Outline ConLaw
Possible analytical framework for exam:
1. Is the issue justiciable?
a. can the issue be reviewed? (e.g., political question)
-textual commitment:
a textual commitment of the issue to a coordinate political
branch
-prudential issues
-lack of judicially discoverable and manageable standards
for resolving it (prudential/functional)
1. NB: this may strengthen the conclusion that
there is a textually demonstrable commitment to a
coordinate branch of govt (Nixon v. US)
-impossibility of deciding without making a policy decision
of a kind clearly for nonjudicial discretion
-need for unquestioning adherence to a political decision
already made (prudential)
-potential for embarrassment on issue because various
departments will make multifarious pronouncements
(prudential?)
1. e.g., foreign affairs issues normally require need to speak with one voice
b. who can bring the issue? (e.g. standing)
check standing for EACH NAMED PARTY!!!!!!!
-injury-in-fact: concrete and particularized
-causation: injury traceable to challenged action/alleged violation
-redressibility: a favorable decision likely to give relief
c. when can the issue be brought (e.g., ripe or moot)
-mootness:
an actual controversy must exist during all stages of review,
except for those injuries capable of repetition yet evading
review (e.g., abortion cases)
-ripeness:
case cannot rest on P's fear of future injury [though facial
challenges possible if P alleges substantial hardship if he
must wait until an alleged wrong occurs]
2. Constitutionality analysis
-textual prohibition
-structural
-separation of powers [formalism vs. functionalism]
-federalism [state vs. federal power]
-original intent
-history and tradition
[fundamental rights and natural law]
1
3. Standards of Judicial Review (i.e., how deferential is the Court willing to be to
legislative bodies)
-(high) – strict scrutiny – the law is necessary to promote a compelling
state interest; something is necessary when it is "narrowly drawn so that
no alternative, less burdensome means is available to accomplish the state
interest
-e.g., review of protectionism under Commerce Clause
-review of "fundamental liberty interests" (e.g., claims under
substantive due process)
-undue burden [Casey] - "does statute place in purpose or effect a
substantial obstacle in the path of a woman seeking to abort a non-viable
fetus?"1
-(intermediate) – there must be a "substantial" governmental interest in the
existence of the law
-e.g., review of interstate P&I clause
-rough proportionality [regulatory takings]
-(low) – "rational basis" for passing a law: rationally related to a
legitimate state interest
3a. create a table for each of the topics and the standard of review used
4. Chart out each of the Amendments and Sections in the Constitution that we
have spoken about. Be sure to chart out each clause and any cases that relate to
them.
Due process analysis
1. must begin with analysis of Nation's history, legal traditions, and practices
(Glucksberg)
Possible exam topics:
1. Commerce clause analysis: formalism vs. affectation; internal limits (i.e., can
Court find something in the enumerated power itself that sets some type of limit?)
NB: Hamilton is for strong central government (federalism); Jefferson prefers stronger
states (states' rights – aka anti-federalism). A key argument in some judicial analysis.
I. Judicial Review: The nature and sources of the Supreme Court's Authority
A. Supreme Court
1. Established by Art III, Section 1: judicial power "shall be vested in one
Supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish."
1
this is definitely higher than intermediate, as it qualifies "substantial" govt interest used in the
intermediate scrutiny test
2
2. Art III, Sec 2: US Supreme Court has appellate jurisdiction of various
listed "cases and controversies" (review these before exam)
i. Congress cannot abridge or enlarge the Court's original
jurisdiction [Marbury].
3. Art III, Sec 2: gives US Supreme Court original jurisdiction over only
one group of cases: "affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be a party
B. Judicial Review: Marbury v. Madison
1. Judicial (appellate) review permitted of acts by other members of
government, depending on the nature of the act.
i. strictly political acts permitted by Constitution may not be
reviewed; i.e., discretionary acts (e.g., Art II, sec 2.2-2.3)
a. "political questions" are not reviewable
ii. where a duty is assigned by law and individual rights depend on
performance of that duty, it is reviewable
2. the Court decides the rights of individuals and may not inquire how the
executive or executive officers perform duties in which they have
discretion
3. Congress gave US Supreme Court power to issue writs of mandamus to
any courts or persons holding office under authority of US (Judiciary Act,
1789) if the Court has appellate jurisdiction over the issue
i. this act ruled unconstitutional by Marbury; the Constitution must
always trump a void law
ii. had Marbury brought the case in a lower federal court and then
appealed to Court, the Court, by Marshall's logic, could have
issued mandamus.
