Outline/Class Notes MBF 507
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Date Created: 10/09/15
CON LAW OUTLINE Background Constitution s Purpose setting up structure for how to govern Why are we bound by it when everyone did not agree to it As citizens of the US benefitting from it The Constitution of 1789 Article 1 All legislative powers Article 2 The executive powers Article 3 Judicial power Article 5 amending the constitution Article 6 shall be the supreme law of the land trumps state law The Bill of Rights Amendments 110 1791 Freedom of speech and religion 1St amendment The right of people to keep and bear arms 2nd amendment Certain powers are reserved to the states or to the people 10th amendment The Civil War Amendments 13th amendment 1865 formal abolition of slavery and involuntary servitude 14th amendment 1868 citizenship privileges or immunities equal protection 15th amendment 1870 the right to vote shall not be denied or abridged on account of race color or previous servitude The Constitution Dead or Alive Still applicable to modern times or just the black letter Scalia thinks it is dead Meaning if the answer to a question is not there then you can just make stuff up because it s only what they thought in 1789 If you re free to add to it then what are you bound by Brennan says it s a living document and times change which outlives its foundation The senate of the US shall be composed of two senators from each state But what if someone wanted to amend Texas senators to 3 because times have changed and we re bigger now It s clear and a rule When the constitution states a clear rule it cannot be avoided Can the president be 30 No must be 35 Can you change based on modern standards No because it s a Can we have a female president According to Scalia s mindset in 1789 they would have said no Then do we have to amend it Women got the right to vote in 1920 implied they can now run for president Therefore since laws have changed in that that regard we shouldn t be bound by the literal text Bubble Zones and Sidewalk Counseling by abortion facilities There is a line that antiabortion counselors cannot cross Do counselors have a right to approach the women going into the facility and try to talk them out of it 1st amendment Argument for allowed to stand on a public sidewalk SUPREME COURT S AUTHORITY AND ROLE POWER OF JUDICIAL REVIEW 1803 Marshall was involved in the case because he was the previous secretary of state who was supposed to deliver the commissions probably should have recused himself This is the case that granted power of judicial review to Supreme Court It is emphatically the province and duty of the judicial department to say what the law is Issues 1 Did Marbury have a right to the commission Yes 2 Did the law afford him a remedy Yes Mandamus was the correct remedy have a right and want the court to mandate that it be done is an order from a superior court to anv gov subordinate court to do or refrain from doing something 3 Can the court issue Mandamus No if they d issued a mandamus to the secretary of state they would have been sustaining an original action which was outside the constitutional limits of jurisdiction of the SC Marshall says that they came to the wrong place to get the writ of mandamus They should have gone to a district court not an appellate court because this was not an appeal But there is no district court in the District of Columbia 39 Original jurisdiction can be the first court to hear the case but don t have to be the exclusive first court to hear the case To issue a writ of mandamus belongs to original and not appellate jurisdiction I Article 111 sec 2 Does not grant original jurisdiction to this type of case Section 13 of the judiciary act of 1789 grants original jurisdiction but con icts with Article 111 sec 2 therefore judiciary act is unconstitutional I Appellate jurisdiction both as to law and fact with such exceptions and under such regulations as the congress shall make Judge Marshall left this out which would let the SC create their own rules and regulations as to what the court can do or not Marshall didn t necessarily want Marbury to win the case because Jefferson didn t want him to be appointed Constitution trumps Statutes constitution gives a limit but if the statute gives the ability to go outside the constitution then the const is useless I An act of legislature repugnant to the constitution is void I The constitution is superior to any ordinary act of the legislature and must govern the case to which they both apply I It is emphatically the province and duty of the judicial department to say what the law is and is not Why is the SC a good way to get final say on interpretations of law Not the president or the congress Judges are better suited because they aren t subject to as much political pressure They can t be voted out of office it s a life position so they have more incentive to do what they think is right Martin 12 Hunter s Lessee 1816 granted power of judicial review over State court decisions It is the case not the court that gives jurisdiction Purpose is uniformity of Federal Law I The SC can review a final decision of the highest state court rejecting claims based on federal law Governed by section 25 of the Judiciary Act of 1789 In this case the state court was making a judgment on a federal treaty as to who the land belonged toWanted to make sure the state didn t sway and wrongly interpret federal law 0 To believe that the SC does not have appellate jurisdiction over state courts is to presume that the constitution was not meant to operate over the states And that is not the case I Uniformity Motiie The need for uniformity of decisions throughout the whole United States calls for Federal courts to have appellate jurisdiction over state court decisions They didn t want state courts to try to determine what the treaty meant because it could result in a lot of different interpretations of the same clause So they needed to oversee all judgments Leaving that authority to interpret the constitution in the hands of the States would mean the constitution would be different in each of the States causing mischief 0 If the case only dealt with reviewing state issues like the Texas constitution then the federal court would have nothing to do with that Interposition Extreme position being brought up again where states can interpose themselves between the Supreme Court and their people by interpreting the constitution for themselves against federal decisions Could nullify federal laws within the state This is a structural argument Cooper 12 Aaron 1958 Judgment by unanimous court every state is bound by the US constitution and all cases decided by the US SC It is emphatically the province of the Judicial Department to say what the law is Justice Warren Marbury declared the basic principle that the federal judiciary is supreme is the exposition of the law of the Constitutionand has been respected as a permanent and indispensable feature of our constitutional system M Governor of Arkansas was not complying with the decision reached in Brown v Board of Education He would not desegregate the local high school Constitutional rights cannot be nullified directly or indirectly by state officials regardless of their privately held beliefs Even if people don t like the rule 14th amendment they have to follow it otherwise there is chaos and discontinuity 0 Therefore the court held that their previous ruling on the 14th amendment is the supreme law of the land Which is basically putting their decisions on the same level as the constitution controversial 0 Article VI Supremacy Clause makes it binding on the states Modern Opposition to Cooper Newt Gingrich says this is an unprecedented power grab Edwin Meese s View the judicial decision binds only the persons and parties to that particular case So precedent wouldn t reallv applv You could mention previous cases and decisions for your new case but the court would pretty much start all over in their decisionmaking process But Justices don t want to ignore decisions that they just made last year Dickerson v United States 2000 Are Supreme Court decisions binding on Congress 0 Rehnquist Majority Miranda a decision of the court may not be overruled by an act of Congress 0 Scalia Dissent Thomas Miranda did not announce a constitutional decision Police can violate Miranda without violating the constitution Court just announced that it has power to apply and expand the Constitution A frightening and antidemocratic power is the doctrine under which legislative and executive actions are subject to review and possible invalidation by the judiciary A specific court with judicial review power may annul the acts of the state when it finds them incompatible with a higher authority such as the terms of a written constitution It is an example of checks and balances in a modern governmental system 0 Is it consistent with democracy SC saying they can just strike something down if they want I Constitutional Democracy majority rule majority can do Whatever they want as long as it is consistent with and doesn t violate the constitution Majoritarian Democracy as long as the majority has 51 they can do Whatever they want regardless of the constitution I Federalist No 78 Hamilton judges are governed by the will of the people declared in the constitution and not by statutes con icting with the constitution People in this view are higher than the legislature because people voted for constitution While the legislature made the statutes Democratic View I Judicial Selection nomination and confirmation process Article 11 sec 2 cl 2 elect people who you think will change the law longterm goal I Impeachment Article 11 sec 4 if you don t like What s happening you can impeach judges Only impeachable reasons under the constitution treason bribery and high crimes and misdemeanors Very narrow You can t just impeach a SC Justice because you don t agree with their decisions I Congressional Budget Authority two justices will come to the house of congress to ask for money for their budget Congress could technically cut the SC budget if they wanted I Courtstripping Article 3 sec 2 of the constitution says they have to create a SC and any other courts that they want to District court and appellate courts are not required When after a federal district court or state SC with federal question jurisdiction has heard a particular subject the SC would not have jurisdiction to hear the case Congress could strip the SC of the power over specific subject matters I Courtpacking Article 111 sec 2 congressional power over size of Court I Amending the Constitution Article V Very very difficult states required SUPREME COURT S AUTHORITY AND ROLE CASE OR CONTROVERSY REQUIREMENTS built around Article 111 sec 2 cl 1 the judicial power shall extend to all cases in law and equity arising under this constitution the Laws of the US and treaties made or which shall be made under their authority and to specified controversies The Supreme Court cannot issue an advisory opinion opinions on the legality of executive or legislative action that does not involve an actual case Also they cannot decide Whether something is constitutional or not outside of a dispute Based on the idea that the court shouldn t make law because they are unelected 5 Standing is about who can get into court Can the plaintiff bring the suit in court The constitutional component is a three part test Lujan v Defenders of Wildlife deemed no article 111 standing because the plaintiffs did not make the requisite claim to satisfy injury and redressability have standing 1 invasion of a legallyprotected interest which is concrete and particularized and actual or imminent not conjectural or hypothetical The party seeking review must be among the injured If representing a group only one member of the group must have actual injury I Plaintiffs raising a general grievance about government claiming harm to his and every citizen s interest does not state an Article 111 case and controversy I Lujan Ms Kelly and Ms Skilbred want to go back to Egypt and Sri Lanka in order to see the crocodiles and elephants Wanting to go back may not be a legally protected interest in the first place Scalia cannot say that it s imminent too speculative 2 between injury and conduct complained of Must be fairly traceable to the challenged action of the defendant not the result of the independent action of some 3rd party not before the court I Kennedy Concurrence Congress has the power to define injuries and articulate chains of causation that will give rise to case or controversy where none existed before Case in controversy requirement preserves the vitality of the adversarial process by assuring both parties have a stake in the outcome I Lujan Because of the limited effect of the ESA it is too speculative to claim that not enforcing an injunction on the Secretary would result in an injury in fact to any of the Plaintiffs 3 Must be likely that this injury will be by a favorable decision I Justiciability seeks to address whether a court possesses the ability to provide adequate resolution of the dispute where a court feels it cannot offer such a final determination the matter is non justiciable I Lujan In this case it is too speculative to assume that any redress by the courts would have substantial impact on threatened species outside of the US Not all the environmental agencies were attached to the case so issuing a ruling against the secretary would be like issuing a judgment against the US P s other arguments in Lujan Animal nexus anyone who has an interest in studying or seeing endangered animals anywhere on the globe have standing Seems too broad Vocational nexus anyone with a professional interest in the animals have standing to bring a case like a zoo keeper Justice Scalia says no to both of these Procedural Injury discussion citizen suit provision where any person can file suit in federal court to challenge the secretary s failure to follow the assertedly correct consultative procedure Congress taking the power out of the hands of the citizens To permit standing based on this Congressional Act would usurp the power of the Executive to take Care that the Laws be faithfully executed Scalia says this would be a separation of powers problem Massachusetts 12 Environmental Protection Agency Mass wants EPA to regulate gas emissions from cars to reduce global warming Massachusetts as a state has a special position and interest over their quasisovereign borders and loss of land Also the state has an interest in protecting their citizens Entity speaking for the public A litigant vested with a procedural right has standing if there is some possibility that the requested relief will prompt the injurycausing party to reconsider the decision 1 Injury Yes global warming causing the sea level to rise which causes them to lose shoreline 1020 cm over the 20th century Injury should be fairly traceable imminent and concrete but dissent claims this is pure conjecture and not an injury 2 Causation Yes causation is EPA s refusal to regulate auto emissions which contributes to the rising sea level Dissent says because it s a small incremental step they shouldn t be able to bring a law suit You can t tell the significance of global warming in regards to the US because of other countries pollution But the maioritv savs they can look at impact not the whole issue 3 Redressability of the claim Yes because if the EPA regulates emissions from cars it will help the issue of global warming in Massachusetts Reduce domestic emissions there and will slow the pace of emissions no matter what happens elsewhere Dissent claims redressability should come from the legislature not the bench court can make its own nonarticle III standin Thirdparty standing you can t bring a law suit on behalf of someone else Negative consequences of allowing a lot of people could sue for the same injury Also the party that was actually hurt may not want to sue Therefore standing is restricted to the parties directly injured rather than allowing 3rd parties to assert claims vicariously 39 Generalized Grievances you can t bring a suit for something that happened to lots of people and you try to sue for them Usually deals with big issues Negative impact brings lots more law suits o F last v Cohen exception taxpayers can challenge on establishment clause grounds 39 Suits outside a law s zone of interest suits must be within zone of interest of law being sued under Environmental issues under endangered species act I Congress may expressly negate the court s prudential standing rules Can t do this with article 111 because it s constitutionally mandated Mootness article 111 standing occurs when litigants who clearly had standing to sue at the outset of litigation are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after the lawsuit has gotten under way A case is moot when changing circumstances developing after the initiation of the lawsuit have ended the controversv so that the court no longer confronts a live dispute 0 Changing circumstances following the filing of a lawsuit ends the controversy Mootness is in the eye of the court 0 Exception Roe v Wade 1973 decided when she was no longer pregnant Pregnancy produces a classic justification for a conclusion on nonmootness Ripeness article 111 or prudential standing seeks to prevent premature adjudication A case is not yet ripe when it is brought too soon when the parties have not yet reached a concrete confrontation Can t bring a lawsuit for something that might happen in the futurea lawsuit must not rest on speculative apprehension of future action or conduct Clapper v Amnesty International fourth amendment issue federal gov wants to survey communications There are 11 members on the foreign intelligence surveillance court Hears only the government s side of the case because if not it wouldn t be secret anymore FISA court did not deny any of the government s requests last year 0 Clapper director of national intelligence Amnesty International is suing because under 1881a the gov can gather surveillance outside the United States They think their rights could be violated because they converse about sensitive topics Also American lawyers contacting clients overseas want to protect their privileged conversations Journalists also want to contact sources for stories and keep them anonymous Article III standing are they injured in fact Second Circuit uses the objectively reasonable likelihood standard that there must be a high probability that they will be overheard and their communications monitored However the SC doesn t like this and claims threatened injury must be certainly impending not conjectural or speculative or guesswork It pretty much has to be certain to happen and soon 0 In general injury in fact must be specific invasion of a legally protected interest must be certainly imminent and has to be particularized and concrete In this context the secret surveillance plan covers pretty much everyone Should the possibility that you may be overheard give you injury in fact No According to article III standing most people would not be able to bring a suit Breyer s dissent claims that it should be a very high likelihood or a high probability standard He thinks that certainty is not the touchstone of standing Hollingsworth v Perry 54 respondents two gay couples sued state officials for the enforcement of California s marriage laws and claimed that Proposition 8 between one man and one woman violated their 14th amendment right to equal protection under the law Proposition 8 took away same sex marriage rights The people voted for proposition 8 not the legislature Courts in California claimed that prop 8 was unconstitutional Governor and state officials did not appeal so the two couple did instead Why did the proponents have the right to speak for the people when the state officials didn t Because it s authorized by California law But the SC thinks that petitioners did not have the standing to appeal to the 9th circuit in the first place so the SC cannot decide this case The two couple were only interveners in the original case so they do not have the standing to appeal Do petitioners have standing under Article III to argue this case No Complaining party must have suffered a concrete and particularized injury that can be redressed through court action In this case the petitioners only have a generalized grievance of wanting to defend proposition 8 Dissent SC should defer to states rights in determining who has standing California law would have allowed for petitioners to have standing even though it s a third party asserting the states interests when state officials decline to do so United States v Windsor Windsor is a widow of a same sex marriage from Canada The estate left to her was taxed by the government in the amount of 363000 because their marriage was not recognized Had their marriage been recognized no taxes would have been imposed Windsor claims that the Defense of Marriage Act is unconstitutional one man one woman District court held it was unconstitutional and court of appeals affirmed SC decided in a 54 decision that section 3 of DOMA was unconstitutional Standing issue attorney general issued a statement that he decided not to defend DOMA but the gov will not stop it so someone from the Bipartisan Legal Advisory group took 9 over the defense So is there article 111 standing in this circumstance Yes because the US Treasury would have to refund tax money and stands to suffer a real economic injury injury in fact There is not a real controversy in this case because both sides agree that DOMA is unconstitutional The fact that the gov might ultimately have to pay out could be seen more as a redressability issue not an injury issue Typically if no one is disputing anything then you do not have a case 0 Amicus Curiae someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court US SC decides that the purpose and effect of DOMA was to impose a disadvantage a separate status and so a stigma on samesex couples in violation of the Fifth Amendment s guarantee of equal protection SC thinks the states should have the authority to define marital relationships whereas DOMA undermines that authority Some people think the court gave standing because they wanted to get to the merits of the case From Marbury v Madison federal courts will refuse to hear a case if they find it presents questions which are political in nature This phrase is construed narrowly and it does not stop courts from hearing cases about controversial issues like abortion or politically important topics like campaign finance 0 Rather the Supreme Court has held that federal courts should not hear cases which deal directly with issues that Constitution makes the sole responsibilitv of the other branches of government Some matters are committed to the unreviewable discretion of the political branches Sometimes otherwise legal questions ought to be left to the other branches as a matter of prudence Similarly the Court has held that lawsuits challenging congress39 procedure for impeachment proceedings present political questions Nixon v United States Baker v Carr 1962 Facts Tennessee voters want reapportionment because there has been substantial growth and change that has not been re ected in the government Claim they re being denied equal protection because their votes don t really count Hle Challenge to Tenn Legislative appointment is allowed in court because it s not a nonjusticiable political question Nonjusticiability of a political question is primarily a function of the separation of powers The case before the court does not fall under the political question umbrella 10 0 Tennessee argues for The Guaranty Clause the US shall guarantee to every state in this union a republican form of government art IV sec 4 This makes sure states have a representative form of government and don t appoint a king or something Tennessee claims that if it s a guaranty issue then it is a political question and a matter for congress so the SC wouldn t have jurisdiction Tenn Relied on the Luther v Borden case 0 SC disagrees that this is a guaranty clause case and rather rules that it is an equal protection case which the SC has a right to hear Equal protection is separable from the political question 0 Brennan claims there is a judicially manageable standard for resolving the issue one person one vote 0 Justice Frankfurter Dissent courts should stay out of as many things as possible judicial restraint the case is a guaranty clause claim masquerading under a different label and the electoral apportionment process is complicated and involves partisan politics to determine if something falls within the POlitiill Ouestion Doctrine 6 part political question test Brennan to be a pol ques only 1 of the 6 needs to be present l A textually demonstrable constitutional commitment of the issue to a coordinate political department can t hear this case as a federal judge because it has nothing to do with you eX person can t sue the president for making appointments to his own cabinet 2 Lack of judicially discoverable and manageable standards for resolving it but the court is the one that makes up the standard 3 The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion 4 The impossibility of a court s undertaking independent resolution without expressing lack of respect due coordinate branches of government don t want to cause con ict between the branches 5 Unusual need for unquestioning adherence to a political decision already made precedence and 6 The potential embarrassment from multifarious pronouncements by various departments on one question branches pronouncing different decisions More Case Examples for Political Question Powell v McCormack 1969 congress refused to seat Powell after he won an election even though he met all 3 criteria age residency citizenship House of Rep shall be the judge of the qualifications of its own members but the SC rules that as long as the congressman meets all 3 requirements then he must be seated 11 Goldwater v Carter 1979 can the Senate aggregate a treaty or not That s a political question because for the SC to say anything about treaties would involve foreign powers Typically courts stay out of foreign affairs issues Nixon v United States 1993 not the president federal judge impeached by the house and convicted by senate for making false statements before the grand jury While he was in prison he was continuing to receive his paycheck They had to impeach him in order to stop that 0 Was this a political question or not The senate decides how the procedure for impeachments should be so it is a political question involves issue directed to a certain political branch of government Should the SC be able to say no you can t do that to the Senate regarding impeachments Checks and balances if the SC could not intervene even if the senate did something crazy then there would be no control Coleman v M iller what is a reasonable time period for ratifying a constitutional amendment There is no constitutional answer But it is viewed as a political matter not a matter for the Supreme Court Bush v Gore 54 2000 who actually won Florida and how should they recount the votes Court says Florida recounts are unconstitutional court says it s not a political question Florida recount procedure and nonuniform standard intent of the voter violated the Equal Protection Clause according to state law if the chad was hanging then it could be inferred which candidate they meant to vote for 0 SC decides it s an equal protection issue like Baker v Carr so they could intervene It violates the one person one vote principle Argument is because of the different counting standards all the votes in Florida are not being given equal weight Determined that process violates the equal protection clause because there was no standard for determining voter intention Equal protection has to be uniform and it was not in this case SC said that their decision was limited to this particular case 0 Policy Argument if the case had been given to Congress it probably would have taken longer and partisan politics would have played a much bigger role 0 Dissent Case satisfies several of the Baker v Carr requirements for political question including previous case law precedent a Textually demonstrable constitutional commitment 12th amendment says if no winner then House of Rep decides b J udicially manageable standards no standards for election procedure to be reviewed