Constitutional Law Professor Seaman Spring 2007

I.
-

Introduction
Background principle = the federal government is a government of limited delegated powers o Powers that are not given are kept either by the states or the people With any Con Law problem, ask: 1. With an action of the federal government do they have that power? a. Must also ask if its the right branch 2. If they do have the power, can they nonetheless not do it because it violates a right? State governments have general police power can do something unless the Constitution prohibits it o So, dont ask if they have the power only ask: can they not do this thing because it violates some right? Methods of Constitutional analysis/types of Constitutional arguments: o Textualism o Original intent o History/tradition o Precedent o Purposive saying the provision in question was meant to accomplish this purpose, so interpret it in a way that does that o Structure separation of powers or federalism argument further the underlying structural intent o Moral o Evolving standards of decency o Prudential/pragmatic o Changed circumstances o Administrability/clarity o Natural Law o International law/norms

II.

Judicial Power to Enforce the Constitution a. Invalidation of Federal Laws

Marbury v. Madison (1803) famous for establishing the principle of judicial review power of the federal courts to say what the law is, what the Constitution means, that an act of Congress is unconstitutional o It is emphatically the province and duty of the judiciary to say what the law is Article VI, cl. 2 = The Supremacy Clause supreme Law of the Land language S. Ct. opinions are binding on the states because of this clause o Court gives itself an enormous power in Marbury the power to invalidate the acts of coequal branches of government if they say its unconstitutional, Congress and the Executive cant do it! This system is not inevitable in Canada and must of continental Europe they have constitutions but dont give their courts this power Justice Marshall writes this opinion in a rhetoric that makes it sound inevitable o Pros and Cons of Judicial Review Major problem = its not democratic Justices are not elected also have life tenure (cant boot them out if you dont like what theyre doing) Separation of Powers issues give 1 branch the power to invalidate acts of coequal branches of government o The narrow holding of Marbury v. Madison is that Madison wins he does not have to deliver the writ of mandamus that Marbury wants However, in letting Madison win, Justice Marshall grabs a HUGE amount of power for the Court If theyd said that Madison had to deliver Marburys commission, Jefferson and Madison might have said no Court cant do anything to enforce its decisions J. Marshall doesnt order Madison to do it because he doesnt know if he would do it or not However, in the way Marshall crafts this opinion, gives Court this enormous power of judicial review o 2 big issues in Marbury were: Does the Court have the power to invalidate an act of Congress? Political question kind of issue can the Court meddle into the affairs of the other branches o Marshall in this opinion says, yes, we can tell a federal official what to do cant tell the Executive what to do when its within his own discretion, but when its this kind of case where theres no discretion and its ministerial, we can tell him to do it 2

However, were not going to tell him to do it in this case because we dont have jurisdiction

o Questions in the case as stated by C. J. Marshall: Has the applicant (Marbury) a right to the commission he demands? YES If he has a right to the commission, and the right has been violated, is there a remedy? YES Is he entitled to the remedy for which he applies (i.e., the writ of mandamus)? Is mandamus the appropriate remedy? YES its compelling an official to do a non-discretionary, ministerial act Does the Supreme Court have the power to grant the writ? NO! Court does not have jurisdiction in this case The Judiciary Act of 1789 gives the Court this power; Article III does not give the Court this power Conflict between Act of Congress and U.S. Constitution most important question for us looking at Marbury when Act of Congress in the Courts opinion conflicts with the Constitution, may the Court invalidate an Act of Congress? o Court ultimately says YES implies that the judiciary is the branch whose interpretation of the Constitution controls, because the Court can invalidate an Act of Congress o Though there are arguments that the Judiciary Act does or does not give the Court original jurisdiction here, a cannon of statutory construction says they will generally interpret it in the way that makes in Constitutional, not the way that makes it unconstitutional Marshall interprets the Judiciary Act as granting original jurisdiction in a mandamus case o However, Article III, 2, cl. 2 does not give the Supreme Court that power! Marshall says there are 2 spheres: original and appellate original jurisdiction is a ceiling, not a floor Congress cant grant jurisdiction beyond that o Marshalls reasons why an Act of Congress that is repugnant to the Constitution cannot stand: This is a written Constitution what would be the point of it if the legislature could just change it with an ordinary Act? argues that a written Constitution must inherently stand above acts of the legislature Supremacy Clause says Constitution and laws made pursuant thereto are supreme law of the land textual argument

Textual argument about the oath of judges they swear to uphold the Constitution however, this is a bit of a red herring, because the Executive and legislature takes this oath too Judicial Vesting Clause (Article III, 1) judicial power shall be vested in one supreme court doesnt make sense to do this and then not allow the Court to then look at that Constitution Prof. Seaman: this may not be entirely logical, but Marshall throws it in

o Why should the judiciary be empowered to review an Act by a coequal branch of government? A lot of the Founders seem to have assumed that there would be this function of judicial review talked about the judiciary being the least dangerous branch if someone has to be guarding the henhouse, better that it be the judiciary than the executive or the legislature Issues: No democratic check of judges But, the flip side is that judges arent subject to political lobbyists, etc. because theyre not elected dont have to worry about pleasing these groups Though the judges do have this great power, its tempered by the fact that they cant decide what questions come before them have to wait for someone else to bring the question before them S. Ct. has no power of enforcement (separation of powers no branch supposed to be able to act without at least 1 other branch agreeing with it) Judges are trained in the law and perhaps have an expertise in interpreting Text of Constitution and intent of Founders seem to indicate that this is what they wanted

o In Planned Parenthood v. Casey, Justice OConnor talked about when it is appropriate to overrule a precedent Court generally quicker to overrule an erroneous Constitutional decision than a statutory decision with a statutory decision, the legislature can change it with a Constitutional decision its going to sit there forever because it cant be changed by anyone but the Court Amendment process very difficult Certain types of blockbuster cases (e.g. Roe and Brown) become type of super-precedent have to be even more retrained and wary of overturning even if the Court thinks its wrong! These are cases resolving intense national controversies There is a reliance issue any time Court overrules a case they show their fallibility always delegitimizing Court in some way

 in these types of cases, would delegitimize it even further important that people dont just view Court as a political institution

b. Sources and Methods of Judicial Decisions c. Invalidation of State Laws

While Marbury v. Madison raised the issue of judicial review in the context of horizontal separation of powers, Martin v. Hunters Lessee (1816) is about the power between the federal government and the state governments o Homes quote: I do not think the U.S. would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states. o In Martin v. Hunters Lessee, the State of Virginia had taken land from British loyalists after the war and then gave it to Hunter who leased it to his lessee The King of England had given it to Lord Fairfax, who gave it to Denny Fairfax, who gave it to Philip Martin VA S. Ct. said that it took the land legitimately in an earlier decision, the S. Ct. overturned it and said the land properly belonged to Martin VA says it was not appropriate for the S. Ct. to review their decision VA S. Ct. acknowledges that Section 25 of the Judiciary Act gives the S. Ct. jurisdiction in this type of case someone is asserting their right under a treaty of the U.S. (Treaty of Amity, Commerce, & Navigation), and the decision is against the right of that person BUT says the S. Ct. cant reverse the decision of the states highest court Holding of Martin v. Hunters Lessee = Section 25 is Constitutional Congress is allowed to give the Supreme Court that kind of power over state rulings Reasoning: Supremacy Clause Justice Story (wrote the opinion, though many think Marshall helped (had recused himself)): Constitution was not a compact between the states the people made the Constitution, not the states o The people left some power to the states, but took some away gave federal government power to review actions of the states this is the answer to VAs sovereignty argument (basically, the states are not sovereign in that way)

VA claims that the Supreme Court may have jurisdiction over federal questions, but not when they come from state courts J. Story says no Constitution says all cases the cases, not the courts, give jurisdiction o If we didnt have this process of appellate review would be a bad idea to have different interpretations of the Constitution basically different Constitutions in different states

d. Limits on the Judicial Power Congressional Limits

In this country judicial review is substantive review (not procedural like in some other countries) very powerful judiciary 5 categories of justiciability limits: 1. Advisory Opinions S. Ct. cannot issue advisory opinions 2. Standing a. Injury must have sustained or be in immediate danger of sustaining some real injury (must be real and immediate) i. The must personally suffer the injury ii. Ideological interest not good enough (must be real) iii. Injury to Constitutional and statutory rights is enough b. Causality the injury must be traceable to the s allegedly illegal conduct c. Redressability the injury must be likely to be redressed by the requested relief d. 3rd party standing suing for the rights of another i. not generally allowed ii. allowed where the 3rd party is unlikely to be able to sue, if the advocate will effectively represent the interests of the 3rd party iii. overbreadth doctrine a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the 1st amendment rights of other parties not before the court iv. organizations can sue based on rights of their members 3. Ripeness a. Prevents review of cases where the injury is speculative and may never occur i. Overlaps with the injury requirement of standing b. Deals with when a party may seek review of a statute c. 2 considerations when dealing with ripeness:

i. The hardship to the parties of withholding court consideration ii. The fitness of the issues for judicial decision (fact based) 4. Mootness distinguish from standing a. An actual controversy must exist at all levels of the trial if the controversy is extinguished before appeals are exhausted, the quest becomes moot and the court will no longer hear it b. Exception: wrongs capable of repetition yet evading review i. Injury must be likely to happen to again ii. Must be of an inherently limited duration so it will always becomes moot before federal court litigation is completed 5. Political Question Doctrine a. With some allegations of unconstitutional government conduct, the court will leave constitutional interpretation in the area to politically accountable branches of government b. Standard: i. Does the Constitution commit the question to another branch of government? ii. Are there judicially manageable standards according to which the court might decide the case? iii. Is there a chance of embarrassing multi-various pronouncements among the branches of government? Question in this part of the course = what can Congress do to limit the jurisdiction of the court? 2 main things to look at: o Exceptions Clause Limits on Habeas Corpus/Suspension Clause Habeas corpus = release of the body to challenge detention saying that you are being detained/held unlawfully Relevant Constitutional text in deciding what Congress can do if it wants to take habeas corpus away from the S. Ct.: o The Exceptions Clause Art. III, 2, cl. 2 . . . In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. o The Suspension Clause Art. I, 9, cl 2. 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. o The Judicial Vesting Clause Art. III, 1

Ex Parte McCardle (1869) Habeas Corpus Act of 1867 expands to include ability to issue writ to someone who is being held by a state in violation of federal law (previously just if being held by U.S.) also provided for appeal from lower federal courts to S. Ct. McCardle was an unreconstructed white southerner being held by federal authorities so, its covered by the original Judiciary Act o Also jurisdiction under this new 1867 Act provides for the jurisdiction that exists under the Judiciary Act Says hes being held under authority of the Reconstruction Act, and that the Reconstruction Act is unconstitutional o His habeas corpus petition is questioning the whole scheme o Claim denied by lower federal court, so he appeals to the S. Ct. based on the 1867 act o After the case is argued, but before it is decided, Congress enacts the Repealer Act repealed the part of the act that gave jurisdiction to the S. Ct. for appeals of habeas corpus o Court says that it cannot proceed with the case b/c it doesnt have jurisdiction Repealer Act was Constitutional, so the Court doesnt have jurisdiction Source of appellate jurisdiction of S. Ct. is Article III (like source of original jurisdiction) Constitution says this is subject to the exceptions Congress makes o Longstanding S. Ct. precedent Court understands the affirmative grant by Congress in the Judiciary Act as a NEGATIVE (exception) of all appellate power not granted Everything not granted by Congress in the judiciary acts is assumed to be taken away/excepted by Congress o So, Court looks to the affirmative congressional grant to determine its appellate jurisdiction Scope of Congresss exceptions power plenary or bounded? Textual argument that the power is plenary (Congress could take away all appellate jurisdiction from the S. Ct. if they wanted to) there is no limitation in the language of the Exceptions Clause (with such Exceptions . . . as the Congress shall make) There is also an argument that despite the broad language of the Exceptions Clause, the Suspension Clause imposes a limit seems to put a limitation on the legislative power to suspend the writ o Scalia (in INS v. St. Cyr) says that suspension has no substantive content it just says if there is a writ of habeas corpus, it cant be suspended Suspension Clause doesnt guarantee a writ of habeas corpus

