means supportive of the position that the Federal government had no authority to regulate States. Justice OConnor argued that under the Articles of Confederation, it was said that the Federal government had the power to regulate States, but not individuals. But Constitution flip-flopped & allowed regulation of individuals but not states. Dissent claimed that this was just wrong. Synopsis of Rule of Law: Congress does not have the power to force states to implement regulations. Dissent. Congress is not forcing its will on the states by the regulation of radioactive waste. Instead, through the statute, Congress has ratified a compromise between many states to solve the waste disposal problem. Without this statute, another state would be forced to accept New Yorks radioactive waste. Concurrence. The Constitution enhances the power of the federal government. The Constitution does not limit the ability of Congress to direct state governments to implement Congressional legislation. Therefore, there is no reason to prevent Congress from commanding states to enforce federal standards for waste disposal. Discussion. The majority strictly adheres to the separation of power between state and federal government. Elected officials must be held accountable for the regulations they order. HWK # 15b) TAXING AND SPENDING POWERS: 16th Amendment gave right to the federal govt ability to tax income directly. What are the limits of the govt to tax?: in 1922, the Supreme Court held that the govts tax on profits of mines that used child labor was unconstitutional on the grounds that this was a penalty, not a tax. However, for narcotics, guns, alcohol etc, the court has upheld the tax. So, should we speak of the General Welfare Clause rather than tax power. Spending: COngres shas the power of the purse and can use it to require states to take certain action. The following case addresses Congress power to spend. (Congress cannot constrain speech, violate equal protection rights etc as a requirement for receipt of money from fed. Govt.) SOUTH DAKOTA v. DOLE: Facts. 23 U.S.C. Section: 158 directs the Secretary of Transportation to withhold a percentage of federal highway funds otherwise available to states that allow the purchase or public possession of alcohol by individuals under 21 years of age. South Dakota allows individuals nineteen and over to purchase beer with up to 3.2% alcohol. As a consequence, the Department of Transportation will withhold approximately 5% of the federal highway funds earmarked for the state. Issue: Did Congress exceed its spending powers, or violate the Twenty-first Amendment, by passing legislation conditioning the award of federal highway funds on the states' adoption of a uniform minimum drinking age? May Congress withhold funds from states that do not maintain a 21 year old drinking age? Rationale: No. In a 7-to-2 decision, the Court held that Congress, acting indirectly to encourage uniformity in states' drinking ages, was within constitutional bounds. The Court found that the legislation was in pursuit of "the general welfare," and that the means chosen to do so were reasonable. The Court also held that the Twenty-first Amendment's limitations on spending power were not prohibitions on congressional attempts to achieve federal objectives indirectly. The five percent loss of highway funds was not unduly coercive. Dissent. Justices William Brennan and Sandra Day OConnor both dissent on the unrelated ground of the Twenty-first Amendment, which relegates regulation of alcohol sales to the states.

The Supreme Court decided that Congress applying its taxing and spending clauses was not in violation of the 21st Amendment. It is subject to four covenants: 1. The condition must be unambiguous; 2. The condition must promote "the general welfare"; 3. The condition should relate "to the federal interest in particular national projects or programs"; and 4. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds. The first three restrictions, Rehnquist noted, are uncontested. This leaves the fourth restriction. The Tenth Amendment bars federal regulation of the States, and it has been suggested that the Twenty-First Amendment might prohibit federal regulation of the drinking age. Nevertheless, 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. Therefore, Congress has not run afoul of the Tenth or Twenty-First Amendments. The court seems to establish minimum limits on Congress power, but no outer limits of congressional power. the court says that the fourth limitation on congress power (constitutional bar) refers to power that cannot be used to induce States to engage in activities that would themselves be unconstitutional. (i.e. violate due process clause etc.) and this case is not it. Dissent: O'Connor said, must be "reasonably related to the expenditure of funds." O'Connor disagreed with the Court's finding that withholding federal highway funds was reasonably related to deterring drunken driving and drinking by minors and young adults. She argued that the condition was both over and under-inclusive: it prevents teenagers from drinking when they are not going to drive on federal and federally-funded highways. The relation here between the condition and spending is too attenuated. If the condition and spending are too attenuated, then they fail the court's "reasonable relation" test, falling outside the scope of Congress's power in the Constitution. Treaty and War Powers: 1) Treaty Power: Missouri v. Holland seems to stand for the proposition that treaties may violate Constitutional rights of American citizens. The later cases said that a provision of a treaty cannot conflict w/ the Constitution and must be ratified. Congress can supersede a treaty by legislation. Reservations to treaties is another way Congress and president can control the effects of the treaty domestically. War Power: Congress was given the power to declare war but not to make war. CHAPTER 6: JUDICIAL PROTECTION OF INTERSTATE COMMERCE: A) The Origins of Dormant Commerce Clause: WILLSON v. THE BLACK BIRD CREEK MARSH COMPANY: Brief Fact Summary. The Supreme Court of the United States uses the states police power to uphold a Delaware law that restricts federal navigation in a small navigable creek. Synopsis of Rule of Law. A state law is valid if it has a legitimate purpose, that purpose is consistent with the police power to regulate, and it does not violate a federal law on the subject. Facts. The state of Delaware authorized Plaintiff, Black-Bird Creek Marsh Company to build a dam in Black-Bird Creek. The dam obstructed navigation of the creek. Defendant, Mr. Wilson, an owner of a sloop licensed under federal navigation laws, broke and injured the dam in order to pass through the creek. The state court awarded damages to the Plaintiff. Defendant contends that the law authorizing the dam violates the commerce clause. Issue. Whether the state law allowing restriction of federal navigation of Black-Bird Creek violates the commerce clause. Held. No. Judgment affirmed. Since, Congress has not passed a specific law to control state legislation over small navigable creeks, Delawares law empowering the Plaintiff to dam the creek is not repugnant to the power to regulate commerce in its dormant state and is not in conflict with any law on the subject. Discussion. The purpose of the state law was to merely regulate the creeks passageways which is consistent with the police power. Therefore, the states law allowing the dam did not violate the commerce clause. Majority Reasoning: Marshall reasoned that the power to increase the value of the surrounding property, as well as the health of the inhabitants was well within the power of the states as long as it did not conflict with the powers of the federal government. But since Congress had passed no acts over this creek, the repugnancy of the Delaware law must be measured wholly according to its repugnancy to the dormant commerce power. In this case, the Delaware law cannot be considered as repugnant to the dormant commerce power. B) Discrimination against and Burdens on Commerce: PHILADELPHIA v. NEW JERSEY: New Jersey law enacted a law that prohibited most "solid or liquid waste which originated or was collected outside the territorial limits" of New Jersey from being imported into the State. Philadelphia, as well as private landfill operators in New Jersey and several cities outside New Jersey sued on the

basis that this was a ban on article of interstate commerce. New Jersey Supreme Court upheld the law on the grounds that it, "advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce." The US Supreme Court found the law unconstitutional. o The Court found the law unconstitutional because it violated the Dormant Commerce Clause. Justice Stewart said, "whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently." o In other words, New Jersey couldn't regulate beyond its borders. o Furthermore, the Court held that legitimate local interests which had incidental interstate effects were within the State's general police powers, but protectionist legislation per se that is enacted by the State would be considered invalid. If New Jersey were to buy all the landfills, and then decide to only accept New Jersey wastes, under the market participation doctrine, that would be completely legal. Facts. A New Jersey law prohibited the importation of solid or liquid waste that originated or was collected from outside of the State. The stated purpose of the statute was to protect the quality of the environment of New Jersey. Private landfill operators challenged the constitutionality of the law. The State Supreme Court held that the statute advanced vital environmental objectives. Issue. Did the New Jersey waste importation statute violate the Commerce Clause? Whether the N. Jersey law is a protectionist measure, or a law directed at legitimate local concerns with incidental effects on interstate commerce? (narrower issue) Synopsis of Rule of Law. Where a state regulates non-discriminatorily for the achievement of a legitimate local purpose and thereby affects interstate commerce, the state action is constitutional unless the burdens of such regulation on interstate commerce are clearly excessive relative to the putative local benefits of it. Held. Yes. The judgment of the State Supreme Court is reversed. Protectionism measures can be unconstitutional for their means as well as their ends. Whatever the purpose of the statute, it may not be accomplished by discriminating against articles of out-of-state commerce, unless there is some reason, apart from their out-of-state origin, for doing so. On its face, the statute imposes on out-of -state commerce the full burden of conserving the states landfill space. The statute violates the principle of non-discrimination both on its face and by its effect Dissent. Justice William Rehnquist (J. Rehnquist) stated that the Constitution does not require New Jersey to receive and dispose of solid waste from other States when doing so will inexorably increase the health problems of its citizens.