c Broke lines of checks and balances between coordinate political branches 1 Luther v Borden Court does not decide what is the ruling faction within a state 12 e Goldwater v Carter Court does not get involved in disputes between coequal branches of government Zivotofsky v Clinton 81 2012 court said there was no political question here so they could hear it Lawsuit brought by individual who wants his passport to say Jerusalem Israel The 2002 Foreign Relations Authorization Act said that you shall upon request of the citizen record the place of birth as Israel US officials only wanted to say the word Jerusalem This sounds like a foreign affairs issue but court claims that Zivotofsky is not asking them to claim Jerusalem is the capital of Israel but is just asking them to comply with the current law Sec 214d Even after this SC sent it back to the lower courts to decide the actual issue NATION AND STATES IN THE FEDERAL SYSTEM FEDERALISM The Articles of Confederation 0 Article II states retained every power jurisdiction and right which is not confederation expressly delegated to the United States 0 powers not delegated to the US by the constitution nor prohibited by it to the states are reserved to the states respectively or to the people I Does not include the word expressly that is in the articles of confederation 0 Article I Sec 8 The enumerated powers of Congress What is truly national and truly local Federalism is national and state The Location of Sovereigntv in the Federal Svstem McCulloch v Maryland 1819 Decided that Congress does have the power to create a national bank because of the necessary and proper clause and that the states do not have a right to tax it because to do so would be a violation of vertical separation of powers between States and the federal government 0 Issue Congress created bank of the US which the state of Maryland was trying to tax What boundaries does the state have in regards to entities created by the federal government Founders wanted to answer this question early on 13 Question 1 Does Congress have the power to incorporate a bank Yes although not in the enumerated powers incidental or implied not excluded by text Justice argues that congress has to have discretion to execute powers they re given where the constitution doesn t say exactly how they re to execute them Made a historical argument for the creation of the bank the founders did it during the first Congress so it must ve been their intent that it was ok to create a bank Congress has enumerated powers and the States may not supersede that 0 We must never forget that it is a constitution we are expounding It was a system and structure that was created not a specific list of rules There is no way to include a legal code which could cover every single instance The constitution is an outline for how we want to run our country Article 1 Sec 8 cl 18 congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the US I Allows you to pick the means necessary to achieve the ends of the enumerated powers A bank is necessary and proper to achieve the ends of regulating interstate commerce so it s okay First look to see if the ends are constitutional then see if the means are I The word NECESSARY is not a limiting word The phrase is in the section granting powers and has a very broad interpretation It doesn t have to be required for something to happen just any way that it can be used to reach the end goal The fact that Congress didn t say absolutely necessary means that they are attempting to make it broader I What does PROPER mean Limiting factor on necessary appropriate The government should be allowed to do it Needs to make sense should be legitimate within the scope of the constitution appropriate plainly adapted to that end which is not prohibited but consistent with the letter and spirit of the constitution What can be figured out from the constitution that is not plainly said If Congress goes too far then what can we do Political check they could lose their jobs within 2 years if the public thinks they overstepped their bounds Question 2 Can Maryland constitutionally tax the bank No This would let Maryland control what the federal government is doing within their state structural violation The government is people not states specifically Federal government derives its power from the people not the states 14 0 The power to tax would imply other powers states have over the federal gov powers that Justice Marshall doesn t think they should have If the state didn t want the bank they might try to tax them into oblivion I Also the taxes of the entire country paid for the bank so the entire country would be paying the tax to Maryland Not ok 0 CONFIDENCE for the federal government to stand it has to have the confidence of the people in general If the federal gov is being pushed around by the people of one state then they wouldn t have the confidence of the populace 0 Note the state can lawfully tax the bank s real property and interest on Maryland citizens holdings in the bank US Term Limits Inc v Thornton Court held that a State cannot add a term limit requirement to their federal congresspeople Right of people arising from the Constitution not from the States Arkansas New Proposed Amendment Candidate can only serve 3 terms even if they meet the age citizenship and residency requirements set forth in the constitution Arkansas claims 10th amendment right of reserved power allowed to the states Issue Can individual states add additional requirements for election to Congress other than those found in the Constitution NO 0 Majority Stevens argument against 10th amendment Because term limit qualification was not within the original powers of the states no such right existed before the enactment of the constitution And the election of congresspeople is a right which arises from the constitution O Majority s the framers intended the constitution to be the sole and exclusive source of qualifications therefore taking away the states powers to add qualifications Justice Stevens claims that Members of Congress represent everybody the people of the US not just their constituency back home who elected them They have a responsibility to care about the welfare of the entire country even though the constitution does not mandate that perspective This is a political theory Stevens gains from The Federalist Papers 39 Kennedy Concurrence claims the framers split the atom of sovereigntv People have two different capacities federal and state The federal interest has to trump what the state citizens thoughtwhat their interest is Sole political identity as an American has to mix 15 with your loyalty to your state Kennedy wants the citizens of the US to trump the citizens of the states even though people are technically both 0 Thomas Dissent claims opposite of Kennedy that the ultimate source of the constitution s authority is the consent of the people of each individual state not the consent of the undifferentiated people of the nation as a whole The constitution does not recognize any mechanism for action by undifferentiated people of the US where does the sovereignty arise from then Must be the states 0 BROAD View on 10th amendment What s given to the federal government is written down Where the constitution is silent there is no bar to action by the states or people Since the constitution is silent on the issue of prescribing eligibility requirements for elected federal officials the states retain the power to add election requirements NATION AND STATES IN THE FEDERAL SYSTEM LIMITS OF NECESSARY AND PROPER CLAUSE United States v Comstock Necessary and Proper clause gave Congress the power to enact a statute allowing federal district courts to order the civil commitment of mentally ill sexually dangerous federal prisoners beyond their release dates 72 decision SC voted that this was necessary and proper when looking at the five considerations which are basically like rational my 1 Is it rationally related to the implementation of a constitutionally enumerated power If it s rationally related to an enumerated power then they have power Congress has broad authoritv not explicit but recognized power in the past dealing with prisoners 2 Look to whether congress is simply extending an already established standing power a Congress has long passed laws affecting mental health prisoners and crimes involving mental health deficiencies despite there being no expressly authorized power to do so Congress simply extended this standing power since many of the prisoners were already committed under a similar statute 16 3 Is it reasonably adapted to Congress power to act as a resp federal custodian Responsibility of congress to the public at large a 4248 is reasonably adapted because these people would pose an especially high danger to the public if released Doesn t create broad police powers because it s limited to a small fraction of prisoners that are already in custody 4 Make sure the statute does not impede state interests a In this case it was not a state override because they were still involved Does not invade state interests requires accommodation of state interests 5 Make sure Congress power to enact the statute and section 1 are not too attenuated a In this case See 4248 and article 1 are not too attenuated It does not confer a general police power Kennedy Concurrence wants more than a rational basisreview some empirical fact that makes this necessary Alito Concurrence it is necessary and proper for the federal government to protect society from federal prisoners Thomas Dissent Intrudes on the authority of the states Government identifies no specific enumerated power as a constitutional predicate and none are discernible not even the commerce power because sexual violence is a noneconomic activity Case Examples of NampP limitations NFIB V Sebelius 54 2013 0 Mandate that every citizen must have health care or they will be finedtaxed 2000 Court the individual mandate cannot be sustained under the necessarv and DI ODCI clause the mandate is not proper because it is not an enumerated power Inconsistent with Comstock 1 prong 0 The mandate gives congress the extraordinary ability to create the necessary predicate for the exercise of an enumerated power Government is basically telling people they are required to buy something even if they don t want to 0 Court rules against the mandate Where would it end Would congress have the power to regulate your food consumption and What car you buy just because that company is having an economically hard time 0 Dissent s economic argument the ends justify the means in regards to the mandate Under the commerce clause congress can eliminate charging higher prices or denying 17 coverage to persons with preexisting medical conditions The mandate is an essential part of regulation of an economic activity US v Kebodeaux Air Force member was convicted as a sex offender and didn t register with the federal government Congress has the power under the necessary and proper clause to require a convicted member of the air force to register as a sex offender under SORNA when he comes out of the air force Congress can set rules for the military Uniform Code of Military Conduct THE COMMERCE POWER AND ITS FEDERALISM BASED LIMITS THROUGHOUT ALL ERAS Gibbons v Ogden I824 Facts NY legislature enacted a statute licensing Ogden to operate a ferry in NY waters Gibbons began operating his ferry in NY waters under a federal grant Gibbons wins because his is a federal statute dealing with commerce 0 Held Court gives an expansive interpretation of commerce power Power over commerce is plenary view includes everything that we know to be Commerce Commerce includes transportation Waters from NY to NJ Commerce comprehends navigation as long as its interstate going on throughout other states 0 Commerce is not limited to traffic but includes intercourse 0 Commerce clause says among the several states Among means intermingled with does not stop at state border but is introduced into the interior Something has to cross the state line or effect congress As long as the commerce is interstate the federal government has the power to regulate it 0 However completely internal commerce of a state can be reserved for the state itself 0 Policy Concern the federal government s commerce clause has to trump state statutes because states were taxing other state s products to keep them out so their people would only buy stuff within their own state hindering the national market 0 Sole Restraints on congress wisdom and discretion of congress identity with the people and if you don t like them you can vote them out so only restraints are political not judicial or presidential not used anYmore page 112 0 The Direct v Indirect Effects Test 0 Look to whether the intrastate actions have a direct effect on interstate commerce Carter v Carter Coal C0 18 0 The Substantial Economic Effects Test Shreveport case used in all the postnew deal cases 0 If the regulated intrastate activity has a substantial effect on interstate commerce then congress may regulate the activity 0 The Stream of Commerce Test 0 Asahi Metal to satisfy the test a manufacturer must do more than merely place its product into the stream of commerce it must engage in some other conduct indicating an intent to serve the market in the forum state 0 But under Nicastro view as long as the D knew or should have known that his products might end up in that state he can be held liable the Supreme Court took a formalistic view to Commerce power during this period Strong distinction between ManufactureCommerce Court upheld laws banning shipment of goods deemed to re ect harmful practice if the harmful instrument itself was being transported S UBS TANTIAL ECONOMIC EFFECTS TEST Shreveport Rate Case Court held that regulating railroad traffic that occurs interstate extends to controlling intrastate as well because of the substantial economic effects test 0 Texas rates are intrastate but the different rate had a substantial economic affect on interstate commerce so within Congress power 0 Argument against interstate commerce the rate is for intrastate rail freight it does not cross any boundary DIRECT V INDIRECT TEST United States v Knight Court held that Federal Government could not break up a sugar monopoly because it was a monopoly of the manufacture of sugar not the commerce of sugar Manufacture and Commerce are separate 0 Restraint of economic trade would be an indirect result Acquisition bore no direct result to interstate commerce 0 Dissent Any combination that disturbs or unreasonably obstructs freedom in buying and selling articles manufactured to be sold in other states directly affects the people of all states these are interstate cases which were regulated by the government Some people could argue that states could cooperate with each other to solve issues 0 The Lottery Case Champion v Ames Court held that the Federal Government could regulate the transport of lottery tickets across State lines because lottery tickets are Commerce It s commerce because it s the sale of Lottery Tickets across state lines 19 0 The possible abuse of a power is not an argument against its existence 0 But regulating Lottery Tickets would be Police Power which is for the states The purpose of law is to stop lotteries which is the purview of the states So arguably Congress overstepped its bounds Hipolite Egg Co v United States Court upheld Pure Food and Drug Act and the seizure of bad eggs at their destination Argument was once eggs were at their destination they were no longer interstate commerce 0 To give items immunity once they reached their destination would defeat the provision for their confiscation The power is to bar them from interstate commerce and the purpose is to prevent the use of the bad products not the transport of them Hoke v United States court upheld Mann Act prohibiting the transport of women in interstate commerce for immoral purposes leans towards human trafficking O Unanimous Opinion Congress has power over transportation among the several states that power is complete in itself and as an incident to it may have the quality of police regulation Hammer v Dagenhart The Child Labor Case Facts Father of two children who worked in his mill brought this injunction against an act which prohibited children under a certain age to work and if they did work then the shipment of their goods would be prohibited Father doesn t want his goods to be banned and wants his children to work Held court struck down the law that excluded products of child labor from interstate commerce father won It was deemed that child labor was manufacture and The commerce clause can say you can t ship a harmful product but can t prohibit a product because of who made it The goods shipped are of themselves harmless Also the challenged law does not regulate the transportation among the states but completely restricts is There is a difference between 0 Facilitates state s powers to regulate how they want to manufacture products Production itself is a matter of local regulation Holmes Dissent the power to regulate includes the power to prohibit shipment of products in interstate commerce Congress may carry out its views of public policy whatever indirect effect they have on the activities of the state Overturned later 20 Government tried to eneet New Deal legislation based on substantial economic effects test of the Shreveport Rate Case seeking to avoid invalidation on Knight and Homer v Dagenhart grounds Led to court packing plan Federalism and the Commerce Power Congress shall have power to regulate commerce with foreign nations and among the several states and with the Indian tribes Background to employment issues 0 States and employmentatWill doctrine 0 Employer and employee agreed to the terms of the employment themselves 0 Employer had the right to not hire or to fire workers for good or bad reasons or for no reason Federal government did not get involved 0 Employees also had the right to quit at any time Thought to be equal but no bargaining power It was a free for all during this period in that no laws were struck down as being outside the Commerce Power of Congress a Broad interpretation of Commerce Power b Uses substantial economic effects principle Barrier between production and commerce is broken c Overturned Homer v Dagenhart d After Jones v Laughlin President Roosevelt made seven appointments to the court cementing the dominance of a deferential judicial stance toward Congress s commerce power Became much broader and more applied NLRB v Jones amp Laughlin Steel Corp 1937 54 National Labor Relations Act wants companies to stop engaging in unfair labor practices by firing employees involved in union activity 10th amendment challenge to the national labor relations act of 1935 0 Issue Does the federal government have the power to regulate local employment practices in companies Whose business effects interstate commerce Yes Jones was a huge corporation with holdings all over the US So the act is within Congress commerce clause powers 21 Holding acts which directly burden or obstruct interstate or foreign commerce or its free flow are within the reach of the congressional power It is the effect on commerce that is important not the source of the injury which is the criterion Congress may control intrastate activities if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions 0 Hughes Majority The effect of labor strife won t be indirect or remote it could be immediate and catastrophic The company is organized on a national scale interstate commerce is their business so then so must their labor relations Before the court said production was a local matter but now production is not determinative Congress can reach into a local community and talk about what people are making and how they re making it different than the Dagenhart outcome Dissent Any effect on interstate commerce is remote at best Only 10 men out of 10000 were let go which may cause a strike which may impact interstate commerce Attenuated effect on interstate commerce United States v Darby 1941 m Darby paid employees below the prescribed minimum wage and forced employees to work beyond the prescribed maximum weekly hours They are challenging the constitutionality of the fair labor standards act of 1938 because US was trying to regulate hours and wages Issue Do the wages and hours of local employees have such a substantial impact on interstate commerce as to allow Congress to constitutionally regulate them Yes Expressly overrules Hammer v Dagenhart Therefore Congress has the power under the commerce clause to prohibit the shipment of limber that was not manufactured according to the federal standards Volume doesn t matter unaffected by the 10th amendment Purpose for regulation in this case it was an attempt by the government to stop interstate competition in the distribution of goods produced under substandard labor conditions For the public benefit Wickard v F ilburn 1942 still good law M Filburn the owner of a small farm in Ohio overgrew his quota of wheat and was charged a penalty He sold a portion and used the rest for personal uses The purpose of the quota was to promote competition and better prices for wheat price control 22 Issue May Congress regulate purely intrastate activities under the commerce clause Yes local activity may be reached by congress if it exerts a substantial economic effect on interstate commerce This allows congress to regulate the production of wheat not intended for commerce under the Agricultural Adjustment Act if the production itself has a substantial effect on interstate commerce 0 They aren t looking at one farmer but at thousands of farmers doing the same thing Policy if you let one get away with it all the others will start doing it too O The cumulative effect would have a substantial impact on interstate commerce Even though the wheat was for personal use it effects commerce by taking away the demand by the one who grows it Gov is concerned that if everyone does it then it would have a substantial effect on interstate commerce The demand for wheat in general would decrease and the market would be oversaturated This is the outer reachbounds of the commerce power Congress needed an enumerated power to enforce the civil rights act They couldn t regulate a private company that was discriminating based on 14th amendment because it was only applicable to government actors and states So the government passed the Civil Rights Act of 1964 which outlawed major forms of discrimination against racial ethnic national and religious minorities and women by any establishments affecting commerce Civil Rights Cases Heart of Atlanta Motel v US 1964 hotel refused to rent rooms to African Americans Hotel violated commerce clause aggregate because if fewer people can travel it can have a substantial effect on interstate commerce 0 Power to regulate commerce includes the power to regulate local incidents including local activities in the state of origin and destination Motel serves travelers instrument of interstate commerce Katzenbach v McClung Ollie 5 BBQ Case 1964 restaurant not allowed to refuse to serve African Americans Restaurant received about 70000 worth of food a year bought from out of state interstate commerce therefore it is subject to regulation under the Commerce Power gt quotquot On exam add more to this 1 Judicial deference 2 Outline differences between Child Labor case era and this era 3 Create rules for this era 23 Rolled back commerce power reinstated federalism based limits Aggregation rule from Wickard thrown into question but it was differentiated on economic vs noneconomic activitv Lopez was the first case where a statute was not extended the power of the commerce clause since before the new deal era United States v Lopez 1995 5 4 Congress passed the Federal GunFree School Zones Act making it a federal crime for any individual knowingly to possess a firearm at a place that the individual knows or has reasonable cause to believe is a school zone Lopez D a 12th grader was convicted for carrying a concealed handgun into his high school SC overturned the act because the connection to interstate commerce was too attenuated There are three broad categories of activity that Congress may regulate under the commerce power You only need one of the three for the commerce clause to apply Regulate channels of interstate commerce a moving through state to state highways railroads waterways shipping lanes etc Regulate instrumentalities of interstate commerce or b Can be things people machines railroads planes boats trucks automobiles used in carrying out interstate commerce substantially affects interstate commerce c Activities having a substantial relation to interstate commerce a Jurisdictional Nexus In Lopez only the third category could apply In order for the statute to be deemed valid the activity must substantially affect interstate commerce Government Argues possessing a firearm could affect the national economy ie interstate commerce in two ways 1 by imposing high financial costs upon society through insurance and 2 by preventing individuals from traveling into areas where violent crime occurs Court Disagrees with government and rules that the bringing of a gun to school is not an economic activity that effects interstate commerce If they allowed the government s theories then there would be no limit on the federal power They would then extend regulation to any activity that leads to violent crime and any activity related to the economic productivity of individuals 24 0 Kennedy Concurrence Don t blur boundaries between state and federal authority Court must be the balance if one side tips scale of power too far 0 Thomas Concurrence goes back to the prenew deal commerce authority 1789 Thinks the commerce clause doesn t apply when things are being made or when it reaches its final destination Onlv applies when it s in transit He rejects the substantial effects test because it would be used to surplusage 0 Souter Dissent defer to congressional judgment presume congress had a rational basis for the legislation and its relation to interstate commerce 0 Breyer s Dissent Congress can regulate local activities that significantly affect interstate commerce not substantially affect because that s narrower United States v Morrison 5 4 1994 Violence against Women Act struck down because it does not fall under the exercise of congress commerce power Act allowed victims of gender based crime to file claims in federal court 0 Issue Should the court be allowed to aggregate the crimes No The Supreme Court see Wickard v F ilburn aggregation allowed noted that 0 Majority Rehnquist Intrastate violence not directed at the instrumentalities channels goods in interstate commerce is a state matter Court finds the link to interstate commerce too attenuated and thinks it would grant Congress an essentially unlimited Police Power 0 Policy Argument Against Petitioners reasoning that violent crimes against women should be deemed economic activity would allow Congress to regulate any crime as long as the nationwide aggregated impact of that crime has substantial effects on employment production transit or consumption so pretty much anything 0 differentiate from Wickard 0 Souter s Dissent congress provided a rational basis for the act and gave lots of evidence of how it affected commerce similar to Heart of Atlanta Motel 0 Breyer s Dissent activity no matter how local genuinely can affect commerce or its conditions outside the state He questions the economic V noneconomic distinction Gonzales v Raich Facts D s were operating under the California Compassionate Use Act when they were arrested for using marijuana under the Federal Controlled Substance Act which they grew themselves which had never entered the stream of commerce 25 0 Issue Does the commerce power include the power to prohibit the local cultivation and use of marijuana in compliance with California law Yes Congress has the power under the Commerce Clause to regulate Marijuana production even if State law allows for its production and use Controlled Substances Act is undoubtedly interstate commerce so power to reach into backyards exists to regulate interstate commerce 0 Majority Stevens Case is just like Wickard although he was growing wheat for his own personal use intrastate activity and not produced for sale it could aggregately effect commerce Just like home consumed marijuana outside federal control could affect price and market conditions it