4. How does Marshall legitimize declaring a law unconstitutional?
i. Constitution is superior to legislation and cannot be changed by
ordinary legislative acts
ii. does it follow that the Court is the sole interpreter of laws?
C. The Legitimacy of Judicial Review
1. As judicial review is not explicit in the Constitution, there is debate as
to whether it should exist
i. historical precedent seems lacking for the most part (13ff)
ii. idea of popular sovereignty replacing legislative sovereignty in
late 18th c, may have something to do with it
iii. development of written constitutions also contributes
2. The Constitutional Convention
i. arguments for and against judicial review were made
3. Federalist Papers, #78 by Alexander Hamilton
i. supports the notion of judicial review because:
a. courts are an intermediary body between the people and
the legislature to keep the legislature within the limits of its
assigned authority
4. Judicial Review and the Judicial Role: Hand vs. Wechsler
3
i. Hand: no constitutional authority to review decisions of the
Congress; such review was inconsistent with separation of powers
a. the use of judicial review was merely a pragmatic step to
help a fledgling govt survive
ii. Wechsler: Supremacy Clause (Art VI) and Art III clearly
legitimates the power of judicial review
a. therefore, courts must review all constitutional questions,
not just some of them, so as to maintain "neutrality";
should use a system to decide which cases to review
5. Judicial Review and Democracy
i. does an unelected court have the right to review decisions made
by those elected by the people?
ii. counter-majoritarian, but our system is structurally leery of
direct democracy
D. The Authoritativeness of Supreme Court Decisions
1. Are judicial interpretations binding on executive branch?
i. in some cases, the executive can pardon those he feels were
convicted by an unfair law
ii. perhaps each decision should only redound to the instant case,
and not be considered broadly unconstitutional
2. Scope of Interpretive Autonomy of the Govt Branches
i. where is the boundary between legitimate disagreement and
improper defiance?
3. Cooper v. Aaron, 358 US 1 (1958): a broad view of judicial authority
i. held that court interpretations are "supreme in the exposition of
the law of the Constitution"
ii. argued that Marbury declared the basic principle that the federal
judiciary is supreme in the exposition of the law of the
Constitution.
a. seems to expand the Marbury holding? (p. 9: Marshall
seems to argue that judicial review was limited to specific
cases)
iii. Cooper held that the federal Court and Constitution could be
binding upon a state governor; a federalism issue
iv. if the Court's decisions are indeed binding, then how come it is
permitted to change its mind?
4. Dickerson v. United States, 384 US 436 (2000)
i. held that while Congress may overrule the Court using an Art V
amendment, it may not do so with a mere statute
ii. Dissent: if the statute contradicts merely the Court opinion but
not the Constitution itself, then this expands the judicial review
power and is antidemocratic.
5. Overruling US Supreme Court with Art V Amendment
i. Cooper and Dickerson appear to say that neither Congress nor
the states can overrule the Court on constitutional law (except
through use of Amendment)
4
ii. Amendment power rarely used because:
a. supermajority difficult to get
b. politicians are no longer in the mood to do it
c. US Supreme Court has been willing to make "new
readings" of the Constitution, typically in response to
changes in public opinion
II. Constitutional and Prudential Limits on Constitutional Adjudication: (i.e., who may
take a case to court to have the issue decided?)
A. The Nonjusticiability of Political Questions
1. Marbury : 2 strands of thought emerge
i. constitutional: expressly disavowed the Court's ability to
question Constitutionally established discretionary powers of
executive branch (cf. classical view infra)
ii. prudential: also suggested that some matters within the purview
of the court should nevertheless be avoided to prevent judicial
embarrassment
2. Constitutional strand/"textual commitment" (classical view)
i. is the prohibition in the text of Constitution?
a. see Baker v. Carr
ii. is there a lack of judicially discoverable and manageable
standards for resolving the issue? (partially prudential)
3. Prudential strand
i. avoid issues that are too controversial or could produce
enforcement problems or other institutional difficulties
4. Baker v. Carr2
i. Political question doctrine
a. held that the issue only arises on relationship of the
federal judiciary to the branches of the federal government,
not to the States (i.e., Guaranty Clause not applic here).