Structural (separation of powers) argument if Executive could detain people indefinitely and there was no power of the Judiciary to review the habeas petitions, you are taking away a check leaving Executive with too much power Another text argument is based on the Judicial Vesting Clause Congress cant completely take away power because it says . . . shall be vested in one supreme Court

o Court says in INS v. St. Cyr (2001) that if Congress were to completely take away the jurisdiction in this case, it would give rise to substantial Constitutional questions (if Congress were to remove jurisdiction of Courts to decide a pure question of law like this (whether Executive detention is appropriate)) SO, Court is going to require a clear statement from Congress that this is what theyre doing Court will not reach out and say that Congress was taking away habeas jurisdiction o What is Congress allowed to do to legislatively reverse federal judicial decisions? Miller v. French (2000) Statute at issue is Prison Litigation Reform Act of 1995 (PLRA) Court has previously issued injunctions saying that prison conditions violate 8th Amendment Congress doesnt like the Court exercising this control PLRA says that when you have these ongoing injunctions, you have to show that they satisfy certain conditions or else theyre no longer valid o Constitutional challenge PLRA violates separation of powers Congress is coming in and changing a federal court decision Congressional act that stays the injunction is the legislature trying to do a Court function o Already established: Congress cannot reverse a final judgment of the federal courts (Hayburns Case; Plaut) Congress cannot direct the outcome of cases pending in the federal courts/cannot specify a rule of decision (Klein) Congress CAN alter the law prospectively, obligating courts with ongoing injunctions to comply o Court here decides that these injunctions are not final judgments they are prospective, and Congress can change the law

Judicial Power

Source: Art. III

Extent & Nature

Limits

Congressional Limits Review Constitutionality of Acts of Congress (Marbury v. Madison) Justiciability Limits Review Acts of States And Decisions of State Courts for Constitutionality (Martin v. Hunters Lessee) Case or Controversy (Art. III & Prudential) Political Questions (SOP & Prudential)

III. The Distribution of National Powers a. Framework; Executive Power Domestic & Foreign Affairs
Formalist approach = there are 3 separate branches executive, legislative, judicial and they dont overlap they have separate functions (imagine 3 rectangles side by side) Functionalist approach = overlapping (imagine 3 overlapping circles) main function of separation of powers was to prevent against tyranny by preventing the concentration of power in 1 branch as long as were not seeing this, its OK look to the dangers the separation of powers was designed to prevent Framework for understanding the distribution of national powers between the legislative and executive branches = Youngstown Sheet & Tube Co. v. Sawyer (1952) o Situation context is undeclared war time, and the President seizes the steel mills o Justice Blacks opinion for the Court is formalistic President has the power if its (1) in the Constitution, or (2) given by direction of Congress Black says this looks, feels and functions like legislation Government argues that President has this power under the Constitution as the commander in chief Black responds that this is not commanding the Army and Navy this is completely domestic

10

Black says you cant make something that wasnt Constitutional become Constitutional just because others have done it

o Justice Jacksons concurrence is functionalist/pragmatic The Framers laid out these various functions and separations, but they were also envisioning a working government as it starts working, it has to figure out how to navigate specific concrete problems Jacksons 3 categories: Category 1 if Pres. acts pursuant to an express or implied authorization of Congress he enjoys Art. II authority PLUS all the power Congress can delegate powers are BIG Category 2 if Congress is silent, there is a twilight zone of concurrent presidential Art. II power o Will depend on context and circumstances cant really answer these questions in advance Category 3 if Pres. acts contrary to the express or implied will of Congress, his power is at a minimum o Only way exec. power can be upheld in this category is if there is some inherent power that Congress does not have the power to take away (e.g., if Congress tried to take away the veto power) Jackson and Frankfurter say that Youngstown falls into category 3 Taft-Hartley Act is applicable Congress thought about this, and did not put it in Taft-Hartley Act specifically rejected adding it in amendments its as close to explicit rejection as you can get without putting it in the language of the statute so, Congress implicitly disapproved of this type of executive action

Limitations on Congresss ability to delegate power to the President Clinton v. City of New York (1998) o Consider in relation to this case should these separation of powers issues between Congress and the President be left to those 2 branches to work out? Should the judiciary be involved? o Relevant Constitutional text here was Presentment Clause Art I, 7, cl. 2 Line Item Veto Act was passed pursuant to procedures laid out in Presentment Clause argument was that what the statute allows the President to do is unconstitutional President is making law, and this is Congresss job formalist argument powers do not overlap J. Kennedy says even though the branches agree to do this, we cannot allow it

11

Rule of law here: The provisions allowing cancellations in the Line Item Veto Act are unconstitutional because it gives the President unilateral authority to change the text of duly enacted statutes, and thus violates Article I, 7 of the Constitution.

Power of the President in Foreign Affairs

United States v. Curtiss-Wright (1936) President has must greater power over foreign affairs than domestic affairs this is necessary for the country to speak with one voice about foreign policy o President has broad authority to conduct foreign affairs o fundamental difference in the role of government in foreign affairs and domestic affairs federal government has both constitutional and inherent authority to conduct foreign affairs as it sees fit o In order to achieve the United States' foreign policy aims, the President is better able than Congress to judge conditions that exist in foreign nations and is afforded substantial discretion and wide latitude in those decisions. o The argument here was that the President was doing something legislative, and further that Congress cannot delegate this kind of legislative power to the President formalist argument that the President cant do this o This would fall into Category 1 of Justice Jacksons Youngstown categories Congress is trying to give the power if its unconstitutional, its because Congress cant delegate this kind of power o The foreign affairs angle is KEY in this case natural law/inherent power to conduct foreign affairs this does not violate the Constitution Dames & Moore v. Regan, Secretary of the Treasury (1981) President has the power to enter into executive agreements with foreign nations, which are basically treaties that dont need Congressional approval especially when Congress has authorized his ability to do so Rehnquist places this in Category 1 of Jacksons Youngstown categories Rehnquist finding implicit Congressional approval, so the President is at the height of his power o Congress was actually silent looks to the IEEPA (International Emergency Economic Powers Act) Congress had made policy in this area, but it did not specifically authority the President to do this (enter into agreement where U.S. terminates all legal proceedings against Iran in the U.S. and transfers them to this special Iran claims tribunal, and in exchange, Iran lets the hostages go) BUT, this shed light on the fact that Congress WOULD approve this Gave President power to deal with property of foreign nations in time of national emergency

12

b. Executive Privilege and Immunity

United States v. Nixon (1974) Court addresses 3 questions: o Who decides the constitutionality of executive privilege the President or the Court (i.e., is the case justiciable)? The President says its a political question (for the Executive to decide, not the Court) if the Court decided this, it would be a violation of separation of powers But, recall Marbury its the province of the Court to decide what the law is Court pretty quickly dismisses the argument that the case is not justiciable o Is there a constitutional executive privilege to withhold executive branch communications? Yes Court finds that the privilege flows out of the Constitution, but its not explicitly in the text Separation of Powers in very structure of Constitution and division or powers among coequal branches, Court finds the privilege Reasoning: President needs to have free and open and candid advice from his officials o If there is a privilege, is it absolute or qualified? Qualified there is a balancing test to determine whether executive privilege applies in the particular case weigh the Presidents interest in confidentiality (e.g., military, national security, diplomatic concerns) against the value of the material to the criminal justice system/ public interest in administration of justice Clinton v. Jones (1997) President says he has a Constitutional immunity from process while hes in office not saying he should be immune completely from this suit (for private behavior before he was in office) he wants it postponed until after he is in office Court: theres no such temporary immunity granted by the Constitution There could be prudential immunity in certain cases, but not here Summary o Privilege for Presidential communications Constitutional flows out of separation of powers

13

Not absolute, but qualified there is a role for the judiciary, which has to do with balancing Balancing comes out differently in criminal vs. civil context

o Immunity President has broad immunity from prosecution/civil suits for official acts done while in office Sitting Presidents are subject to process for acts done before entering office no temporary immunity (i.e., no constitutional right to a stay) Discretion in appropriate cases to order a stay prudential immunity is possible

c. Legislative Authority Domestic & Foreign Affairs

Prior to the New Deal (mid-1930s) there was a doctrine that basically said Congress cannot delegate legislative power very formalistic o Non-delegation doctrine is now dead Congress can very broadly delegate legislative authority o If non-delegation doctrine did exist, Congress would either have to leave things unregulated, or would have to make very specific rules, which they dont have time to do (agencies now do this) The Legislative Veto INS v. Chadha (1983)

The Different Approaches in Chadha

Constitutionality of legislative veto Unconstitutional Reasoning/Approach (formalism v. functionalism) Formalist: action was legislative and did not conform to Art. I, 7 (Presentment Clause_ Functionalist: action is adjudicatory and raises the danger of unchecked power Functionalist: legislative veto serves to check executive power and preserve balance

C.J. Burger for the Court

Unconstitutional J. Powell, concurring in the judgment J. White, dissenting Constitutional

Majority opinion saying that this action is legislative, and if its legislative, it has to be done by the Congress in the specific way the Constitution describes 14

Congressional power to remove (executive) officials Bowsher v. Synar (1986) o Relevant Constitutional text in Bowsher = Art II, 2, Cl. 2 The Appointments Clause

Bowsher v. Synar
Constitutionality Balanced Budget Act and actions of C.G. C.J. Burger for the Court Unconstitutional Reasoning/Approach (formalism v. functionalism) Formalist: Congress may not vest executive authority in a legislative official Congress may not delegate legislative authority to agent and thus avoid bicameralism and presentment requirements Functionalist: no danger of aggrandizement of congressional power

Unconstitutional J. Stevens, concurring in the judgment

J. White, dissenting

Constitutional

Formalist type argument there are legislative and executive function we sort the functions into the appropriate categories here the comptroller general is not doing the appropriate functions allocated to the appropriate branch, so its unconstitutional o Bottom line in Bowsher Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion. o Congress has to make the law and pass it along thats where Congresss authority stops

Morrison v. Olson (1988) o The Ethics in Government Act allows for the appointment of an "Independent Counsel" by a special court, upon the recommendation of the Attorney General purpose is to investigate and if necessary, prosecute government officials for certain violations of federal criminal laws o Relevant Constitutional text here is Art. II, 2, Cl. 2 The Appointments Clause

15

If this independent counsel is an officer, must be appointed by the President with approval of the Senate independent counsel was not appointed in this way, so we need to know if shes an officer or an inferior office o Court says shes an inferior officer Attorney General can fire for good cause; limited tenure in office; limited jurisdiction Scalias dissent says this is crazy shes not an inferior officer not subordinate in the sense the Framers would have understood it also, this person can investigate the President, is hard to remove, and does not in fact have limited jurisdiction except in a semantic sense complete control and authority over the case theyre given o Court holds: no inherent incongruity in a court having the power to appoint prosecutorial officers Appointments Clause seems to clearly give Congress the power to vest the appointment of an executive official in the "courts of Law." Thus, Congress is authorized to make "interbranch appointments."

d. Congress, President, Court, & War

Has often been said during wartime law is silent Rehnquist has said that during wartime law is not silent but it speaks much more softly Relevant Constitutional test: o Art. I, 8, Cl. 11 The Congress shall have Power . . . To declare War, . . . and make Rules concerning Captures on Land and Water o Art. I., 8, Cl. 12 To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years o Art. I, 8, Cl. 13 To provide and maintain a Navy o Art. I, 8, Cl. 14 To make Rules for the Government and Regulation of the land and naval Forces o Art. II, 2, Cl. 1 The President shall be Commander in Chief of the Army and Navy of the United States Under Constitution, dont know what formality is required for declaration of war o War Powers Resolution was attempt by Congress to assert its power, define what Pres. can do with and w/out a formal declaration from Congress passed over Nixons veto o Every Pres. has said its unconstitutional and refused to follow it always a lawsuit saying the Pres. is acting unconstitutionally by not following this statute enacted by Congress every court has said NO b/c they dont have jurisdiction b/c its a political question case Constitutionality of the War Powers Resolution very unlikely to ever be decided by the Court

16

o What can Congress do about the Pres. refusing to follow? Cut off funding or impeach the Pres., but otherwise his plan goes forward have seen this recently in Iraq B/c the Court is not going to tell us whether War Powers Act is Constitutional, its an academic exercise for us to debate it o Argument that Congress can declare the war, fund the war, and make some rules about punishment of offenses and such but Congress does NOT have the power to WAGE war formalist argument that its a violation of separation of power for Congress to try to retain this power o Functionalist argument that it would be dangerous to give Congress this much power over conducting a war o Argument that this kind of action undermines the Pres.s authority, creates conflict b/t our branches of government during wartime Many issues w/ Courts decision in Ex Parte Quirin o Basically knew Roosevelt was going to execute these prisoners no matter what executed 3 months before S. Ct. issued this decision saying it was Constitutional o Has been criticized, but is still law o Court looks at jurisdiction and says it has jurisdiction see the same thing in Hamdan not saying this is a political question o Pres.s decisions in wartime not to be set aside by courts w/out clear conviction that they are in conflict w/ the Constitution or laws of Congress constitutionally enacted unless we have clear statement to the contrary, going to assume Pres. has this power in time of war o Argument for the Pres. would be based on commander in chief, precedent & history In Hamdan v. Rumsfeld issue whether military commission are constitutional or not o Court basically says that Pres. could do this if Congress gave him the power, but they didnt give him the power, so he cant do it in this case Commander in Chief power in Constitution alone doesnt give him power to do this o Court looks at UCMJ and AUMF to see if Congress has authorize Pres. to try these people by military tribunal and says no o Implications that this would come out differently if there were really an emergency lots of talk in the decision about how theres not an exigency o Majority puts this in Youngstown category 3 Congress has specifically disallowed it, so Pres. can ONLY do it if he has inherent power putting it in Category 3 creates a presumption against authorization Dissent would put it in Category 1 broad authorization of AUMF

17

o After this case, Congress enacted Military Commissions Act, which clearly gives Pres. power to do this Hamdan brings a habeas petition saying this new act is unconstitutional and it gets dismissed from district ct. b/c the Act took away jurisdiction Originally S. Ct. had said that Detainee Treatment Act did not remove jurisdiction looked to St. Cyr saying were going to interpret the statute not to remove jurisdiction b/c if it did, it would present a very important Constitutional issue, and we interpret statutes not to do that

Separation/Balance of Powers
Presidents inherent powers U.S. v. Curtiss-Wright Presidents power to do things that are legislative Youngstown
Clinton v. New York

Congresss power to veto executive action under a statute

INS v. Chadha

Presidents ability to shield his actions from judicial review U.S. v. Nixon
Clinton v. Jones Cheney v. U.S. Dist. Ct.