KASSEL v. CONSOLIDATED FREIGHTWAYS: Protectionist state laws are subject to a per se rule of invalidity b/c of violation of dormant commerce clause based on discrimination. Facts. Iowa, unlike all other States nearby it, prohibits the use of 65-foot doubles within its borders. Notwithstanding this restriction, Iowa allows its border cities to adopt the truck length limitations of the states adjoining them. Iowa also allows Iowa truck manufacturers to obtain a permit to ship trucks out of the state as long as 70 feet long. Mobile homes are also eligible for exemptions, as long as they are being used to benefit Iowa residents. Dissatisfied, the Plaintiff, Consolidated Freightways Corp. (Plaintiff), filed suit in the District Court arguing the Iowas scheme unconstitutionally burdened interstate commerce. Iowa claimed that it enacted its scheme lawfully for the purpose of promoting local safety. Issue: 1) Was Iowas statute scheme an unreasonable safety measure enacted pursuant to its police powers? 2) Does an Iowa statute that prohibits the use of certain large trucks unconstitutionally discriminate against interstate commerce? Synopsis of Rule of Law. State regulations designed to promote public health or safety, but further such purposes only marginally and interfere with commerce substantially may be invalid under the Commerce Clause. If a statute appears to be non-discriminatory but the purpose or effect of the regulation is to discriminate against commerce, the statute will be invalid. State may not protect its local economic interests by discriminating against both out-of-state and in-state trucks. Held. Yes. The judgment of the Court of Appeals is affirmed. Iowa failed to produce any persuasive evidence that 65-foot doubles are less safe than 55-foort singles. Plus, Iowas law substantially burdens interstate commerce insofar as it uses regulations out of step with all of its neighboring States regulations. Moreover, Iowa discriminates against out-of-state interests by providing Iowans exemptions that are not extended to out-of-state interests. Although the Supreme Court of the United States usually (Supreme Court) defers to the judgment of the State legislatures as to the justification of its laws concerning local concerns, less deference is due them in cases such as these: where the States safety justifications appear illusory; and where local regulation places a disproportionate burden of its statutory scheme on out-of-state interests.

Iowa claimed its motive in enacting the statute was highway safety. The Court found no evidence that the statute in question actually served this purpose. The court found that a truck with two trailers is just as safe as a truck with one trailer. Consolidated went on to prove that a 55 foot single and 60 foot double (which Iowa allows) are no safer than a 65 foot double. They all have the same ability to maneuver, brake, and turn. Iowas contentions that a single trailer takes less time to pass, takes less time to clear an intersection, is less likely to jackknife, and can back up for longer distances do not prove that single trailers are overwhelmingly safer than larger trailers. Iowas law causes a substantial burden on interstate commerce because it is out of step with the laws of other Midwestern and Western states. Iowas law cost Consolidated $2 million per year and added about $12.6 million to trucking costs for other companies. The local benefits of this law are insubstantial because the number of goods that must be transported does not decrease with truck size. Companies must either send two trucks through Iowa or divert its larger trucks long distances around Iowa. The laws safety goal is therefore dubious because it will ultimately cause trucks to drive greater distances, which will cause more accidents than the lack of double trucks in Iowa will prevent. The legislators real motive was to protect Iowa highways from increased traffic. The laws exemptions secured to Iowans many of the benefits of large trucks while shunting to neighboring States many of the costs associated with these trucks. Concurrence. Justice William Brennan (J. Brennan) states that even if the burdens and benefits are related to safety, protectionist legislation is unconstitutional under the Commerce Clause. J. Brennan differs from J. Powell in weighing safety regulations against the burden on interstate commerce. J. Brennan says that first the court must find the safety benefit to be illusory. J. Powell says that first one should compare the burden to the safety interests and if the safety interests are trivial then the burden should be compared to the motives behind the act. J. Brennan found a different initial motivation for the Act than the dissenting opinion. Instead of it being a safety regulation, the entire purpose of the Act was to achieve and promote uniformity with other states in limiting the size, weight and speed of motor vehicles. The act was amended numerous times, increase the maximum allowable length from 45 feet in 1947 to 60 feet in 1971. A bill that would have increased the size even further to conform with neighbors was vetoed by the Governor, who claimed protectionist reasons for the veto. Any protectionist purpose is impermissible under the Commerce Clause. Dissent. Justice William Rehnquist (J. Rehnquist) states that where a state enacts a statute for the purpose of promoting safety, the Court should not directly compare safety benefits to commerce burdens and strike the law if former weighs heavier. Instead the Court should engage in a sensitive consideration to determine if an asserted safety justification is merely a pretext for discriminating against interstate commerce. C) The Market Participation Exception: SOUTH-CENTRAL TIMBER DEVELOPMENT v. WUNNICKE: Facts. Defendant, the State of Alaska proposed to sell timber owned by the state. In the contracts of sale, Defendant included a provision requiring all timber purchasers to partially process the timber in Alaska. The provision was incorporated in order to protect Alaskan timber-processing industries and to derive revenue for the state. Plaintiff, an Alaskan corporation, purchases timber and ships it elsewhere for processing. Plaintiff claims that the contract provision violates the commerce clause. The Court of Appeals found that Congress had implicitly authorized Defendants processing requirement. Issue. Whether Ds restriction on processing was exempt from commerce clause b/c of the market-participant doctrine. Synopsis of Rule of Law. This case demonstrates a limitation on the market-participant doctrine which permits a state to influence identifiable class of econ. activity in which a state is a major participant. I.e., a state may not impose conditions, whether by statute, regulation or contract, that have a substantial regulatory effect outside of that particular market. Held. No. Judgment of the highest state court reversed and remanded for further proceedings. Defendant may be a participant in the timber market, but it may not use its leverage in that market to exert a regulatory effect in the processing market, in which it is not a participant. The processing restriction here takes place after the completion of the parties direct commercial obligations, rather than during the course of an ongoing commercial relationship. Thus, the DefendantState may not avail itself of the market-participant doctrine to immunize its downstream regulation of the timberprocessing market in which it is a participant. Because of the protectionist nature of Defendants local-processing requirement and the burden on commerce resulting therefrom, it falls within the rule of virtual per se invalidity of laws that block the flow of commerce at a states borders. Dissent. Defendant is merely paying the purchaser of timber indirectly, by means of a reduced price, to hire Defendants residents to process the timber, and that is not a violation of the commerce clause. Discussion. The plurality uses this case to demonstrate a limitation on the market-participant doctrine and bases that limitation on three key facts: the processing requirement is not a simple transaction; the timber is a natural resource; and the requirement takes place after the sale is finalized.