could undercut the interstate market for that commodity It could have an effect on supply and demand policy reason 0 0 California Law v Federal Law federal gov lost Lopez and Morrison but wins this one Court claims that this case is different because they are trying to regulate an economic activity whereas in Lopez and Morrison it was criminal activity Court is claiming this is truly national State s rights in this case do not trump what the federal government wants to do Rational Basis Theory as long as it s not irrational to do so the federal government can regulate it 0 Scalia s Concurrence Activities that substantially affect interstate commerce are not themselves part of interstate commerce This is part of the necessary and proper clause CSA is under necessary and property clause authority so laws regulating the growth of substances covered under CSA are necessary and proper to carrying out commerce clause authority 0 0 O Connor s Dissent no evidence that homegrown medical marijuana users have a discemable let alone substantial impact on the national illicit drug market States are like laboratories which test and experiment on new policies and approaches Court s definition of economic activity threatens to sweep all productive human activity within its reach National Federation of Independent Business v Sebelius Obamacare Case individual mandate to buy and the costshifting problem People that don t have insurance shift the higher costs to those that do have insurance Hospitals can t turn away people that can t pay so they raise the prices 26 Issue Is the government s mandate that everyone must buy health insurance a valid exercise of Congress power under the commerce clause and necessary and proper clause No Reasoning The court has never permitted congress to use its power to regulate interstate commerce so as to mandate the purchase of a particular product He noted that in order This individual mandate does not regulate existing commercial activity It instead compels individuals to become active in commerce by purchasing a Wickard is still good law but the commerce clause is different in this case so it doesn t apply The arguments rejected The balanced diet buy vegetables argument and the uninsured are still in active in the market argument Judges assert that the commerce clause is not a general license to regulate an individual from cradle to grave Ginsburg Dissent Since congress had a rational basis for concluding that uninsured persons substantially affect interstate commerce they should be able to regulate it under the commerce clause The free rider cost shifting problem Congress could have established a social security type program instead single payer system more socialist Buying a car or broccoli no free ride There s no certainty that someone will ever do so No free ride they can either pay for it and receive the goods or not pay for it and not receive it EXTERNAL LIMITS ON THE COMMERCE POWER FEDERALISM AND THE 10 I AND 11TI I AMENDMENT An exercise of Congressional Authority usually permissible under Article I might be invalid whenbecause it runs up against an affirmative federalismbased immunity like the 10th and 11th amendment Ask two questions to see if acts are constitutional 1 2 10th Amendment The powers not delegated to the US by the constitution nor prohibited by it to the states are reserved to the states respectively or to the people State s Rights National league of cities v Usery overturned State government employees are not subject to federal wage and hour provisions Would interfere with essential government functions Not within Article I Section 8 Powers so no commerce clause authority 27 0 Brennan Dissent Power to check congressional power lies in the political not judicial process Garcia v San Antonio M TA overturned Usery case and held that state government entities are subject to national wage and hour provisions can be required to pay overtime and minimum wage under the fair labor and standards act 0 Why should the federal gov be allowed to tell the states this Effort to define traditional governmental functions unworkable and protection of state prerogatives should be done through the political process Coyle v Oklahoma Federal Government can t tell states where to put their capitol California v United States The sovereign power of the states is necessarily diminished to the extent of grants of power to the federal government in the constitution New York v United States 1992 The low level radioactive waste policy amendments act of 1985 gave states three incentives to take care of waste In dispute the take title incentive said that if the state did not provide for the disposal of the waste then the state would have to take ownership of the waste and be liable for any damage Held take title provision is unconstitutional because it forces states to regulate according to congressional wishes Congress may not commandeer state legislative processes and compel states to enact and enforce a federal program because it would violate the 10th amendment state s rights 0 There is a difference between encouragement and compulsion The take title is more of a threat States are being coerced with threat of liability White Dissent Act was a product of cooperative federalism These provisions came initially from the states as a way to get the states not to bail out of the agreement Congress tried to let the states come up with their own solution Stevens Dissent federal government already directs state governments in many realms schools railroads elections prisons so they should be able to regulate this Not a very good argument Printz v United States Court held that the anticommandeering principle extended to State and Local Law Enforcement officials as well The Federal Government cannot commandeer state and local law enforcement personnel to enforce Federal provisions the Brady handgun violence prevention act SC determined the violated the anticommandeering principle because it required state and local law enforcement to conduct background checks on prospective handgun purchasers Congressional action compelling state officers to execute federal laws is 28 unconstitutional Gov can however give the district money to do it and if they don t do it then they don t get the money spending power 0 Stevens Dissent Historical materials suggest that framers intended to have the state governments enforce provisions of the Federal Government when commandeerng is allowedgt 0 Spending Power congress may condition the payment of relevant federal funds on a state s agreement to take title to waste if it has not already provided a waste disposal facility 0 Commerce Power congress could directly pass legislation regulating private producers of waste to limit production Could also impose a tax Burden on the states might spur them to action 0 Conditional Preemption congress may threaten to pass federal legislation under the commerce clause unless states choose to regulate according to federal standards 11th Amendment State Sovereign Immunity provides for State immunity from suit in federal court Also 11th amendment applies to diversity and federal question jurisdiction Not allowed to sue a state in court using commerce authority Can abrogate state immunity using bankruptcy authority Katz Federal courts can t hear suit brought against the state by a citizen of another state or by citizens of any foreign state 0 Ex citizen of Texas could sue Texas but citizen of Louisiana cannot The court cannot abrogate a state s sovereign immunity without the state s consent absent consent the case can be dismissed Case Examples 0 Seminole Tribe v Florida Commerce Clause does not grant the power to abrogate sovereign immunity therefore an act of Congress cannot grant jurisdiction over a state that does not consent to be sued 0 Garrett sued for firing employee who had cancer 0 Virginia Central Community College v Katz Congress can abrogate the immunities of the state under the Bankruptcy clause of Article I Section 8 29 Defense against federal lawsuits brought in state courts Alden v Maine US Government cannot abrogate state immunity for cases led in State Court 0 Structural Argument not found in the text 11th amendment talks about judicial power of the Federal Government So this court basically extended the state sovereign immunity bar in federal courts to also apply in state courts Defense against federal agency proceedings South Carolina State Ports Authority no federal individualindependent Gov Agency can haul a state into a federal jurisdiction if you re looking for damages against them They are not controlled by the executive or president and shouldn t have the power to bring states into court whenever they want Individual and Federal agencies cannot bring a state into court 0 Ex Parte Young 1908 permits federal court injunctions against state officials Just not monetary damages Also a state official is not the same as the state 0 Edelman v Jordan 1974 allows suits for prospective injunctive relief against state officers But not suits for damages Clarifies Ex Parte Young 0 Fitzpatrick v Bitzer 1976 permits suits for damages under section 5 of the 14th amendment Section 5 has other rules to be followed narrow claims 0 Federal Agencies may sue states to enforce federal laws like the EPA and Department of Justice includes money damages Congress may require state waiver of sovereign immunity as a condition of receiving federal funds incentive but they cannot put a gun to your head THE TAXING POWER AS A REGULATORY DEVICE Child Labor Tax Case Bailey v Drexel Furniture 1922 10 tax on annual net profits on companies that use child labor 0 Issue Mav congress impose a tax for failure to colev with regulatorv standards No because in this case the tax seemed more like a penalty A Tax meant to have a regulatory impact beyond Congress enumerated power is unconstitutional Allowing Congress to regulate beyond their prescribed power using the tax power would break down all Constitutional limitations on Congress 0 Basically up to judicial discretion at the end of the day to determine whether something is a tax or a penalty whether the is high to one judge or low to another judge 30 0 Taxes primary motive is obtaining revenue incidental motive is discouraging certain activity 0 Note sin taxes liquor cigarettes tobacco US v Kahriger upheld the constitutionality of a federal occupational tax imposed on gambling 0 So can Congress just tax everything Depends on whether the tax is primary or incidental Primarily trying to deter specific behavior or tax out of existence something like a congress that is very against guns so imposes a 50 tax 0 Regulation that s reasonably related to the enforcement of the tax is ok Such as register of sellers of narcotics for collection of a narcotics tax However if the main purpose of the taxation is unconstitutional regulation then it s not allowed NFIB v Sebelius Part2 Court holds that since the sole consequence for failing to purchase insurance is a tax the mandate can be upheld using the taxing and spending clause 0 Citizens are required to maintain minimum essential health insurance Will raise revenue but is it punishment or just tax Governed and maintained by the IRS Court says it looks like a tax The label does not determine whether the payment may be viewed as an exercise of Congress s taxing power 0 Scalia s Dissent thinks there is a clear line between a tax and a penalty A monetary penalty imposed for an act of wrongdoing is a regulatory penalty not a tax 0 Argument for penaltv primary purpose to make people get health insurance secondary purpose to make revenue THE SPENDING POWER AS A REGULATORY DEVICE Standing doctrines have traditionally barred most taxpayer challenges to spending issues United States v Butler The gov gave subsidies to farmers so they wouldn t go out of business but then made them do things in regards to crop production 0 Issiz can congress tax crop production in excess of preset limits No Court holds that the act AAA invades the rights of the states agriculture belongs to the statesanother constitutional provision because the regulation was not voluntary it was coercive This is coercion by economic pressure The power to confer or withhold unlimited benefits is the power to coerce or destroy 0 The court adopts the Hamiltonian view of spending power instead of Madisonian but rules according to Madison 31 O Hamiltonian View Congress has the broad authority to tax and spend for the general welfare as long as Congress does not violate another Constitutional provision Can be separate and distinct from those powers enumerated broader O Madisonian View Congress limited to taxing and spending to carry out the powers listed in Article I Taxing and spending must link back to an enumerated power limited 0 Stone s Dissent Threat of loss not hope of gain is the essence of economic coercion Modern Rule for Spending Authoritv 0 South Dakota v Dole 1987 big spending clause case Congress wanted states to mandate their drinking age to 21 in exchange for highway funds SD s drinking age was 19 so the gov threatened to take away 5 of their highway funds 0 Held that law which conditioned highway funds on the state s raising the drinking age was within the constitutional spending authority 0 Is the 5 federal financial inducement coercive Court didn t think it crossed the threshold Not something that would cripple or severely hurt them Not a gun to the head 0 O Connor Dissent Not sufficiently related to interstate highway construction to justify so conditioning funds appropriate for that purpose Look to whether spending power is a condition on a grant or a regulation A regulation is not a specification on how the money should be spend if one element is missing it s a violation of the spending clause There are four rules for constitutional spending power 1 Must be in pursuit of the general welfare a EX national highway safety 2 If Congress sets conditions it must be done unambiguously so the states know what their choices entail They can t sneak provisions in 3 Conditions on federal grants may be unconstitutional if they re not sufficiently related to the federal interest in particular national projects or programs a Ex drinking age is directly related drunk driving and accidents 4 Is there an independent constitutional bar to the spending condition a SD case 21st amendment is not a bar to the conditional grant of federal funds Meant to deal with prohibition era 32 b Ex congress can t require states to violate equal protection we ll give you money for cruel and unusual punishment or we ll give you money for education but women can t go to school NFIB v Sebelius Part 3 M Obamacare expanded Medicaid and required all states to provide coverage for all adults meeting certain requirements Fed Gov increased funding to cover new coverage but said that if states did not comply then they would lose ALL their Medicaid funding Issue Did Congress exceed its spending power by providing that a state loses all Medicaid funding as a penalty for noncompliance with new conditions YES Federal compulsion is contrary to our system of federalism This would be a punishment and there is no choice on the part of the states they re not really free to say no Different result from SD v Dole because this is not mild encouragement of 5 of hwy funds it s a gun to the head and economic dragooning Medicaid consists of over 20 of the average state s total budget with 5083 coming from federal funding The severabilitV Drovision when a provision of a contract or piece of legislation can be taken out and the rest can still be enacted Congress didn t intend for the entire act to fail if this part didn t go through Ginsburg Opinion Congress could have repealed Medicaid and enacted Medicaid II adjusting spending programs to meet the general welfare That way they could constitutionally enact this provision But it would never happen For the first time ever they found that Congress has exceeded its spending power FEDERAL LIMITS ON STATE REGULTION OF INTERSTATE COMMERCE INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE Article IV sec2 cl1 States the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states This serves as a restraint on state efforts to bar outofstaters from access to local resources Protects citizens against discrimination on the basis of state residency Priv and Im does not protect corporations Priv and Imm rights cannot be waived by congress 33 The priv and imm clause does not extend to all commercial activity but only to the exercise of fundamental rights The court has declined to recognize any market participant exception under the priv and imm clause a Substantial reason for the difference in treatment b The discrimination bears a substantial relationship to the state s obiectives i Consider availability of less restrictive means United Building amp Construction v Mayor and City of Camden city ordinance required at least 40 of employees working on city construction projects to be from the city of Camden P sued claiming it was in violation of privileges and immunity clause Majority Only rights fundamental to interstate commerce were protected by this clause Employment is such a right that is protected The opportunity to seek employment is sufficiently basic to the livelihood of the nation as to fall within the purview of the clause 0 It doesn t matter that this was passed by a city and not a state Mainly because a citizen is equal to a resident if you re a resident of Camden you re a citizen of the state Question 1 Does the ordinance burden outofstate resident s interest in employment in public works contracts Yes the pursuit of a common calling is one of the most fundamental of those priv protected by the clause Question 2 Do nonresidents constitute a source of evil at which the statute is aimed The court sends this issue back down Camden says their purpose was to correct grave social ills like unemployment declining population property values eroding and economic struggles Could this be a source or evil to justify the statute Possibly but these things can happen all over the country SC of New Hampshire v Piper state did not allow a lawyer to enter their state bar after she passed the test when she lived 300 yards from the border Court held that a state rule limiting bar admission to in state residents violated PampI clause Like occupations considered in earlier cases practice of law is important to the national economy 34 PREEMPTION derived from Supremacy Clause TVpes of Preemption 1 2 3 Express Preemption when preemption is express the only issue is whether a state statute falls within the area preempted Field Preemption Implied court requires a clear showing that Congress meant to occupy a field and so displace the states from regulation on that subject matter States must be displaced so thoroughly that it s obvious the fed gov meant to a Rice V Santa Fe Elevator Corp p 286 Con ict Preemption Implied where the federal government has enacted a complete scheme of regulation and has provided a standard for the registration of aliens for example the states cannot inconsistently with the purpose of congress con ict or interfere with curtail or complement the federal law or enforce additional or auxiliary regulations Where it s impossible for a person to compr with both federal law and state law then federal law triumphs a Hines V Davidowitz p 286 b Florida Lime amp Avocado Growers V Paul p 287 Pacific Gas amp Elec v State Energy Resources Conservation whether a California statute about nuclear energy plants is invalid because of the federal government s Atomic Energy Act so they ve preserved the field No the California nuclear power moratorium is not preempted Kinds of preemption No express preemption Federal law regulates the safety Is the regulation heavy enough to fall under field preemption No Congress legislated in a field traditionally occupied by the states so we start with the assumption that the historic police powers of the states were not to be superseded by the Federal Act unless that act was the clear and manifest purpose of Congress There is no con ict preemption because they can comply with the state statute and the federal commission California law does not interfere with the objective of the federal regulation California claimed their statute was meant not for safety which was governed by fed but for health and economics So federal gov was outside the field Court didn t question the true motive of the state Congress has allowed states to determine as a matter of economics whether a nuclear plant should be built Thus there is room to allow states to slow or stop the development of nuclear power for economic reasons Other Aspects of FederalState Relationships 35 0 Foreign affairs power p 289 federal should always prevail over states in foreign international views Crosby v national foreign trade council 0 State Taxation of interstate business 0 Intergovernmental tax immunities 0 Intergovernmental regulatory immunities 0 Mutual Obligations among the states SEPERATION OF POWERS EXECUTIVE ASSERTIONVIOLATIONS Checks and Balances between the branches of government legislative executive and judicial To disperse power between the three Executive is sometimes opposed to or contrary to congress Article II vests the executive power in the President without quali cation this differs from Article I which delegates to congress all legislative powers herein granted This has given rise to the argument that the president has certain inherent powers beyond those specific in the Constitution Inherent not in the constitution and Residual Emergency Powers of the President if yes then what are the limits Youngstown Sheet amp Tube Co v Sawyer Facts Truman asserted an executive order to keep steel mills open Truman was afraid the strike would cause the US to run out of steel and they were in the midst of the Korean War 0 Background The TaftHartley Act of 1947 applies to threatened or actual strikes imperiling the national health of safety This statute expressly deals with the situation in Youngstown Sheet But this makes the president jump through hoops and is not very helpful when time is of the essence 0 Issue Was Truman allowed to exercise a law making power independent of Congress in order to protect serious national interests NO 0 President tried to assert the authority using an aggregate of constitutional powers as Chief Executive and Commander in Chief of the Armed forces Vinson s dissent there is no statute which expressly prohibits the President s actions Executive inaction courts national disaster Says the President is not the messenger boy of Congress 0 The SC looks at what Truman did and at the form of the constitution and says that executive doesn t make law but only executes the law 36 0 Court the President is not lawmaker the Founders entrusted the lawmaking power to Congress alone in both good and bad times 0 Sources of Presidential Authority 0 Congress they pass legislation authorizing the president to do something Can be express or implied In this case there is none In fact the president s actions are rejected under TaftHartley 0 Constitution Express authority or implied authority Article II executive power vested in chief executive 0 Constitution could grant power here But constitution grants power to enforce laws not make laws Congress didn t grant authority to seize steel mills 39 Commander in Chief sec 2 powers don t extend to seizure of person property here too removed from the theater of war I Take care that laws shall be faithfully executed This power refutes the idea that the president is a law maker Jackson Commence 1 president acts pursuant to express or implied authorization of congress they both agree with each other In this case the president s authority is at its maximum for it includes all that possesses in his own right plus all that Congress can delegate 2 grey area president acts in absence of congressional grant or denial of authority so it could go either way When the president can only rely upon his own independent powers Can enable measures of independent presidential responsibility 3 president s acts are incompatible or in con ict with the express or implied will of Congress Congress expressly says the President can t do something President can only rely on his own constitutional powers minus any constitutional powers of Congress over the matter Steel issue falls in here because of TaftHartley Act Dames amp Moore v Regan M President Carter froze Iranian assets in the US after American Embassy personnel were seized and held hostage in Iran The hostages were released pursuant to an executive agreement which terminated legal claims and brought about the transfer of all Iranian assets held in the US by American banks This suspended Dames amp Moore s legal claim contract dispute for 3 million against the Iranian government 37 Issue Does the President have the authority to transfer Iranian asserts and void legal claims against Iran YES Narrow holding to the facts of this case The Spectrum Approach used in Youngstown goes from explicit congressional authorization to explicit congressional prohibition This would fall into Jackson s 1 category 0 President s actions were taken pursuant to specificexplicit congressional authorization under the IEEPA International Emergency Economic Powers Act So there was implicit approval and acquiescence bv Congress gloss of the claim settlement by executive agreement Congress has demonstrated its acceptance of the President s claim settlement authority Dames amp Moore are still able to go to international arbitration but cannot litigate So they re not completely losing their claim SEPERATION OF POWERS EXECUTIVE DETENTION AND ENEMY COMBATANTS Emergencies and the Constitution art 1 sec 9 sl2 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 Look to page 40 to apply A writ of habeas corpus is a judicially enforceable order issued by a court of law to a prison official ordering that a prisoner be brought to the court so it can be determined whether or not that prisoner had been lawfully imprisoned and if not whether he or she should be released from custody 0 When the writ is suspended like in the case of unlawful enemy combatants they are not allowed the right to present or have presented on their behalf writs of habeas corpus Habeas Corpus ensures that a prisoner can be released from unlawful detention that is detention lacking sufficient cause or evidence like Guantanamo bay 0 See 28 USC sec 2241 power to grant writs of habeas corpus Ex Part6 Quirin 1942 Issue Whether a presidential order which creates a military tribunal to try war crimes committed by war criminals instead of trying these cases in a civil court is constitutional YES Facts This is the case involving 4 German enemy combatants who came to coasts in the US with explosives and were planning to destroy the war facilities in the US They had 38 all received training at a school in Germany which taught explosive methods and secret writings 0 Congress passed the Articles of War Act which created the military tribunal The President ordered all enemies be tried in front of this tribunal and they would not be allowed access to civil courts thus relieving them of the right to habeas corpus This court states that as long as those crimes are indeed crimes of war they can be tried in front of this tribunal and this order is constitutional o Seems to fall into Jackson s 1 Maximum Authority because the President had the implied authorization of Congress 0 5th and 6th amendment were not violated in this case because it is not clear that these rights should be extended to noncitizens and enemies of war However Haupt one of the four was technically a US citizen Ex Part6 M illigan US citizen allowed to have civil court trial But these facts are much different SEPERATION OF POWERS EXECUTIVE RESPONSE TO 911 Congress passed the authorization for use of military force gAUMFz which allowed the President to use necessary and appropriate force against persons who contributed to 911 Johnson v Eisentrager WWII era case enemy aliens could not be extended the privilege of litigation in US courts no writs of habeas corpus because they at no relevant time were within any territory over which the United States is sovereign The scenes of their offense their capture and trial were beyond the territorial jurisdiction of any court of the US The NonDetention Act of 1948 no citizen shall be imprisoned or otherwise detained by the US except pursuant to an act of congress Rasul v