Congresss power to authorize President to do things that are legislative Domestic Affairs Youngstown Clinton v. New York Foreign Affairs - Curtiss-Wright [Dames & Moore]

Congress power to remove executive officials/ to invest legislative officials with executive power
Bowsher v. Synar

Congresss power to limit the Presidents removal power over executive officials
Morrison v Olson

Congresss power to limit Presidents war powers

War Powers Resolution

18

IV. The Powers of Congress a. Basic Framework: The Necessary & Proper Clause
Limits: Rights; 10th A/federalism Powers of National Government under Constitution

Powers of Congress Art. I N & P Clause

SOP

Powers of Executive Art. II

Powers of Court Art. III

Enforce 14th Amendment 5

Congress delegates power to Exec. Congress tries to retain control over Exec.

Commerce

Declare War; raise and support armies; Create inferior courts; make exceptions to appellate jurisdiction of Supreme Court; Tax & Spend, etc.

McCollough v. Maryland the ends justify the means o Interpreting the Constitution is different b/t its a Constitution and cant lay things out in so much detail as a statute o Congress may use any means not specifically prohibited by the Constitution to reach its Constitutional ends i.e., if the end is Constitutional, Congress can use any means NOT plainly unconstitutional to reach them

b. Commerce Clause Power: Classical & New Deal Views

1800 1890 very expansive interpretation of commerce clause power, exemplified by J. Marshall in Gibbons v. Ogden 1890 1937 conservative, laissez-faire Court strikes down federal and state economic legislation

19

o Uses 10th Amendment as a substantive limit on what Congress can do idea of a zone of sovereignty reserved to the states that Congress could not invade 1937 1995 return to expansive interpretation of Congresss power no federal laws invalidated 1995 present some question marks here Court find some limits on federal power under Commerce Clause & other provisions (new federalism) Relevant Constitutional Text: o Art. I, 8, Cl. 3 Commerce Clause Power The Congress shall have the power To regulate Commerce . . . among the several States . . . . o 10th Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Can look at 10th Amendment as a truism (e.g., either its raining outside or its not) if the power is given to Congress, its given; if its not given, its not given doesnt say what is given Could make a textualist argument that the text is clear as a truism Could also argue that this understanding would make 10th A superfluous Court generally doesnt interpret parts of the Constitution as superfluous so, it has to mean something Could look at it as somewhere in between signaling the way the enumerated powers should be understood we are only giving you what we specifically give you more limited understanding Could also look at 10th Amendment as a substantive limit on Congressional power it is reserving something to the states new federalism view certain zones of authority are reserved for the states

Gibbons v. Ogden (1824) = THE foundational Commerce Clause case every case still cites to it! o State of NY had given exclusive license to operate steamboats in NY waters to Fulton & Livingston their licensee was Ogden Ogden sues when Gibbons starts operating a competing ferry service Congress has enacted legislation licensing steamships gives Gibbons license to operate steamships in the same place as Ogden has his monopoly o First case addressing scope of CC power Marshall says text doesnt tell us how to interpret this power, so look to the reasons it was given construes commerce very broadly includes all commercial intercourse Pragmatic/self-evident argument this power wouldnt make much sense otherwise Framers wouldnt have given Congress such a useless power has to include things that are intrinsically bound up in buying & selling 20

Look at the foreign commerce power everyone understands that of course Congress can regulate navigation and shipping in this area its part of the same clause as interstate commerce so, of course Congress can also do this w/ regard to interstate commerce Power over commerce, including navigation, was 1 of the main objects for which the American people adopted their government Articles of Confederation lead to chaos in commerce keep in mind Framers intent

What does among the several states mean? Marshall says it means intermingled with means it can go w/in the states Analogy to foreign commerce doesnt make any sense if it has to stop at the borders of the U.S. the ports have to be w/in a state, but were not going to say that Congress cant regulate the ports

o Any limit to Congresss powers as defined by Marshall? Perhaps if the commerce is just w/in a state commerce which is completely internal and doesnt extend to or affect other states Famous statement: The power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution sees 10th A as a truism no generalized limit recognized in this case Very important theme in Con Law (and in CC cases) = what is the appropriate level of deference to the Congress? o In this case if Congress decides it needs to regulate navigation, and its reasonable for Congress to do this, were going to let Congress do it and leave it to the people to regulate it through the representative government New Deal Era (1937) 1995 also see broad interpretation of Congresss power, deference to Congress o Wickard v. Filburn (1942) Congress coming on to Filburns farm and saying you cannot grow this wheat to be consumed entirely on the farm o Court overrules pre-New Deal cases that said commerce didnt include production and consumption commerce includes all of this o What does among the several states mean? Court rejects direct or indirect distinction this is formalistic, and we need to be pragmatic look at whether it has an effect outside the state Can include a purely local activity which has even an indirect effect on interstate commerce

21

In this case, if people are growing their own excess wheat to feed their families, they dont need to go into the national market to buy wheat this will affect the price looking at the aggregate effect if all the Filburns of the national grow their own wheat for their own families

o Heart of Atlanta Motel, Inc. v. United States (1964) basically, Civil Rights Act said no discrimination in motels for transient guests based on race enacted under Congresss CC power b/c where power to enforce 14th A would not reach b/c there is no state action, theyre going to reach it under CC power Ct. goes through lengthy discussion of why Civil Rights cases dont apply here Ct. recognizes there was a moral reasoning for what Congress was doing here says moral part of it is irrelevant o TEST = is there a substantial effect on interstate commerce? Purely local activities can be regulated if there is this substantial effect on interstate commerce In this case, people are less likely to travel they dont go spend money were looking at the aggregate effect, which were allowed to do under Wickard v. Filburn o Court defers to Congresss judgment if Congress has a rational basis for finding this effect on interstate commerce, were going to defer to that o In companion case to Heart of Atlanta, Ct. says CC power reaches a restaurant serving local clientele restaurant buys 50% of its supplies from out of state aggregating effects of all restaurants that do this = effect on interstate commerce

c. Commerce Clause Power: Modern Limitation; Other Article I Powers

In United States v. Lopez (1995) majority = more states right, looking for limitations on Congresss power; dissent = more traditional, very broad understanding of Congresss CC powers o 5 4 split on the Court o Statute at issue is Gun-Free School Zones Act federal offense to possess firearm at a place you know is a school zone Court strikes this down as not w/in the CC power o Rehnquist starts w/ first principles Federal government one of enumerated powers Federalism balance of powers b/t federal government and states, which Framers did to reduce risk of tyranny from either branch

22

o Begins w/ Gibbons v. Ogden even though hes going to cut back on it always start here Even Gibbons said limitations on the commerce power are inherent in the very language of the commerce clause Language saying that enumeration itself presume there is something held back (has to be something youre not enumerating) o From history from Gibbons to Lopez, Rehnquist lays out 3 broad categories of activity that Congress may regulate under commerce power: 1. use of channels of interstate commerce the way things move from state to state 2. instrumentalities of interstate commerce vehicles that go on the channels and the things theyre carrying state to state (people, things) 3. Activities that have a substantial relation to interstate commerce this is where all the action is 1st 2 categories not controversial o Analysis occurs in 3rd category you can always come up w/ some way in which any local activity affects interstate commerce how does Court draw a line? Government makes arguments here about costs of violent crime being imposed on population through insurance, violent crime reduces willingness of people to travel (cf. Heart of Atlanta), threat to education will produce less productive citizenry and thus adverse effect on nations well-being admittedly attenuated Neither statute nor legislative history has any express findings here Court not saying Congress has to put this in there, but it would help looks like something more than rational basis Congress cant use this methodology of piling inference upon inference Court requires something more o How does Lopez Court define commerce? Commerce has to be economic activity/commercial activity not just anything that touches on something that touches on something economic has to be economic itself In this case, preventing someone from possessing a gun in not commerce in any sense of the word Also, not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated (this could save a product like wheat under Lopez opinion) o How does it define among the states? Has to be a substantial effect some quantitative measure not just any effect on interstate commerce

23

This statute does not contain any jurisdictional hook if Congress had said in the statute that it was only regulating guns that had passed through interstate commerce, that would be a jurisdictional element

o Possible determinative factors in Lopez (not really clear) Federalism has to be some limit, or there will be nothing Congress cant regulate and we wont be in a federalist system anymore Economic vs. non-economic activity note: this sounds like the pre-1937 formalistic categories that were criticized in Wickard v. Filburn Jurisdictional hook Express congressional findings of substantial effect on interstate commerce Traditional area of state concern (Kennedy concurrence) o Dissent (Souter and Breyer) precedent makes clear that Court should defer to Congress Congress is the institution that should decide what substantially impacts interstate commerce, not the Court United States v. Morrison (2000) shift saying that 10th A is no longer just a truism actually imposes some limit on what Congress can do cant invade certain areas of State authority o 5 4 decision holding part of the Violence Against Women Act unconstitutional Court looks at factors from Lopez (get a little more clarity here): Economic activity VA Tech woman wants to sue her rapists under the Act here the activity being regulated here is tortious or criminal, not economic Caveat: Ct. not saying theres no conceivable non-economic activity Congress could regulate could be some local activity that would have a substantial effect when aggregated implication that Court cant think of what this would be Jurisdictional element not present here either if it were, would let us know the specific activity regulated has some significant relation to interstate commerce Congressional findings hundreds of pages of them here! Basically Court doesnt buy it NOT rational basis not deferring to Congresss judgment Ct. saying you cant use this attenuated inference upon inference analysis to find effect on interstate commerce this is exactly what we said you couldnt do in Lopez! Directness of link to effect on interstate commerce

24

o Souter dissent again, precedent says rational basis, and the Court is not doing this Also, Ct. drawing those pre-1937 distinctions, economic v. non-economic, direct v. indirect didnt work then, bad idea now Founders did not intend that Court would operate as external check enforcing balance b/t federal govt and states political process does this o Breyer should Court enforce the separation b/t states and federal govt when they both want it this way? 38 states supported this legislation Sounds like other separation of powers arguments should Court enforce separation b/t executive and Congress when both branches want it that way? Gonzales v. Raich (2005) does it clarify what the Court will and wont allow Congress to do under CC power? o Some say this case really doesnt tell us anything b/c it was an easy case even majority basically says its Wickard v. Filburn applied to an illegal market in marijuana o Majority here revisits the wording of deference to Congress Congress does not have to make express findings Majority accepts rational basis test pretty broad level of deference o Court seems to accept economic v. non-economic distinction but defines economic broadly production, distribution, and consumption o Also focus on fact that this is part of a larger framework of regulating/managing illegal drug trade not allowing the regulation would undermine this

Other Article I Powers Taxing and Spending Powers Art. I, 8, cl. 1 The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. o 16th A added onto this by giving a federal income tax Congress has a LOT of $ at its disposal o If Congress can get the states to do what it wants by using its spending powers, it has a huge amount of power o So, if Congress could not directly do something under Article I enumerated powers, could it get the states to do it indirectly by using its spending powers? o South Dakota v. Dole (1987) Rehnquist gives general restrictions on what Congress can do w/ its spending powers: Text must be in pursuit of the general Welfare good for the country people decide this defer to Congress b/c the people elect Congress Congress decides how to pursue general Welfare If Congress desires to condition States receipt of federal funds, must do so unambiguously so States will know

25

Conditions could be illegitimate if unrelated to federal interest in particular national projects or programs nexus requirement some relation to national program Congress is trying to further Other constitutional provisions may provide an independent bar to the conditional grant of federal funds Ct. says this means Congress cant ask State to either give up its federal funds or do something thats unconstitutional

o In South Dakota v. Dole what Congress was doing in withholding highway funds if drinking age was under 21 did not reach the level of being coercive this is crucial question Treaty Power Art. II, 2, Cl. 2 The President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided 2/3 of the Senators present concur . . . . o Missouri v. Holland 10th A and federalism principles do not place external limits on treaty power Pres. can enter into treaties that might be seen to invade the sovereignty of the States o Court wont rule on things like should Senate have to ratify executive agreements like NAFTA, can Pres. rescind a treaty w/out approval of Senate political question Summary thus far:

Is an Act of Congress Constitutional? a. Does Congress have the power? Potential sources of power: Commerce Clause common, but if you find it, articulate it! Taxing or Spending Power make South Dakota v. Dole argument Treaty or War Power more narrow power will be obvious if this is going on Some other Art. I, 8 power look at list Enforcement clauses of Reconstruction Amendments b. If Congress does have the power, is Congress prohibited by the Constitution from doing this? Violates Separation of Powers Violates Federalism/10th A Violates individual rights

26

d. Federalism Limits on Article I Powers the Tenth Amendment

- 2 views of the 10th Amendment:
T enth A endm m ent : T pow not delegated to the he ers U nited States by the C onstitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People. First view : T enth A endm is a truism it has no m ent ; substantive content but is sim a rem ply inder that if pow is not delegated it is reserved. er Second view : Tenth A endm reserves a zone of m ent authority to the States; it is an affirm ative lim on it C ongress enum erated pow ers.