Rule: if a state is acting as a market participant, rather than as a market regulator, the dormant commerce clause places no limitation on its activities. Court points out 3 precedents that discussed the market participant doctrine and distinguished the Alaska case b/c Alaska was not just the market participant in the timber market but it tried to regulate it b/c one who is just a market participant is not concerned with after the sale and does not impose restrictions. The Alaskan statute did exactly thatit tried to regulate the after the sale market, in which it was not a participant. The court specifies the limits of market participant doctrine by stating that the doctrine allows the state to impose burdens on commerce w/in the market in which it is a participant, but it allows it to go no further. Thus, the State here may not impose conditions that have substantial regulatory effect outside that particular market. Thus, the definition of the market is important to see if the State has violated the doctrine. Alaska also argues that even if Congress has not authorized its control of the timber market and its actions do not qualify as market-participant exception, the restrictions do not substantially burden the interstate or foreign commerce under ordinary Commerce Clause principles. The court points out that limiting exports directly affects foreign commerce and thus the statute is unconstitutional b/c it is discriminatory. Dissent: believes that the lines drawn b/n market participant and regulator are unconvincing and artificial. UNITED HAULERS V. ONEIDA-HERKIMER SOLID WASTE MANAGEMENT AUTHORITY: Facts: Oneida and Herkimer counties adopted a local "flow control" ordinance requiring locally-produced garbage to be delivered to local publicly-owned facilities. The United Haulers Association filed suit in federal district court, arguing that by prohibiting the export of waste and preventing waste haulers from using less expensive out-of-state facilities, the ordinance ran afoul of the dormant Commerce Clause. The Supreme Court has held that the Commerce Clause forbids any state law that regulates interstate commerce. The District Court ruled against United Haulers and held that the ordinance was constitutional because it did not discriminate against out-of-state businesses. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed. The Court of Appeals ruled that even if the ordinance imposed a slight burden on interstate commerce, the effect was outweighed by the ordinance's local benefits. Question: Does an ordinance requiring delivery of all solid waste to a publicly owned local facility impose a substantial burden on interstate commerce and therefore violate the Commerce Clause? Decision: 6 votes for Oneida-Herkimer Solid Waste Management Authority, 3 vote(s) against Legal provision: Article 1, Section 8, Paragraph 3: Interstate Commerce Clause No. The Court voted 6-3 to affirm the Second Circuit and uphold the ordinance. Chief Justice John Roberts's majority opinion distinguished the Oneida- Herkimer ordinance from previous ordinances that were struck down by the Court by emphasizing that the favored waste-disposal facilities were publicly operated. The majority found that "[t]he flow control ordinances in this case benefit a clearly public facility, while treating all private companies exactly the same." After deeming the ordinance nondiscriminatory, the Court balanced its burden on commerce against its financial, health, and environmental benefits. The Court found that it imposed only an "incidental burden." The majority declined to "rigorously scrutinize" the economic effects of the ordinance, preferring to leave the policy analysis to local government. The dissent by Justice Alito would have held that the ordinance discriminated against commerce and was thus unconstitutional. Your Notes: (check if theyre correct with the hornbook and the class notes) the court says that applying commerce clause test, if there is no discrimination against interstate commerce, then the balancing test of commerce clause applies (that is, if the benefits of the law outweigh the incidental burden on interstate commerce, then the law does not violate commerce clause). The court here held that the flow ordinance did not discriminate against interstate commerce because unlike precedents discussing the dormant commerce clause, this case involves a public entity and not private. The court makes a distinction b/n private entity and public entity. The court reasons that the public entity required in-state companies to deliver waste to a specific location; it did not affect private companies outside of the state. Thus, the regulation treated instate and out-of-state private companies equally. Thus, there is no discrimination. (our Dormant Commerce Clause cases often find discrimination when a state regulation shifts the costs of regulation to other states, b/c when the burden of state regulations falls on interests outside the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests w/in the state are affected. In this case, the citizens of the counties bear the costs of the ordinances and none of the out of state companies.) Also, given that waste management is a local govt police power, the court gave deference to the state ordinance. The dissent disagrees with the majority on the issue that the discrimination in favor of a govt-owned enterprises does not meaningfully distinguish this case from Carbone, which held the ordinance similar to the ordinance in this case to be in violation of the negative Commerce Clause. The Purpose of the Dormant Commerce Clause The Dormant Commerce Clause seeks to achieve two purposes. First, it seeks to create a national economic market by preventing states from imposing barriers to trade. Second, it seeks to foster political cohesion by inhibiting states from imposing reciprocal barriers. The Dormant Commerce Clause addresses the situation in which Congress has not regulated some area that is w/in the Commerce power. Where Congress is silent, what, if any, barriers are there to state regulation?

The Dormant Commerce Clause is not really a separate clause in the Constitution. It simply refers to a body of constitutional jurisprudence which sets parameters for state regulation when Congress has not regulated an area within the Commerce power. The Dormant Commerce Clause is somewhat controversial and constitutional arguments can be invoked to oppose or defend it. Some form of Dormant Commerce Clause has existed for most of American history. Historical Evolution [1] Justice Marshalls Views In Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), Chief Justice Marshall indicated some sympathy for the view that the Commerce Clause conferred an exclusive power on Congress such that states could not regulate within the Commerce power even with Congress was dormant. He did not, however need to resolve the issue in Gibbons. Subsequently, he upheld state police power legislation in instances when it came within the Commerce power. [2] Local Pilot Case Cooley v. Board of Wardens, 53 U.S. 299 (1851), upheld a Pennsylvania statute requiring vessels to use a local pilot. Cooley took an intermediate course between those who argued that the Commerce Clause precluded any state action within its bounds and those who argued that absent congressional action, states could regulate without restraint within areas covered by the Commerce power. Cooley held that states could not regulate matters needing a uniform national approach but could regulate local matters. [3] Railroad Regulation Although Cooley was followed for a time, other approaches emerged to address railroad cases. The Court distinguished between legislation which affected commerce directly (which only the federal government could regulate) and that which affected commerce indirectly (which states could regulate). [4] Towards a Balancing Test Ultimately, in 1945, the Court used a balancing test to determine whether state safety legislation violated the Dormant Commerce Clause. The Modern Approach Like Cooley, the Court has continued to adopt an intermediate approach which sometimes allows and sometimes prohibits state regulation. In general, if a state statute discriminates against commerce on its face, purpose or effect, it is subjected to strict scrutiny and is found unconstitutional unless the state can justify it as serving a compelling state purpose in the least restrictive way. If the state statute does not discriminate, it is measured against a more lenient balancing test which asks whether the states health or safety interest is clearly outweighed by the burden on commerce. Discriminatory Laws Strict scrutiny is applied where the state seeks simply to protect the economic interests of its citizens at the expense of outsiders. When the Court detects such economic protectionism, the state statute is deemed per se invalid. States generally do not articulate such a protectionist purpose on the face of a statute or in legislative history. Where, however, a state cannot point to a legitimate state purpose for the statute or cannot show the absence of a nondiscriminatory alternative way to achieve its purpose, the Court infers that the true purpose was protectionist. Although the impact of state legislation on instaters and out-of-staters may be relevant to the analysis, it is not dispositive. The fact that there are out-of-state losers or instate beneficiaries does not mean the state statute necessarily fails. The Dormant Commerce Clause serves to protect the interstate market, not particular entrepreneurs. See Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978). Statutes subject to strict scrutiny are almost invariably invalidated. Pike Balancing Test The Pike balancing test takes its name from Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). It provides: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Under the Pike balancing test, the burden is on the party challenging the statute to show that it imposes too great a burden on commerce. The Political Process Rationale: The Dormant Commerce Clause responds in part to concern that state legislatures will favor their instate constituents over out-of-staters. Where the Court identifies sufficient instate losers it may conclude that they served as surrogates for out-ofstaters and accordingly that the political process need not be scrutinized. Appropriate State Measures The Dormant Commerce Clause does not prohibit all state regulation. Thus states may impose a variety of license fees, reasonable quarantine laws to protect against disease, and some embargo measures forbidding exports when backed by sound health or safety concerns.

V) INDIVIDUAL RIGHTS: SUBSTANTIVE DUE PROCESS: Incorporation: Facts. Appellee the Society of Sisters, a corporation with the power to establish and maintain academies or schools and Appellee Hill Military Academy, a private organization conducting an elementary, college preparatory, and military training school, obtained preliminary restraining orders prohibiting appellants from enforcing Oregons Compulsory Education Act. The Act required all parents and guardians to send children between 8 and 16 years to a public school. The appellants appealed the granting of the preliminary restraining orders. Issue. Does the Act unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children under their control? Synopsis of Rule of Law. The 14th Amendment provides a liberty interest in a parents or guardians right to decide the mode in which their children are educated. States may not usurp this right when the questioned legislation does not reasonably relate to a viable state interest. Held. The Act violates the 14th Amendment because it interferes with protected liberty interests and has no reasonable relationship to any purpose within the competency of the state. The Appellees have standing because the result of enforcing the Act would be destruction of the appellees schools. The state has the power to regulate all schools, but parents and guardians have the right and duty to choose the appropriate preparation for their children. The unanimous Court held that "the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." 1) Economic Interests: LOCHNER v. NEW YORK: Generally, the 14th Amendment provides for life, liberty, and property of any person to be taken only under due process of law. This case limits the liberty of employer and employee to contract. The state is allowed to limit reasonably liberties in areas of police power, which often include areas related to the health and wellbeing of the public. Facts The Bakeshop Act was a New York state labor law which prohibited bakery employees from working for more than sixty hours per week or ten hours per day. Lochner permitted an employee to work in his bakery for more than sixty hours in one week and was convicted of his second offense and fined. Lochner appealed his conviction on the grounds that the law violated his freedom to contract under the Due Process Clause of the Fourteenth Amendment. Issue What is the test for determining whether legislation which seeks to impose restrictions upon an individuals general right to make a contract in relation to his business is not invalid under the Due Process Clause of the Fourteenth Amendment? Holding and Rule (Peckham) The court must determine whether the legislation is a fair, reasonable and appropriate exercise of the police power of the State, or an unreasonable, unnecessary and arbitrary interference with the right of the individual to enter into a contract related to his business. A law that affects freedom of contract is unconstitutional if it is not reasonably related to a legitimate purpose of protecting public health. Before an act can be held to be valid which interferes with the general right of an individual to contract in relation to his own labor, the act must have a direct relation to the health and welfare of the employee, as a means to an end, and the end itself must be appropriate and legitimate. The general right to make a contract in relation to ones business is an individual liberty protected by the Fourteenth Amendment. See Allgeyer v. Louisiana. The states police powers however empower them to prevent individuals from making certain kinds of contracts. The Fourteenth Amendment does not prohibit a state from prohibiting a contract if the state has the right to do so through the legitimate exercise of its police power. The court held that in this case there was no reasonable ground for interfering with the right of free contract by determining a bakers hours of labor. Under such circumstances, the freedom of master and employee to contract with each other in relation to their employment cannot be prohibited or interfered with without violating the Constitution. Disposition: Reversed. Dissent (Harlan) The police power has been uniformly recognized by both the federal and state courts. All the cases agree that this power extends at least to the protection of the lives, the health, and the safety of the public from injury caused by others in exercising their own rights. Neither the Fourteenth Amendment nor any other Amendment was designed to interfere with the power of the State to prescribe regulations to promote the health, peace, morals, education, and good order of the people. The State, in the exercise of its powers, may not unduly interfere with the right of the citizen to enter into contracts that may be necessary and essential in the enjoyment of the inherent rights belonging to everyone.