Bush 63 decision 2004 Guantanamo Bay detainee case Rasul is claiming right of Habeas Corpus from Article I Section 9 Rasul ends up being released 0 Gov Argument as long as the people aren t on the sovereign territory of the US then they can t bring writs Executive was trying claim authorization for detention under AUMF 0 But the US exercises complete jurisdiction and control over the Guantanamo naval base So the SC rejected the gov s argument that the federal habeas statute does not apply to Guantanamo detainees Guantanamo Bay as a US sovereign has habeas corpus 39 Thomas Dissent court has overruled Eisentrager and extended habeas corpus to the four corners of the earth Wants to support a strong executive and tends to uphold presidential actions Hamdi v Rumsfeld 81 2004 Facts Hamdi was captured in Afghanistan shortly after 911 is an American citizen and was classified as an enemy combatant Fans within Jackson s Box 1 of steel seizure opinion Issue Whether the executive has the authority to detain a US citizen who qualifies as an enemy combatant Yes the AUMF authorizes the detention of citizens who are enemy combatants regardless of US citizenship Can vou detain them indefinitelv Technically yes However he can be let go at a certain point at the end of the war in Afghanistan He can be let go when the hostilities in Afghanistan ends What process is constitutionally due to a citizen who disputes his enemvcombatant status That person must be given habeas corpus right to hear why he s being detained ie notice of factual basis for status which he can contest before a neutral decision maker This is a watered down due process based on circumstances Requires less than complete due process because of the burden it would put on the gov The burden of evidence of a real criminal trial A state of war is not a blank check for the President when it comes to the rights of the Nation s citizens Souter Dissent the nondetention act required Hamdi s release express congressional authorization for detention is needed Thinks this fits within 3rd box of Jackson s steel seizure opinion Scalia Dissent prosecute the accused in federal court or release the detainee Article I sec 9 allows for suspension of the writ but not for American citizens Thomas Dissent the judiciary should not interfere with the unitary executive theory of con law which says the president is the sole head of the executive branchwhat the president says goes and the judiciary should not have anything to do with it They re 40 not competent to say anything about these kinds of issues Fits within box 1 of Jackson s steel seizure opinion Padilla v Rumsfeld man was going to detonate a dirty bomb and they captured him and claimed he was an enemy combatant He filed a habeas petition and then they moved him so they claimed he filed in the wrong place This case claimed Bush s powers were at their lowest ebb because he was left to rely on his own constitutional powers minus any constitutional powers of congress over the matter Hamdan v Rumsfeld they wanted to charge Hamdan engaged in actions in preparation for 911 attacks by military commission which is held by three different presiding officers on the military council There are a lot of limitations on what evidence can be presented presumption of guilt Conditions different D would not know the evidence used against him hearsay was admissible evidence obtained by coercion could also be admitted and live testimony and statements didn t have to be sworn 0 Court looked to article 21 of the uniform code of military justice the AUMF and the detainee treatments act of 2005 which stated no court shall have jurisdiction to hear or consider a writ of habeas corpus from a gitmo detainee to see if there was a right to a military commission 0 ISSJZ Whether Hamdan committed a crime conspiracy able to be tried by military commissions and whether that commission is constitutional NO none of the treaties include conspiracy plurality The commission s procedures violate the UCMJ and the Geneva Conventions because there is a civilized people standard of having them tried 0 A military commission tribunal must have rules and regulations that do not fall short of at least a military court marshall proceeding The lack of presence and ability to see the evidence and witness before you is not constitutional The accused has the right to be present at the trial and to be privy to the evidence against him this is not precedent because there were only 4 votes 0 A military tribunal is not authorized by Congress and would fit into Iackson s 3m m 0 Majority Congress has authorized military tribunals in the past in accordance with UCMJ This court feels that Those offenses are 1 In place of civilian courts when martial law has been declared 2 Established as part of temporary military government over occupied enemy territory and 41 3 When Congress has authorized it when the crime is an incident to the conduct of war which violate the laws of war conspiracy is not an incident to the conduct of war a There is no executive power to create a separate iudicial svstem 0 Thomas Dissent Congress has authorized the President to use all necessary force First Jackson Box see if this is what he actually said President s decision is entitled to heavv deference Citizens aren t granted right of habeas corpus Boumediene v Bush captured when US intelligence suspected involvement in a plot to attack the US embassy in Bosnia Classified as enemy combatants and detained at Guantanamo Bay Boumediene filed a writ of habeas corpus 0 Issue Whether there is the constitutional privilege of habeas corpus for enemV combatants detained at Guantanamo bay a privilege not to be withdrawn except in conformance with the suspension clause YES 0 Hle suspension clause has full effect and the MCA military commission act does not formally suspend the writ of habeas corpus Judicial officers must have adequate authority to make determinations in light of the relevant law and facts and to order relief including the release of prisoners The DTA process is an inadequate substitute for habeas corpus The citizenship and status of the detainees and the adequacy of the process through which that status determination was made The nature of the sites where apprehensions and then detention took place and The practical obstacles inherent in resolving the prisoner s entitlement to the writ 0 In this case 1 they are not US citizens and deny that they are enemy combatants 2 sites of their apprehension and confinement are technically outside the sovereign territory of the US but in every practical sense Guantanamo is not abroad but within the constant jurisdiction of the US and 3 habeas corpus proceedings may require an expenditure of fund by the government or may divert attention of military personnel but compliance with any judicial process requires some incremental expenditure of resources 0 Majority Sets apart Eisentrager captured outside US boundaries and tried and kept outside Also holds Gitmo is essentially US territory so the writ of Habeas Corpus applies The suspension clause also has full effect can t suspend without reason 42 Scalia s Dissent letting more people go it is almost certain that more Americans will be killed Believes this case is pretty much Eisentrager ENACTING STATUTES ARTICLE I SECTION 7 The outlines federal legislative procedure by which bills originating in congress become federal law in the US art 1 sec 7 clauses 2 and 3 Bill passes the house and senate Signed by the president and become a law or Vetoed by the president Veto can be overridden by 23 of house and senate Bill not returned by the president within 10 days of presentment Then it becomes law called the pocket veto Can happen when he doesn t want to endorse it but also doesn t want to veto it SEPERATION OF POWERS CONGRESSIONAL VIOLATION OF SEPERATION OF POWERS The Constitution has an implicit principle of nondelegation which says one branch can t delegate their powers to another branch The court has only overturned two cases on a non delegation basis Schecther Poultry and Hot Oil Case More toothless in foreign affairs INS v Chadha Chadha was going to be deported attorney general says no one house said they re going to override the attorney general and deport Chadha Issue whether the is constitutional No The court overruled the use of Legislative Veto which allowed one house of Congress to review actions of executive branch in this case the executive attorney general When the house takes action it has to comply with bicameralism and presentment under article 1 Court says one house veto has legislative character to it which makes it problematic The house s action had the purpose and effect of altering legal right duties and regulations of persons outside the legislative branch attorney general and executive branch officials Deals with the separation of powers issue Congress may delegate authority but once it does so it must abide by its decision until that delegation is legislatively altered or revoked Legislative enactments need to follow a finely wrought procedure from the constitution 43 Powell Concurrence Congress is assuming judicial duties The idea that you can let Congress review a suspension infringes on the Court s power Clinton v New York passed by Congress allowed the president to cancel certain provisions of bills to reduce the federal deficit as long as it did not impair any essential services and didn t harm the national interest The bill is passed through the traditional bicameral and presentment process Ruled unconstitutional by the court Court line item veto act cancellations are the functional equivalent of partial repeals of acts of congress that fail to satisfy article 1 section 7 Issue Does the line item veto act s cancellation procedures violate the presentment clause Yes If the line item veto act were valid it would authorize the President to create a law whose text was not voted on by either house eparation of powers issue President would be rejecting policy judgment of Congress and replacing with his own Kennedy Concurrence agrees with the unconstitutionality of the line item veto because he thinks liberty is threatened because one branch is seeking to transgress the separation of powers Scalia Dissent Line item veto is in name only it s essentially a discretionary spending issue Congress has long granted the executive spending discretion Breyer Dissent the president has simply canceled appropriation measures he did not repeal or amend any laws The executive and legislature branches were simply readjusting their powers with respect to each other being more exible no one was gaining or losing their powers 0 1 Has Congress Given President wrong kind of power 2 Has Congress Given power to encroach on Congress39 reserved territory 3 Has Congress given the President too much power violating the doctrine of nondelegation p 41 SEPERATION OF POWERS CONGRESSIONAL CONTROL OVER EXECUTIVE OFFICERS Article 2 2 cl 2 is the President can nominate officers of the United States with the advice and consent of the Senate Congress can vest the appointments of inferior officers in the President Courts of Law or Heads of Departments Says nothing about removal of offices 44 Congress can remove executive officers through impeachment Buckley v Valeo Congress is excluded from appointing officers Court held composition of FEC unconstitutional because members were appointed by the President of the Senate and Speaker of the House Unconstitutional delegation of appointment power Bowsher v Synar Comptroller General Position is appointed by the President with advice and consent of senate meant to deal with deficit spending Congress has complete control over the general s tenure Congress could remove the comptroller through impeachment g 23 approval by congress 0 This removal is constitutionally a problem because if congress is given the power to remove the comptroller he can be removed for doing something they don t like They can remove him for malfeasance inefficiency or neglect of duty very broad General Comptroller can also be removed by the president at any time Separation of powers issue comptroller general They can impeach executive officers but cannot have joint resolution 23 vote Congress shouldn t be able to remove executive officer on their own only president has authority to remove executive branch people It would be like the president removing a congressional officer not allowed 0 Court concluded that in effect congress has retained control over the execution of the act has intruded into the executive function Wiener v United States Removal of a commissioner from a commission that s judicial in nature by a President is illegal Morrison v Olson Independent Counsel set up to investigate and if necessary to prosecute gov officials for certain violations of federal criminal laws Act provides that the independent counsel can be removed from office only by impeachment or by personal action of the attorney general for good cause Nixon had his own attorney general remove people 0 Morrison was the investigator on ind counsel appointed to investigate Nixon Watergate scandal and Olson the solicitor general moved to quash a subpoena on the act creating the special prosecutor being unconstitutional 0 Held the act does not violate the principle of separation of powers 0 Court rules that there s no separation of powers problem with regard to the Act because the statute appropriately puts the removal power in the hands of the Executive Branch an independent counsel may only be removed by the Attorney General for good cause and it does not impermissibly interfere with the functions of the Executive Branch 45 0 Congress is not trving to take power awav from the executive authoritv attorney general can still remove and president has power 0 No in this case 0 Scalia s lone dissent he thinks the president is giving up too much power by allowing judges to appoint and allowing the attorney general to remove SEPERATION OF POWERS EXECUTIVE PRIVILEGES IMMUNITIES AND IMPEACHMENT Article 11 defines the scope of executive power but does not include privileges or immunities for the president or members of the executive branch US v Nixon court held for the first time that there is Facts Nixon does not want to release the Watergate tapes moved to quash the subpoena They cite article 11 and its grant of privilege to the President the president s counsel interprets the constitution as providing an absolute privilege of confidentiality for all presidential communications 0 ISSJZ is the president s article 11 constitutional privilege absolute No The President deserves deference but his privilege is not absolute and must be balanced against other constitutional interests Court s balancing analysis Presumption of executive privilege must be considered in light of commitment to rule of law 0 Court neither the doctrine of separation of powers nor the need for confidentiality of high level communication without more can sustain an absolute unqualified Presidential privilege of immunity from judicial process under all circumstances 0 Inherent executive privilege recognized needed for confidentiality of sensitive matters just not absolute 0 Must yield when there is important countervailing interests 0 Absolute privilege would interfere with role of judiciary 0 Political calculation where to exercise privilege vs need for transparency Exception Nixon v F itzgerald the Court announced an absolute presidential immunity from civil liability under some circumstances Held that the President is absolutely rather than 46 qualifiedly immune from civil damages liability for his of cial acts at least in the absence of explicit affirmative action by Congress ie unless congress explicitly says the lawsuit is okay 0 WHY If people could sue the president for acts under his official capacity there would be way too many lawsuit against him He wouldn t be able to focus on his job Also there is already protection against presidential misconduct impeachment press scrutiny congressional oversight prestige and desire to win reelection 0 Dissent places president above the law The court refused to expand Nixon v Fitzgerald to protect a sitting president during his time in office even temporarily from judicial process with respect to his unofficial acts Clinton v Jones Held that the President can be held liable for ciVil damages that occurred prior to taking office Court held that a suit against a president should neither be stayed nor dismissed if it is based on conduct that allegedly occurred prior to taking office 0 The president s argument temporary immunity from ciVil damages lawsuits for events occurring before he took office unofficial conduct 0 Court disagrees with President Historical record doesn t back up immunity Also structural argument fails judiciary not asked to do anything executive so there is no separation of powers issues 0 Concurrence The time and energy distraction and official decision distortion Immunity would apply if President could show that the ciVil suit would interfere with his constitutionally assigned duties Criminal prosecution of a former president Yes Criminal indictment of a sitting president No rule They tried to indict Clinton 0 There are three possibilities for reducing the impact of indicting a sitting president 1 Publicly indict the president but postpone trial until the expiration of his term 2 Seal the indictment until after the president left office or 3 Wait to indict the president until after he had left office art 11 sec4 the president Vice president and all ciVil officers of the US shall be removed from Office on impeachment for and conviction of treason briberV or other high crimes and misdemeanors Censure as a lesser included power not in the constitution Affects the president s standing and prestige but has no other effect THE WAR POWER 47 Art 1 Sec 8 cl 11 congress shall have the power to declare war The constitution grants Congress certain powers over war and treaty issues These powers allow congress to act in areas traditionally under executive control Woods v Miller M congress put rent control on what apartment managers could charge their tenants because of the war the war caused a housing deficit Why does controlling rent help the war effort Because there was no construction during the war so there is a small supply of housing and a large demand people coming back from war need housing 0 Should congressional war powers extend after hostilities end to remedy conditions caused warms O The war powers in Article I Section 8 of the United States Constitution confer very broad authority to initiate whatever measures deemed necessary to provide for the national defense in peacetime as well as in wartime 0 The court trusts that Congress would not abuse that power and that they are alert to their constitutional responsibilities They are their own check on this issue 0 Justice Jackson s concurrence misgivings about the use of the war power judges can be in uence by passions and pressures THE TREATY POWER Article II Section 2 The President shall have power by and with the advice and consent of the senate to make treaties provided 23 of the senators present concur Article VI makes treaties the supreme law of the land Missouri v Holland US and Great Britain signed a treaty protecting migratory birds Missouri objected because an earlier act of congress attempted this and failed Missouri argues that this is more a 10th amendment state issue 0 Issi Can congress pass legislation to enforce a treaty which it could not pass without the treaty Yes unless the constitution specifically forbids it A national interest can be protected only by national action in concert with another power So the treaty did not infringe upon rights reserved to the states under the 10th amendment Reid v Covert addressed concerns from Missouri No agreement with a foreign nation can confer power upon the Congress or any other branch that s free from the restraints of the Constitution 48 Difference between la ws and treaties regardless of whether the treaty came before or after the enactment of the state law A federal law can trump an earlier rule in treaty if it is clear that it is meant to do so or the provisions cannot be fairly reconciled If the treaty comes later it can trump federal law even if federal law is inconsistent The last will of the sovereign controls Treaties are international agreements and obligations THE POSTCIVIL WAR AMENDMENTS FUNDAMENTAL RIGHTS AND INCORPORATION Individual Rights before the Civil War Constitution s main concern was government structure Very few limits on individual rights Article IV 4 provided that the Citizens of each state shall be entitled to privileges and immunities of the Citizens in the several states 0 Barron v City of Baltimore 1833 addressed pre14th amendment individual rights Court held that Privileges and Immunities Clause was meant to be a limitation on federal power only not state power 0 Facts the city doing construction clogged up the wharf ruining the P s business Claims state can t use private property for public use without compensation Court says 5th amendment clause only applies to federal gov not to the P s local government Court dismissed P s lawsuit 0 This is in time to the founding The formation of the Bill of Rights was a result of a concern of an overreaching Federal Government 0 The Bill of Rights was originally applicable to the federal government not states due process clause The 13TH amendment ends slavery 0 Gave constitutional sanction to President Lincoln s wartime Emancipation Proclamation which applied to areas in rebellion by declaring that neither slavery nor involuntary servitude shall exist within the US 14TH amendment Passed in the wake of civil war and has 1 Privileges and Immunities Clause No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States Most broad provision travel petition government for redress care and protection 49 2 Due Process Clause Protects process procedural protection Page 64 3 Equal Protection presumably all citizens need to be treated equally 15TH amendment ensured voting rights Dred Scott v Sandford Facts P was a slave who had been taken to a free state He wanted to buy his freedom but they denied it He sued under diversity jurisdiction in federal court 0 Issue can a slave be considered a citizen and as such become entitled to all the privileges and immunities granted to citizens under the US constitution No He was not deemed a citizen so he cannot sue at all 0 Why is he not a citizen When the Declaration of Independence was written they were not considered citizens All men are created equal different mindset back then 0 Held congressional act prohibiting a citizen from holding and owning property of this kind and depriving slaveholders of their property violates the 5th amendment So Dred Scott was not free because he spent time in a free state SlaughterHouse Cases 1873 facts slaughterhouse in Louisiana was granted a monopoly Butchers bring a lawsuit claiming that they can t practice their training and are being discriminated against Issue Did the statute abridge the privileges and immunities of citizens of the US in violation of the 14th amendment No 13th and 14th were originally established to invalidate laws that discriminated against blacks They could possibly to apply to people other than blacks but the court said they should look to the purpose of their rst enactment O The 14th Amendment textually distinguishes between citizens of the US and citizens of the States Plaintiffs seek relief as a citizen of a State against the actions of a State But the section of the 14th Amendment Plaintiffs rely upon privileges and immunities safeguards only rights of citizens of the US against the actions of the States 0 Court gave a narrow reading to the 14th amendment Privileges and Immunities are those that are fundamental to citizens of free governments Only the privileges and immunities of the Federal Government not the state government that s placed under protection by 14th amendment Clause not meant to allow Court to overturn State laws 50 Saenz v Roe 1990 Facts California enacted a law limiting the welfare benefits for citizens who lived in California for less than 12 months The welfare family would be paid the amount they received in their last state of residence Issue Does a statute providing lower benefits to families who have lived in California for less than 12 months violate the Privileges and Immunities Clause of the Constitution Yesa The Supreme Court determined that durational residency requirements violates the right to travel by denying a newlyarrived citizen the same privileges and immunities enjoyed by other citizens in the same state and are therefore subject to strict scrutiny The is not in the constitution but is firmly embedded in our jurisprudence and so should be protected as a fundamental right There is an article IV inference roots in the commerce clause can t put a wall around the state implicates sort of right to travel and equal protection treating all US citizens similarly Stevens majority discussed three components of the right to travel 1 The right to enter one state and leave another 2 The right to be treated as a welcome visitor rather than a hostile stranger 3 For those who want to become permanent residents the right to be treated equally to nativeborn citizens 0 It has always been common ground that this clause Privileges and Immunities protects the 3rd component of the right to travel 3rd component is what is at issue in this case The Citizenship Clause of the 14th amendment expressly equates citizenship with residence The clause does not provide for or allow degrees of citizenship based on length of residence Shapiro v Thompson Supreme Court held that inhibiting the migration of needy persons into the state is constitutionally impermissible Freedom to travel is of great value to the United States Distinguished from Saenz because Shapiro is an equal protection argument while Saenz is a privileges and immunities argument The state s invidious distinctions between classes of its citizens violates the equal protection clause Duncan v Louisiana Duncan argued that the 14th amendments due process clause incorporates the right to a jury trial in state criminal prosecutions where a sentence as long as two years may be imposed Issue Is the 6th amendment right to a jury trial applied to the states by the 14th amendment YES 51 0 Test for determination has been phrased many ways fundamental principles of liberty and justice which lie at the base of all our civil and political institutions whether it is basic in our system of jurisprudence and whether it is a fundamental right essential to a fair trial 0 Crimes punishable by up to 6 months of imprisonment do not require a jury trial Incremental step for due process INCORPORATION OF THE BILL OF RIGHTS THROUGH THE DUE PROCESS CLAUSE Court used applied the bill of rights case by case to the states 0 You must say the first amendment applies to the states through the due process clause of the 14th cite 0 All have been incorporated with a few exception 3rd amendment Grand Jury language of 5th amendment Civil jury right of 7th amendment PPPL Excessive fines of 8th ii Comes from Cardozo opinion in Palko v Connecticut If 14th amendment has absorbed a right it s because neither liberty or justice would exist if it were sacrificed 0 Justice Black argued that you should incorporate all of the first 8 amendments Privileges and Immunities clause applies the Bill of Rights to the states Incorporation done through Due Process clause INCORPORATION WAS DEAD until 2rld amendment issues started popping up US Constitution Amendment 11 A wellregulated militia being necessary to the security of a free state the right of the people to keep and bear arms shall not be infringed District of Columbia v Heller Gave people the right to possess a firearm for traditionally lawful purposes such as selfdefense within the home Court held that the 2rld amendment is a matter of individual right 0 Used historical argument that Arms from 1773 was defined as weapons not specifically designed for military purposes 0 Handgun regulation is okay but total ban DC s law is not McDonald v City of Chicago Court struck down an effective handgun ban from Chicago holding that the right of the 2rld amendment was incorporated against the states by the 14th amendment 52 C ISSJ Can you take the 2rld amendment and apply it to the states Yes it is an incorporable right binding on the states