b. State govts not "coequal" to the Court
1. Dissent argues: a settled line of cases holds that
Art IV, § 4 (the Guaranty Clause) guaranteeing to
the States "a Republican form of Government," is
not enforceable through the courts3
A. therefore, the Court should not decided
this case on a prudential argument that
elections are the give-and-take and
compromise among policies often in conflict
2
Group of voters sued Tennessee in federal court to have federal govt force the state to reapportion voting
districts. Court majority holds there is no political question and Guranty Clause is not implicated in the
case.
3
In class hypo: What happens if you bring a challenge based on the Guaranty Clause (Art IV, § 4) in state
court rather than federal court? Would the state court have to throw it out the way the federal court would?
If the issue is truly that of separation of powers, then it seems the State court could handle the issue. [I add:
but is this true, since there could never be any review of the state court's decision by the federal judiciary.]
5
c. the nonjusticiability of political questions is primarily a
function of the separation of powers
ii. political questions appear to have one of these:
a. Classical view: a textually demonstrable constitutional
commitment of the issue to a coordinate political
department
b. lack of judicially discoverable and manageable standards
for resolving it (prudential/functional)
1. NB: this may strengthen the conclusion that
there is a textually demonstrable commitment to a
coordinate branch of govt (Nixon v. US)
c. impossibility of deciding without making a policy
decision of a kind clearly for nonjudicial discretion
d. need for unquestioning adherence to a political decision
already made (prudential)
e. potential for embarrassment on issue because various
departments will make multifarious pronouncements
(prudential?)
1. e.g., foreign affairs issues normally require need
to speak with one voice
iii. beyond these criteria, US Supreme Court decides each matter
on a case-by-case basis
iv. Wise: the key to political question issue whether one takes the
classical view or the prudential view is:
a) the reasoning is premised on separation of powers; and
b) issue must be decided on a case-by-case basis
5. Political question doctrine since Baker v. Carr
i. Nixon v. US
a. Court holds that issue raised for the interpretation of the
Impeachment Trial Clause (Art. I, §3, cl. 6) presents a
nonjusticiable issue
b. judicial review of this issue would be inconsistent with
the separation of powers because impeachment is the only
way to remove a federal judge
ii. Political questions and the Amendment process
iii. Political questions and the Presidential election process
B. Case or Controversy Requirements (Art III, §2, cl. 1): clause limits the scope
of the federal judiciary
1. Definition of "cases" and "controversies"
a. concrete and non-hypothetical
i. no issuance of advisory opinions
b. involve parties claiming an injury personal and concrete to them
i. law of standing
c. must arise neither too soon nor too late
i. mootness and ripeness
6
2. The Rule against Advisory Opinions
a. against checks and balances concept
b. also imprudent
c. policy: the need for judicial restraint
i. a Constitutional issue should not be adjudicated except
under "strict necessity" (i.e., the ruling is unavoidable)4
ii. that is, opinion will not be determined:
a. in nonadversary proceedings
b. in broader terms beyond what is necessary for the
instant case
c. if party fails to show injury from the statute
d. if a construction of the statute is possible by
which the question may be avoided
3. Standing: whether litigant is entitled to have the court decide the merits
of the dispute or of particular issues
a. standing is a jurisdictional issue
i. that is, if there is no standing, then the court lacks subject
matter jurisdiction
ii. moreover, like subject matter jurisdiction, standing can
be challenged at any time in the process and can be raised
sua sponte
iii. standing issues normally only arise when the gov't is
being sued
b. Art III requires that a party seeking a decision from Court must:
i. injury-in-fact: show that he personally has suffered some
actual or threatened injury5 as a result of the putatively
illegal conduct of the defendant or a statutorily-created
injury (injury should be concrete and particularized); and
ii. causation: the injury fairly can be traced to the
challenged action/alleged violation; and
iii. redressibility: is likely to be redressed by a favorable
decision
c. some prudential6 principles
i. P must assert his own legal rights, not those of a 3rd party
ii. court won't adjudicate general grievances which are
better redressed by legislature
iii. complaint must fall under statute or constitutional
guarantee in question
iv. judicial economy (prevent too many suits)
d. Wise: some considerations on "standing"
4
The "strict necessity" formulation comes from a 1947 decision. Wise says: under the Warren court, US
Supreme Court began to reach out and adjudicate a broader range of cases.