The liberty of contract may, within certain limits, be subjected to regulations designed and calculated to promote the general welfare or to guard the public health, the public morals or the public safety. The liberty secured by the Constitution of the United States does not import an absolute right to be wholly freed from restraint. Harlans Test The power of the courts to review legislative action in respect of a matter affecting the general welfare exists only when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law. If there is doubt as to the validity of the statute, that doubt must be resolved in favor of its validity, and the courts must keep their hands off, leaving the legislature to meet the responsibility for unwise legislation. When the validity of a statute is questioned, the burden of proof is upon those who assert it to be unconstitutional. This statute was enacted in order to protect the physical well being of those who work in bakery and confectionery establishments. The statute must be taken as expressing the belief of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor. I find it impossible, in view of common experience, to say that there is no real or substantial relation between the means employed by the State and the end sought to be accomplished by its legislation. We should sustain the statute as not being in conflict with the Federal Constitution because it is has not been shown to be plainly and palpably inconsistent with it. The judgment should be affirmed. Dissent (Holmes) The word liberty in the fourteenth amendment does not invalidate a statute unless it reasonably can be said that the statute infringes fundamental principles of our people and our law. A citizens liberty is regulated by many state laws which have been held to be valid, i.e., the Sunday laws, the lottery laws, and laws requiring vaccination. This law is clearly related to public health and ought to be upheld. The Constitution was not intended to embody a particular economic view and is not a document about economic philosophy. Notes In his dissent Harlan is calling for a standard of review of statutes falling within the states police powers under a rational basis test, with a presumption that the state is acting properly, and with the burden on the challenger to rebut that presumption by showing the law is not rationally related to state police powers. The majority applied strict scrutiny and placed the burden on the state to show that its law was not unconstitutional. WEST COAST HOTEL CO. v. PARRISH: Facts: Parrish was pail less that the state minimum wage, so she sued to recover the difference. Issue: Is the fixing of minimum wages for women and minors constitutional? yes Reasoning (Hughes): The Constitution doesnt mention a freedom of contract, but talks about liberty and requires due process of law for any such deprivation. Liberty is not absolute or uncontrollable, but may be regulated to protect against harms to public health, morals, safety, and welfare. The Adkins decision was an inproper application of the principles governing state regulation of employment. The Legislature is entitled to enact laws to reduce the exploitation of workers in the form of wages insufficient to live on. Legislative response to exploitation is not arbitrary, and that is all this court must determine. Even if the policy is debatable and its effects uncertain, the Legislature judgment cannot be challenged. What these workers dont make, society pays so that the bare cost of living can be met. The community is not bound to provide what is in effect a subsidy for unconscionable employers, it may direct its legislature to correct this abuse. In a 5-to-4 decision, the Court held that the establishment of minimum wages for women was constitutionally legitimate. The Court noted that the Constitution did not speak of the freedom of contract and that liberty was subject to the restraints of due process. The Court also noted that employers and employees were not equally "free" in negotiating contracts, since employees often were constrained by practical and economic realities. This was found to be especially true in the case of women. This case explicitly overruled the Court's decision in Adkins v. Children's Hospital (1923). TAKING CLAUSE AND CONTRACT CLAUSE OF THE CONSTITUTIONLOOK UP. 2) Personal Rights: Prefatory Notes: Incorporation of the Bill of Rights: While strongly repudiating economic substantive due process, the Court has taken a very different course in interpreting what personal rights are protected by the Due Process Clause of 14 th Amendment. Both the 5th and 14th Amendments require dues process of law. The 5th was adopted to ensure that the federal govt did not dispense w/ basic protections of rights w/ origins going back to Magna Carta. The 14th Amendment added similarly worded limitations on the states. The Slughter-House Cases concluded that the Due Process Clause of 14th Amendment was limited to procedural due process. Later judges saw due process in economic terms (Lochner). The full expansion of the Due Process Clause of the 14th

Amendment to accommodate the Bill of Rights came during mid-20th century and applied to the states. Cardozo defined fundamental rights as those implicit in the concept of ordered liberty, and so rooted in the traditions and conscience of our people as to be ranked as fundamental; this definition is used today. Adamson v. CA concerned whether the Fifth Amendments privileges against self-incrimination, applicable in federal court, applied in state court. As a result, the only provisions of the 1st eight amendments not selectively incorporated are the Second and Third, Fifth Amendment requiring grand jury indictment, & the Seventh Amendment right to jury trial in civil cases (they do not apply in state cts). 2) SUBSTANTIVE DUE PROCESS: Personal Rights: a) Origins of Unenumerated Personal Rights: BUCK v. BELL: (1927) A possible distinction b/n this case, which did not recognize substantive due process to procreate, and Pierce v. Society of Sisters is that in the latter case, the decision gave choice to parents to decide the upbringing and education of the child b/c parents could make the decision, whereas in this case, the feeble-minded mothers have no control over their illness or their childs illness as a result of heritage. (here parents have no choice; in the latter case they did) Facts of the Case: Carrie Buck was a feeble minded woman who was committed to a state mental institution. Her condition had been present in her family for the last three generations. A Virginia law allowed for the sexual sterilization of inmates of institutions to promote the "health of the patient and the welfare of society." Before the procedure could be performed, however, a hearing was required to determine whether or not the operation was a wise thing to do. Question: Did the Virginia statute which authorized sterilization deny Buck the right to due process of the law and the equal protection of the laws as protected by the Fourteenth Amendment? Conclusion: Yes, Buck was afforded adequate due process and thus the law is constitutional. The Court found that the statute did not violate the Constitution. Justice Holmes made clear that Buck's challenge was not upon the medical procedure involved but on the process of the substantive law. Since sterilization could not occur until a proper hearing had occurred (at which the patient and a guardian could be present) and after the Circuit Court of the County and the Supreme Court of Appeals had reviewed the case (this provided for procedural due process; thus, the issue was only substantive due process), if so requested by the patient. Only after "months of observation" could the operation take place. That was enough to satisfy the Court that there was no Constitutional violation. Citing the best interests of the state, Justice Holmes affirmed the value of a law like Virginia's in order to prevent the nation from "being swamped with incompetence . . . Three generations of imbeciles are enough." GRISWOLD v. CONNECTICUT: (1965): Facts. Appellant Griswold, Executive Director of the Planned Parenthood League of Connecticut and Appellant Buxton, a licensed physician who served as Medical Director for the League at its Center in New Haven, were arrested and charged with giving information, instruction, and medical advice to married persons on means of preventing conception. Appellants were found guilty as accessories and fined $100 each. Appellants appealed on the theory that the accessory statute as applied violated the 14th Amendment to the United States Constitution. Appellants claimed standing based on their professional relationship with the married people they advised. Issue. Does the Constitution provide for a privacy right for married couples? Synopsis of Rule of Law. The right of a married couple to privacy is protected by the Constitution. Held. The First Amendment has a penumbra where privacy is protected from governmental intrusion, which although not expressly included in the Amendment, is necessary to make the express guarantees meaningful. The association of marriage is a privacy right older than the Bill of Rights, and the States effort to control marital activities in this case is unnecessarily broad and therefore impinges on protected Constitutional freedoms. Dissent. Justice Stewart and Justice Black. Although the law is silly, it is not unconstitutional. The citizens of Connecticut should use their rights under the 9th and 10th Amendment to convince their elected representatives to repeal it if the law does not conform to their community standards. Concurrence. Justice Goldberg, the Chief Justice, and Justice Brennan. The right to privacy in marriage is so basic and fundamental that to allow it to be infringed because it is not specifically addressed in the first eight amendments is to give the 9th Amendment no effect, which said the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.9th Amendment protects implicit inherent rights that are not mentioned Justice Harlan. The relevant statute violates the Due Process Clause of the 14th Amendment because if violates the basic values implicit in the concept of ordered liberty. J. White: Feels this is a due process violation of the 14th Amendment. This is the state acting to limit a right to family, and there is no justification by Connecticut's argument it reinforces a ban on illicit sexual relationships.