because it s fundamental to the nation s scheme of liberty Basically it s fundamental because it s traditional History of people being able to protect themselves against the government Selfdefense is a basic right 0 Looks to due process because that s what the incorporation precedents say The civilized nation s arguments you can be a civilized nation and not allow handguns as a fundamental right England Canada Australia Japan New Zealand Thomas Concurrence doesn t agree with substantive due process or incorporation but uses the 14th amendment privileges and immunities clause to allow gun ownership Right to bear arms is an enumerated privilege unlike welfare benefits from the Saenz case Steven s Dissent is the asserted right an aspect of liberty Breyer s Dissent keeping arms for private selfdefense is not fundamental Factors to be considered whether the extent of incorporation will advance or hinder constitutional structure is it needed to further the constitution s effort to ensure that the government treats each individual with equal respect JUDICIAL REVIEW FOR THESE ISSUES substantive due process ourt has to look at whether the ri ht the are reviewin is fundamental or not 0 if it is a fundamental right then the court has to use the strict scrutiny test Fundamental rights are deeply rooted in history and tradition Protect things that have been historically protected Usually when you say something is a fundamental right the state is going to lose 0 compelling government interests pursued by narrowly tailored means State has to identify the exact compelling reason why they passed the law 53 then prove that what they are doing is in furtherance of that exact reason They don t have to prove that it worked just the purpose 0 if it is a nonfundamental right then the court has to use the rational basis test Usually the state will win 0 legitimate government interests pursued through rationally related means Pretty much anything can have a rational basis very broad gt For intermediate scrutiny look to page 67 gender SUBSTANTIVE DUE PROCESS AND ECONOMIC LIBERTIES The 14th amendment guarantees procedural due process but also some substantive due process There are some fundamental liberties which cannot be infringed without due process of law Court suggested early on that there are some natural rights that are entitled to protection whether or not they were explicitly stated in the Constitution 0 DUE PROCESS no person shall be deprived of life liberty or property without due process of law Amend V Then they decided to aDDlv it to states as well No state shall deprive any person of life liberty or property without due process of law Amend XIV sec 1 Look to page 64 for test 0 SUBSTANTIVE DUE PROCESS is a principle which allows federal courts to protect certain fundamental rights from government interference under the authority of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution which prohibit the federal and state governments respectively from depriving any person of quotlife liberty or property without due process of law Due process restricts the subject as well as the procedure 0 Substantive due process defines the line between acts by persons of a public or private nature that courts hold are subject to public regulations or legislation and acts that courts place beyond the reach of governmental interference 0 Like green pastel redness SUPER DUPER AMBIGUOUS is the rightbeing claimed fundamental or not If it s not fundamental then they use the rational basis test If it s fundamental then it can only be taken away by a compelling governmental interest strict scrutiny Lochner v New York facts NY labor law stated that no employee can be required or permitted to work in a bakery for more than 60 hours per week or more than 10 hours in one day Lochner was convicted for violating this labor law 54 0 Issue Does due process protect the liberty of employment contracts and private property against unwarranted government interference Yes NY labor law struck down 0 Economic liberty can t be violated without valid end 0 Court ruled that the general right to make a contract in relation to business is part ofthe The right to purchase or sell labor is a part of the liberty protected 0 The Government can interfere with the right to contract only to serve a valid public purpose Relate to the safetv health morals and general welfare of the public Court thought there was no valid health safety rationale in this case but suspected that there were legislative motives behind the enactment of this law 0 When looking at the State Police Power determine if it s fair reasonable and appropriate or unreasonable unnecessary and arbitrary 0 Holmes Dissent the word liberty is perverted when it is held to prevent the natural outcome of a dominant opinion Also the constitution is not intended to embody a particular economic theory 0 Later Lochner was repudiated and became synonymous with inappropriate judicial intervention in the legislative process Adverse consequence of Lochner unequal bargaining power between parties employer has much more power and the worker needs the money to live Nebbia v New York moves away from Lochner Court upholds a law regulating minimum and maximum prices for milk Mr Nebbia was convicted of selling his milk in his grocery store in excess of the price set by the board 0 If the law is reasonable then that s the end of their inquiry They will defer to the legislature If the law is not reasonable then they will look for if the means shall have a real and substantial relation to the object sought to be attained Since the price controls were not arbitrary discriminatory or demonstrably irrelevant to the policy adopted by the legislature to promote the general welfare it was consistent with the Constitution Court argued that the production and distribution of milk is a paramount industry of the state and largely affects the health and prosperity of its people police powers 55 Significant shift from the Lochner era Reduced the judicial role in scrutinizing the means employed in economic regulations No rigorous review strict scrutiny of the merits like in Lochner Carolene products footnote 4 most famous footnote court said there was some cases where they would use rational basis and defer to legislation but then there would be some where they would Move in economic arena is away from strict scrutiny Courts will use more scrutiny when bill of rights is at stake Strictest scrutiny when political process breaks down West Coast Hotel v Parrish upheld a minimum wage provision for women overruling another case which relied on Lochner Almost a Constitution does not speak of freedom of contract it speaks of liberty Liberty of contract is an economic theory MINIMUM RATIONALITY OF ECONOMIC LIBERTIES Ask is there any rational basis reasonableness for this law Williamson v Lee Optical Co Court says it s not their job to check all legislation for whether it makes sense or is useful but only at whether it violates the constitution Case known for the lowest level of scrutiny under substantive due process 0 Upheld OK statute preventing opticians from duplicating lenses without prescriptions Lens fitters could be hurt because they can t fit glasses without a prescription so they claimed that the law violated the due process clause of the constitution 0 Court said there was no violation because if a court can conceive of some legitimate purpose so long as it s reasonable the law will be upheld It is for the legislature not the courts to balance the advantages and disadvantages of the new requirement This is completelv opposite from Lochner The legislature doesn t have to prove that they thought about anything in particular gives the legislature tons of deference Onlv applies to economic legislation Punitive Damages how do we know punitive damages are excessive Look at disparity between potential harm to P and punitive damages Look at the remedy in comparison to the civil damages BMW 4000 damages but 2 million in punitive damages has to bear relation to the plaintiffs harm few awards exceeding a single digit ratio between punitive and compensatory damages would ever be valid look at the punitive damages award in comparison to the most relevant civil statute Must be reasonably proportionate 56 SUBSTANTIVE DUE PROCESS AND PRIVACY Does the Constitution protect privacy against the government Court has a line of cases upholding a substantive due process right to privacy under the heightened scrutiny built on Lochner tradition of strict scrutiny Substantive Due Process has long protected liberty of family life procreation marriage State law sterilizes mental defectives Buck 12 Bell Justice Holmes claimed that you can either sterilize the defective or you d have to kill their offspring later for crime or let them starve Three generations of imbeciles are enough Does a person have a right not to be sterilized leads to limiting how many children people can have 0 General right of privacy not to be sterilized by the government against your will Skirmer v Oklahoma sterilization law for 3rd conviction of felony Except embezzlement Violates the equal protection clause have to treat all felons equally Court applied strict scrutiny they thought that criminality was an inherited trait This case is no longer good law Griswold v Connecticut law made it a crime to use contraception or to assist in someone getting contraception which implicates doctors Purpose of the law possibly promoting procreation Married couple in this case claimed this violated the 14th amendment Court looked to the Certain rights seem to imply other rights Specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance 0 1 right of association 911 you retain rights that you had before the constitution 3rd right to privacy in your home ie no quartering 4th to be secure in your personhouse against search and seizures 5th selfincrimination cannot surrender to your detriment Incorporation through the due process clause of 14th amendment 0 Marriage and Privacy not specifically rooted in either the bill of rights or the constitution but is firmly rooted in tradition and protected by 1 9th and 14th amendments This is Lochnerlike look at the merits and substance of the legislation This is not rational basis because then it would come out the other way in favor of the gov because they d have some rational reason 57 Dissent there is no general right to privacy in the documents and is a broad abstract and ambiguous concept The government has the right to invade privacy unless it specifically forbids it in the constitution Eisenstadt v Baird Court overturned a conviction under a law banning distribution of contraceptives of a person who gave them to an unmarried person Decided case as a violation of equal protection even under a minimum rationality standard 0 Recognizes the right of the individual married or single to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child Carey v Population Services if you re a minor under 16 then NY law prohibited the selling of contraceptives Court struck down the NY law 0 Standard of review Brennan said the SC had a significant not substantial state interest Strict scrutiny required for restrictions on access to contraceptives because access is essential to exercise of constitutionally protected right of decision in matters of childbearing SUBSTANTIVE DUE PROCESS RIGHT TO PRIVACY AND ABORTION Roe v Wade 1973 Court overturned a Texas law banning abortion in all cases except to save the life of the mother holding that a right to privacy is guaranteed by the concept of liberty in the 14th amendment The key case in finding a constitutional right to have an abortion Based on implications from Griswold and Eisenstadt 0 SC said although the constitution didn t mention the right of privacy they found it in the concept of liberty in the 9th and 14th amendment Liberty to follow your interests which includes your right to be free in private matter Liberty encompasses a woman s decision whether or not to terminate her pregnancy Generally speaking her decision is not anybody else s business including the government 0 Is a woman s right to terminate her pregnancy absolute No it is fundamental but not absolute So they created the Trimester Framework a 1St trimester abortion decision left to her physicianher State can t interfere b 2nd trimester state may regulate abortion procedure in ways reasonably related to maternal health they have to state why c 3rd trimesterViability state has an interest in protecting the potentiality of human life State may regulate and even prohibit abortion except when necessary to protect the life of the mother 58 39 Court does away with it This seemed more legislative than judicial Just know for background 0 McCorvey v Hill 2004 McCorvey Roe filed a motion for relief from the judgment because she is now a prolife advocate Motion denied statutes at issue in Roe have been repealed by current state laws Regulation of Abortion Post RoePre Casey nearly all regulations except limits on funding and teenage abortion were held invalid in this time period 0 Regulation of Medical Procedures 0 Doe v Bolton Invalidated a GA law requiring approval of hospital committee and two doctors before an abortion was performed 0 Akron v Akron Center for Reproductive Health Invalidated OH requirement that abortions after 1st trimester be performed at a hospital I Significant obstacle in the path of a woman seeking an abortion 0 Spousal and Parental Consent Requirements Generally parental consent is not ok unless there is a judicial bypass parental notice is ok 0 Planned Parenthood of Central MO v Danforth court struck down a MO requirement of a husband s written consent for an abortion during the first 12 weeks of pregnancy I State can t delegate authority even to spouse to prevent abortion during the first trimester 39 Court also struck down a provision requiring an unmarried woman under 18 to obtain the consent of a parent as a prereq for an abortion 0 Bellotti v Baird Parental consent unconstitutional if it undulv burdens the right to seek an abortion 0 Belotti v Baird II State could involve a parent in a minor s abortion decision if it provided a judicial bypass o HL v Matheson Court upheld a statute requiring a physician to notify parents 0 Hodgson v Minnesota Struck down requirement that parents be notified before an abortion was performed But it is permissible with a judicial bypass procedure 0 Waiting Period and Reporting Requirements Court struck down a mandatory 25 hr waiting period Akron Court struck down reporting requirements regarding the identities of the physician and the pregnant woman Thornburgh 0 Abortion Funding Restrictions Restrictions on public subsidies were upheld generally during this period 0 Maher v Roe Court upheld a CT regulation withholding Medicaid benefits for medically unnecessary abortions 59 I Strict scrutiny not warranted because unequal treatment of abortion and childbirth did not interfere with fundamental right recognized in Roe Upheld under rational review 0 Harris v McRae rejected constitutional challenges to federal funding limitations which barred payments for even the most medically necessary abortions I It does not follow that a woman s freedom of choice carries a constitutional entitlement to financial resources to avail herself of the full range of protected choices Government doesn t need to remove obstacles not of its own creation indigency Woman has the same range of choices as if Congress had chosen not subsidize any healthcare costs 0 Rust v Sullivan Extended reasoning of Maker and McRae to a restriction on abortion counseling by any project receiving federal family planning funds I Due Process Clauses confer even with respect to a liberty with which government may not interfere I Blackmun Dissent puts a significant obstacle in path of woman voluntarily seeking an abortion 0 Webster v Reproductive Health Services Court upheld a MO law barring state employees from performing abortions and the use of public facilities for abortions even when paid for privately CURRENT LAW Planned Parenthood v Casey 54 statute imposed several obligations on women seeking abortions I O Conner Kenendy Souter Opinion Roe is still good law but it needs to be tweaked Central right is protected using the undue burden standard So abortion regulations no longer face strict scrutiny Court adheres to roe s essential holding but rejects the trimester framework and announces undue burden standard instead I shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonViable fetus O A state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal 0 Current Rules instead of trimester O PreViability there is no prohibition of a woman s decision to terminate her pregnancy 60 O Postviability state may regulate even prohibit abortion except where necessary to preserve the life or health of the mother 0 The 24hour waiting period not undue burden overturns Akron 0 Spousal Notification undue burden and unconstitutional ie abusive relationship protection of the mother 0 Parental Notification requirement not undue burden parents have to be notified but don t have to give their permission but there has to be a judicial bypass for exception cases The bypass is the only way that it s constitutional 0 The Reporting Requirements not undue burden confidential for medical research and statistics This court emphasized Stare Decisis overturning precedent is only ok when a Earlier decisions are unworkable b Evolution of legal principles which undermined the doctrinal foundations c Change in factual predicate for the decisions Rehnquist Dissent he wants to overrule Roe historical traditions do not support the view that the pregnancy termination decision is fundamental Back then abortion wasn t protected Scalia we don t know and should get out of this arena Leave it to the states Partial Birth Abortion not a medical term called Dilation amp Extraction Gonzales v Carhart 2007 There was a federal partialbirth abortion ban act Is this ban on partial birth abortion unconstitutional No it is constitutional to prohibit DampX 0 Court claims that the ban does not impose an undue burden There is no exception to preserve the mother s health 0 Does the law impose a substantial obstacle to late term previability abortions 0 Not an undue burden because there are other options and types of abortion available Where they take the baby out whole the court thinks it s too close to a birth and borders on infanticide O Mention the respect for the dignity of human life The dismembering kind of DampX is not as safe for the woman as taking out the baby whole How do they get around the health exception By allowing an as applied challenge to be brought if DampX were required to save the life of the mother 61 0 Some women come to regret their choice to abort the infant life they once created and sustained Womenshaming Majority mentions the possible sideeffects of a woman having an abortion depression loss of esteem yet upholds legislation not providing for an exception for women s health 0 Does the law subject women to significant health risks Court says there s uncertainty either way Let medicine figure it out war between the medical experts They can t tell so they erred on the side of not providing for women s health 0 State has to have a health exception but congress doesn t have to have a health exception SUBSTANTIVE DUE PROCESS and MARRIAGE AND FAMILY Marriage Rights Marriage has come up as protected under substantive due process Constitution affords a right to marriage it can be found through due process or equal protection The process is to get marriage protected with substantive due process than fill in the gaps with equal protection Loving v Virginia struck down the ban on interracial marriage relied principally on equal protection But also relied on the due process of law in violation of the due process clause of the 14th amendment as an alternative ground 0 Marriage is one of the basic civil rights of man fundamental to our existence and survival To deprive this fundamental freedom is surely to deprive all the State s citizens of liberty without due process of law Freedom to marry or not marry a person of another race resides with the individual and can t be infringed by the state Zablocki v Redhail court again vindicated the right to marry under equal protection grounds Overturned Wisconsin law banning marriage for people with large child support burdens 0 Right to marry is part of fundamental right to privacy from Griswold line Anything that interferes with that right needs critical examination 0 Strict Scrutiny Cannot be upheld unless supported by sufficiently important state interests and is closely tailored to effectuate only those interests Extended Zablocki in Turner v Sa ey which struck down a prison regulation that restricted prison inmate s rights to marry by conditioning it on the prison superintendent s approval for compelling reasons 0 Marriage is a fundamental right even in the prison context 0 Regulation is unjustifiable even under the reasonable relationship test as unjustified by legitimate rehabilitation or security concerns Rational basis was not enough 62 Household Composition and Extended Family Moore v East Cleveland court overturned house zoning restriction which limited the occupancy of a dwelling to members of a narrowly traditionally defined family 39 The legitimate city interest have too tenuous a relationship to the ordinance Troxel v Granville grandparents don t have rights to visit their grandchildren if the parents don t allow it To allow the grandparent s rights over the objections of the sole surviving parent would be to violate the mother s substantive due process rights 0 So long as a parent adequately cares for his or her children there will normally be no reason for the State to inject itself into the family If a m parent s decision of the kind at issue becomes subject to judicial review parent s decision must be given weight 0 Dissent Due Process cause leaves room for States to consider the impact on a child of arbitrary parental decisions that neither serve nor are motivated by the best interests of the child Michael H v Gerald D Court upheld CA judgment denying visitation and other rights to a man claiming to be the biological father of a child outside of marriage Presumption that a child born to the wife is legitimately a child of the marriage Even though it is 98 likely that the child belongs to some other guy who wants rights to the child Traditions favor the married couple in this case and in this society 0 No constitutional rights have been violated as SUBSTANTIVE PROCESS AND SEXUALITY Bowers v Hardwick 54 Police officers went into the house uninvited and saw two men having sex Georgia had a ban on homosexual sodomy court says they must look to ordered liberty history and tradition for rights not enumerated in the Bill of Rights 0 Court found the right was not fundamental within the meaning of the court s precedents under the due process clause So the law criminalizing homosexual sodomy did not violate the due process clause 0 Rational Basis Morality alone was a sufficient basis for the law 0 Blackmun Dissent the right was defined too narrowly in this case it should have been stated as the right to be let alone Sexual intimacy is a sensitive key relationship of human existence In this case the court refused to recognize a fundamental interest all individuals have in controlling the nature of their intimate associations with others 63 Lawrence v Texas 63 facts police entered home where two men were engaging in sex They were arrested and charged with violating a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct Issue whether the statute prohibiting a certain sex act violates liberty under the due process clause of the 14th amendment YES Court expressly overrules Bowers o The law in Texas is deemed invalid as a restriction on the right of privacy rooted in substantive due Drocess Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government Court looks to the relevance of laws and traditions in the past half century not what everyone thought in the 1800 s Also cited international sources that got rid of the ban on homosexual rights controversial Limits the court s ruling not talking about marriage or minors Standard of Review never says whether it s a fundamental right or not But states that the Texas statute furthers no legitimate state interest which is the language of rational basis review even though he doesn t say that O Connor Concurrence relies on the equal protectjon clause instead of due process Texas is not banning ALL sodomy but just sodomy because homosexuals They can either ban all sodomy or no sodomy Scalia Dissent homosexual sodomy is not a fundamental right There is no right to liberty under due process clause it only allows states to deprive citizens of liberty as long as due process is provided In this case the statute furthers citizen s belief that certain forms of sexual behavior are immoral and unacceptable United States v Windsor same sex partners were married in Canada DOMA does not recognize the surviving spouse as an inheritor and taxed the estate left to her If recognized she would have qualified for the marital exemption so she is trying to get a refund Does the Defense of Marriage Act violate the equal Drotectjon clause throu2h the 5th amendment YES DOMA is federal and then there is state law defining marriage What was the purpose of DOMA To discriminate against minorities and hinder people that state law is now protecting Court says there is no legitimate purpose of DOMA but doesn t say he s using the fundamental right and rational basis standard Robert s Dissent claimed there was no sinister motive or bare desire to harm by passing DOMA He also thinks keeping DOMA would not tar the political branches with the brush of bigotry 64 0 Scalia Dissent perfectly valid justifying rationales for DOMA rational basis 0 Alito s Dissent this should be left up to the legislature not the court Federal Marriage Amendment there was a move to amend the constitution with a provision that would take away any arguments in debate It would bind the states and the federal government Gay Parenting Bottoms v Bottoms removed a child from the custody of his biological mother placing him with the grandmother in part because of the mother s lesbian relationship 0 Parenting is allowed Even though employers can discriminate against LGBT SUBSTANTIVE DUE PROCESS AND RIGHTS OVER DEATH Right to Di no constitutional protection needed the idea that you need a protected right to die is fanciful Right to life and death is implicit in the concept of ordered liberty however history and tradition dictate otherwise rules against suicide and physician assisted suicide Cruzan v Director Missouri Dept of Health first time the court considered the constitutionality of the right to die Court held that the discontinuation of lifesustaining procedures was not constitutionally required 0 Court inferred a right to reject or to terminate unwanted medical procedures for a competent person However for an incompetent person court upheld a law that required a clear and convincing standard for determining the wishes of the incompetent person without a living will or designated surrogate 0 Le the court found it was acceptable to require clear and convincing evidence of a patient s wishes for removal of life support where the woman was in a coma Washington v Glucksberg does a state s ban on physician assisted suicide violate the constitution No state is allowed to not allow assisted suicide Although you are allowed to discontinue treatment and die naturally that s not suicide 0 Court finds that the historic tradition is to not allow it They would have to reverse legal doctrine and practice and strike down the considered policy choice for every state 0 Court deems this is not a fundamental right so they use the rational basis test They find that the ban on physicianassisted suicide is reasonable because it relates to a legitimate state interest ie the preservation of human life and upholding the integrity and ethics of the medical profession for sexual orientation cases like B0wers Protects fundamental rights and liberties which are objectively deeply rooted in the nation s history and tradition and implicit in the concept of ordered liberty If yes then you have to use strict scrutiny If no then look to rational basis A careful description of the asserted fundamental liberty interest Equal Protection Case