5
aka, "a cognizable legal interest." Also, harm may be indirect, but this makes it difficult to prove standing
(p. 51)
6
note this class always seems to look to Constitutional reasons as well as prudential reasons for things
7
i. thus, b and c show that decisions made on standing are
normally based on a mix of constitutional and prudential
principles
ii. standing and the merits of a case are often conflated (that
is, even when there is standing, court seems to sometimes
exclude lawsuit based on merits, though never admits this)
1. this is possible because injury-in-fact and
causation are "highly manipulable" concepts with
no set definition
2. Wise: "is causation just a disguise for what the
court sees as the merits of the case??"
e. Warth v. Seldin
i. petitioners did not show personal injury, only claim that
they are members of a group that have, allegedly, been
excluded by a zoning policy
ii. did not allege facts tracing injury to the challenged zoing
policy
iii. did not show the injury could be redressed by court
iv. NB: standing can expire if redress not sought within an
appropriate time
v. Dissent
a. argues that the allegations are sufficient of
possible injury and a possible pattern of
discrimination. therefore, the case should at least be
permitted to proceed to discovery (after which
summary judgment could be issued if needed)
f. Lujan v. Defenders of Wildlife
i. Held that Defenders of Wildlife had no standing to
challenge a rule promulgated by Sec of Interior in
interpreting the Endangered Species Act
a. injury-in-fact req not met because the injury had
neither occurred nor was it "imminent" (56)
1. Wise: this req normally said to "sharpen
the advocacy" for the litigation
b. Congress cannot create an abstract procedural
right to sue simply by stating that one can sue if any
part of an act is violated7 (57). The violation must
create an injury to the party wishing to sue.8
1. standing has a separation of powers
issue because court cannot redress general
grievances (i.e., abstract disagreement with
7
In other words, the US Supreme Court held that such legislation by Congress violated the
case/controversy req of Art III.
8
As said in Marbury: "the province of the court is solely to guarantee the rights of individuals." The
vindication of the public interest (i.e., making and enforcing laws) is for the Congress and Executive.
8
political policy) since they are the province
of the Congress and Executive
A. one of the only exceptions is that
Court permits indiv to sue over the
Establishment Clause when alleging
govt spending $ on religion
2. However, in a concurring opinion,
Kennedy and Souter suggest that Congress
actually does have the power to create a
legal right of action that has no traditional
CL analog (58).
g. Standing: general considerations
i. injury-in-fact: an organization may assert injury so long
as any of its members might have done so and the claim is
germane to the org's purpose
ii. causation: but-for needed.
iii. 3rd-party standing: may be allowed when there is a
close relationship between the parties and a substantial
identity of interest with the rightholder.
iv. zones of interest: prudential
v. law of standing roughly restricts courts to their
traditional undemocratic role of protecting individuals and
minorities against impositions of the majority, while
excluding the courts from the even more undemocratic role
of telling the other two branches of govt what to do (64).
4. Mootness and Non-Ripeness: limits on timing of adjudication; WHEN?
a. Mootness ("the doctrine of standing placed in a time frame")
i. viewed as part of Art III req
ii. "if dispute is resolved, the issue is moot"; requirement
that an actual controversy must be extant during all stages
of review, not merely at the time the complaint is filed
iii. exceptions to mootness review
a. cases that are "capable of repetition yet evading
review" (67) – e.g., abortion cases
b. a D's voluntary cessation of a challenged action
does not preclude judicial review of that action (or
else D could just start up again once case in thrown
out)
c. if secondary/collateral injuries, then court may go
ahead and hear the case
d. improperly named class rep in a class action can
have his claim mooted, but everyone else's claim
remains
iv. judicial remedy for mootness
a. vacate trial decision and remand for dismissal
v. getting around mootness
9
a. if seeking an injunction and case moots, then
you're out
b. however, if there was also a claim for monetary
damages, then that claim continues (therefore, issue
is not moot and goes to court)9
b. Ripeness
i. both Art III and prudential ("issues not sharp enough")
considerations
ii. e.g., a case cannot rest on a P's fear of future10 injury due
to practices authorized/carried out by some law
iii. can one seek pre-enforcement review of a statute?