Under 1st view its a tautology under 2nd view, it has substantive power With cases in this section which view is the Court adopting? o If its the 2nd, how is the Court going to define these limits? How do we decide what is quintessentially local, something that the states should do? Justice Blackmun switching sides is why Garcia overrules Natl League of Cities saying he thought there was a way to draw this line, but now its unworkable o Big question in these cases = is this the last gasp of states rights (just a token nod to the idea of federalism) OR is it something thats going to pre-stage a return to a broader view of states rights?

In the years before Garcia, as CC is being expansively interpreted, at the same time the 10th A is seen as a truism o In periods where you see the Court limiting the CC, you see the broad interpretation of the 10th A as having substantive power

27

In Natl League of Cities, Ct. held that Congress cannot enforce Fair Labor Standards Act against the states in areas of traditional government functions o 10th A reserves to the states power over the wages and hours of its own employees who are working in areas of traditional state government o In Garcia, Ct. overrules Natl League of Cities and returns to their usual view of the 10th Amendment Garcia v. San Antonio Metropolitan Transit Authority focus is on 3rd part of test from Natl League of Cities, which said state exempted from generally applicable fed. statute if state compliance w/ this federal regulatory scheme would impair states abilities to structure integral operations in areas of traditional governmental functions o How do we define what is a traditional govt function? In Garcia, J. Blackmun switches over and says this test is not workable Lower courts cant figure out how to apply this History wont work cant hold States to what they did 200 years ago also violates federalism b/c it doesnt allow people to say what they want their states to be doing Alternative to historical approach is functional also unworkable no way to understand what would be a uniquely local activity o So, overrule Natl League of Cities not going to decide whats a local issue leave this to the political entities o Courts view of the 10th A there are limits on what Congress can do these limits come from the political process itself Pretty much reads 10th A out of the Constitution as any kind of enforceable limit political issue that the judiciary has no role in answering o After Garcia, back to pretty close to the 1st view of the 10th A if its not the 1st view, its a 2nd view w/ no teeth b/c the Court is not going to do anything to enforce it

New York v. United States (1992) federal Low Level Radioactive Waste Policy Amendments Act of 1985 struck down Congress may not coerce the states to regulate in a certain way o Congresss CC power would reach the regulation of low level radioactive waste o This statute doesnt regulate it directly forces the states to regulate in a certain way makes the states the regulatory arms of the federal government

28

Permitted
Federal Government State Government

Not Permitted
Federal Government

State Government

The People

The People

o Federal government is not permitted under the 10th A to commandeer the States o Congress can encourage, under its spending power or otherwise, the States to do this, but it cant coerce sounds like South Dakota v. Dole Here Congress went beyond encouraging telling the States they had to do 1 of 2 things, both of which were unconstitutional crosses the line into coercing Printz v. United States (1997) is similar to New York, but goes a step further Congress cant commandeer the state, but even more, you cant try and get state executive officials to help you carry out the regulatory scheme cant commandeer the state officials

e. Federalism Limits on Article I Powers The Eleventh Amendment

11th A Judicial Power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subject of any Foreign State

29

Two Views of the Eleventh Amendment:

it is a complete restriction on subject matter jurisdiction of the federal courts that bars all suits against a state by a private citizen it only restricts federal court jurisdiction in diversity cases, not in federal question cases

In early case, Chisholm v. Georgia, a SC citizen sued GA trying to recover money this person lent GA during Revolutionary War 4 of 5 opinions in this case said Constitution allows this kind of suit no sovereign immunity where Constitution gives federal jurisdiction o Uproar following this w/in days they have all drafted and begun to ratify 11th A to reverse Chisholm v. Georgia Broad, non-textual view of 11th A adopted in Hans v. Louisiana Amendment did more than reverse Chisholm designed to incorporate pre-existing principle of state sovereign immunity that was already there larger principle that state may not be sued w/out its consent AT ALL Cases in this section consider to what extent can Congress abrogate state sovereign immunity? Seminole Tribe of Florida v. Florida Ct. adopts view of 11th A that is a broad textualist view that Congress is not allowed at all to force state to defend itself in court Alden v. Maine idea that the states were sovereign before Constitution was ratified they kept ALL of that sovereignty except what they gave up by ratifying the Constitution expansive view of 11th A and sovereign immunity

30

V.

Judicial Protection of Interstate Commerce a. The Dormant Commerce Clause Origins; Discrimination Against and Burdens on Commerce

Looking at an area where Congress hasnt regulated Court still says states cant do certain things under Dormant Commerce Clause even when Congress hasnt acted o Here, if Congress disagrees and wants to let the state do something, Congress can just legislatively say so will overrule the constitutional decision of S. Ct. RARE that Congress has power to do this reasoning is that Court is basically protecting Congresss sphere when it invalidates a state law under DCC DCC does not come specifically from text of Constitution, Court has said it doesnt come from 14th A it is implied by the affirmative grant of Commerce Clause power to Congress Early on, idea was that Congress had exclusive power to regulate interstate commerce any time states try to do this, its invalid o Distinction b/t things that were tying to regulate health & safety (police powers) and things that were trying to regulate commerce turns out to be unworkable Willson v. The Black Bird Creek March Company is an illustration of the old approach Ct. trying to figure out if state by building a dam is trying to exercise its police power (this was OK, even though it impacts interstate commerce) or trying to regulate interstate commerce o Court moves toward look at intent and effect of the law States sometimes allowed to do things that impact interstate commerce Court balances how much does it affect interstate commerce, and how strong are the states interests?

Modern Dormant Commerce Clause Doctrine o Test for laws that discriminate b/t in-staters and out-of-staters (Phila v. NJ; Granholm v. Heald) o Test for laws that are neutral but that burden interstate commerce (Kassel v. Consolidated Freightways) o In modern cases Court is doing a balancing test weigh benefit of the state law (how strong is states interest) against the cost, which is the burden on interstate commerce o When court finds discriminatory, protectionist laws, there is a strong presumption that law is invalid almost per se invalid State has to show an extremely strong reason that it cant go any other way to get a discriminatory law validated

31

o When its a neutral law that doesnt treat in state and out of state interests differently, but it has an incidental burdening effect on interstate commerce, Ct. applies flexible balancing test almost always upheld

Basic principles and framework (from Philadelphia v. New Jersey)

Congress has the commerce power, but there are many areas Congress could regulate but does not regulate Where Congress does not regulate, the States are free to regulate so long as they act within the restraints imposed by the Commerce Clause itself The bounds of these restraints are not in the text of the CC, but they have emerged in the Courts opinions in order to give effect to the basic purpose of the CC, which is the economic unity of the Nation Therefore: Where a state law effects simple economic protectionism, there is a virtually per se rule of invalidity But, where there is no patent discrimination and the state law credibly advances legislative objectives, the Court applies a flexible approach

o For state laws that discriminate (facially or in purpose or effect) strong presumption that they are invalid under DCC narrow exceptions (e.g., quarantine cases) o For state laws that do not discriminate law will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits In Philadelphia v. New Jersey, Ct. says law discriminates on its face treating PA garbage differently than NJ garbage per se invalidity even if it doesnt seem unfair, this law discriminates on its face In Granholm v. Heald, MI trying to restrict imports of out of state wine if I live in MI I can order wine from a MI winery for my wine store, but I cant order wine from a CA winery o Discriminatory on its face treating out of state wine different o So, virtually per se invalidity test applies majority says 21st A does not take this out of DCC applies test of almost per se invalidity State interest must be really, really strong and no other way state can further this interest in order to pass this level of scrutiny State says its interest is to protect against underage drinking Ct. says this law doesnt really further that interest other ways the state could do this if there are others ways of doing it, law is invalid

32

In Kassel v. Consolidated Freightways law is facially neutral (Iowa says trucks of certain length cant drive on its highways) burdens interstate commerce though o Regulating highways is traditionally local concern Ct. reluctant to invalidate statutes that regulate highways Normally in this kind of case would defer to state legislature Applying flexible balancing test that normally would keep law valid o BUT, Ct. invalidates the law Ct. looks at what it thinks are the safety benefits, not what the legislature thinks though Ct. usually 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 State's safety justifications appear illusory; and where local regulation places a disproportionate burden of its statutory scheme on out-of-state interests o Rehnquist dissent basically says this is not for Courts to decide legislature decides the safety interest, Ct. supposed to defer

In Carbone v. Town of Clarkston, challenged local law = municipalitys flow control ordinance requires that all solid waste in the town be processed at a particular facility before being sent out of town o Doesnt appear to be facially discriminatory treats all garbage the same o However, majority basically says any kind of ordinance that puts a barrier at the border and either keeps stuff in or keeps stuff out is going to be facially discriminatory per se invalid unless municipality can demonstrate under rigorous scrutiny that it has no other means to advance a legitimate local interest o Ct. applies test of rigorous scrutiny almost per se invalidity if there are nondiscriminatory alternatives, ordinance not going to pass strict scrutiny Town could say that everyone must process trash in a certain way further environmental interest, but not the interest in keeping this processing plant viable Town could have directly built the facility, owned it itself, and taxed the townspeople to support it Town could have subsidized the private facility w/out barring competition o OConnor would invalidate this law under balancing test, not per se invalidity says this ordinance is discriminating against everyone, creating a monopoly not protectionist Local interest is a financial interest in keeping the facility viable its important, but there are other things town could do to support this that would be less burdensome on commerce

33

Burdens on commerce are too high if every other town did this, it would stop flow of trash completely cuts states off from each other, stop commerce from flowing

o Does it stop something at the borders = formalist reasoning Souter dissent would look at the reason and whether thats protectionist more functionalist

b. The Market Participant Exception; State Privileges & Immunities

Sometimes, even though being protectionist, states allowed to favor their own interest: o Where Congress says the States can o Market Participant Exception If state is acting as a market participant, not a regulator, it can do what private actors in the market can do discriminate, make decisions about with whom theyre going to deal S. Ct. cases recognizing market participant exception before Wunnicke: o Hughes v. Alexandria Scrap Corp. (1976) upheld MD law under which State bought abandoned cars for scrap and had more lenient terms for in-state cars OK b/c state is buying up the scrap itself o Reeves v. State (1980) upheld SD program under which a state-owned cement company charged less to in-state purchasers o White v. Massachusetts Council of Constr. Employers (1983) upheld Boston city ordinance that required construction projects financed by the city to employ a min. of 50% city residents Boston is acting as a market participant spending its own and its citizens money allowed to favor its own citizens South-Central Timber Development v. Wunnicke finding the limit of the market participant exception here o Timber coming off state land state trying to require that it be processed w/in the state sound like market participant state selling its own timber o But, this isnt w/in market participant exception Ct. says Alaska isnt just imposing conditions of the sale imposing conditions after the sale going beyond what market participant exception allows also, defining the market narrowly Alaska is participant in market for sale of timber, but not for processing can only restrict in the narrowly defined market in which you are participating o 3 important factors distinguish Wunnicke from Reeves: Wunnicke = restraint on foreign commerce most timber shipping overseas this is even worse than restraint on interstate commerce Wunnicke involves natural resource when its just a restriction on a pure natural resource, less likely that market participant exception will apply