not using due process Vacco v Quill court held that NY statute did not violate the equal protection clause by prohibiting assisted suicide while permitting patients to refuse lifesaving medical treatment They re two different procedures and not entitled to the same protection so classification is okay Dying from underlying illness V affirmative act DUE PROCESS AND PROPERTY The Due Process Clause provides that certain substantive rights life liberty and property cannot be deprived except pursuant to constitutionally adequate procedures Courts often defers to the state as to what is a constitutionally protected property rights 0 To be entitled to due process you need to have something to trigger it like an enumerated right or liberty interest 0 Liberty interest protected in abortion right to unwanted medical procedures prison personal relationships 0 Goldberg v Kelly due process requires that a welfare recipient be afforded an evidentiary hearing before the termination of benefits However these right have been rolled back in the next cases 0 Perry v S inderman Nontenured teacher won a right to hearing on sufficiency of grounds for nonretention but only because the college had a de 66 facto tenure program and he had tenure under that program Otherwise he would probably fall under Roth 0 Liberty interest not protected in funding for abortions reputation Case Examples 0 Board of Regents v Roth a nontenured teacher hired for one year had no constitutional right to a statement of reasons and a hearing before being denied rehire 0 Town of Castle Rock v Gonzales Mother had restraining order against her ex but the husband came and abducted and killed the 3 children Mother sued because restraining order was issued by the state and they weren t protected by the police Court said there was no property interest in police enforcement created by a restraining order Benefit is not a protected entitlement if the government may grant or deny it in their own discretion Police discretion has coexisted with apparently mandatory arrest statutes 0 Due process does not protect you from private actors Deshaney Case Court rejected the idea that there was a special relationship that created a protected interest between case workers and a child in a child abuse case 0 Approach in Matthews v Eldridge three part balancing test to determine whether process is due Is there 1 Private Interest effected by official action 2 The risk of erroneous deprivation of such interest through the procedure used 3 Government s interest Paddling in Schools Ingraham v Wright corporal punishment only allowed after an opportunity for a hearing TEXTUAL GUARANTEES OF ECONOMIC LIBERTY THE TAKINGS CLAUSE Nor shall private property be taken for public use without just compensation 5th am There is a and a requires that the government pays for it 67 The Due Process clause of the 14th amendment extends the taking clause to the states Missouri Pacific Railroad v Nebraska General Rule Sovereign may not take the property of A for the sole purpose of transferring to B Power of Eminent Domain The power to take private property for public use by a state municipality or private person or corporation authorized to exercise functions of public character following the payment of just compensation to the owner of that property The court has been very deferential to public use 610 v City of New London the city wanted to take the land and revitalize the community through a state park and a pharmaceutical company s new facility Creating more jobs The city purchased the property and seeked to enforce eminent domain to acquire the additional parcels from unwilling owners 0 Whether the city s proposed disposition of the property qualifies as a public use within the takings clause of the 5th amendment YES public use was broadly interpreted to mean public purpose Taking of blighted property is okay 0 But originally public use used to mean that it was open to the public 0 Common Law Precedent Berman gov could lease or sell that property taken to private developers The concept of public welfare is broad and inclusive M idki Hawaii case where use of eminent domain was used to solve the problem of the concentration of land ownership When the legislature s purpose is legitimate and its means are not irrational our cases make clear that empirical debates over the wisdom of takings are not to be carried out in federal courts Was meant to benefit the public as a whole That the takings of the particular properties at issue were reasonablv necessarv to achieve the City s intended public use and That the takings were for reasonablv foreseeable needs Economic development qualified as a valid public use The court must look to the entire plan s importance and the city s overall interest in the economic benefits derived from the development 0 A state may restrict its exercise of the takings power and eminent domain through state law and can put exceptions in TEXTUAL GUARANTEES OF ECONOMIC LIBERTY THE CONTRACTS CLAUSE No state shall make any law impairing the obligation of contracts artl statute 10 68 The major purpose of the clause originally was to restrain state laws affording debtor relief e g laws postponing payments of debts and laws authoring payments in installments or in commodities Historically the Contract Clause was not intended to confer absolute rights onto private parties entering into contracts Rather it was intended to serve as qualified right over which the State retained some power to control for the benefits of the Nation as a whole Home Building amp Loan Assn v Blaisdell Minn law declared that during an emergency period courts could extend time periods in which mortgagers could pay back their debts to their lenders Blaisdell s period of redemption was extended which modified the lender s contractual rights to foreclose Does the law violate the contracts clause of the US constitution No The court rejected the framers interpretation NOT whether the action affects the contract 0 In this case it was a legitimate use of police powers since Minnesota faced massive economic difficulties The state can act to safeguard the vital interests of its people EQUAL PROTECTION RACE DISCRIMINATION 14th amendment guarantee of equal protection no state shall deny to any person within its jurisdiction the equal protection of the laws Historically directed at racial discrimination against African Americans but has recently included gender alienage and illegitimacy Racial classifications require strict scrutiny regulation serves compelling governmental interests and be essential to those interests Gender requires intermediate scrutiny regulation serves important governmental objectives and be substantially related to achievement of those objectives Other classifications reguire Rational Relationship Rational Relationship to legitimate ends Race Discrimination Plessy v Ferguson separate but equal railroad separate compartments court approved of segregation law as consistent with equal protection Original framers would have agreed with this justification 69 Harlan Dissent Our constitution is colorblind There should be no dominant class in this country Soon this judgment will be seen on par with the dred scott case The Higher Education cases 0 Sweatt v Painter required the admission of black to UT law school even though the state had recently established a law school for blacks 0 McLaurin v Oklahoma State Regents black student had been admitted to the state s university graduate program not offered at the black school but had been required to sit in separate sections in or adjoining classrooms Court deemed that this impaired the student s ability to study engage in discussions and exchange views with other students and in general to learn his profession intangible issues Segregation in Public Education Brown v Board of Education court ruled that schools must be integrated because separate but equal is inherently unequal also in regards to educational facilities P s have been deprived of equal protection Intent of framers can t be used because schools hold a more important role in society 14th amendment proscribed all state imposed discrimination 0 The court gave school authorities the primary responsibility of desegregating their schools The courts would then determine whether the action of the schools constitutes good faith implementation The courts required that the defendants make a prompt and reasonable start towards full compliance with the Brown ruling Didn t really work which is why we have Brown II 0 Sociology and Psychology Look to effect of segregation on children in public schools generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to be undone Court used social science data to reach conclusion which was highly controversial at the time 0 Technically Brown did not overrule Plessy because they didn t want to anger others or seem badly motivated They distinguished Plessy by saying the thinking about segregation has changed socially and politically 0 Brown v Board II 1954 recognized the possibility of resistance Admit to public schools on a racially nondiscriminatory basis with all deliberate Speed the parties to these cases Court wanted to give people time to wrap their heads around the concept of desegregated schools they were afraid of violence and riots Schools in the South in particular did not integrate until at least a decade later gov had to withhold federal funds from public schools 0 White Reactions White Flight people moved to the suburbs to avoid integration Implication of Brown v Boar 70 Bolling v Sharpe Racial segregation in DC Public Schools violated due process of the 5th amendment which does not contain an equal protection clause Due Process and equal protection are not mutually exclusive but discrimination maybe so unjustifiable as to violate due process DC is federal government discrimination which is why it implicates 5th amendment not the 14th amendment Green 12 County School Board 1968 gave them enough time now are requiring schools to desegregate more aggressively The freedom of choice plan is inadequate to impact integration Swarm v CharlotteMecklenburg 1971 busing was implemented to achieve integration of schools The scope of the equitable powers is broad Milliken v Bradley 1974 effective end of any real court mandated integration efforts Will not allow a district court to order interdistrict remedies ie can t reach out to the suburbs to bring white children into the city and can t take black children out of the city Ignoring district lines is contrary to the history of public education Missouri v Jenkins 1 and II 1990 and 1995 Court can t order a tax increase to finance the costs of desegregation Limited the power to impose fiscal burden on states and localities Court said if you proved good faith efforts to integrate then they would let them out of the mandate Board of Education of Oklahoma v Dowell 1991 federal supervision of schools is a temporary measure Eliminating Other Vestiges of Segmgation marriage McLaughlin v Florida the court invalidated a criminal adultery and fornication statute prohibiting cohabitation by interracial unmarried couples 0 Classification based on race which 14th amendment was meant to eliminate 0 Strict scrutiny no real justification so not allowed Loving v Virginia fa white man and black woman were married in DC and came back to Virginia Were told they couldn t live there as man and wife because there was a criminal ban on miscegenation interracial marriage Conditioned that they leave the state and not return to Virginia together for 25 years 0 D argument it is not racial discrimination because blacks can t marry whites and whites can t marry blacks Court did not accept this argument equal application of a statute is not enough to remove the statute from the 14th amendment proscription of all invidious racial discrimination 0 Strict Scrutiny Equal protection clause demands racial classifications to be subjected to the most rigid scrutiny If the criminal statutes are ever to be upheld they must be 71 shown to be necessary to the accomplishment of some permissible state objective independent of the racial discrimination which was the object of the 14th amendment to eliminate O No rational basis Don t defer to the state Have to have some compelling reason and the court did not see one in this case Virginia had designed the statute to maintain white supremacy 0 There was also a substantive due process element in this case right to marry protected Palmore v S idoti 1984 court overruled the use of race in child custody cases Overturned a ruling awarding custody of child to the father after the mother remarried a black man given reason for the custody change 0 Subject to strict scrutiny Court says it would have been different if she d remarried a white man Must be justified by a compelling government interest and must be necessary to the accomplishment of its legitimate purpose which there was not in this case Johnson v California 2005 Court held that strict scrutiny must apply to a state policy of segregating prisoners by race even when the justification was preventing race based gang violence 0 All racial classifications must be analyzed by reviewing under strict scrutiny Separate can never be equal Remand for prison admin to demonstrate that race based policies are narrowly tailored to the compelling state interest of prison safety This might survive Segregationist laws applied equally to blacks and whites on their face and were struck down Disadvantaging racial classifications are suspect and are subjected to the most rigid scrutiny and bear a heavy burden of justification yes triggers strict scrutiny 0 Hirabayashi Case curfew for Japanese on the west coast 1943 and Korematsu case interned people and sent them to camps 1944 0 Government claimed they were at war so they didn t have time to discern who was dangerous and not Both these cases survived strict scrutiny very rare Court claimed this wasn t racial at all so what is it There was a pressing publiv necessity found here Military imperative 0 Korematsu s conviction was vacated in 1984 Each survivor of the internment program received reparations of 20000 The Chinese Exclusion Act of 1882SC said Chinese people could not become citizens 72 When a faciahv neutral hw receives racially discriminatory application faces strict scrutiny This is whenever a law that seems neutral actually has some kind of discriminatory effect and thus violates equal protection Y ick W0 v Hopkins 1886 Court held that application of a San Fran law granting permits to white laundry owners and not to Chinese Laundry owners violated equal protection and is subject to strict scrutiny Still violates equal protection if law is applied with unequal hand to make illegal distinctions between people in the same circumstances Gri cin v County School Board of Prince Edward County Closing of public schools unconstitutional done to ensure white and colored children would not go to the same school Palmer v Thompson Court held that City of Jackson did not violate the Constitution when it closed its pools after they were ordered desegregated No affirmative duty to operate swimming pools Court has not held that an act may violate equal protection solely because of the motivations of the men who voted for it 0 Would just repass after being struck down for a different reason Focus of other cases was on the actual effect of the enactments Not motivations which led the legislature to behave as thev did what does the court do if the statute does not on the face of it explicitly disadvantage races Look at disproportionate impact Washington v Davis black applicants failed the police department test and claimed that the test violated equal protection because it disproportionately disqualified blacks for police service Court disagreed and said that there has to be proof as to the disproportionate effects of the exam Plaintiffs have to show a racially discriminatory purpose 0 Disproportionate impact is not the sole touchstone of an invidious racial classification forbidden by the constitution Court was concerned with the far reaching impact of a contrary holding many hard to prove in cases Arlington Heights v Metropolitan Housing Corp Reaffirmed that official action will not be held unconstitutional because of a raciallv disproportionate impact Chicago suburb refused to rezone from single family to multifamily to put in low to moderate income town homes In this case it can t be said that a legislature or admin body was motivated by a single concern 0 Impact alone is not determinative different than Y ick Wo Rogers v Loge Evidence of historical discrimination is relevant to drawing an inference of purposeful discrimination 73 Affirmative Action and Race Preferences racial classification even if benign face strict scrutiny 1 compelling governmental interest pursued by narrowly tailored means race related cases gov going to lose usually 2 important governmental objectives pursued by substantially related means sexrelated cases a This is only for equal protection cases not due Drocess cases 3 legitimate governmental objectives pursed by rationally related means Gov going to win usually Regents of Univ of California 12 Bakke 1978 16 out of 100 seats were reserved for minority students Is the special admission program of the university constitutional No But can race be considered as a factor in the admission process Yes because diversity is a compelling government interest in higher education 0 Level of judicial review applied strict scrutiny Racial and ethnic distinctions are inherently suspect Preference for one group for no reason other than race is discrimination forbidden under equal protection 0 Court rejected the purported purposes of the program minority students in themselves do not guarantee a diversity of viewpoints in the educational environment Also claimed there would be a stigma attached to the people who got in through affirmative action means Having an ethnically diverse student body 0 Held a sole focus on racial or ethnic diversity is unconstitutional 0 But Competitive consideration of race and ethnicity as a plus factor as one element in the selection process is permitted Ethnicity is one factor not the determinative factor 0 Dissent thought that racial classifications designed to further remedial purposes should be subject to intermediate scrutiny In Public Employment Wygant v Jackson Board of Education the court held unconstitutional a minority preference in teacher layoffs Can t consider race with something as big as who s getting to keep their jobs Need a finding of past discrimination by governmental units 0 The stated goal of providing minority role models not a compelling government interest In Public Contracting 74 F ullilove v Klutznick no longer controlling can you consider race when awarding gov contracts Yes they wanted to redress past discrimination Upheld a program that 10 of federal funds granted for local public works products be used to procure services from Minority owned businesses Did not violate equal protection Richmond v JA Croson mine the court said strict scrutiny apples to all racial classification black white asian anything Court invalidated a state plan that had 30 MBE set aside for the prime contractor to hire minority owned subcontractors Congress can identify and redress the effects of discrimination but that does not mean the states can decide whether those remedies are appropriate States must show some specificity to show discrimination before using quotas on the basis of race CURRENT Adarand Constructors Inc v Pena 1995 Court disavowed F ullilove s deferential standard adopting strict scrutiny for all race preferences or classifications in state and federal contracting everyone has an equal protection claim P sued because they submitted the lowest bid for a subcontract for a federal highway project but were turned down because the contract was awarded to a higher bid from a minorityowned 1 Skepticism examine it closely any preference based on racial or ethnic criteria needs strict scrutiny 2 Consistency Standard of review under Equal Protection is not dependent on the race of those burdened or benefited by a classification all have to be strictly scrutinized 3 Congruence equal protection analysis in the 5th amendment is the same as the 14th amendment 0 Scalia In the eyes of the government we are just one race here It is American 0 Thomas There is a moral and constitutional equivalence between laws designed to subjugate a race and laws that distribute benefits on the basis of race Use of Race Classification in School Acceptance Schemes Grutter v Bollinger 2003 Grutter white was not accepted to law school and challenged the law school s use of race as a factor in the admissions process Court held the racial preferences in the admissions process did not violate equal protection LEVEL OF REVIEW Court endorses view that student body diversity is a compelling governmental interest strict scrutiny but defers to what the university thinks is necessary to obtain a diverse student body ie deferential strict scrutiny doesn t really seem like strict scrutiny Deferring is usually a rational basis approach 75 0 Purpose Critical Mass some number that will promote cross racial understanding and educational benefits of a diverse student body Promotes learning outcomes better prepares students for a diverse workforce and society and better prepares them as professionals and leaders Allowed amicus briefs from US military and corp world 0 The plan has to be narrowly tailored Race must be considered on an individual basis and must be used in a exible nonmechanical ways no quotas 0 Ginsburg Time limit hopefully it will be useless in 25 years Gratz v Bollinger Court struck down U of Michigan law school s admissions policy which took race into account as part of an individualized review of each candidate automatically awarded racial minority students 20 points out of 100 for admission purposes White students that were determined qualified were denied admission while students from an underrepresented group otherwise qualified were typically all accepted 0 Is the 20 point system a violation of the equal protection clause Yes 0 An admission system that grants points for certain characteristics such as race is not an individual assessmentconsideration No holistic review When applicants are being chosen for a program and part of the reasoning is based on race any discrimination made is a violation of the Equal Protection Clause of the 14th Amendment 0 JUDICIAL REVIEW Since the White students are being discriminated against based on race in this case they are a suspect class which deserves strict scrutiny Unless the school can show the system is narrowly tailored to achieve a compelling interest of diversity the admission system will be considered unconstitutional Here while there is a compelling interest the system is not narrowly tailored 0 Some argue that this system is better than the Grutter system because it s clear and nothing is hidden The specific numbers allow people to know exactly why and how things are happening whereas Grutter gives schools the ability to be nuanced Fisher v Texas case remanded for university to prove that the means chosen to attain diversity are narrowly tailored to that goal top 10 plan at UT No deference on the narrow tailoring question 0 requires that the reviewing court verify that it is necessary for a university to achieve the educational benefits of diversity This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications The university must establish that available workable raceneutral alternatives do not suffice court will look at good faith consideration of alternatives 76 Parents Involved v Seattle School Dist No I when determining where to place a child in school or where to transfer them school districts used race as a qualifying factor Issue May the school choose to classify students by race and then rely on that classification in making school assignments NO In order for a state actor to engage in discriminatory actions it must do so in a way that is narrowly tailored to achieve a compelling state interest I To remedy past intentional discrimination and To achieve exposure to widely diverse people cultures ideas and Viewpoints The interest in diversity in higher education That is not present here 0 remedying societal discrimination is not a compelling interest 0 Is this plan narrowly tailored No Neither interest is being followed because the schools are separating students based on racial demographics no more than 50 black in each school and not in the theme of diversity 0 Plurality the plans are directed only to racial balance pure and simple Racial balancing would justify imposing racial proportionality in American Society The only way to stop discrimination on the basis of race is to stop using the basis of race 0 Breyer Dissent important Plan resembles remedial measures taken since Brown Constitution permits local communities to adopt desegregation plans even where it doesn t require them to do so Undermines Brown s promise of integrated primary and secondary education Equal Protection permits local school boards to use raceconscious criteria to achieve positive race related goals Makes strict scrutiny fatal in fact across the board And there is a 1 historical and remedial element 2 an educational element 3 a democratic element EQUAL PROTECTION SEX DISCRIMINATION Discrimination based on gender faces intermedigte scrutiny at a level less than that of racial classifications look to page 67 and 71 US Constitution does not have a provision declaring equality of sexes Equal Rights Amendment failed in the 1980 s Early SC Cases approved gender discrimination Bradwell v State Paramount destiny and mission of woman are to fulfill noble and benign offices of wife and mother Upheld law preventing women from practicing law 77 Minor v Happersett Court denied that privileges and immunities included the right of women to vote in state elections right later granted by 19th amendment but nothing included to guarantee equal protection of the sexes Goesaert v Cleary 1948 Court allowed a Michigan law which banned women from being bartenders unless owned by a direct family member Michigan could beyond all question forbid women from working behind a bar Heightened scrutiny for gender discrimination under rationality review began in the early 1970s Intermediate Scrutiny for Gender Classification Craig v Boren 1976 OK prohibited the sale of certain beer to men under the age of 21 and women under the age of 18 Suit was brought against the state alleging that the law violated the equal protection clause of the 14th amendment 0 Level of Judicial Review def the gender classification must serve an important governmental objectiveinterest AND be substantially related to the achievement of such objective 0 Court Sex is not a legitimate accurate proxy for regulating drinking and driving The district court unequivocally found that the objective to be served by the statute was increased traffic safety The court did not find that the gender classification was substantially related to the achievement of this goal Mississippi University for Women v Hogan 1982 Sustained male applicants challenge to state policy of excluding men from MUW school of nursing Applied Craig Intermediate Scrutiny Standard MS did not meet burden of showing an exceedingly persuasive justification for the classification If state s objectives represent archaic gender stereotypes then the objective is illegitimate MUW policy of excluding males tends to perpetuate stereotype of nursing as a woman s job JEB v Alabama Court held that using peremptory strikes only on male jurors violated equal protection US v Virginia VMI was a male only school which used an adversative method in training citizen soldiers the leaders of the future Did VMI violate the equal protection clause by not allowing women to go to their school YES 0 Standard of Review intermediate scrutiny o Ginsburg claimed that M showed no exceedingly persuasive justifications for excluding all women 78 0 VMI s asserted justifications admitting women would downgrade VMI s stature and destroy the school s adversity system Not proven O Generalizations about the way women are or what is appropriate for them will no longer serve to justify denying opportunity to those whose talents and capabilities make them exceptions to the average description 0 Moreover the VWIL separate school they made up for women does not qualify