a. yes, if substantial hardship to party if they have to
wait until a "wrong" occurs
III. Supreme Court Authority to Review State Court Judgments
A. Martin v. Hunter's Lessee
1. Defended legitimacy of US Supreme Court review of state court
judgments resting on interpretations of federal law and rejected VA court's
challenge to constitutionality of §25 of the Judiciary Act of 1789
a. uniformity needed between states and federal judiciary; this is
the KEY argument of the case
2. Virginia argues that this is a federalism issue
a. federal gov got its power from the states, so therefore, the states
can take some of that power back if they wish (cf. McCollough v.
Maryland)
3. This review is supported by Art III and VI
B. Cohens v. Virginia: US Supreme Court review of state criminal cases
1. "the judicial power of US extends to all cases arising under the
constitution or a law of the US, whoever may be the parties [including a
State, as in criminal proceedings]"
IV. Political Restraints on US Supreme Court: can Congress strip the Court of its
Jurisdiction?
A. Some tools
1. Amendments by Art V
2. Congress can enlarge and then pack the court
3. justice selection process (no "textual" guidance on this)
a. president nominates; Congress confirms (Art. II, §2, cl. 2)
b. since Bork (1987), ideology has played a part
4. Art III "exceptions" to the Court's appellate jurisdiction
5. Impeachment, conviction, and removal
6. Congress can regulate the time the court meets
B. Ex Parte McCardle: Art III exception power
9
e.g., student seeks injuction against school; he graduates before final appeal; therefore, the case is mooted.
However, if he also sought $50k in damages, the entire dispute remains alive
10
note that this overlaps with standing
10
1. Court upholds the power of Congress to make express exceptions to
Court's appellate power
2. Congress may not, however, positively assert that the Court has
jurisdiction over any particular area, for Constitution grants the Court
jurisdiction over all areas until excepted by Congress
C. US v. Klein
1. unlike McCardle, court did not permit withdraw of jurisdiction while
the case was in process
2. however, Court also held that the law attempting to prevent jurisdiction
in Klein was actually a subterfuge to deny pardon power to the President
D. Plaut v. Spendthrift Farm
1. Congress cannot pass legislation that would reopen cases that had
already been dismissed by the Court based on statute of limitations
grounds
E. Constitional limits on Congressional Power over Appellate Jurisdiction
1. Restraints inherent in Art III
a. exceptions power cannot interfere with the essential or core
functions of the Court as granted in Art III
i. note use of word "all" in jurisdictional categories listed in
the Article
b. some scholars argue that Congress can do whatever it wants
2. Restraints external to Art III
a. Bill of Rights prohibits restrictions based on race or political
view
i. therefore, does it, by analogy, prohibit exclusion of a
class of issues?
3. Practical limits on Congress' power
a. if US Supreme Court power were barred, then decisions would
be left to lower courts which would lead to inconsistent results
OPERATION OF THE FEDERAL SYSTEM
Constitution specifies federal division of powers (Art I, §8 and Tenth Amend).
Part II of book focuses on structural limits on power as opposed from individual rights
guarantees (in part III of book).
V. National Power and Local Activities: Origins and Recurrent Themes
A. Introduction
1. Historical justifications for federalism in Federalist papers
a. liberty
i. vertical separation of power between states and nation
and horizontal separation between branches of federal gov,
gave people a double security to protect their rights
b. public good
2. Constitutional presecriptions for state v. federal powers
11
a. Art I and II enumerates federal powers
b. Amend X reserves undelegated powers to states or people
c. Art I, § 10 expressly forbids states from a few acts
3. Who should decide disputes arising between states and federal gov?
4. McCulloch v. Maryland (necessary & proper clause)
a. Maryland attempts to impose a state tax on federal bank
operating within its borders
b. sovereignty lies with the people, not with the state govts
c. Marshall: federal govt is of limited and enumerated powers, but
still quite expansive: see next
d. the Constitution grants many express powers; it also permits
congress to make "all laws which shall be necessary and proper"11
to carry out those powers (Art I, § 8, cl. 18)
i. therefore, the key is to make a reasonable connectiong
between a new law and an express power
ii. structural arg: note location of this clause is among the
enumerated powers, implying that it is not a limiting clause
but an expansion clause (92)
e. some famous language from the opinion:
i. "Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited,
but consistent with the letter and the spirit of the
constitution, are constitutional" (92).