34

Here we are talking about downstream restriction in Reeves just the sale

o Since market participant doctrine doesnt apply, must apply DCC test Here it blocks the flow of goods at the state border formalistic whenever youre blocking at the border, its protectionist apply virtually per se invalid rule State Privileges and Immunities Art. IV, 2, Cl. 1 The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the Several States. o Basic Rule = state may discriminate against out-of-stater w/ regard to constitutional right or earning livelihood ONLY IF necessary to achieve a substantial governmental interest Intermediate scrutiny substantial or important interest as opposed to compelling, which indicates strict scrutiny o Almost all claims under this Clause have been triggered by ability to earn a livelihood United Building and Construction Trades Council v. City of Camden (1984) state/local law = Camden municipal ordinance that required that at least 40% of employees of contractors and subcontractors working on city construction projects be Camden residents o Sounds like the White case, but in White the Court doesnt do any balancing why difference? This case is based not Privileges and Immunities Clause, not DCC There is no market participant exception to P & I Clause o 2-step inquiry: Does the ordinance burden one of those privileges and immunities protected by the clause? If so, is there a substantial reason for the discrimination, and does the degree of discrimination bear a close relation to that reason? o Only out-of-staters have a challenge under P & I Clause Under DCC an in-state resident could challenge anyone harmed by the law can challenge it Dissent says that the ability of the person in Trenton (burden just as much as out-of-staters) to vote against this law providence a check o Majority just b/c its a municipal ordinance doesnt mean it doesnt raise a problem under P & I Clause

35

Rehnquist says this would give states a way to evade P & I Clause just divide into region, allow each to prefer its own residents, and agree not to challenge that o Dont know how this case came out settled on remand teaches us that municipal ordinances can violate P & I clause, shows us 2-part test, some factors Ct. will look at

Dormant Commerce Clause

Congress can reverse Court decisions Protects corporations and individuals Applies to goods and services Covers discrimination and burdening of interstate commerce

Privileges and Immunities Clause

Congress cannot reverse Court decisions Protects only individuals Applies to people Covers discrimination with respect to fundamental privileges and immunities (fundamental rights or ability to earn a livelihood) Discriminatory regulations subject to intermediate scrutiny

Discriminatory regulations subject to strict scrutiny

VI. Individual Rights Basic Concepts a. Origins of the Reconstruction Amendments

13th, 14th, and 15th Amendments adopted in aftermath of Civil War 14th Amendment radical restructuring of the power of the federal government vis--vis the states o 1 All persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S. and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 1st sentence designed to specifically overrule the first holding of Dred Scott salve, descendants, persons of African descent could not be U.S. citizens

36

2nd clause of 2nd sentence = 14th A due process clause (there is also 1 in the 5th A)

Dred Scott v. Sandford (1856) used as an anti-precedent almost universally recognized as the worst decision in history of U.S. S. Ct. holding are no longer good law, but we look at the techniques the Ct. used to interpret the Constitution o Every Justice wrote an opinion Taneys is most famous o Holdings: Scott not a U.S. citizen cannot invoke federal diversity jurisdiction Taney interprets citizen based on what he thinks was the intent of the Framers Missouri Compromise declared unconstitutional mooted after the Civil War o Court looks at Declaration of Independence all men are created equal the great Framers could not have been hypocrites they owned slaves when they said all men they didnt really mean all men they meant all free white men

After Dred Scott: o 1863 Emancipation Proclamation o 1865 13th A adopted outlaws slavery and involuntary servitude unless punishment for a crime o 1868 14th A adopted Overrules 1st holding in Dred Scott 2, Cl. 1 Federal Privileges and Immunities Clause 2, Cl. 2 Due Process 2, Cl. 3 Equal Protection o 1870 15th A adopted o 1875 Civil Rights Act prohibits discrimination in public accommodations o 1883 S. Ct. invalidates Civil Rights Act of 1875 in Civil Rights Cases

b. State Action and the Fourteenth Amendment

14th Amendment restricts the states b/c of the doctrine of incorporation, Bill of Rights protections also apply against state governments Due Process clause of 14th As life, liberty or property language has been interpreted to include the provisions of the Bill of Rights Both Equal Protection and Due Process apply against all government 5th A, through reverse incorporation, has been interpreted to include a doctrine of equal protection In The Civil Rights Cases, Court says a law saying that all persons shall be entitled to full and equal enjoyment of inns, amusement parks, RR cars, etc. is outside the scope of power granted to Congress by the 14th A

37

o When determining if an act of Congress is constitutional, we ask: Does Congress have the power? If it does, is there something else that would prohibit the action? o Potential sources of congressional power to enact this law: 13th and 14th A 13th A, 2 holding says Congress has power to outlaw slavery and enforce provisions against the badges of slavery, but no power to prohibit private discrimination Later overruled Congress can create a cause of action for conspiracies by private persons to violate civil rights th 14 A state action holding = private discrimination not reached by the 14th A Still good law Morrison cites it as good precedent 14th A 5 holding = under enforcement power, Congress cannot prohibit any discrimination not covered by 1 since 1 only includes state discrimination, and this behavior is private Congress cannot enforce Still good law based on Morrison and Heart of Atlanta

o J. Harlans dissent slavery rests on a theory of inferiority and stigma any private conduct that reenacts that theory is a badge/incident of slavery, and so Congress should be able to reach it via the 13th A Harlan suggests that Congress could pass the law under its commerce clause power 1964 Congress reenacted the law under its CC power Heart of Atlanta didnt overrule Civil Rights Cases, but instead distinguished them saying it was irrelevant b/c Civil Rights Act of 1964 was passed under CC power rather than 14th A power Exceptions to State Action Requirement In exceptions, it a private entity looks/acts like the government, its more likely to be subject to the state action doctrine: o Government entanglement exception if government affirmatively authorizes, facilitates or encourages unconstitutional conduct, then Constitution may apply Shelley v. Kraemer, Edmonson, Brentwood Academy Shelley v. Kraemer The courts enforcing a racially discriminatory restrictive covenant held to be state action case raises interesting questions about whether that makes everything state action, whether there are limitations Can limit by making distinction that actual seller/buyer did not want to discriminate here 3rd party was stepping in to enforce the covenant and discriminate

38

Doesnt have the broad reach that it might have

Edmonson v. Leesville Concrete Co. a civil litigant using a peremptory challenge to excuse jurors based on race is state action

o Public function exception if a private entity performs a task that traditionally (exclusively) was done by the government, then the Constitution may apply Edmonson Classic case = Marsh v. Alabama private corp. owned whole town and attempted to prohibit Jehovahs Witnesses from passing out literature Ct. says private corp. was performing govt function, so it couldnt do that Ct. does not stick to same framework in all state action cases o In Edmonson, there is a 2 prong test: Whether the claimed Constitutional deprivation comes from something that the State allows Whether the private party could fairly be described as a private actor factors to consider: Extent to which the actor relies on govt assistance and benefits entanglement exception Whether the actor is performing a traditional govt function govt/public function exception Whether the injury is aggravated in a unique way by the incidents of govt authority part of entanglement exception

o In Brentwood Academy v. Tennessee Secondary School Athletic Association Ct. injects further uncertainty w/ language about pervasive entwinement is this a new exception? Is it just sloppy language referring to entanglement? we dont really know Ct. lays out 6 factors to look at in deciding whether there is state action: The conduct in question results from the states coercive power State provides significant encouragement, either overt or covert Private actor is a willful joined participant w/ the state or its agents (sounds like entanglement) A nominally private entity is actually controlled w/ an agent of the state A private entity has been delegated a public function The private entity is entwined w/ govt policies or the govt is entwined w/ its control Deshaney v. Winnebago County Dept. of Social Services Deshaney beaten by his father over time, eventually results in coma followed by lifelong severe mental retardation DSS suspected child abuse Due Process Clause provides no affirmative right to governmental aide. It is meant to protect individuals from state actors not other individuals 39

o Ct. says state is not liable for failure to act o If Deshaney had been a ward of the state, would have been an affirmative duty to act

c. Federal Privileges or Immunities

Federal Privileges or Immunities Clause in 14th A (recall, state P & I clause in Art. IV) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. 1st S. Ct. interpretation was in The Slaughterhouse Cases important b/c it held that the Privileges or Immunities Clause of the 14th A does not give Congress the power to assure that the states will protect individual liberties o Ct. says that the privileges and immunities protected under 14th A are national ones right of protection of govt on high seas, in a foreign territory, right to engage in govt, etc. o Decision renders the Privileges or Immunities Clause a nullity defining privileges and immunities of U.S. citizens based on what already existed before 14th A Note: looks analogous to Carbone flow control ordinance (here saying all animals must be slaughtered at this one place and a fee must be paid) analyzing this under DCC, it discriminates against interstate commerce and would probably fail strict scrutiny test o Holding followed for over a century Privileges or Immunities Clause only protects this very narrow category of privileges and immunities of U.S. citizens that, by the way, were already protected Possible revival of Privileges or Immunities Clause in Saenz v. Roe o CA state law said if you have lived in CA less than a year, you are entitled to different welfare benefits discriminating among CA citizens on the basis of how long someone has lived in the state o Ct. talks about 3 components of the right to travel: Right of a citizen of one State to enter, leave and pass through other states Right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in a second State (i.e., right to be treated same as in-staters w/ respect to P & I of state citizenship Art. IV) Right of newly arrived citizens to the same privileges and immunities enjoyed by other citizens of the same state this is whats at issue here o State interested in saving money here, but Ct. says state could do that in other ways, not a close enough means-ends fit (whether or not somebody really needs the $ doesnt depend on how long theyve lived there), irrelevant that people have lived

40

there longer and contributed more to the state, also not legitimate to try to deter indigent people from moving to the state o Ct. strikes down the requirement o After Saenz v. Roe we dont really know how far outside the facts of that specific case this holding will apply is this an anomaly? Were they just trying to protect this 1 specific right? State P & I Clause (Art. IV) applies when state is treating out of staters differently from in staters o Intermediate scrutiny Fed. Privileges or Immunities Clause (14th A) applies when state is treating its citizens differently based on how long theyre been there o Strict scrutiny

VII. Individual Rights Substantive Due Process

Due Process Clauses o 5th Amendment No person shall . . . be deprived of life, liberty, or property, without due process of law. o 14th Amendment nor shall any state deprive any person of life, liberty, or property, without due process of law Can see the procedural part cant take something away w/out giving you whatever process is due o Procedural due process = what are the procedures govt has to follow before it can deprive a person of life, liberty, or property? Substantive due process protection is harder to find o Substantive due process = does the govt have a good enough reason for taking away your life, liberty, or property? a.

Economic Substantive Due Process: Lochner, Its Demise, and Revival?

The Lochner era = 1887 1937 o In this period, S. Ct. was striking down federal legislation as being beyond Congresss CC power During Lochner era, Ct. struck down over 200 state laws as unconstitutional limits on economic liberty o 3 important aspects of Lochner era decisions: The liberty of the DP clause protect substantive rights, especially freedom of contract 41

The State may only infringe these rights for certain purposes police purposes, which include only protecting the public health, safety & welfare Even if the State articulates a permissible police purpose, it may only infringe these rights if necessary to achieve the purpose Some kind of heightened scrutiny not deferring to States

In Lochner v. New York, NY has enacted a max. hours law for bakers Lochner, a bakery owner, is challenging it doesnt want to let bakers work only 60 hrs. per week o State says its purpose is to protect the bakers Says bakers dont have the bargaining power to protect themselves issues of education and sophistication; surplus of bakers, so take-it-or-leaveit basis of employment o Ct. says part of liberty interest protected by DP clause is freedom of contract runs throughout the cases in this period Ct. is creating this by just filling in vague word liberty with whatever rights it sees fit o So, State can only infringe this protected liberty interest when acting to achieve a valid police purpose State says its to protect the health of the bakers Ct. says the bakers can protect themselves not like miners, minors, women this is just paternalism not letting the bakers make their own decisions Ct. also makes slippery slope point if State can do this, what can they not do? Ct. also says that equalizing the bargaining power does NOT count as a legitimate state purpose o Heightened scrutiny NO deference to state legislatures Ct. saying they will decide whether this is really compelling, and they dont think it is o Even if there is a permissible state purpose, the law has to be necessary to achieve the particular purpose Looks like strict scrutiny state cant just show this would be a rational way to further this interest has to show its close to the only way to further this interest o Ct. reviewing state law under what we would now call substantive due process does state have a good enough reason to infringe on this protected right?

In West Coast Hotel Co. v. Parrish (1937) Ct. turned from Lochner and started a new era in the Ct. o Law at issue = Minimum Wages for Women o In Lochner, Ct. said that correcting imbalances b/t employers and employees is not a proper exercise of State police power

42

In West Coast Hotel Co. v. Parrish State is trying to prevent employers from exploiting workers so, is State allowed to correct defects in bargaining power? YES This has now become a legitimate State interest Taking a step back from State interest, Ct. says the liberty protected by the DP Clause does NOT include freedom of contract Taking away very premise of Lochner era legislature given broad discretion to regulate in this area b/c its not protected by DP Clause of 14th A In Lochner era Ct. applied higher level of scrutiny to state laws that interfered w/ freedom of contract Here Ct. doesnt do that rational basis test if legislatures decision about regulating relationship b/t employers and employees isnt arbitrary and capricious

o So, back to the basic presumption that States can do anything and we look to see if theres something that prohibits it rational basis review deference to State legislature State Farm v. Campbell (2003) possible partial rebirth of economic substantive due process o Ct. using DP Clause to protect a liberty that feels like an economic liberty for the 1st time in a long time o Uses substantive DP saying the substance of the award of punitive damages is too much no way State could impose this violates right of the defendant o Scalia and Thomas dissent theres no language in the text of the Constitution that says a State cant do this Part of broader view you cant find non-textual, un-enumerated rights in the Constitution cant find these things protected through liberty part of DP Clause Test for whether a particular right is part of the liberty protected by the DP clause o Ct. protecting what we now think of as right to personal autonomy o Ct. asks if right is fundamental if its fundamental, its part of liberty, and it gets heightened scrutiny almost always strict scrutiny, except for abortion If its not a fundamental right, then it gets rational basis review o Most enduring statement of the test from Cardozo in Palko fundamental rights are 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 Written in 1937 and still endures cited in Glucksberg Very vague doesnt tell us that much still, do we think this is a really important right?