Discussion. The right to privacy in marriage is not specifically protected in either the Bill of Rights or the Constitution. Nonetheless, it is a right so firmly rooted in tradition that its protection is mandated by various Constitutional Amendments, including the 1st, 9th and 14th Amendments. The majority sets out that the right to privacy is a substantive due process right. In West Coast Hotel v. Parrish (1937), the Court had rejected the idea that the Constitution protects "substantive rights," i.e., protects certain activities from government interference that are not explicitly mentioned in the Bill of Rights. In Griswold, however, it ruled that "substantive rights" do exist in non-economic areas like "the right to privacy," even if they do not in economic activities like the right to contract. Over the next 10 years, the Court expanded this fundamental, substantive "right to privacy" beyond the marital bedroom, ruling that the state could not ban the use of contraceptives by anyone (Eisenstadt v. Baird [1972]), and that the state could not ban most abortions (Roe v. Wade [1973]). Void for vagueness is a legal concept in American constitutional law that states that a given statute is void and unenforceable if it is too vague for the average citizen to understand. A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable. Criminal laws that violate this requirement are said to be void for vagueness. Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. By requiring fair notice of what is punishable and what is not, vagueness doctrine also helps prevent arbitrary enforcement of the laws. Two main branches of privacy theory: 1) Negative theory: the right to be left alone or right free from legal intrusion. 2) Positive theory: the laws role in forming the totality of a persons life. b) Abortion: ROE v. WADE: (1973): Roe was pregnant and wanted an abortion, but she lived in Texas where abortions were illegal. Roe sued (Wade, the Dallas County DA), claiming that the Texas law was an unconstitutional violation of her right to privacy. See Eisenstadt v. Baird (1972), which said that a person has a fundamental privacy right to decide whether to have a child or not. The Trial Court found for Roe, but refused to grant an injunction. Roe appealed. The Appellate Court affirmed. Roe appealed. The US Supreme Court found the Texas law to be unconstitutional. o The US Supreme Court found that "a State criminal abortion that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to the pregnancy stage and without recognition of the other interests involved is violative of the Due Process Clause of the 14th Amendment." o The Court noted that, at the time the Constitution was written there were no laws preventing abortion. o Texas argued that the purpose of the law was to protect the life of the unborn child, but the Court looked to the legislative history of the law and found that it was primarily done to protect women by restraining them from submitting to a procedure that placed their life in danger. Roe argued that medical advances had made abortions much safer for the woman, so the law was no longer necessary. o Texas argued that the unborn baby was a 'person' as defined by the Constitution and was thus entitled to constitutional protections. However, the Court noted that abortion rights were much more liberal when the Constitution was written, implying that the Founders did not include the unborn in their definition of 'person'. The Court noted that under the historical common-law, 'life' was considered to begin at the quickening (time when the baby's heart can be felt beatingsome time at the end of 1st trimester) o The Court found that the right of personal privacy includes abortion decisions, but that the right is not unqualified and must be considered against important State interests in regulation of the interests of prenatal life and the health and well-being of the mother. States protect these two distinct interests. The Court found that the tipping point for State interest was when the fetus was 'viable'. This case was an attempt of the State to balance the privacy rights of the mother with the State's responsibility to protect the baby. o Initially, the balance is in favor of the mother's right to privacy, but as the pregnancy continues and the baby develops, the balance tips in favor of the State's responsibility to protect the baby. See Planned Parenthood of Southeastern PA. v. Casey (505 U.S. 833 (1992)), which held that the State has an interest to protect the unborn baby, but that interest must be balanced against the privacy rights of the mother. o The Federal Constitution does not explicitly have a right to privacy, but the Supreme Court found a right by combining several constitutional amendments. Griswold v. Connecticut (1965)

o o

The court does not resolve the question of when the life begins and it disagrees with unqualified right to privacy claimed by the defendant. The court rejected Texas argument that unborn child is a person. In the end, the court ruled that in the initial stages of the pregnancy (before the end of the first trimester) the woman and her physician are free to make their choice about abortion without the interference from the state. For the subsequent stage of pregnancy, the state can regulate the womans choice but only to serve the compelling interest of promoting the health of the mother (note that this means state can regulate the medical procedure for abortion but not proscribe abortion). For the stage after viability (when the fetus can exist outside the tomb w/o supportabout 28 weeks), the state in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary to preserve the life of the mother. When the fetus reaches viability, the mother loses her sole right to privacy as a child is a person then, w/ rights protected by 14th Amendment & constitution.

PLANNED PARENTHOOD v. CASEY: (1992) Facts of the Case: The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. Pennsylvania Abortion Control Act requires: 1. a woman seeking an abortion gives her informed consent 2. she must be provided with certain information 24 hours before the abortion 3. a minor must get informed consent from parents 4. a married woman must sign a statement saying that she has informed her husband 5. the act also imposes reporting requirements on the facilities that provide abortions. The provisions are challenged. Issue: Constitutionality of all five provisions of the act challenged. Held. Because neither the factual underpinnings of Roe v. Wade, nor the Supreme Courts of the United States understanding of the law as it concerns Roe has changed since 1973, a womans right to an abortion as announced in Roe is upheld. Accordingly, a States interest in the life of the unborn has sufficient force so that a womans right to an abortion can be restricted. As to when in the stage of a pregnancy the right to an abortion can be restricted, the Supreme Court hereby rejects the trimester framework of Roe and announces the undue burden standard. Under this approach, all of the Act, except the parental consent requirement, the Court finds proper. The Supreme Courts reasoning is as follows: Because the informed consent requirement facilitates the wise exercise of a womans right to an abortion it cannot be said to impose an undue burden on the right Roe protects. The Court of Appeals, reversing the District Court on this issue, is affirmed. The idea that important decisions will be more informed if they follow some period of reflection (24-hours) does not strike us as unreasonable. The Supreme Court disagrees with the District Court on this issue. Because petitioners argument regarding parental consent is essentially a reprise of their argument against informed consent, we reject petitioners argument here as before and find parental consent proper. Because there are very good reasons, e.g., fear of abuse, for a womans not wishing to inform her husband of her decision to obtain an abortion, the spousal notification requirement is an undue burden, and therefore invalid. Because the recordkeeping and reporting requirements do relate to health, it cannot be said that they serve no purpose other than to make abortions more difficult. Therefore, we find such requirements proper. Based partially on stare decisis, the Court upheld the "essential holding" of Roe. They found that the right to have an abortion is grounded in the Due Process Clause of the 14th Amendment. The Court did overrule the standard of review established in Roe (strict scrutiny), with the lesser undue burden standard and overturned the trimester system as limiting state interests in protecting the mother and life. Undue burden is defined as one having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The Court did reiterate that a State may enact regulations to further the health and safety of a woman seeking an abortion, as long as the regulation does not impose an undue burden. Court didnt specify exactly what would make something an undue burden. To be decided on case-by-case basis. The Court did modify the "1st trimester" test established in Roe with a "viability" test that said the balance tips towards the State's interest in protecting the life of the baby occurs when the fetus is viable, not at the end of the 1st trimester. The Court found that the spousal notification provision was a violation of the Equal Protection Clause of the 14th Amendment because it only applied to married women. That created an undue burden on that class.