A. note all the possible areas to be able to launch a
court challenge
f. Holdings: Congress had the power to charter a national bank
AND states may not tax the US Bank. This is based on the great
constitutional principle:
i. "the constitution and the laws made in pursuance thereof
are supreme; that they control the constitution and laws of
the respective States, and cannot be controlled by them"
ii. logic behind this principle is supremacy:
a. a power to create implies a power to preserve
b. a power to destroy, if wielded by a different
hand, is hostile to and incompatible with these
powers to create and preserve
c. where this repugnancy exists, the authority which
is supreme must control, not yield to that over
which it is supreme
iii. still, limits on Congressional power exist:12
11
Marshall interprets this broadly in the case; Maryland wanted it interpreted narrowly. In other words,
although no express power to charter national bank, it can be permitted by this language and reasoning
[might be good on an exam!!]
12
Seems like it would be good to know these for final
12
a. court permitted to scrutinize whether the means
chosen by Congress were adequately related to
legitimate ends; and
b. court may decide whether congressional
assertions of necessity were a "pretext"
B. The Scope of National Power: Historical Context
1. Stuff about the US Bank
C. Scope of National Power: Text, Structure, and Judicial Role
1. some information re: justifying judicial intervention in McCullogh and
the holding permitting Congress to charter a national bank (set out above)
D. Federal Limits on the Scope of State Power
1. Information on McCullogh holding prohibiting state taxation of a
national instrumentality
a. the authors call this "judicial inference" because there was no
textual support for the conclusion
b. Marshall's argument was mainly structural
2. modern representation-reinforcement argument
a. view that "a central role of the courts is to make up for flaws in
the operation of representative government or breakdowns in the
political process
3. US Term Limits, Inc. v. Thornton13
a. Holding: Qualifications clause prohibits states from putting
term limits on Congressmen14
b. Textual reasoning
i. language of qualifications clause
ii. Tenth Amend only reserves pre-existing powers to the
states; therefore, since states never had set qualifications
for Congress, they can't start now
c. structural reasoning
i. dual sovereignty: "framers split the atom of sovereignty
A. each citizen has power in his state and in the
national government through his votes
B. therefore, state may not invade the federal
sovereignty sphere (and vice-versa)
d. historical reasoning
i. states never set qualifications before
e. judicial groupings
i. concur: Kennedy
ii. dissent: Thomas, Rehnquist, O'Conner, Scalia
f. DISSENT
13
Decision represents "one variant on judicially implied state disabilities to act in the federal sphere."
Others are: dormant commerce clause and interstate right-to-migrate. Also, federal govt is judicially
limited from interfering in state sphere. Compare Kennedy's position in US Term Limits and US v. Lopez.
14
Is this an example of representation-reinforcement? I.E., do term limits place negative externalities on
citizens of other states (cf, tax on national bank in McCullogh) by reducing the experience and quality of
representatives from another state?
13
i. Jeffersonian/popular sovereignty argument15: people
have a right to exercise their power through the states, and
therefore they should be permitted to impose whatever
qualifications they want
ii. textual: the Constitution is silent on the issue and
therefore raises no bar to state action
A. codified by Tenth Amend
iii. textual: Qualifications clause is merely the minimum
req to serve in Congress and states can add to them if they
wish
THE COMMERCE POWER
Analysis Concepts:
1. commerce-prohibiting technique
2. stream of commerce
3. affecting commerce
a. formalism: what is the nature (e.g., manufacture vs. production) of the
effect?
b. affectation: what is the degree of the effect on the overall economy?