as a substitute because the student body faculty course offerings and facilities do not match VMI s 0 Scalia Dissent politics smuggled into law All single sex education threatened by this Court effectively adopting strict scrutiny Gender Classifications have been upheld in a few cases Pregnancy exclusion of pregnancy from disability is not gender discrimination because there are women on both sides of the line Statutory rape laws will punish the male but not the female not discrimination The military draft women can be excluded from the military draft not discrimination EQUAL PROTECTION SEXUAL ORIENTATION Homosexualitv use rational basis test Romer v Evans 1996 amendment 2 in Colorado was a statewide referendum which prohibited the government from adopting measures that would protect homosexuals as a class from discrimination Did amendment two violate the equal protection clause of the 14th amendment Yes 0 The amendment relegates homosexuals to a solitary class and withdraws from them legal arising iiom discrimination ltieiiemeansioiii whatever ends sufficiently to pass rational basis review 0 LEVEL OF JUDICIAL REVIEW use rational basis test with a bite the means of Amendment two are so broad in relation to its ends freedom of association for people that had a problem with homosexuals and to save resources for other groups that wanted to fight discrimination that the court could not credit them 0 Court the amendment is at once too narrow and too broad and is born of animosity toward the class of persons affected 79 0 Status V Conduct Bowers focused on criminalizing intimate acts conduct whereas this amendment is discriminating solely on the basis of the gay statues 0 Scalia Dissent The amendment is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans and special treatment of homosexuals One can exhibit animus toward certain reprehensible conduct murder polygamy cruelty to animals and apparently gay people too Military Don t ask don t tell now repealed SameSex Marriage now lawful in 17 states and the District of Columbia EQUAL PROTECTION POTENTIALLY SUSPECT CLASSIFICATIONS documented generally given heightened Strict scrutiny however there are several exceptions to that general rule for state governments who are creating rules for democratic processes and the federal government generally gets deference because they have broad powers of naturalization and immigration 0 Graham v Richardson welfare benefits cannot be denied to noncitizens O Classifications based on alienage like those of nationality and race are inherently suspect and subject to close judicial scrutiny Aliens are a discrete and insular minority 0 In re Gri ciths California rules that undocumented person can be admitted to the bar 0 Sugarman v Dougall invalidated NY law that only American citizens might hold permanent positions in the competitive classified civil service field 0 The Governmental Function Exception the court upheld alienagebased exclusions from public employment by exercising deferential review rather than strict scrutiny when it came to police officers and public schools teachers Classi cations use rational basis test Cleburne v Cleburne Living Center Inc Court held that a zoning regulation that prevented a home for the mentally retarded from being constructed violated equal protection There was no rational basis for the distinction when other similar arrangements are allowed The mentally retarded are not subject to strict scrutinv because they are not a quasisuspect or suspect class that has suffered prejudice in the past Also they have political clout and a voice in the government The city s concern 80 0 Negative attitudes of property owners 0 Junior high school across the street but has 30 mentally retarded students 0 Located on 500 year ood plain 0 Size of home and number of occupants Classifications Massachusetts Bd of Retirement v Murgia attempt to establish heightened scrutiny for age based classifications failed They do not constitute a suspect class for purposes of equal protection analysis So use rational basis Classifications the court has repeatedly declined to find wealth classifications alone sufficient to trigger strict scrutiny Use rational basis EQUAL PROTECTION FUNDAMENTAL INTERESTS Do classifications that would otherwise receive rational basis review sometimes require closer scrutiny because they bear upon fundamental rights or interests There is no intermediate scrutiny lt gt Fundamental Interest in Voting Poll Tax 24th amendment no poll tax provision only applies to federal government voting Harper v Virginia State Board of Elections regarding 150 poll tax applying to everyone who wants to vote Court says it s unconstitutional Level of Judicial Review strict scrutiny 0 Wealth like race creed or color is not germane to one s ability to participate intelligently in the electoral process Wealth of fee paying has no relation to voting qualifications the right to vote is too precious to be so burdened or conditioned Kramer v Union Free School District No 15 NY school district residents may vote in the school district election only if they lease taxable property within that school district or have children enrolled in the local schools Appellant was neither and was denied the right to vote in the school board elections 0 Is the NY Education Law s voter exclusion necessary to promote a compelling state interest No They think people care more if they have property or children The law does not meet the exacting standard of precision required of selective distributions of the franchise 0 Court thinks this is fundamental so they use strict scrutiny 81 Disfranchisement of Felons would allow felons who had served their time to restore voting rights sec 2 of 14th amendment you can take the vote away from those who ve committed crimes Voter ID laws Crawford v Marion County Election Board SC rejected a challenge to Indiana law requiring citizens voting in person to present govemmentissued photo identification 0 Strict scrutiny not applied they instead engage in a balancing of interests 0 1St interest in deterring and detecting voter fraud which could affect the outcome of a close election 0 Some justices argue that this is the new poll tax Some people can t get their hands on identification or don t have cars to drive to get it Counting and Recounting Votes Bush v Gore p 775 and page 11 Vote Dilution and Reapportionment Reynolds v Sims apportionment denied Alabama voters the equal protection of the law They hadn t reapportioned since the population of districts had radically changed in the past 60 years Only IA of the whole population lived in districts represented by a majority of the senate and house reps 0 Equal protection guarantees equal participation by all voters in the election of state legislators States must make an honest and good effort to construct districts as nearly of equal population as is practicable Access to Courts Transcripts on Appeal Gri in v Illinois state must provide a trial transcript or its equivalent to an indigent criminal defendant appealing a conviction on nonfederal grounds To deny adequate review to the poor means that many of them may lose their life liberty or property because of unjust convictions which appellate courts would set aside Counsel on Appeal Douglas v California a state must appoint counsel for an indigent defendant for the first appeal granted as a matter of statutory right from a criminal conviction Ross Case no right to appointment of counsel for discretionary aDDeals Halbert Case Indigent defendants who plead guilty or nolo contender have right to appointed counsel Economic Barriers and Civil Litigation 0 Boddie v Connecticut were indigent welfare recipients who sought to file divorce actions in the state courts but were unable to pay the required court fees and costs for 82 services of process 60 They claimed this financial barrier unconstitutionally restricted their access to the courts Court agreed based on due process United States v Kras level of interest in declaring bankruptcy does not rise to the level of getting a divorce so Kras did not have a right to relief without the payment of his 50 filing fee Does not follow Boddie Ortwein v Schwab interest in welfare payments 25 filing fee like bankruptcy charge has far less constitutional significance that the interest of the Boddie applicants Does not follow Boddie Little v Streater follows Boddie Holding that due process entitled an indigent defendant in a paternity action to statesubsidized blood grouping tests Because D had no choice of an alternative forum and his interest as well as those of the child are constitutionally significant Termination of Parental Rights MLB v SLJ P lost custody of her two children when stepmother D sued for adoption The P is indigent and cannot pay record preparation fees of over 2000 to appeal the trial court s judgment Must the state provide an appeal of an indigent s loss of child custody YES 0 Fee requirements are not examined only for rationality when a fundamental right is involved O Held state may not condition appeals in parental termination cases on the parent s ability to pay record preparation fees The equal protection and due process concems can t access the court because she doesn t have the money doesn t get an appeal at all But shouldn t she be held to the same standard as everyone else who has to pay 0 Level of Judicial Review strict scrutinyishunclear they weigh states interest against her interests Kind of using balancing test like voter ID laws Claims that this is a quasicriminal case so her access is protected which under rational basis would not be the case More than rational basis but not as heightened as strict scrutiny No Fundamental Interest in Food Shelter or Education Dandridge v Williams welfare benefits maximum grant limit of 250 per month per family regardless of side or standard of need If the classification has some reasonable basis it does not offend the constitution Rational basis standard Lindsey v Normet Housing there is no fundamental interest in decent shelter and possession of one s home The constitution does not provide judicial remedies for every social and economic 83 San Antonio Ind Sch Dist V Rodriguez equal protection claim students in poorer districts are getting less per person expenditures large effective disparities in the amount of tax funds available per child Result is unequal education 0 Is this a suspect class case No so not strict scrutiny They aren t powerless and don t have a history of being discriminated against Court uses rational basis analysis Children aren t receiving no education 0 Education is not explicitly or implicitly protected by the constitution So it is not a fundamental right 0 Marshall Dissent Education is so important that it requires close judicial scrutiny not rational basis Poor people can be a suspect class Plyer v Doe court applied heightenedintermediate scrutiny to hold that the exclusion of undocumented children altogether from Texas public schools violated equal protection So Texas could not deny to undocumented children a free public education 0 Level of Review state must show that its action furthers some substantial state interest Justice didn t stick to the twotier system but stayed somewhere in between Couldn t use strict scrutiny because of Rodriguez ENFORCEMENT OF CIVIL RIGHTS THE STATE ACTION REQUIREMENT Applicability of constitutional guarantees to seemingly private conduct re ects the fact that the Civil Rights Cases a group of businesses were charged for denying people of color accommodations and privileges of an inn hotel theatre and rail car 0 All cases involve the same law All persons within the jurisdiction of the US shall be entitled to the full and equal enjoyment of the accommodations advantages facilities and privileges of inns public conveyances on land or water theaters and other places of public amusement subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color regardless of any previous condition of servitude 84 Whether 14th amendment provides backing for this law No because the 14th amendment doesn t reach private acts of discrimination only states 14th amendment does not prohibit the individual invasion of individual rights Agents of the state are reachable just not private actors 13th amendment argument no slavery involuntary servitude and getting rid of the badges of slavery court does not think this is connected enough because then they would have to apply the slavery argument to every act of discrimination Commerce clause cases heart of Atlanta motel Katzenbach v McClung This is still good law to go to the commerce clause Harlan Dissent Because we are talking about public accommodations they are quasi public and thus state Public Function as a basis for State Action notes cases Marsh v Alabama the court held that a company town may not limit speech through restrictions that would violate the 1st amendment if imposed by a municipality Evans v Newton operation of a park for whites only pursuant to a trust established by Senator Bacon s will was held invalid Services rendered even by a private park is municipal in nature Smith v Allwright found that the white primary established by the state convention violated the 15th amendment Terry v Adams found the 15th amendment violated by the exclusions of African Americans voters from the preprimary elections of the J aybird Democratic Association a voluntary club of white democrats Property and Private Restrictive Covenant Shelley v Kraemer there was a private restrictive covenant which excluded blacks from buying a home in that neighborhood The Shelleys were a black couple who bought a house there Neighbors brought suit to get rid of them 0 Court restrictive covenants alone do not violate the 14th amendment But SC still rules in favor of Shelley because state court got involved 0 State action state supreme court enforced the restrictive covenant Then the SC said that since the state legislature was involved they can rule on it too 0 Good outcome but bad legal arguments Didn t rely on any amendment or law 85 Significant state involvement in racially discriminatory action 0 Jackson v Metropolitan Edison Co terminated electric service for nonpayment P says they cutoff her power and she wants to sue under the 14th amendment no notice or opportunity to pay any of the amounts that were due 0 Is this a state action No The state did not require the electric company to turn off the power State regulation of a business does not convert the business into a state actor 0 The company s exercise of choice is not state action where the choice comes from the business and not from the state 0 Burton v Wilmington Parking Authority court reversed a Delaware decision upholding the exclusion of an African American customer from a private restaurant located in a public parking building under a provision of state law State involvement throughlicensing 0 Moose Lodge No 107 v Irvis rejected a claim that a private club s racial discrimination was unconstitutional because the club held a The state liquor regulation scheme did not sufficiently implicate the state in the discriminatory guest policies of Moose Lodge so as to make the latter state action State Action Doctrine after Jackson and Moose Lodge 0 F lagg Bros v Brooks the court held that a warehouseman s sale of bailed goods to satisfy a lien under the UCC was not state action 0 RendellBaker v Kohn School funded by public funds and which is regulated by public authorities was not held to be a state actor They were not seen as engaging in state action when they discharged certain employees Insufficiency of state inaction 0 Deshaney v Winnebago County Social Service Department state s failure to act to protect a boy from a Violent father did not trigger the 14th amendment s protection 0 Nothing in the language of the due process clause itself requires the state to protect the life liberty and property of its citizens against invasion by private actors It is a limitation on the state s power to act not a guarantee of certain minimal levels of safety and security 0 86 Decisions Finding State Action to be Present 0 Lugar v Edmondson Oil Co court found state action requirement satisfied when a creditor pursuant to state law attached the debtor s property in an ex parte proceeding alleging that the debtor might dispose of the property to defeat creditors State acting through representative 0 Edmondson v Leesville Concrete Co use by private litigant in a civil proceeding of peremptory challenge to exclude jurors on the basis of race constituted state action for 14th amendment equal protection purposes 0 Court thinks this is state action because the state allows perethorv challenges but doesn t make you just gives you the choice Also the judge oversees it and is an actor of the state 0 Brentwood Academy v Tennessee Secondary School Athletic Assn the court held a statewide interscholastic athletics association comprised of public and private schools to be a state actor because of public entwinement in its management and control notwithstanding the association s nominally private status under state law 84 of members were public schools ENFORCEMENT OF CIVIL RIGHTS CONGRESSIONAL POWER TO REACH PRIVATE CONDUCT under 13th 13th amendment Neither slavery nor involuntary servitude except as punishment for a crime whereof the party shall have been duly convicted shall exist within the US or any place subject to their jurisdiction Ends slavery in the US and grants congress an extra source of congressional power Race and Voting Cases 42 US C 1982 All citizens of the US shall have the same right in every state and territory as is enjoyed by white citizens thereof to inherit purchase lease sell hold and enforce real and personal property Jones v Alfred H Mayer Co Jones attempted to purchase a home but was denied solely because he was African American Trial and appellate courts held that statute 1982 only applied to state action but the SC reversed and said that 1982 bars all racial discrimination private and public Congress can pass all laws necessary and proper for abolishing all badges and incidents 87 of slavery in the United States Congress has power to determine what badges and incidents of slavery are 0 This is the opposite view of the civil rights case Why It was during the time of the civil rights movement 0 Standard of judicial review rational basis if you re attacking a private person you ll have to find a statute and use the 13th amendment You cannot use 14th for private discrimination because it only applies to public discrimination Congress has power to enforce the 13th am by appropriate legislation 14th amendment Due process Section 5 The congress shall have power to enforce by appropriate legislation the provisions of this article Historically most laws enacted by Congress under these powers are narrowly remedial Congress provided enforcement mechanisms Congressional Protection of Voting Rights Sec 5 of Voting Rights Act of 1965 congressional exercise of 15th amendment power Some states had to obtain permission to change voting procedures 15th amendment the right of citizens of the US to vote shall not be denied or abridged by the US or by any state on account of race color or previous conditions of servitude Lassiter v Northampton County Election Bd as long as they re given across the board not on the basis of creed race and sex 0 The ability to read and write has some relation to standards designed to promote the intelligent use of the ballot S Carolina v Katzenbach congress concluded that the unsuccessful remedies which were prescribed earlier would have to be replaced to satisfy the commands of the 15th amendment Some reading and writing qualifications were required of African Americans and not of others property requirements Voting Rights Act is held constitutional Katzenbach v Morgan Court upheld the part of the Voting Rights Act of 1965 which gave Puerto Ricans who completed the 6th grade the right to vote NY voters Morgan challenged the constitutionality of this act because it prohibits the enforcement of NY laws requiring an ability to read and write 0 As long as Congress has the power to enforce the amendment they don t need to wait for the court to rule on a given issue or grant a right As long as they pick means suited to the goal of protecting equal protection 0 Level of judicial review Rational Basis it was enough that congress saw a rationality for enacting this rule There was some basis very broad Court is being deferential Even though it was racially discriminatory the court did not use strict scrutiny 88 Oregon v M itchell Voting Rights Act provision allowing any citizen 18 years or older to vote in federal election was upheld But deemed unconstitutional for state elections Constitutional amendment later took care of this issue nationally 0 Statute denying franchise to citizens between 18 and 21 could probably not withstand equal protection challenge Congress had ample evidence to base conclusion that exclusion of citizens 1821 years of age is unnecessary to promote any legitimate interest the States may have in assuring intelligent and responsible voting Rome 12 US Section 5 of the voting rights act within the enforcement powers of the 15th Amendment upheld the attorney general s duty to approve a change in voting practices preclearance requirement Change in voting practice must not have the purpose or effect of denying or abridging the right to vote on the account of race or color Rational basis applied THE SCOPE OF CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER SECTION 5 Religion Cases Employment Division v Smith Indian church leader were using peyote and weren t held exempt Gave us the RFRA religious freedom restoration act 0 The Act s stated purposes are l to restore the compelling interest test and to guarantee its application in all cases where the free exercise of religion is substantially burdened and 2 to provide a claim or defense to persons whose religious exercise is substantially burdened by government City ofBoerne v F lores local zoning authorities denied a church a building permit and was challenged under the RFRA Is RFRA a proper exercise of congress sec 5 14th am powers to enforce by appropriate legislation the constitutional guarantee that no state shall deprive any person of life liberty or property without due process of law nor deny any person equal protection of the law No Sec 5 legislation must be remedial and preventative not substantive 0 STANDARD OF REVIEW The act forbids the government from substantially burdening a person s exercise of religion unless the can demonstrate that the burden is in the furtherance of a compelling state interest and is the least restrictive means of furthering that state interest 0 Not necessarily rational basis so they created the congruence and proportionality test New rule for using section 5 powers Congress can create remedies that are congruent and proportional to the defined problem they re trying to solve 89 Statutelaw must relate to and be congruent with some objective and can t be out of proportion to the remedial or preventative objective Is congressional enactment contrary to the court s substantive position on a 14th amendment issue andor the standard of judicial review Has congress established a record of a pattern of unconstitutional discrimination Historical reasons 0 If no to either question then it is not congruent or proportional Has to be yes to both of these questions c0urt says RFRA was proportional there is no history of bigotry against groups that warrants this kind of approach No factual basis for the Act Too big and broad will burden states with strict scrutiny Congruence and Proportionality of Voting Rights Act NW Austin Mun Utility dist v Holder Questioned the constitutional basis for the voting rights act in this day and age Evil that section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance Shelby County v Holder With the voting rights act some states were subject to preclearance under Sec 4 while some states had to obtain permission to change voting procedures under Sec 5 Shelby County brought suit to get rid of the VRA bases their argument around the fundamental principle of equal sovereignty among the states 0 Court the Voting Rights Act departs from basic principles Court declared 4b unconstitutional which contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting ie approval by attorney general 0 How things have dramatically changed so VRA not needed according to the majority Increased numbers of registered minority voters minority voter turnout and minority representation in congress and state legislature and local elected offices 0 What did they do with Katzenbach K was incredibly deferential and used rational basis while Shelby is being much more rigorous with what congress is doing However Shelby does not explicitly overrule K 0 Ginsburg Dissent who decides The congressional record examples of changes stopped by the preclearance requirement two black students stopped from running for office and threatened to be prosecuted A lot of recent evidence that Shelby County is not the poster jurisdiction to let out bail out because of their history of discrimination 90 Congruence and Proportionality of Abrogating State Sovereign Immunity under section 5 power 0 US v Morrison Brzonkala was sexually assaulted by two Virginia tech football players She brought suit against the two male students in federal district court seeking to apply section 13981 of the Violence against Women Act all persons within the US shall have the right to be free from crimes of violence motivated by gender 0 Does the VAWA constitute a constitutional exercise of Congress power under sec 5 No not a valid exercise of state s commerce power nor a valid exercise of section 5 powers Action was directed against private individuals mainly and O Congruence and Proportionality court ruled there was no congruence and there would be no redressability of the issue there is no proportionality between the injury and state actions Has to properly address the issue with state officials but this case was private conduct so the court ruled they could not regulate it I Problem also because the law would apply uniformly even though not all the states practice gender discrimination Age Discrimination Kimel v Florida Board of Regents state employees not allowed to sue the state for violations of the age discrimination in employment act Ago discrimination is constitutional by state actor because it s rational Court didn t see a pattern of discrimination against older people Disability Discrimination Court held that abrogation of state immunity under Title I of ADA is not CampP however abrogation under Title II of ADA is CampP and thus valid 0 University of Alabama v Garrett Nurse got fired from school because she had cancer but because the school was a private entity she couldn t bring a law suit against the public entity Rational basis applies to disability State could have a rational reason for discriminating against the disabled Court said there was no pattern of discrimination history by states against disabled persons so no CampP Access to Courts Tennessee v Lane paraplegic couldn t get to the courtroom because there was no elevator He had to crawl up two ights of stairs He was allowed to sue because access to courts is heightened scrutiny this makes all the difference 0 He was under title 11 of ADA which extends to protection against deprivations of fundamental interests Right to access of courts protected by due process meaningful opportunity to be heard Because Congress has something to remedy abrogating state immunity is congruent and proportional 91 Disabled Prisoner s ADA Suit United States v Georgia Georgia inmate not receiving any treatment could sue under Title II of ADA Section 5 obviously grants congress the power to enforce the provisions of the amendment 14th amendment incorporation of 8th amendment cruel and unusual punishment Gender subject to heightenedintermediate equal protection scrutiny Therefore Congress can enact legislation under its section 5 power to remedy the discrimination that gave rise to that heightened scrutiny Prong 2 of CampP Family Leave Nevada Department of Human Resources v H ibbs medical leave allowed for parents of either gender to have 12 weeks of unpaid leave per year Hibbs had a right and could proceed against the state because there was a history of gender based discrimination in the workplace No state sovereign