e) Right to Die: WASHINGTON v. GLUCKSBERG: (1997) Facts of the Case: Dr. Harold Glucksberg -- along with four other physicians, three terminally ill patients who have since died, and a nonprofit organization that counsels individuals contemplating physician assisted-suicide -- brought this suit challenging the state of Washington's ban on physician assisted-suicide. The State of Washington has historically criminalized the promotion of suicide attempts by those who "knowingly cause or aid another person to attempt suicide." Glucksberg alleged that Washington's ban was unconstitutional. Following a District Court ruling favoring Glucksberg and his fellow petitioners, the Ninth Circuit affirmed and the Supreme Court granted Washington certiorari. Question: Did Washington's ban on physician assisted-suicide violate the Fourteenth Amendment's Due Process Clause by denying competent terminally ill adults the liberty to choose death over life? Substantive-due-process analysis two primary features 1. First, we have regularly observed that the Due Process Clause specially protects o Those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition, and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed." 2. Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest. o Flores, Cruzan: Our Nation's history, legal traditions, and practices thus provide the crucial "guideposts for responsible decisionmaking," that direct and restrain our exposition of the Due Process Clause. Analysis: Whether this asserted right has any place in our Nations traditions? o Here we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. o To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. Respondents contend - Consistent with substantive due process line of cases o The liberty interest they assert is consistent with this Court's substantive-due-process line of cases, if not with this Nation's history and practice. Respondents Point to Casey and Cruzan - General tradition of self-sovereignty o Pointing to Casey and Cruzan, respondents read our jurisprudence in this area as reflecting a general tradition of "selfsovereignty," and as teaching that the "liberty" protected by the Due Process Clause includes "basic and intimate exercises of personal autonomy. Casey o "Its a promise of the Constitution that there is a realm of personal liberty which the government may not enter. o According to respondents, Our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the "liberty of competent, terminally ill adults to make end-of-life decisions free of undue government interference." Court - Refusing medical treatment CANNOT be transmuted to assisting in committing suicide o The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy. o The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. o In Cruzan itself, we recognized that most States outlawed assisted suicide--and even more do today--and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow transmuted into a right to assistance in committing suicide. Court - the right to assistance in committing suicide is not a fundamental liberty interest o The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. o That being the case, our decisions lead us to conclude that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. Rational Basis: Rationally related to a legitimate government interest o The Constitution also requires, however, that Washington's assisted-suicide ban be rationally related to legitimate government interests. o This requirement is unquestionably met here Court - Rational Basis Interests 1. Washington has an "unqualified interest in the preservation of human life." o The ban against assisted suicide and euthanasia shores up the notion of limits in human relationships. 2. Interest in protecting the integrity and ethics of the medical profession.

o Time honored tradition between healing and harming. 3. Interest in protecting vulnerable groups - including the poor, elderly, & disable persons from abuse, neglect, & mistake. o The is a real risk of subtle coercion and undue influence in end-of-life situations. o The lives of the terminal ill and elderly must be no less valued than lives of the young and healthy. 4. Fear in permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. o Netherlands allows euthanasia and sees a lot of cases. Court Holding: Banning assisted suicide does NOT violate the Fourteenth amendment. No. Analyzing the guarantees of the Due Process Clause, the Court focused on two primary aspects: the protection of our nation's objective fundamental, historically rooted, rights and liberties; and the cautious definition of what constitutes a due process liberty interest. The Court held that the right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause since its practice has been, and continues to be, offensive to our national traditions and practices. Moreover, employing a rationality test, the Court held that Washington's ban was rationally related to the state's legitimate interest in protecting medical ethics, shielding disabled and terminally ill people from prejudice which might encourage them to end their lives, and, above all, the preservation of human life ZABLOCKI v. REDHAIL: (1978) Facts of the Case: Roger C. Redhail, a Wisconsin minor, fathered a child. A court ordered him to pay child support. Two years later, he applied for a marriage license in Milwaukee County. His application was denied by County Clerk Thomas E. Zablocki who declined to issue the license under a state statute on the ground that Redhail owed more than $3,700 in child support.. Redhail filed a class action in federal district court against Zablocki and all Wisconsin county clerks. The court ruled in Redhail's favor. Zablocki appealed to the United States Supreme Court. Question: Did the Wisconsin statute violate the Equal Protection Clause & Due Process Clause of the 14th Amendment? Yes. In an 8-1 decision, the Court held that Wisconsin's statute violated the Equal Protection Clause and reaffirmed that marriage was a fundamental right. In the majority opinion authored by Justice Thurgood Marshall, the Court emphasized marriage as part of the right to privacy found in the Fourteenth Amendment as identified in Griswold v. Connecticut. While the state has an interest in ensuring that child support obligations were fulfilled, this statute only regulated those who wished to be married and did not justify the restriction on the right to marriage as found in Loving v. Virginia. The statute limits marriage right of those who cannot pay w/o giving them an option, but not so to those who can pay. B/c it treats the object of the statute in unequal manner, it violates the Equal Protection of the law, and due process b/c it deprives of the right to marry w/o (reasonable) compelling state interest. The court points out that the state may limit the fundamental rights of people only if the state interests are compelling. The court also notes that reasonable regulation not interfering with the right to marry may be legitimately imposed. Reasonable Basis Test: The level of judicial review for determining the constitutionality of a federal or state statute that does not implicate either a fundamental right or a suspect classification under the Due Process Clause and the Equal Protection Clause of the Constitution. When a court concludes that there is no fundamental liberty interest or suspect classification at stake, the law is presumed to be Constitutional unless it fails the rational basis test. Under the rational basis test, the courts will uphold a law if it is rationally related to a legitimate government purpose. The challenger of the constitutionality of the statute has the burden of proving that there is no conceivable legitimate purpose or that the law is not rationally related to it. This test is the most deferential of the three levels of review in due process or equal protection analysis (the other two levels being intermediate scrutiny and strict scrutiny), and it requires only a minimum level of judicial scrutiny. E.g., courts use the rational basis test when analyzing the constitutionality of statutes involving age discrimination, disability discrimination, or the Congressional regulation of aliens.

Some of the cases show that 14th Amendment cases can be resolved by either Due Process (substantivefundamental right) or by Equal Protection Clause (law provides equal protection to different groups w/o discrimination.) ON EXAM, IF APPLICABLE, ARGUE BOTH.

Rational basis review is a test used in some contexts to determine a law's constitutionality. To pass rational basis review, the challenged law must be rationally related to a legitimate government interest. Rational basis is the most lenient form of judicial review, as both strict scrutiny and intermediate scrutiny are considered more stringent. Rational basis review is generally used when in cases where no fundamental rights or suspect classifications are at issue. It does not usually apply in cases that implicate a fundamental right. LAWRENCE v. TEXAS: Facts of the Case: Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under Due Process Clause of 14 Amendment, w/ Bowers v. Hardwick controlling. Question: Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled? Rationale: The TX statute applies only to participants of the same sex. The criminal penalties and purposes of this law has far reaching effects in the most private of placesthe home. As a general rule states should not define the meaning of the relationship or to set boundaries absent injury to a person or abuse of an institution the law protects. Adults may choose to enter such a relationship as here, within their homes, and retain their dignity as free people. The liberty protected by the Const allows homosexual persons the right to make this choice. There is no need to discuss the history and traditions of this nation regarding homosexual relationships b/c it wasnt until the 1970's that states began to criminalize that conduct. Hx is a starting point, but not the ending point. UK recommended repealing laws against homosexual activity in 1957. Of the 25 states that prohibited the relevant conduct, only 13 currently have such laws, and only 4 enforce them. The right the Pets seek has been accepted as an integral part of human freedom in many other countries. Individual decisions concerning the intimacies of their relationship are a form of liberty, whether engaged by married or unmarried people. Pets are entitled to respect for their private lives. TX cannot demean their existence or control their destiny by making their private sexual lives a crime. The TX statute furthers no legitimate state interest b/c immorality is not a sufficient basis for prohibiting a practice. Justice Sandra Day O'Connor filed an opinion concurring in the judgment, basing her decision on the Equal Protection of the sodomy law for homosexuals and non-homosexuals. DISSENT: The majority failed to declare homosexual sodomy a fundamental right and therefore strict scrutiny does not apply, but the majority then applies a form of rationality review. Yet, the majority ignores stare decisis upholding state laws based on morality as rational bases for regulation; i.e. public indecency; bigamy, adult incest; prostitution; adultery; etc. The impossibility of distinguishing homosexuality from other traditional moral offenses is precisely why Bowers rejected the rational basis challenge. Only fundamental rights qualify for this so-called heightened/strict scrutiny protectionthat is, rights which are deeply rooted in this Nations history and tradition. All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest (rational basis review.)when to apply which In the case of discrimination law the state would have to withstand the strict scrutiny review because it has been recognized as a fundamental right. Fundamental right status requires that such right be deeply rooted in this Nations history and traditions. GOODRIDGE V. DEPT. OF PUBLIC HEALTH: Procedural History: A group of 14 plaintiffs who were denied marriage licenses because they were same sex couples is appealed under the Massachusetts Constitution. Lower court denies claim, stating that marriage to a same-sex partner does not fall under fundamental rights because state has a legitimate interest in safeguarding marriages main purpose: procreation. Plaintiffs appeal. Facts: Same-sex couples apply for marriage licenses in Massachusetts and are denied Claim ban on same-sex marriage violates their rights under the state constitution Marriage brings many property benefits along with it that are effectively denied to same-sex couples Issue: Whether one has a constitutional right to marry a partner of the same sex under MA law, based partially on the idea that property rights are denied to those who are not allowed to marry. Holding: Yes, individuals have the constitutional right to marry a same-sex partner in Massachusetts.