43

The Levels of Scrutiny under the EP and DP Clauses usually said to have come from most famous footnote in Con Law footnote 4 from United States v. Carolene Products an equal protection case: o Ct. said usually were going to defer to Congress do what we now call rational basis review o Footnote certain situations where that kind of deference would not be appropriate, and we need to scrutinize law more carefully: Where the legislation is within a specific prohibition of the Constitution burdens a right protected by the Constitution this is substantive due process if law burdens a fundamental right, we will apply heightened scrutiny Where the legislation was a type which restricts the political process such that the normal political process way of fixing the law might not work Where the legislation is directed at a discrete and insular minority FAMOUS this is where you get heightened scrutiny of EP Clause

b. Personal Rights & Privacy

Background to origins of unenumerated rights before Griswold: o Meyer v. Nebraska (1923) right of parents to make decisions regarding the upbringing of their children Ct. struck down under DP Clause a statute that prohibited teaching in any language other than English in the public schools o Pierce v. Society of Sisters (1925) right to make parenting decisions regarding upbringing of children Ct. struck down under DP Clause a state law that required children to attend public schools o Skinner v. Oklahoma (1942) right to procreate Ct. struck down a forced sterilization law under the EP Clause You could be sterilized for committing larceny 3 times, but not embezzlement Ct. said this is arbitrary Did this under EP instead of DP b/c Lochner era had just ended and Ct. doesnt want to be doing substantive due process In Griswold v. Connecticut there is a criminal law statute in CT prohibiting all use of contraception and aiding and abetting suit brought by doctors being prosecuted o If the drs. are prosecuted, they have standing to challenge whether the underlying criminal prosecution is constitutional o Holding = law is unconstitutional o Justice Douglas for the Court says that hes using the 14th A to protect the enumerated rights less controversial way to frame it he looks to the Bill of Rights and saying theyre not making up a new right, sitting as super-legislature, doing Lochner-like stuff Stretch word privacy isnt in the 1st 8 amendments Says theres a penumbra 1st, 3rd, 4th, 5th, and 9th As Certain rights in the Constitution have penumbras where we have to protect a little outside the right to protect the right itself 44

Douglas goes from specific rights theyre about privacy extrapolates out, and then dives back in and says were going to protect this marital sexual intimacy

o What is the right being protected in Griswold? Most general way to say it = right to privacy More specific right of family planning decisions to be left to married couples Even more specific right of married couples to obtain contraceptives The more specifically you define it, the less applicable it is to other cases Most specific way married couples have right to be free from police intrusion into their bedroom o What are other ways of grounding this right of privacy? Penumbra thing doesnt stick J. Goldberg looks at 9th A doesnt help us figure out how the Ct. determines which rights are fundamental says that marriage rights and rights w/in the marriage are on a similar order and magnitude as other rights in the Bill of Rights; therefore, marriage rights are fundamental J. Harlan looks only at the 14th A not afraid of Lochnerism takes a similar approach as Cardozo history and tradition of the people

c. Abortion
Roe v. Wade state law at issue = TX law that made it a crime to procure an abortion as therein defined, or to attempt one, except w/ respect to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother o Only exception for saving life of mother no distinction b/t pre-viability and post-viability o 2 questions raised: Does the state ban on abortion implicate a fundamental right that therefore gets some kind of heightened scrutiny? Even if so, has the state sufficiently justified the intrusion? o Constitution protects general right of privacy through 14th A DP Clause Ct. finds that it includes this right to decide whether to terminate a pregnancy o So, this right is protected, but its not absolute Right must be considered against important state interests in regulation Ct. articulate strict scrutiny test regulation can be justified only by a compelling state interest and law must be narrowly drawn to express only the legitimate state interests at stake State interest in ensuring that abortions are performed in a safe way, health of the mother legitimate state interest There is a point at which this becomes compelling point at which the risk of abortion is greater than risk of carrying child to term

45

once that point is passed, state can regulate procedure to extent that it reasonable relates to preservation of maternal health End of 1st trimester Other state interest = interest in potential life compelling at point of viability

o So, before end of 1st trimester, state cant do anything this holding does not survive Casey Planned Parenthood v. Casey (1992) does away w/ trimester framework from Roe makes test the same throughout up until point of viability undue burden test o Under Casey the woman does not have the same fundamental right as under Roe joint opinion may say its fundamental, but theyre applying this new test (not strict scrutiny like for fundamental rights) saying state may not unduly burden the right very mushy test Informed consent and 24 hour waiting period NOT an undue burden giving truthful information can never be an undue burden also, no right to abortion on demand 24 hour waiting period is OK Spousal notification IS an undue burden Parental consent NOT an undue burden Stenberg v. Carhart (2000) Nebraska prohibition of partial birth abortion except where necessary to save the life of the mother o Application of undue burden test o This statute is broad enough to cover both D & E and D & X abortions o Court says that this statute doesnt contain an exception to preserve the health of the mother o Also, places an undue burden on womans right to choose a D & E procedure, which is very common at a certain stage of pregnancy this may mean she cant choose an abortion at all o Court strikes down Nebraskas partial birth abortion ban Gonzales v. Carhart (2007) o Statute very similar to the Nebraska statute invalidated in Stenberg explicit challenge to the Court and to give the new Court a case to re-evaluate Roe v. Wade o Differences Court picks out purports to be not overruling Stenberg, but its extremely divergent This statute is different Stenberg statute was overbroad and vague wasnt clear that it did not apply to the D&E procedure (as opposed to D&X or in tact D&E) if it covered D&E it would impose an undue burden on the women fails the Casey undue burden case In this case, Court finds the statute sufficiently clear plaintiffs said it was unclear just like the last one Court says no this just covers intact D&E, does not cover D&E

46

So, Court reaffirms Casey in very ambiguous terms its inviting more challenges to Roe v. Wade applying Casey, is this an undue burden? o Court says NO it only prohibits this one kind of procedure leaves open other alternatives doesnt ban D&E therefore, not an undue burden This statute, like the Nebraska one, does not contain an exception for the health of the mother this was a big basis for invalidating the law in Stenberg Court here says thats not a reason to invalidate because theres no clear medical determination (doing the opposite of Stenberg, which said it hasnt been proved that this is never required for the health of the mother) this whole part of the opinion is different from what we saw in the past basically rational basis very deferential

o Words that Kennedy uses talks about abortion doctors, killing babies, preference to do this because its convenient adopts a lot of the rhetoric of the pro-life movement in this opinion goes out of his way to show how gruesome it is emotional testimony about how the fetus reacts Justice Ginsburg pulls out this language in her dissent Casey said that state has a compelling interest in protecting and affirming the potentiality of life in the fetus in this case the Court focuses on this 3rd state interest Ginsburg says this is not about saving any fetus life this is about a moral concern why he goes out of his way to describe how gruesome it is points to a moral concern alone being a compelling state interest Kennedy also describes the procedure that is still allowed in very gruesome terms difficult to see a moral difference? keeps saying in this case . . . Seaman thinks theyre setting it up for a challenge as to the other type of abortion too

d. Family and Marriage

General Due Process Framework 1. Define the liberty interest at stake 2. Ask whether that interest is fundamental under DP Clause of 14th Amendment How do you do this? o Various ways history, text, precedent, etc. 3. Ask whether the govt action infringes the interest 47

4. If the right is fundamental and the govt action infringes, apply strict scrutiny whether the state has a compelling interest whether the regulation is narrowly tailored to further the interest o Are there other ways to effectuate this interest? 5. If the interest is not fundamental, apply rational basis scrutiny whether the govt has a legitimate interest whether there regulation is rationally related to the interest 6. Note special case of abortion: undue burden test In Michael H. case we see tension b/t Brennan and Scalia as to level of abstraction at which to examine the right and the history/tradition of the Nation o CA statute saying conclusive presumption that a child born in wedlock is the child of the husband and wife o Scalia says guy is asserting the interest of a natural father of a child that was adulterously conceived great level of specificity Looks to history/tradition in a very narrow way this specific interest was not protected at the found, so its not protected under DP Clause o Brennan says you should examine tradition at a more general level of abstraction parenthood liberty interest this was fundamental at the founding Liberty to make choices concerning family living arrangements: Moore v. City of East Cleveland o Housing ordinances limits to single family and specifically delineates what a family would be prohibits grandmother living w/ 2 grandsons who are cousins o Precedent Belle Terre Ct. applied regular rational basis test, and found that there was a rational basis City had an interest in protecting against noise, traffic, nuisance created by fraternity house Belle Terre dealing w/ unrelated individuals o In Moore Ct. is doing a more heightened form of review so, must distinguish Belle Terre Belle Terre didnt involve a fundamental right just a bunch of unrelated people Here the grandmother and grandson have a family interest ordinance is slicing deeply into the family itself o Interests in family are fundamental history and tradition, precedent Of course, Ct. not suggesting that all choices someone makes in this context are fundamental so have to decide what falls w/in this category

48

o Ct. saying at least the specific interest in Moore is protected a family that looks like a grandmother living w/ 2 grandsons who are cousins but have been living as a family their whole lives o Ct. applies a heightened scrutiny but doesnt call it strict scrutiny State has a legitimate interest, but the means arent narrowly tailored to achieve that some fundamental interest is involved here, so heightened scrutiny Zablocki v. Redhail (1978) WI statute said you cant get married if you have an unfulfilled child support obligation unless you get a court order o Zablockis not being a deadbeat dad hes just indigent and cant pay child support so, he just cant get married under this statute o Ct. established a fundamental interest in freedom to marry Makes historical arguments, and precedent from Loving v. Virginia mainly relies on precedent, no one really disputes that right to marry is protected under Constitution o Ct. also says that not every regulation of the right to marry is going to be subjected to strict scrutiny once we decide something is fundamental, have to ask if state regulation is an infringement Matters to Ct. that this is completely barring someone from marrying if its a complete bar, or approaching a complete bar, for some people, then Ct. subject it to strict scrutiny when it interferes substantially and directly w/ the right to marry o This law fails b/c it isnt narrowly tailored there is an important state interest in preventing child from becoming ward of the state but, in this case law isnt doing that its just preventing the father from getting married, its not giving any $ to the children Troxel v. Granville (2000) WA law permits any person to petition a court for visitation and authorizes ct. to grant is whenever it may serve the best interest of the child o On its face, the statute just lets the judge balance what he thinks would be a better decision no deference to opinion of a fit parent o Lots of liberty interests we could look at here (e.g., grandparents, children, best interest of the child that ct. was supposedly enforcing) S. Ct. focuses on liberty interest of the mom interest of parents in the care, custody and control of their kids her liberty to rear her children as she sees fit is being infringed Ct. gets this from DP Clause, heavily precedent based o Ct. says this statute is breathtakingly broad allows anyone to come in and ask for visitation o Also, parents decision gets no deference no allegation here that shes unfit o Application of statute contravenes presumption that a fit parent will act in the childs best interest

49

o This doesnt really look like strict scrutiny looks like kind of a mushy balancing test No real discussion of state interest besides saying theres an interest in the welfare of children Case doesnt mention Moore, but they seem inconsistent looking at defining the family, Ct. focuses on parent-child here invalidates the statute as applied in this grandparent situation

e. Sexual Intimacy and Same-Sex Marriage

Lawrence v. Texas (2003) explicitly overrules Bowers case that came from GA where Ct. upheld GA criminal sodomy statute that statute wasnt same-sex specific applied to sodomy by everyone Ct. in Bowers held that right to privacy does NOT protect the right to engage in private, consensual homosexual activity In Lawrence distinction b/t majority opinion by Kennedy, deciding this as substantive DP case, and concurrence by OConnor, deciding based on EP Clause o Kennedy wants to make it clear that were talking about an important liberty interest, NOT just a suspect classification He protects a private right of sexual autonomy, but also a lot of language about dignity dignity of all persons regardless of their sexual orientation Intimate consensual sexual conduct = part of the liberty protected by substantive DP o Very broad language about liberty in this case

f. Right to Die
Right to refuse medical treatment Cruzan v. Director, Missouri Dept of Health at issue is a Missouri rule of decision that requires clear and convincing evidence of incompetents wishes before withdrawal of treatment permitted o Court frames the question as whether the Constitution forbids the establishment of this procedural requirement by the state State courts dont only require clear and convincing evidence skew the decision against withdrawal of treatment by saying only certain kinds of evidence are allowed actual statements by the person about their wishes setting a very high bar person had to actually make these statements to someone o Where does the court find this due process right? Law and tradition strong common law position that someone forcing medical treatment on you is a battery precedent would also encompass refusal of medical treatment by a competent person, including refusal of food and water