VI. Interpretation of the Commerce Power from 1824 to 1936 (court rules both ways)
A. Regulating commerce – Art I, § 8, cl. 3
1. major motivation for the framers to move from the Articles of
Confederation to the Constitution
2. policy: keep states that held animosity towards each other from having
trade wars
3. two main issues: which cases defer to Congressional power and which
protect states'/local rights
B. Marhsall's broad interpretation of commerce clause in Gibbon v. Ogden (1824)
1. State law granting a maritime monopoly vs. a federal law directly
opposed to it
2. Definition commerce: "it describes all commercial intercourse between
nations, parts of nations, in all its branches and is regulated by prescribing
rules16 for carrying on that intercourse."
a. Constitution applies this power to "among the several states",
meaning between
i. this is an internal or textual limitation17
b. however, any commerce contained entirely within a state's
boundaries is not liable to federal power [geographic
interpretation of the Commerce power]
15
"Our system of government rests on one overriding principle: all power stems from the consent of the
people."
16
The power to regulate commerce is the power "to prescribe the rule by which commerce is governed"
(says Marshall later in this case).
17
p. 120: as time goes on, we see more external sources of interpretation of the commerce clause, such as
in notions of federalism and in the 10th and 11th Amendments
14
C. Use of Commerce Power rare before 1887
1. 1887-Interstate Commerce Act
2. 1890-Sherman Anti-Trust Act
3. US v. Knight Co. (1895)
a. dealt with Anti-Trust Act vis-à-vis sugar producers
b. Held: under Commerce clause, Congress' power could not reach
a monopoly in manufacture
i. manufacture is the transformation of things; while
commerce is buying and selling and transportation18
ii. moreover, manufacture was conducted entirely within
the borders of a single state
c. policy: fear that this would give Congress carte blanche to
regulate everything [note, of course, that they eventually do]
4. "Affecting commerce" – Shreveport Rate Case (1914) [beginnings of
"substantial economic effects" test – aka direct/indirect effect test]
a. re: Interstate Commerce Act
b. Held: Congress' authority could reach intrastate rail rates
because they affected and discriminated against interstate rail rates
i. logic: if regulation of interstate commerce is closely
bound to intrastate commerce (as in the case of a railroad),
then Congress can regulate both
ii. that is, Congress may prescribe the dominant rule
c. the implication of this holding is that anything that had an effect
on interstate commerce could be regulated by the commerce clause
5. Stream of Commerce theory
a. some local activities are controllable because they could be
viewed as "in" commerce or as an integral part of the "current of
commerce" (e.g., stockyards and national beef trade)
6. "Commerce-prohibiting" technique – National police/moral regulation
a. i.e., using the Commerce power to regulation national morality
i. this was done not by imposing national laws on local
jurisdictions, but by prohibiting certain interstate
movements
b. Champion v. Ames
i. Congress may prohibit interstate transmission of lottery
tickets in order to destroy the pestilence of lottery tickets
(i.e., a regulation based on a moral policy)
c. Hipolite Egg v. US
i. seizure of eggs while inside a state boundaries is
permissible if seizure is the legitimate means to the end of
barring them from interstate commerce (cf. McCullogh
supra)
d. Hammer v. Dagenhart (Child labor case)
18
p. 123: this holding suggests that "the nexus between the local and the interstate was a formal,
qualitative one of logical relationships, rather than an empirical, practical one of economic impacts."
15
i. holding appears to remove the commerce-prohibiting
power (until overruled in Darby)
ii. the evil to be prevented was not what was in interstate
commerce, as in the Lottery Case, and so could not be
regulated by the Commerce power
a. i.e., formalism: the distinction between
manufacture and commerce
iii. DISSENT: it is not proper to rule an act
unconstitutional because of its collateral results when the
main part (regulating commerce of goods) is perfectly
legitimate
A. further, if Congress has exercised its legitimate
power for a policy reason, the Court should not be
permitted to question policy made by Congress19
7. Judicial threats to the New Deal
a. Knight and Shreveport conflict with how court will rule on
Congressional attempts at intrastate regulations needed for the
New Deal
b. RR Retirement v. Alton RR
i. invalidated a law establishing a retirement and pension
plan for all RRs under the Interstate Commerce Act
ii. Held: act not related to efficiency of commerce
c. Schechter Poultry v. US [direct/indirect test]
i. imposing codes of fair competion for trade and industry
deemed unconstitutional
A. also violation of non-delegation of powers (see
Chadha below]20
ii. effect of codes on interstate commerce was too indirect
d. Carter v. Carter Coal Co [direct/indirect test]
i. act establishing minimum wages and max hours for coal
miners held unconstitutional
ii. again, held that the effect of act on interstate commerce
was too indirect; rather, the effects of the act were on
production, an entirely local activity
A. formalism: "the extent of the effect bears no
logical relation to its character" (133)
1. Overruled in NLRB
8. FDR's court-packing plan
a. get new blood into the Court
b. plan failed in Congress, but put Court on notice.