Reasoning: Marriage bestows an individual with substantial private and social advantages and has significant tangible and intangible benefits such as property ownership, ability to share medical polices and veteran benefits and ability to make medical decisions. The government grants and retracts these benefits through its police power. Thus, equality demands that same sex couples should have a right to enjoy these benefits. The three government ends in support of this law do not hold up 1) Procreation: ability and intent to reproduce are not prerequisites for heterosexual marriages, plus new technology makes this process available to homosexual couples as well; 2) Best interests of child rearing: no evidence that heterosexual parents make best parents, current best interests of the child standard in assigning custody does not take into account sexual orientation and children are deprived of benefits on account of their parents sexual orientation; 3) Conserving state resources: no rational relationship. Dispose: Denying same-sex couples right to marry is unconstitutional B) Race & the Equal protection Clause: 1) Separate and Unequal: PLESSY v. FERGUSON: The Plessy Court had a social vision of appropriate race relations and allowed the legislature to determine such race relations under the states police power. Justice Harlan dissented, urging for equal application of the law and preventing the state from ability to determine issues of race. (Separate but equal facilities upheld constitutional) BROWN v. BOARD OF ED.: The court relied on scientific data to conclude that the separation of races does not result in equal facilities and does leads to a sense of inferiority of black race, which in turn discourages interest in school among black students. Thus, the court concluded that segregation in state-sponsored educational facilities inherently unequal & rejected the doctrine of separate but equal. The court did not rely on the history of the passage of the 14th Amendment b/c it was inconclusive on the equal treatment of races in the educational facilities since education of blacks at the time of the passage was nonexistent. CHAPTER IX: EQUAL PROTECTION OF THE LAW: three tiers of equal protection analysis: 1) Strict Scrutiny: when dealing with a suspect classification, such as race or fundamental right, such as the right to vote, the court has applied strict scrutiny test to govtal classification. Strict scrutiny means that to sustain the classification, the govt must prove that it has a compelling govt interest in the subject matter about which it has made classification AND that it has narrowly tailored its classification to fulfill that interest. (high level of scrutiny). 2) Middle Tier Scrutiny: when the court is dealing with a gender classification made by govt, it applies middle tier scrutiny, which requires at least an important govtal interest which is closely related to the govt classification. 3) Rational Basis Scrutiny/Review: applies to all other govt classifications and requires only that a classification be rationally related to some legitimate govtal interest. VERY DEFERENTIAL TEST. A) Traditional Rational Basis Review: the courts sometimes tend to bend this permissive standard. How and why they do so merits the study. Language that points to this standard: (1) the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relations to the objects of the legislation; (2) rationally related to a legitimate state interest; and (3) classification must not rest on grounds wholly irrelevant to the achievement of the states objective. These expressions of standards become progressively lax. RAILWAY EXPRESS AGENCY v. PEOPLE OF STATE OF NY: (1949) Facts of the Case: A New York City traffic ordinance prohibited the display of commercial advertising on vehicles using public streets. The ordinance exempted advertisements displayed on vehicles that related to the business interests of the owners. Express Railway Agency(ERA) sold space on the sides of its trucks for unrelated advertising until a police court convicted it for violating the ordinance. A state court of special sessions and the Court of Appeals of the State of New York both affirmed. ERA argued that the ordinance violated the Equal Protection Clause since the distinction between related and unrelated advertisements was not relevant to the purpose of the ordinance. Question: Did a New York City traffic ordinance that prohibited vehicles from displaying advertisements unrelated to the owner's business interests violate the Equal Protection Clause of the Fourteenth Amendment? Conclusion: No. Justice William O. Douglas delivered the opinion for a unanimous court. The Court found that the ordinance was valid because it functioned to limit distractions to motorists, the purpose for which it was intended. The Court ruled that "it is no requirement of equal protection that all evils of the same genus be eradicated or none at all." Therefore, a city could ban some advertisements that distracted pedestrians without having to eliminate every distraction. Though concurring with the Court's decision, Justice Robert H. Jackson famously wrote that "there is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose on a minority must be imposed generally." Concurring: (Justice Jackson): Burden rests heavily upon anyone who wants the Court to use the due process clause to strike down laws/ordinances. But using the EPC does not offend the people as much.

Cities, states, and the Federal Gov't must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. The city's means is not to regulate all advertising, or all ads on vehicles: this is only meant to cease certain ads unrelated to businesses on those businesses' vehicles. There is no problem here; it's not arbitrary, as long as ends justified means. (NO ADS FOR HIRE) The equal protection clause ceases to assure either equality or protection if it is avoided by any conceivable difference that can be pointed out b/n those bound and those left to free. Thus, discrimination can be sustained in the case of a same resultant danger if it is related to the purpose of the regulationlax standardjust some relationship is enough. NY CITYTRANSIT AUTHORITY v. BEAZER: (1979) Facts: New York TA will not employ individuals using methadone. Although a substantial majority of people receiving methadone treatments for over a year will cease drug and alcohol abuse, those who regress may exceed 25% Arguments: Respondents: methadone users should be treated like most other employees, not like users of other narcotics. Procedural History: District court held this regulation violated the Equal Protection Clause. 2nd Circuit affirmed. Issues: Does Petitioners hiring policy violate the Equal Protection Clause by refusing employment to methadone users? Holdings & Court Order: No, reversed. Reasoning: Evidence suggests that a possible majority of individuals receiving methadone treatment will drop out of such programs. The inference that success is not certain until the program is completed supports the no drugs policy currently in effect. A rule that is short of completion and allows employment at an intermediate point will be less precise, more costly, and likely to exclude individuals equally or almost as equally likely to successfully complete the program. Therefore, a policy that postpone eligibility until after completion is rational and does not disrespect the excluded subclass. Basically, the DC decided that the policy is broader than it needs to be to exclude methadone users that are not qualified to work for the TA. However, this is a personnel policy that does not affect a right protected by the Equal Protection Clause. This policy is not targeted at any individual or class characterized by an unpopular trait, but rather a policy choice made by a branch of government that has the power to make such choices. Therefore, it is not constitutionally significant that the rationality of the policy is weaker with regards to a portion of the classification than it is for the whole. The constitution doesnt authorize federal courts to interfere with this decision. White, with Marshall, dissenting: To broadly exclude a class of people of which only a few are unemployable and other groups, which will have some unemployable person, are not excluded, is arbitrary and unconstitutional Synopsis of Rule of Law. A rule will violate the Equal Protection clause of the Constitution if it circumscribes a class (not so in the case of circumscribing all people) of persons according an unpopular trait or affiliation. That is, the law will not allow unequal treatment of discrete and insular minorities. Dissent argues that those undergone the procedure after 1 year are not more dangerous than average populations and thus the regulation/classification should not be applied to them. E) Rational Basis and Hybrid Review: cases that speak of rational basis review but do not apply it in traditional way. These are cases that are not race, gender, or fundamental right cases but do not fit neatly rational basis methodology. CITY OF CLEBURNE, TX v. CLEBURNE LIVING CENTER: (1985) Equal Protection Clause provides that all persons similarly situated must be treated equally and the classification is rationally related to a legitimate state interestrational review test. Facts. The Respondent bought a property from a private owner with the intention of starting a group home for the mentally retarded. It was expected that 13 persons would reside in the house of 4 bedrooms and 2 baths. Petitioner required Respondent to apply for a special use permit and then denied the application. Issue. Is the mentally retarded part of a quasi-suspect class subject to a higher scrutiny under the Equal Protection Clause? Is the special use permit requirement constitutional? In a unanimous judgment, the Court held that the denial of the special use permit to Cleburne Living Centers, Inc. was premised on an irrational prejudice against the mentally retarded, and hence unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. While the Court declined to grant the mentally retarded the status of a "quasisuspect class," it nevertheless found that the "rational relation" test for legislative action provided sufficient protection against invidious discrimination. The court holds that for the cases of mentally ill, the heightened should not apply, but the rational review test. The court held that the citys concern w/ negative effect of the nearby property was not rational basis for denial of permit, nor the effect on the mentally ill from the nearby school. The court also rejected the argument that the building was located on the 500yr flood plain because any other building or group of people occupying it would succumb to flood. Finally, court rejected the citys concern for the number of occupants b/c there would be no restrictions on the number of people in case of another building. The court thus found that the city classification violated the 14th Amendment and showed prejudice. The court said that economic and social legislations usually receive a deferential standard of review: rational basis test