50

o Court says that whether respondents constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests Mushy balancing test that doesnt really sound like strict scrutiny or rational basis In Glucksberg Ct. clarifies and says NO BALANCING, but Cruzan looks more like a sliding scale test o Court assumes the Constitutional right of a competent person to refuse lifesaving hydration and nutrition o Next question can the State require proof of the wish of the person by clear and convincing evidence? State interests: protection and preservation of human life legitimate State interest, according to Ct. Ct. says that when competent person wants to refuse hydration and nutrition, state doesnt have to remain neutral can try to make it more likely that the person will choose to live unclear exactly what the State can do can do some things, but cant restrict the right completely Other state interest here is to guard against potential abuses make sure this really is what the person would have wanted this interest is furthered by the heightened evidentiary standards o Holding = MO requirement is Constitutional Ct. doesnt specifically say what level of scrutiny its applying just says this is a permissible way of advancing these 2 state interests o Ct. also says they dont think the DP Clause requires allowing the next of kin to substitute their judgment where the incompetent didnt express an interest by clear and convincing evidence At least somewhat in tension w/ Troxel parents liberty interest in making certain decisions for care and upbringing of their children of course, Nancy Cruzan isnt a minor but, State here is assuming parents are not acting in her best interest opposite presumption noted in Troxel

51

Permissibility of State advancing its moral views

E.g., Casey, Cruzan, Lawrence Three general approaches:
entirely permissible for State to do this through law (e.g. Scalia, Thomas, Rehnquist) impermissible for State to advance a moral agenda in the face of conflict with individual fundamental liberty interests (e.g. Brennan, Marshall, Blackmun) middle position: State has legitimate interests rooted in morality, but also accepts unenumerated individual fundamental rights can trump these State interests (balancing approach, e.g. undue burden standard) (e.g. OConnor)

Right to commit suicide/physician-assisted suicide Washington v. Glucksberg o Case cited as the most recent statement of the substantive due process analysis TURN HERE 1st TO FIGURE OUT THE TEST FOR A SUBSTANTIVE DP CASE Lawrence was decided after this, doesnt really do what Glucksberg said it should do unsure of what Lawrence did w/ Glucksberg o Glucksberg framework important when doing substantive DP analysis! Court identified 2 steps to DP analysis: 1. Look to Nations history and legal traditions and practice protect those rights that objectively are deeply rooted in this Nations history and tradition 2. Require a careful description of the asserted fundamental liberty interest Majority defines the relevant right in Glucksberg as a right to assisted suicide o Dissent is more broad, talking about right to control ones body or right to die w/ dignity makes it easier to find in history and precedent o If you define it broadly, like dissent, you can probably find it if you define it more narrowly like majority, cant find it o By requiring a careful description of the fundamental right, Ct. going more Scalia way than Brennan way defining more narrowly

***If you have a fundamental liberty interest, then you have to have a compelling interest on part of State, and State interest has to be narrowly tailored to further that interest definitive statement of THE LAW TODAY!***

52

If NO fundamental interest, Ct. makes very clear that it only gets rational basis review o Were not balancing either its fundamental and gets strict scrutiny, or its not and gets rational basis review Ct. here says there is no fundamental right you can have a liberty interest w/out it being a fundamental interest under DP Clause o State interest in preserving human life, protecting integrity and ethics of medical profession, protecting vulnerable groups, etc. legitimate State interest easily passes rational basis review means is related to furthering these State interests Methodology of defining the interest in a very specific way makes it harder to make analogies from precedent wont apply if its not the exact same case Lately Ct. saying (except for Lawrence which breaks trend) we wont find new fundamental rights o See lower cts. applying Glucksberg saying we have to narrowly define the right like 11th Cir. case from AL nothing in our history says theres a fundamental right to sex toys

VIII.

Individual Rights Equal Protection a. Equal Protection of the Laws: Introduction & Race Discrimination

Levels of Scrutiny o Racial/national origin classification = subject to strict scrutiny (compelling interest + narrowly tailored) o Gender classifications require intermediate scrutiny (important/substantial interest + closely related) o All others require rational basis review (legitimate interest + reasonably related) Includes sexual orientation (rational basis with bite) Types of Discriminatory Laws o Law on its face discriminates based on race (Strauder, Korematsu) o Law on its face refers to race, but treats groups the same (Plessy, Brown, Loving) o Law is facially neutral as to race, but is applied to discriminate (Yick Wo) o Law is facially neutral and has disparate impact upon racial minority (Washington) o Law is facially neutral and does not have disparate effects by race, but was enacted w/ discriminatory purpose Plessy v. Ferguson (1896) separate but equal RR cars Plessy refuses to leave allwhite car

53

o 14th A provides political equality, but not social equality or commingling Ct. says purpose of EPC was to require formal equality everyone treated the same but not forced integration o Harlans dissent says this law is stigmatizing says its common sense this law isnt really about equal separation its about inferiority and superiority Majority says its only stigmatizing and only raises this implication of inferiority if people choose to put that on it if you want to understand it that way, thats your problem its not on the face of the law, and were not going to interpret it that way for EPC purposes o Harlan makes slippery slope argument if this is OK, what isnt? Can state force whites and blacks to walk on different sides of the street? Segregate on basis of hair color? Majority says exercise of police powers have to be reasonable those arent reasonable, but this is o Harlan dissent famous for saying the Constitution is color blind and that this case would come to be seen as equal to Dred Scott for its wrongness he was right about this in small group of decisions seen as worst in Ct. history o Decision in Plessy = separate but equal IS Constitutional

Brown v. Board of Education (1954) short and unanimous opinion Separate facilities in public primary and secondary education could never be equal o Does this overrule Plessy v. Ferguson? not completely if anything just overruling one application only applies on its face to education Education essential to full citizenship in our society maybe case just talking about schools Idea of educated voters Possibly narrowed in order to get the unanimous opinion that C.J. Warren thought was so important o After this in series of per curiam opinions, Court invalidates all the other Jim Crow laws Strauder v. West Virginia (1879) (colored) indicted for murder, convicted and sentenced WV state laws said no black man was eligible to be members of a jury o Can all persons of color be excluded by law, simply b/c of their race, from sitting on jury? NO unconstitutional o Look at history/original purpose of 14th A and Reconstruction As foreseeable that blacks would be discriminated against As to assure blacks enjoyment of all civil rights enjoyed by whites o Words of 14th A are prohibitory, but contain necessary implication of a positive immunity exemption from unfriendly legislation, legal discrimination, implied inferiority, etc.

54

Yick Wo v. Hopkins (1886) CA statute that you cant operate laundry service in San Fran w/out consent from board of supervisors unless housed in a building or bring or stone to protect public against dangers of fire o Statute is unconstitutional board given discretion based on their mere will o Statute applied w/ a mind so unequal and oppressive as to amount to denial of EP by State though fair on its face, if applied unequally, denial of equal justice still w/in prohibition of Constitution Petitioners comply w/ requirements, but still denied permission no reason given 200 Chinese denied, yet 80 non-Chinese allowed Korematsu v. United States (1944) one example where discriminatory law upheld after strict scrutiny o Congressional statute said any violation in military area contrary to order of commander guilty of misdemeanor and fined $5K or imprisoned 1 year or both o Japanese force to move to Relocation Centers petitioner knowingly and willfully violated the order o Legal restrictions against single racial group immediately suspect subject to most rigid scrutiny pressing public necessity may sometimes justify o Was not beyond power of Congress/Executive to exclude Japanese from West Coast as they did definite and close relationship to prevention of espionage and sabotage hardships imposed on Japanese are recognized, but part of war o Not an attempt at racial prejudice attempt to curb real military dangers Loving v. Virginia (1967) case about VAs antimiscegenation statute o Holding about level of scrutiny any statute that takes account of race/notices race will be subject to STRICT SCRUTINY ALL LAWS THAT NOTICE RACE GET STRICT SCRUTINY Doesnt always mean fatal in fact o Bad purpose alone is not enough to invalidate a law if theres a racial classification plus a bad purpose, law is going to fail strict scrutiny o Doctrinal lesson from Loving = all laws that refer to race are going to be subject to strict scrutiny, even if on their face they apply equally to both races Johnson v. California (2005) CA Dept. of Corr. racially segregating prisoners when they enter new facility looks like Loving and Brown doesnt on its face burden one race more than the other o Strict scrutiny applies under Loving this is still the rule OConnor notes that strict scrutiny doesnt mean its invalid o State argues that in other contexts there has been a greater level of deference in prison context Ct. says they wont transfer this over to EP analysis theres not a substantive DP issue here b/c theres no fundamental right being infringed would be different if prisoners being told they couldnt marry in other context, legitimate reasons why prison might need to burden fundamental rights more than those outside but racial classification going to get strict scrutiny in EP analysis even in prison context

55

Washington v. Davis (1976) police dept. test seems to exclude a disproportionate number of blacks just showing a statistical disparity is NOT enough to trigger strict scrutiny o This case upholds a law that has a disparate impact takes individualized approach to EPC o After this case, law has to have both a discriminatory impact effect and a discriminatory purpose to violate EPC o Sometimes a stark disparity will be enough to raise an inference of discrimination have to be pretty stark for statistics along to raise inference of discriminatory intent o If no discriminatory purpose (which there wasnt here PD was actively recruiting more blacks), rational basis review applies this rule passes rational basis legitimate interest in making sure police officers are skilled, and the means reasonably relates to furthering this interest

b. Affirmative Action
Strict scrutiny applies for racial preferences applies for any classification based on race Ct. has finally decide that this also applies to affirmative action programs o Regents of the Univ. of California v. Bakke (1978) no majority opinion Univ. of CA at Davis Med School set aside 16 spots for black students Court stuck down the policy, but no majority opinion lower cts. didnt know what to do w/ it Eventually start following J. Powells concurrence quotas (what the CA system was) are no good, but, flexible, race as a plus plans might be OK City of Richmond v. J.A. Croson Company (1989) finally a majority saying strict scrutiny gets applied to state or local affirmative action programs still dont know about federal programs at this point o Arguments for strict scrutiny: Circular to say that if its benign you get lesser scrutiny you have to scrutinize it to figure out it its benign a classification based on race is suspect idea of smoking out illegitimate purposes o Arguments for intermediate scrutiny for benign classifications meant to benefit minorities: Reality that discrimination still exists laws necessary to put people in position they would have been in if not for history of discrimination Difference b/t majority harming a minority and majority harming itself to benefit this minority Marshall says no need to be suspicious of this in the same way as other racial classifications Anomaly of gender preferences subject to lesser scrutiny formalist congruence that Ct. requires in Adarand makes it easier to pass laws to benefit women than blacks, who were really the intended beneficiaries of 14th A 56