immunity Family Leave and SelfCare Coleman v Court of Appeals of Maryland challenge to family medical care act Opposite result in Hibbs no claim THE RELIGION CLAUSES FREE EXERCISE AND ESTABLISHMENT Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof 1st Amendment Theories of Government and Religion Dominant View Volunteerism and Separatism gov and church should be separate and people should not be forced to believe certain things Minority View Nonpreferentialism Gov does not have to be blind to religion but cannot prefer one religion over the other Defining religion US v Seeger relation to a supreme being being sincere and meaningfully occupying a place in the life of the person Test of Belief hard to question the belief of a person in a judicial proceeding Juries can t consider whether a religion is true or sincerely held F razee v Illinois Emp Atheism if we think of religion as taking a position on divinity then atheism is indeed a form of religion Reed v Great Lakes Cos 2003 Free Exercise Clause bars outlawing or compelling belief in a particular religious faith It with private individuals and their religious beliefs 92 Any neutral law of general applicability applies regardless of effect on religious exercise Only unemployment cases and the Amish Exception were ever protected by the courts during the strict scrutiny era of free exercise cases Wisconsin v Yoder Court found that Amish children could not be placed under compulsory education past 8th grade The parents39 fundamental right to freedom of religion outweighed the state39s interest in educating its children Church of the Lukumi Babalu Aye v City of Hialeah not a mainstream religion They practiced animal sacrifice which the city did not want The city passed ordinances specifically to outlaw animal sacrifices in connection with the religious rituals 0 Did the city ordinances violate the Free Exercise Clause of the Constitution Yes The ordinance is not neutral and the court uses strict scrutiny Nonneutral laws are invalid unless justified by a compelling interestnarrowly tailored means Establishment Clause this clause not only forbids the government from establishing an official religion but also It also prohibits the government from unduly preferring religion over nonreligion or nonreligion over religion Usually strict scrutiny Ex no nativity scenes in courthouses and gov can t fund religion Edward v Aguillard respondents brought suit challenging the constitutionality of the Creationism Act so if you taught evolution then you had to teach creationism beside it on the grounds that the mandate that was facially unconstitutional 0 Was the Creationism Act facially invalid as a violation of the establishment clause Yes they didn t have to teach evolution but if they did they had to teach creationism as well The SC held the act to be merely an endorsement of religious doctrine in violation of the establishment clause 0 The court looks for a and could not find one in this case In this case the preeminent purpose of the law was to advance the religious viewpoint that a supernatural being created humankind Kitzmiller v Dover Area School District Court invalidated a requirement that teachers must read aloud a statement to 9th graders identifying intelligent design as an alternative explanation to evolution regarding the origins of life 0 The actionspurpose in adopting the curriculum change was to impose a religious view of biological origins into the biology course in violation of the establishment clause Why not teach intelligent design Because it was a mandate and a requirement advancing a religious viewpoint 93 Engel v Vitale making students pray at school every morning the practice was religious activity The government cannot compose of cial prayers for any group to recite The Religion Clauses Hobby Lobby Case before the SC religious families and their family businesses object to providing their employees with health insurance that includes access to birth control They think by providing contraception they d be violating their religious beliefs If they don t want to provide it then they can pay the tax and not provide health care coverage at all Would severely hurt employees and thwart the whole purpose of public health 0 Look at the RFRA religious freedom of restoration act of 1993 and the substantial burden test In process Greece v Galloway Does a legislative prayer practice violate the establishment clause in the absence of discrimination in selecting those who pray It is still discriminating against those who are not religious Case has not been decided yet The pledge of allegiance under god Courts don t want to decide the question FREEDOM OF SPEECH Congress shall make no law abridging the freedom of speech 1st Amendment 1791 Whv do we have Free Speech Truth selfgovernment autonomy negative theories distrust of the government in a general sense Prior restraint couldn t restrain speech if people defamed someone you could sue them under common law but the gov couldn t stop them from saying it Seditious Libel Can t defame or say something negative about politicians or the government The intentional publication without lawful excuse or justification of written blame of any public man or of the law or of any institution established by law Approaches to Freedom of Speech 0 Balancing Approach weighing of 1 free speech interests and 2 countervailing government interests 0 Absolutist Approach no restrictions on speech whatsoever 0 Categorization categorization strives for brightline rules Categorization along a spectrum of relatively more or less protected speech distinguishes what kind expression does or does not trigger the 1st amendment demands for special gov justification before it may be regulated o Obscenity has to be sexual activity with no redeeming social value assessed by established community standards fighting words and child porn are all categories of unprotected speech 94 whether the words were used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent Schench v US It is a question of degree the degree of proximity held sufficient may vary with circumstances This is the old rule that Brandenburg changes and moves away from Brandenburg v Ohio M KKK leader made speech promoting the taking of revenge against the gov if it did not stop suppressing the white race and was convicted of violating the Ohio Criminal Syndicalism Act which made it illegal to advocate crime sabotage violence or terrorism as a means of accomplishing industrial or political reform Did the Act violate the D s right to free speech under the 1st amendment YES The act made it illegal to advocate or teach violence but did not address the issue of whether such advocacy or teaching would actually incite imminent lawlessness In this case A state may not forbid the advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action In this case it was one KKK member giving a speech to 12 others Judge has to make a call on whether the words were likely to cause the others to act Government must show that speech presents a real and immediate danger in order to be punishable Hess v Indiana Post Brandenburg Cases Wrongful death suit against the publisher of the book Hit Man A Technical Manual for Independent Contractors Person read the book and then killed someone Can the family of the deceased go after the publisher Issue speech advocating international or domestic acts of terrorism Should we treat a terrorist threats differently Hess v Indiana during campus antiwar demonstration during which there had been arrests and over 100 people blocked the street Hess said we ll take the fucking street later or again Since there was no evidence or rational inference from the language that the words were intended to produce and likely to produce imminent disorder the words could not be punished by the state FREEDOM OF SPEECH 95 FIGHTING WORDS Chaplinsky v New Hampshire 1942 fa P a Jehovah s witness called a city marshall a God damned racketeer and a damned fascist in a public place and was arrested and convicted of a New Hampshire statute prohibiting any person from addressing any offensive derisive or annoying word to any other person who is on any street or public place 0 those which by their very utterance in ict injury or tend to incite an immediate breach of the peace 0 Courts have not enforced the part of Chaplinsky which says words that are fighting words by their very utterance in ict injury Speech can injure people and hurt feelings They only enforce the second half of the definition 0 Did the statute violate Chaplinsky s free speech right under the 1st amendment No Fighting words have never been protected by the 1St amendment 0 Fighting words are no essential part of any exposition of ideas and are of such slight value as a step to truth that any benefit that may be devised from them is clearly outweighed by the social interest in order and morality Texas v Johnson court invalidated on free speech grounds the conviction of a political protestor who burned an American ag Court rejected the argument that the action fell within the exception for fighting words as defined in Chaplinsky Cohen v California D wore a jacket that said Fuck the draft in the municipal courthouse during the Vietnam War California charged him with statute they had for disturbing the peace They thought his wearing that could offend people or incite violence 0 Issue Can California excise offensive conduct No D s speech is protected by the 1st amendment D showed no intent to incite disobedience to the draft 39 Offensive conduct means behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace 0 Obscenity No only applies when it s purely sexual with no artistic value Fighting words No because it is not directly said towards a person or intended to provoke violence 0 The unwilling or unsuspecting viewer Court says just avert your eyes if you see something that offends you You will see things every day that you might not want to or not like 96 0 Court rejected the idea that states are the guardians of public morality One man s vulgarity is another s lyric 0 Mainly conduct little speech Speech isn t only verbal spoken words but can also apply to pamphlets Offensive Speech Cohen made clear that Cohen reiterated that the fighting words exception is limited to statements directed to the person of the hearer not addressed generally to the world at large Also Cohen undermined the notion that there is any unprotected category of words that by their very utterance in ict injury Beauharnais v Illinois Illinois criminal code prohibits the publishing or presentation of any racist materials Leader of White Circle League of America does this 0 Does the protection of liberty prevent a state from punishing libel towards a group No Libel is in the same class as ghting words The state invoked the 14th amendment due process clause state had a legitimate purpose for forbidding the distribution of racist materials rational basis 0 Court looks at history of violence and riots throughout the state Therefore the state is justified in prohibiting such activity in order to maintain the peace 0 If you can claim libel against one person then you should be able to apply it to a group of people This case was passively overruled and most don t think it s applicable anymore Collin v Smith Nazi protest planned in Skokie because of their large Jewish population Skokie responded by enacting 3 ordinances permits prohibiting hate speech that intentionally promotes hatred against a group based on race national origin or religion and prohibited demonstrations by a political party members while wearing militarystyle uniforms 0 Collin leader of Nazi movement brought action to challenge the ordinances on the grounds that they violate the 1st amendment Court ruled that the ordinances did violate the 1St amendment Court holds for Collin because civil rights are vital for ALL even those whose ideas are despised It is not obscenity material with erotic content or fighting words no fear of responsive violence on the part of the village 0 Skokie claimed there is no social valuecontent but court ruled that it is Nazi ideology and cannot be treated as a false idea There is no such thing as a false idea according to the 1st amendment Also Skokie claimed in iction of emotional and psychic trauma possible for residents But the court ruled that the free speech interest is more important balancing test 97 Speech Codes on campuses struck down because they were overbroad Students have a right to say what they want and can have rallies Schools wanted to control speech to make their universities more hospitable Even discriminatory FREEDOM OF SPEECH HATE SPEECH In law hate speech is any speech gesture or conduct writing or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group or because it disparages or intimidates a protected individual or group RA V v City of St Paul the St Paul BiasMotivated Crime Ordinance prohibited harmful conduct on the basis of race RAV made a cross and burned it inside the fenced yard of a black family 0 Court ruled that the ordinance was facially unconstitutional in that it prohibited otherwise permitted speech solely on the basis of the subjects the speech addressed 0 The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea but that their content embodies a particularly intolerable and socially unnecessary mode of expressing whatever idea the speaker wishes to convey Because the hate speech ordinance in this case was not concerned with the mode of expression but with the content of expression it was a violation of the freedom of speech Thus the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence 0 General rule is that the First Amendment prevents the government from banning speech or even expressive conduct because of disapproval of the ideas expressed O Contentbased ex no burning a cross or wearing a Nazi swastika Statute should not have included the purpose arouses anger on the basis of race 0 Court cannot ban a subset of fighting words Those who wish to use quotfighting wordsquot in connection with other ideas to express hostility for example on the basis of political affiliation union membership or homosexuality are not covered 0 White Concurrence government may prohibit a subset of a category of prohibited speech Stevens Concurrence consider the content and context of the atissue speech the ordinance regulates speech on the basis of the harm it causes 98 Virginia v Black statute prohibited cross burning with the intent to intimidate Such action burning is taken to be prima facie evidence of such an intent Black was convicted of burning a cross 0 Is this provision unconstitutional Yes Virginia s statute does not single out speech directed toward a disfavored topic like RAV 0 Analysis of Prima Facie evidence The provision that any burning of a cross is obvious evidence that there is an intent to threaten a group or individual is unconstitutional This in fact removes the reason for the state to ban crossburning as a sign of threat 0 True threats Intimidation is a type of real threat if the word is used in the sense that the constitution prohibits The burning of a cross is always a hate symbol though it may sometimes also include the idea of threat 0 my With this provision the jury may straightaway convict the defendant of the offense instead of having to weigh the evidence before them in the light of the law Such a provision would therefore create a very high possibility that a citizen s ideas would be suppressed instead of expressed by the probability of conviction FREEDOM OF SPEECH HATE CRIMES Wisconsin v Mitchell under Wisconsin law the penalty for battery is increased if the offender intentionally selects the victim because of the race religion color disability sexual orientation and national origin or ancestry of that person 0 The Supreme Court ruled in this case that the increased penalty did not violate the free speech rights of the accused thus validating the state s penaltyenhancement statute 0 The law is aimed at conduct and not expression A D s motive for committing an offense is traditionally a factor considered by a judge at sentencing and motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws FREEDOM OF SPEECH INJURY BY SPEECH Snyder v Phelps 2011 Westboro picketed Snyder s funeral who was a soldier who died in Iraq 0 Can Westboro s freedom of speech be restricted in a case like this No Because there is a difference between speaking on matters of public concern and matters of purely 99 private significance Matters of public concern are much more protected bv 1st amendment rights than private speech 0 If the speech is both public concern and private significance should it be protected Yes 0 To determine whether the speech dealt with matters of public concern the Court examined the quotcontent form and contextquot of the speech Public Concern any matter of political social or other concern to the community or is a subject of legitimate news interest or when the speech is a subject of general interest and of value and concern to the public Alito Dissent mentions Chaplinsky fighting words FREEDOM OF SPEECH MONEY AND CAMPAIGNS Who decides Courts get the final say Is monev speech You get to be heard more by the public at large and are able to get your message out there TV ad campaigns parties Is a corporation a person protected by the 1st amendment Yes Buckley v Valeo held that free speech constraints apply with greater force to expenditure limits than to contribution limits Contribution limit level of judicial review intermediate review sufficiently important interest Contribution limits are constitutional because it limits the appearance of corruption Bribery laws only get the most specific attempts and is not broad enough 0 Limits contributions by persons to those running Expenditures limitations was unconstitutional Level of review strict scrutiny because its core political speech Preventing corruption and appearance of corruption is inadequate to justify 0 Candidate with funds from family had restrictions on how much they could spend on their own campaign Court struck this down and allowed it Court rejects equalization argument that those without money should be able to run just like those with money Court upheld public financing of presidential election campaigns 100 First National Bank of Boston v Bellotti 1978 1st amendment protects a corporation s political speech funded from the corporation s treasury in state refereda campaigns FEC v Mass Citizens for Life 1986 a nonprofit ideological organization can make independent campaign expenditures from its corporate treasury Applied strict scrutiny Austin v Michigan Chamber of Commerce 1990 state constitutionally barred an entity serving forprofit corporations from making independent expenditures from its general treasury funds Overruled by Citizens United Bipartisan Campaign Reform Act of 2002 in response to increasing soft money contributions and issue advertising Congress enacted this act to impose new restrictions designed to close these loopholes to contribution issues 0 Soft Money is a contribution to a political party that is not accounted as going to a particular candidate thus avoiding various legal limitations Hard money goes straight to candidates 0 Issue Advertising are funds used for advertising that aren t accounted for in campaign funds as long as the ads don t contain certain words which expressly advocate the election or defeat of a clearly identified candidate like elect Smith or defeat doe McConnell v Federal Elections Commission 2003 Court decided to uphold restrictions on both soft money Title I Sec 323 and issue advertisingelectioneering communications Title 11 Sec 203 claiming that the restrictions did not violate the 1st amendment freedom of speech 0 Court applied less rigorous scrutinv 0 The act is not completely banning donations and advertising which would violate 1st amendmentThe act only limits the source and individual amount of donations Individuals are only allowed to donate a certain amount and that amount must be registered 0 Issue Advertising requiring them to use money towards all types of advertising is not vague or overbroad All advertising should have the same restrictions when it comes to donations regardless of whether or not they use the magic words of express advocacy There is a functional equivalency of the express ad and issue ad you still know who they want you to vote for 0 Problem with who determines what s functionally equivalent and what s not 0 Invalidated BCRA provision 318 which prohibited 17year olds or younger from making contributions to political parties their parents were using them to give more money in their name But minors are still able to enjoy the protection of the 1st amendment 101 FEC v Wisconsin Right to Life asapplied challenge to sec 203 of BCRA strict scrutiny They are not prohibited from broadcasting names of federal candidates shortly before an election this would be an overly broad restriction of the freedom of speech Were the atissue ads express advocacy or its equivalent They did not say vote or don t vote for someone but just said names Court rejects the speaker s intent test Will not inquire as to why they made the ad Very hard to prove intent of someone when they can lie about it Millionaire s Amendment court invalidated part of the BCRA which provided that when a candidate s expenditure of personal funds exceed 350000 he would remain subject to normal contribution limits but his opponent would be permitted to receive individual contributions at treble the normal limit and unlimited coordinated party expenditures Davis v Federal Election Comm n BCRA provision barred by the 1st amendment Court did not uphold the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other Expenditures by Corporations Citizens United v Federal Election Comm n Citizens United financed the Hillary movie which wasn t an express ad but was obviously against Hillary Clinton They are nonprofit with some profit corp funding 39 It s a first amendment violation to restrict corporate political expenditures Restrictions on speech trigger strict scrutiny because speech is a fundamental right 0 Donations to candidates can still be restricted only independent expenditures are regulated 0 BCRA criminalization of ads produced by corporations that expressly advocate for or against a candidate within 30 days of the primary elections and within 60 days of the general election is deemed unconstitutional 0 Do corporations have a free speech right under 1st amendment Yes Corporations are no different from an individual The court also mentions that some corporations are media corporations made to create news Banning all corporations from political speech is too broad and the constitution will not allow it 102 0 Court rejects the compelling interest in preventing the corrosive and distorting effects of immense aggregation of wealth that are accumulated with the help of corporate form It is not sufficient and neither is anticorruption 0 There is not enough evidence that corruption is within the system Any corruption that is at issue is limited to quid pro quo corruption 0 Court overrules Austin and part of McConnell judicial activism After this spending increased significantly 2012 election was the most expensive in history with over 6 billion spent 0 Dissent corporations can speak through PACs the many forms of corruption shareholders have to foot the bill even though they may not agree McCutcheon v FEC 2014 aggregate limits on how much a donor may contribute to all political candidates or committees violates the 1st amendment Much more money in play You can give max 5200 to every candidate you want which aggregately is more than you were allowed to give before which was around 48600 for federal candidates and 74600 to other political candidates It is constitutional to require disclosure of donors However reports and databases who gave money and the amounts Perhaps helps prevent bribery and corruption But usually not updated until 6 months after elections Possible Constitutional Amendment Stevens wants the 1st amendment and then another provision that says state or congress cannot impose reasonable limits on the amount of money that candidates for public office or their supporters may spend in election campaigns Am Tradition P ship v Bullock Montana state law prohibited corporate expenditures supporting or opposing particular candidates or parties Court deemed that this violated the 1st amendment State regulations were not treated differently Fundraising Speechnoworg v Federal Election Comm n whether FECA s limits on individual contributions to political committees are consistent with the 1st amendment No the restrictions violate the 1st amendment 0 Extends the unrestricted right to free speech and corporate expenditures in political campaigns to individuals 0 Citizens United dealt with spending by corporations and unions while SpeechNow addresses fundraising by independent expenditure groups 0 103 0 No sufficiently compelling governmental interest given Gov has no anticorruption interest in limiting contributions to an independent expenditure group such as speechnow 0 Leads to the creation of SuperPAC s a political action committee that may raise unlimited sums of money from corporations unions associations and individuals then spend unlimited sums to overtly advocate for or against political candidates Super PACs must report their donors to the FEC on a monthly or quarterly basis as a traditional PAC would Unlike traditional PACs Super PACs are prohibited from donating money directly to political candidates SIGNING STATEMENT I do solemnly swear that I will faithfully execute the office of president of the US and will to the best of my ability preserve protect and defend the constitution of the US Art 11 Sec 1 cl 8 The president shall take care that the law be faithfully executed Art 111 Sec 3 Signing Statement an official legal document issued by the president on the day he or she signs a bill which is presidential commentary on a bill States the president s interpretation of new laws and instructing the executive branch to interpret the laws in the same fashion 0 It can be used to address constitutional defects in a bill and instruct the executive branch agents on how to proceed with implementation It can also inform executive agents on the meaning of a certain provision according to the President The device becomes controversial when Presidents use it to declare that various sections of the bill they have just signed are unconstitutional and so do not need to be enforced as Congress wrote them Boils down to the quotpowertosignbutdisobey History Began lst with Monroe but more aggressively started with the Reagan Administration s use of statements Most used by President Bush Designed to in uence administrative discretion and not necessarily judges Cons enables president to act as judge interpreting law president should return to vetoing any bill they believe in unconstitutional president does not have the discretion to sign bills with the intent of not enforcing them as written Pros it s more dangerous for presidents to act in secrecy promotes transparency give advance warning about potentially suspect presidential action in the execution of the laws desire to create a paper trail of documents which can be cited as precedent for its view of executive power legitimizing unitary executive theory It would be inefficient if lots of bills got vetoed or had to go back to congress for more discussion 104 Ex Intelligence Authorization Act section 502 attempts to place restrictions on use of US armed forces in certain operations Bush s Signing Statement The executive branch shall construe the restrictions in that section as advisory in nature However Congress obviously did not intent for their new regulations to be simply advice Ex Obama s signing statement for a law which bars the use of appropriated funds to construct in the US facilities to house Guantanamo s detainees I oppose these provisions and will continue to work with the congress to remove these restrictions The ABA task force concluded that the device was evolving into a kind of backdoor override proof lineitem veto power for Presidents one that the founder never intended Presidents to have Options of Congress Most powerful act in regards to signing statements is withholding appropriations legislation and oversight hearings are also available but aren t as strong 105
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