ROMER v. EVANS: Age is not a basis of discrimination that would afford application of strict scrutiny standard. Disadvantage to a group can be legislatively imposed if the law advances some legitimate govt interest. Facts of the Case: Colorado voters adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." Following a legal challenge by homosexual and other aggrieved parties, the state trial court entered a permanent injunction enjoining Amendment 2's enforcement. The Colorado Supreme Court affirmed on appeal. Question: Does Amendment 2 of Colorado's State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violate the Fourteenth Amendment's Equal Protection Clause? Yes. In a 6-to-3 decision, the Court held that Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. In his opinion for the Court, Justice Anthony Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest." Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate govl interest." The majority indicates that this amendment results in discrimination against a group because it singles them out and denies them protection of the law. The law is too broad to be held useful to achieve any goal. This is the exact type of action that the Equal Protection Clause is supposed to thwart. A statute that indiscriminately treat all members of a group unequally is inherently prohibited by the Equal Protection Clause, which allows for equal treatment. Dissent. The majority is bending the Constitution to fit the current fashion of including homosexuals as part of the protected class. Judicial precedent indicates that the states have always been free to enact laws barring certain groups from preferential treatment. The groups recourse is to petition the lawmakers to amend or repeal prior acts. Synopsis of Rule of Law. If a law neither burdens a fundamental right nor targets a suspect class, the legislation is constitutional as long as it bears a rational relation to some legitimate state interest. 2) Invidious Race Discrimination: a) Strict Scrutiny for Invidious Race Discrimination: STRAUDER v. WEST VIRGINIA: Facts. A West Virginia statute limited jury service to white men. Strauder, a black man, was convicted of murder by a trial court in West Virginia. Strauder appealed his conviction Issue. Did Strauders conviction by a jury selected pursuant to the statute violate the Fourteenth Amendment of the United States Constitution (Constitution)? Synopsis of Rule of Law. A citizen of the United States has a constitutional right to a criminal trial by jury selected and impaneled without discrimination against his race. Held. Yes. The judgments of the Supreme Court of West Virginia and the Circuit Court of Ohio County are reversed. Justice Strong said the Fourteenth Amendment of the Constitution gave to blacks the right to be free from unfriendly legislation directed at them on the basis of their race. The West Virginia statute concerning juries is the quintessential legislation the Fourteenth Amendment of the Constitution was designed to prohibit. The fact that blacks as such are singled out and expressly denied by statute the right to participate in the administration of justice, as jurors, places a brand upon them and impedes their ability to secure the equal justice the law aims to secure for all others. Strict Scrutiny. J. Strong declared that to deny citizen participation in administration of justice solely on racial grounds "is practically a brand upon them, affixed by law; an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others." YICK WO v. HOPKINS: The court holds that if the law itself is fair on its face and impartial in appearance, but applied by public authorities with an evil eye and unequal hand, so at to make it unjust and illegal discrimination, the denial of equal justice is still w/in the prohibition of the constitution. Such regulations might intend to confer power of discretion on public authority to promote safety, but result in naked and arbitrary administration of the regulation that is dependent upon the will of the public rep. Fact: Yick Wo was imprisoned for operating a laundry in a wooden building in violation of a San Francisco law. The law vested in board of supervisors the discretion to grant or w/hold license to operate laundries in wooden buildings. Yick Wo had operated the laundry in the same building for 22 years & fire wardens & safety inspectors had inspected the premises & found them safe. The board denied license to all Chinese applicants but denied only one of 80 non-Chinese Americans.

Yick Wo was fined ten dollars and imprisoned for failing to pay. Yick Wo sued the Supreme Court of CA for a writ of habeas corpus & Court found that the board of supervisors had acted w/in the scope of its authority & denied the petition. Issues 1. May a city enforce an ordinance in a racially discriminatory manner? 2. Does a law or ordinance granting a person or entity absolute discretion to grant or deny permission to carry on a lawful business violate the Fourteenth Amendment to the U.S. Constitution? Holding and Rule (Matthews) 1. No. A city may not enforce ordinances in a racially discriminatory manner. 2. Yes. A law or ordinance granting a person or entity absolute discretion to grant or deny permission to carry on a lawful business violates the Fourteenth Amendment to the U.S. Constitution. If the statute were discriminatory on its face the court would have applied strict scrutiny. In this case however the statute was not discriminatory on its face and the court looked to rational basis. The statute was ostensibly intended to reduce the risk of fire; however the court also noted that only Chinese laundries were affected by the statute. The court concluded that the statute was intended to reduce Chinese laundries rather than the risk of fire and ruled that the statute was invalid under the Due Process Clause of the Fourteenth Amendment. KOREMATSU v. UNITED STATES: (1944) Facts of the Case: During World War II, Presidential Executive Order 9066 and congressional statutes gave the military authority to exclude citizens of Japanese ancestry from areas deemed critical to national defense and potentially vulnerable to espionage. Korematsu remained in San Leandro, California and violated Civilian Exclusion Order No. 34 of the U.S. Army. Question: Did the President and Congress go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent? The Court sided with the government and held that the need to protect against espionage outweighed Korematsu's rights. Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of "emergency and peril." All legal restraints which curtail the civil rights of a single racial group are immediately suspect and must be subject to the most rigid/strict scrutiny. However, such restrictions are not automatically unconstitutional. The purpose of the order was to prevent espionage & sabotage at the time of great national emergency. The court upholds the law because it was impossible to segregate quickly loyal from disloyal Japanese-American. The power to protect must be commensurate with the threatened danger. This case reiterates the point that when both Congress and Executive are opposed to the courts view, the court will not find it unconstitutional. The dissent points out that there has been no evidence of the threat of sabotage except for mere statements. They said that there is no reasonable relation between the blood of all persons of Japanese descend and threat. The govt cannot deny the rights of all members of a group based on individual guilt of the few. Korematsu and Yick Wo are treated as race cases rather than national origin cases. Why? Possibly because discrimination was broader than of mere nationals of another country and to allow imposition of strict scrutiny. Immigration case may be an exception to equal protection principle on the basis that power of Congress over admission of alien to US is absolute. b) What makes a Law Racially Discriminatory?: what if the restriction was placed on all races? LOVING v. VIRGINIA: Facts of the Case: In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25 years). Question: Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment? Yes. In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment. The Court also held that the Virginia law violated the Due Process Clause of the Fourteenth Amendment. "Under our Constitution," wrote Chief Justice Earl Warren, "the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State." The court said that the mere fact equal application of a statute containing racial classification is not enough to immunize it from Equal Protection Clause. Such statutes are subject to strict scrutiny.

JOHNSON v. CA: Facts of the Case: CA prisoner Garrison Johnson alleged in federal district court that CA Department of Corrections used race to assign temporary cell mates for new prisoners. Johnson alleged this violated U.S. Constitution's equal protection clause. The district court and a federal appellate court ruled against Johnson. The appellate court pointed to the U.S. Supreme Court's 1987 decision in Turner v. Safley, which said a relaxed standard - as opposed to a "strict scrutiny" standard - should be used to determine whether prison regulations are constitutional. The prison's policies were "reasonably related to the administrators' concern for racial violence and thus must be upheld," the appellate court wrote. Question: Is a state's practice of temporary racial segregation of state prisoners subject to strict scrutiny? Yes. In a 5-3 opinion delivered by Justice Sandra Day O'Connor, the Court held that prison racial-segregation policies are subject to strict scrutiny. The Court rejected the claim that because the policy was "neutral" - because all prisoners were "equally" segregated - the policy was not subject to strict scrutiny. Racial classifications must receive strict scrutiny even when they may be said to affect the races equally. The Court remanded the case so that the Ninth Circuit could use strict scrutiny to review the policy. Justices John Paul Stevens, Clarence Thomas, and Antonin Scalia dissented.

Supervising Judge Alexander P White 2005 Richard J Daley Center, Room 2503 Chicago, Il 60602 Ph: 312 603 5533