Adarand Constructors v. Pena (1995) strong statement about how far strict scrutiny goes o 3 fundamental general propositions from precedent: Skepticism any preference based on racial or ethnic criteria must necessarily receive a most searching examination triggers strict scrutiny Consistency standard of review under EPC is not dependent on race of those burdened or benefited by a particular classification Congruence EP analysis in the 5th A area is the same as that under the 14th A o BIG RULE = any person of any race can demand that any government actor justify any racial classification under STRICT SCRUTINY STRICT SCRUTINY FOR ANY RACE-BASED CLASSIFICATION Grutter v. Bollinger (2003) UM law schools admissions policies Gratz dealt w/ UM undergrad law school policy upheld, undergrad struck down o Majority held that diversity, at least in higher education, does count as a compelling state interest o Court has also said that remedying past discrimination is a compelling state interest different ways of understanding this If you have an individual whos a proven victim of discrimination, ct. allows a remedy to put that person in position they would have been in Cases (particularly schools) where you have a proven violation, but youre helping people who are not necessarily the proven victims Ct. has often upheld remedies here More questionable industry or field where there had been discrimination in the past, but no proof that this particular entity discriminated or that this particular individual was a victim Questionable whether Ct. will uphold this type of remedy after Croson To remedy general societal discrimination does NOT count as a compelling interest o UM law school just uses race as a plus in holistic determination undergrad automatically gave 20 points based on race Ct. says 1 is like a quota and the other isnt o Cannot use quotas, but can use race as a plus factor (this is narrowly tailored) Must give individualized consideration to each applicant Must consider all diversity factors, not just race Must be able to see the endpoint cant be a program that will last indefinitely

c. Gender Classifications

57

In very early cases dealing w/ gender classification, Ct. consistently applied rational basis review and almost uniformly upheld the laws Reed v. Reed is 1st time Ct. strikes down a statute on the grounds that it violates EPC by classification based on gender o Idaho law about ordering of who would administer the estate when a person dies intestate Ct. purported to apply rational basis, but then strikes down law b/c (1) choosing this classification is irrational b/c no reason to think that individual woman less qualified to administer the estate, and (2) administrative convenience or efficiency CANNOT be a justification for this sort of law o Chemerinsky theyre not really applying rational basis review Ct. must have been assuming that this classification gender is suspect in some way Craig v. Boren (1976) Oklahoma law burdens men more than women women can buy low alcohol beer at age 18, but men at age 21 o Ct. articulates intermediate scrutiny as standard of review for gender classifications must have an important government interest, and the means chosen must be substantially related to furthering that interest o B/c of real, physical, biological difference b/t men and women, there may be cases where those would be relevant whereas there are no relevant differences b/t blacks and whites maybe why we dont want to go all the way to strict scrutiny w/ gender classifications o Applying intermediate scrutiny here Traffic safety asserted state interest is an important, probably even compelling, state interest Law fails the tailoring part of the test not enough connection b/t law and what the state is trying to do United States v. Virginia (1996) VMI case says that to survive intermediate scrutiny, must be an exceedingly persuasive justification clearly isnt coming from some other case dissent and concurrence criticize majority for this opinion cites Craig v. Boren, but then says something else o Look at the state interests: Maintaining diversity court seems to be applying something higher than intermediate scrutiny says this is just an excuse Desire to preserve the adversative method used at VMI you could do this w/ woman no reason to exclude them cant have a justification based on these overbroad stereotypes Contrast w/ Michael M. v. Superior Court of Sonoma County where ct. seemed more willing to accept stereotypical views of how men & women would behave here taking much more individualized view cant bar this for the women that do choose it, even if most wouldnt

Nguyen v. INS (2001) physical difference b/t men and women justify the different treatment in this case child born out of U.S. to a citizen if its the mother, child is

58

automatically a citizen; if its the father, whole process they have to go through before child is 18 Are laws that are supposedly benefiting women really benefiting women? o E.g., in Michael M. (statutory rape case) could say theyre benefiting women and punishing men more harshly could also say theyre restricting the sexual autonomy of women o Sense in which these paternalistic laws are either restricting autonomy of women, or, in case of Nguyen, reinforcing cultural stereotypes about women

d. Fundamental Interests & the Equal Protection Clause

Most state laws classify somehow, and thats OK o Usually rational basis review under EPC o If suspect class or fundamental right, strict scrutiny Question in this section is when and whether under EPC you will get heightened scrutiny even when you dont have what we usually think of as a suspect class o 2 cases we looked at look at public education Culmination of line of cases where Ct. has protected other fundamental rights under Constitution: Right to Procreate original right to privacy case Skinner v. Oklahoma (sterilization for certain repeat offenders) decided as EPC, but now viewed as right to privacy Right to Vote Bush v. Gore States dont Constitutionally have to provide the right to vote, but once they decide to provide it, they have to provide it equally ANY distinctions that are drawn have to pass strict scrutiny, even if no suspect classification Right to Access to the Courts e.g., if State is going to provide process for appeals, cant make distinctions on ability to pay Right to Travel Saenz v. Roe Ct. not saying these were fundamental rights in the same sense as fundamental rights we have seen under DP When its a DP fundamental right, State cant take it away in these cases, State could take it away, but it cant dole it out unequally

o San Antonio Independent School District v. Rodriguez (1973) does the TX scheme for financing public education invidiously discriminate against the poor? In other words, is poverty a suspect classification? Plaintiffs didnt even show that this is a classification thats based on level of income no showing that poor people are uniquely clustered in this district and not in others 59

Ct. doesnt decide whether indigency itself is a suspect classification leaves this open Not enough by itself to trigger heightened scrutiny under EPC based on prior cases, had to have indigency and a complete deprivation of a benefit Does the system infringe a fundamental right under EPC? Fundamental right to education? argument that you need to be educated in order to exercise your freedom of speech and right to vote Ct. doesnt accept this slippery slope argument lots of potential govt benefits could be tied to a fundamental right like this J. Marshall, on the other hand, would see this as a spectrum w/ 2 things sliding back and forth: (1) how close is this interest to the fundamental right, and (2) how suspect is the classification

Court in this decision makes how you decide whether something is a fundamental right under DP and EP in 14th A basically the same analysis saying it has to be a fundamental right implicitly or explicitly guaranteed under Constitution only different where youre dealing w/ a complete deprivation In effect, Rodriguez froze fundamental rights strand of EP doctrine where there would be no new fundamental rights not already recognized Bush v. Gore = exception Ct. leaves door open a tiny crack if a complete deprivation, combined w/ a classification like indigency, could trigger heightened scrutiny see this in next case:

o Plyler v. Doe (1982) statute basically said if illegal immigrants children want to go to public school, they have to pay tuition What standard of review does Ct. apply? Already said in Rodriguez that education is not a fundamental right under EPC Also already said that illegal aliens are not a suspect class Based on this precedent, Ct. should apply rational basis review However, in applying 2nd part of the test, Ct. seems to be doing something else Lot of language about creating an underclass of people kids might eventually become lawful permanent residents or citizens, but can never recover from this Also, looks like they treat these kids as quasi-suspect class innocent didnt choose this

60

e. Rational Basis and Hybrid Review

In the cases here, Court says its applying rational basis, but is that really what its doing? New York City Transit Authority v. Beazer (1974) TA has employment policy refuses to employ people who use methadone o Do this as part of a broader policy against narcotics however, when people are taking methadone as part of a maintenance program to combat heroin addiction, it doesnt have the kind of effect narcotics would normally have o So, if plaintiffs wanted to call this a suspect classification, what would their argument be? 1st thing we look at in EP cases is the classification here, its based on drug use narcotics users State can normally separate people how it wants, but a suspect classification will trigger strict scrutiny have to decide which test it will be before we can get to means-ends test Arguments we have heard for suspect classifications in the past: Discriminated against historically Immutability Issue of stigma stigma to being a recovering drug addict? irrational fear or unwillingness to hire even when person would be a perfectly good employee? Ct. doesnt really view this as a class in the same way as race or gender this is a group of people who share a more mutable characteristic o Ct. says this is not a suspect class, and were not dealing w/ a fundamental right so, rational basis review o TA choosing a policy here that serves a legitimate purpose but may be vastly overbroad (2/3 of people in maintenance programs are employable) When doing rational basis review you cant say something is over-inclusive or under-inclusive state is allowed to do this just has to be rational Here the policy is rationally related to the policy the state is trying to further City of Cleburne, Texas v. Cleburne Living Center (1985) denied Cleburne Living Center a special use permit, so they cant have their group home for mentally retarded o 5th Circuit said mentally retarded are quasi-suspect class, so apply heightened scrutiny o S. Ct. says NO, theyre not a suspect class BUT, the law, as applied, FAILS RATIONAL BASIS REVIEW! o In refusing to allow this quasi-suspect classification, Ct. seems to be conflating aspects of the test says there are real differences, so theres a reason for the state to classify based on this, so its rational supposed to 1st decide the classification, then look at states interests

61

o Ct. proceeds to apply rational basis and then shockingly says this is unconstitutional one by one looks at citys reasons for denying permit and says theyre not good reasons Across the street from a junior high school (kids might harass residents) and located on a flood plain not good reasons Ct. looks at the record doesnt normally do this in rational basis review normally just accepts what legislature says Ct. doesnt think mentally retarded present different or greater risks than other groups to which this legislation applies Marshall says that under normal rational basis review, legislature doesnt have the burden, but here they do have the burden to show that this group warrants this extra concern Romer v. Evans (1996) majority says this law is burdening 1 group dissent says its just preventing them from getting special treatment o Amendment at issue prohibits all legislative, executive or judicial action at any level of state or local govt designed to protect the named class homosexuals o Ct. saying this is extremely burdensome legislation law basically says you can discriminate against someone on basis of sexual orientation too broad denying people protection in all areas of their lives why does this make it fail rational basis review? Is the level of burden on the group even part of the test? o Ct. has not in a long time extended suspect classification to any new category/person however, Ct. sometimes applies rational basis w/ bite a lot say thats whats going on in Cleburne and Romer

f. The Power to Enforce the Reconstruction Amendments

2 opposing views of scope of 14th Amendment enforcement power: o Deferential/broad interpretation Katzenbach v. Morgan Congress-centered broad interpretation Congress has a lot of discretion to decide how to enforce EP and DP Clauses of 14th A Ct. defers and gives Congress broad power In Katzenbach, part of Voting Rights Act of 1965 challenged said state cant deny the right to vote to any person who has completed the 6th grade in any school in Puerto Rico, even if that school was not in English Would prevent NY statute from being enforced required people to pass English literacy tests in order to vote Ct. holds that this NY law does not violate the Constitution So, how can Congress, enforcing the 14th A, prevent the State from doing something thats not unconstitutional under the 14th A? How is that enforcing the 14th A? Opinion views the Courts substantive interpretation of whats unconstitutional as a floor, not a ceiling Congress can restrict more things than the Ct. said are unconstitutional, it just cant do less can give more protection, but cant dilute protection 62

Can be tough to see which way this goes e.g., law says fetus is a person under 14th A more protection to fetus, but diluting protection of women Looks like rational basis if Congress decides this legislation is necessary and proper (invokes Marshall in McCullough) and has a rational basis for thinking this is necessary to protect provisions of 14th A, Court will defer to it Harlan dissent says this is a separation of powers problem also invokes Marshall in McCullough power to say what the law is is the power of Ct. of course defer to a co-equal branch and respect the opinions of Congress, but Congress cant change the substantive protections of the 14th A

o Non-deferential/strict interpretation City of Boerne v. Flores More Court-centered interpretation Congress cannot expand this meaning interpret Congresss power under 5 of 14th A more narrowly Case viewed as part of new federalism revolution restricting power of Congress 1st time in a long time, maybe ever, restricting Congresss power under 5 Religious Freedom Restoration Act challenged here provided for strict scrutiny of neutral state or federal laws that burdened religious practices Was passed in response to Employment Div. v. Smith where Native Americans smoking peyote for religious purposes got fired and lost their case S. Ct. said where neutral law of general applicability happens to incidentally burden your religious freedom, were not applying strict scrutiny Court in Boerne said RFRA goes beyond Congresss power gives us a new test Katzenbach had given Congress very broad power new test here Power to enforce the 14th A is not the power to define the substantive content of the provisions of the 14th A line doesnt stop at the 14th A, but there are limits Where do we find these limits? first, text of 5 power to enforce does not include power to say what the right is Ct. doesnt like Congress trying to exercise power to overturn its decision What Congress does has to be CONGRUENT AND PROPORTIONAL Ct. will look at all the stuff thats prohibited by Congress outside of 14th A conduct and say, how great is the likelihood that theres lots of unconstitutional activity thats falling through the cracks? is there a lot of behavior were missing under the current law? how proportional is Congresss response?

63

 g.

o If Congress has really expanded the prohibitions, but theres only a little bit of unconstitutional conduct that needs to be stopped, Ct. wont uphold it RFRA is a very global statute way disproportionate response

Applications of Congresss Section 5 Power: Disability and Sex Discrimination

o Ct. articulated the congruence and proportionality test No fixed answer as to how you apply this test -> its a judgment -> you have to define the unconstitutional behavior, look at Congresss response -> see if they look congruent and proportional -> of course these are mushy words, so its not black and white 6 cases after Boerne address Congresss 5 power ALL under sovereign immunity: Becomes important when Congress is applying one of these statutes to a State actor (the State, usually employer) -> usually CC power will also cover it -> even if CC covers it, you have 11th A immunity -> if individual plaintiff wants to sue state, you have an immunity problem -> only way state can be sued there is if Congress has power under Section 5 to abrogate

Steps to apply the congruent and proportional test Univ. of Alabama v. Garrett redefined test: o Identify the metes and bounds of the Constitutional right in question -> so, in Garrett it was the right to be free from irrational discrimination on the basis of physical disability -> this is the extent of the right b/c disability is not a protected class -> state allowed to discriminate based on this if its being rational -> makes the metes and bounds smaller b/c there are reasons the state can discriminate -> scope of the Constitutional right is smaller, so its more likely that Congresss response is not proportional under Section 5 -> in Nevada Dept. of Human Resources v. Hibbs, it is a suspect classification metes and bounds of your Constitutional right are larger right to be free from discrimination based on gender that isnt related to a substantial governmental interest o Look to whether Congress has identified a history and pattern of unconstitutional behavior BY THE STATES -> not localities and municipalities -> need a record that there remains this unconstitutional behavior by the States o Look at Congresss responses and decide whether they are proportional and congruent -> more protected the category, the more likely that Congress is going to have the Section 5 power to enforce it -> use this as a rule of thumb

64