VII. 1937 to 1995 (Court struck down NO law as exceeding the reach of Commerce
Power during this period)
19
"Congress may carry out its views of public policy whatever indirect effect they may have upon the
activities of the states" (129).
20
one of only two cases in which the court has struck down law on nondelegation grounds
16
A. Affectation doctrine
1. during these years, it became the Court's position that Congress had the
power to regulate any activity so long as it had any appreciable effect
whatsoever on interstate commerce
2. Court abandons the geographical and direct vs. indirect theories
B. NLRB v. Jones & Laughlin Steel (1937)
1. Congress may pass acts which address issues that may burden or
obstruct interstate or foreign commerce
2. if an intrastate activity has such a close and substantial relation to
interstate commerce that its control is essential or appropriate to protect
commerce from burdens and obstructions, then Congress may regulate it.
3. policy: in light of our "dual system of govt" (i.e., states vs federal) the
relationship of an intrastate activity to interstate commerce must be
meaningful
a. i.e., the key issue to examine before ruling is the degree of the
interrelationship (opposite of Carter Coal)
C. US v. Darby (1941) – overruled Hammer v. Dagenhart (commerce-prohibiting
power reaffirmed; beginning of aggregation theory)
1. Congress has plenary power from Art I, §8, cl. 3 to regulate any form of
interstate commerce for any policy reason (not just that the item itself is
noxious or evil), whether or not a state has acted to regulate it already
[Lottery case, Ames]
2. When intrastate activities (e.g., wage and hour restrictions) have a
substantial economic effect on interstate commerce, then Congress can
regulate them [Shreveport]
a. if Congress can prohibit the shipment of goods interstate, then it
follows by the necessary and proper clause (I, 8, 18) that it can
prohibit the production of those items in sublabor conditions21
3. Conclusions not affected by the X Amend which merely states that all is
retained which has not been surrendered.
D. Judicial Deference toward Exercise of the Commerce Power
1. Aggregation of local activities – Wickard v. Filburn (1942)
a. Growing wheat for home consumption in excess of quota is not
trivial when combined with others who might do the same22
i. therefore, Congress can prohibit even the self-sufficient!!
b. indicated that federalism concerns might affect the construction
of statutes drafted under the commerce power: "that an activity is
of local character may help in a doubtful case to determine whether
Congress meant to reach it."
2. "Affecting commerce" cases continue to req broad economic effects
21
NB: Wise purposefully made this argument in class; know for final. Prof mentions that necessary and
proper power is not independent; it must always be related back to another power granted by the
Constitution.
22
in other words, the Court in all of these cases looks to what the policy behind Congress' legislative
decision was and then applies it to the facts. In this case, the rationale was to prohibit an overabundance of
wheat, therefore, growing to much for yourself would fall within that policy and therefore the act applies.
note this process for exam writing
17
a. Maryland v. Wirtz
i. employees whose activities in any way enable "an
enterprise" to participate in interstate commerce may be
regulated
ii. unlike Darby, where only those actually engaged in the
production of the questioned goods may be regulated
b. Hodel v. Virginia Surface Mining
i. determined that once Congress determines that an activity
affects interstate commerce, the Court need only examine
whether that determination is support by a rational basis23
A. this is completely changed in Lopez and
Morrison (infra)
ii. Congress may regulate environmental consequences of
commerce when those consequences may affect other states
3. Commerce Power and Social Ends
a. Racial discrimination –
i. Heart of Atlanta Motel v. US – if activity concerns more
than one state and has a real and substantial relation to the
national interest, then Congress may regulate for whatever
policy reason
ii. Katzenbach v. McClung – restaurants may be regulated
because it imposed hardships on blacks who wanted to
travel because it made it difficult for them to find a meal at
a reputable restaurant
A. maintains rational basis standard of review
iii. NB – several justices said that these cases could/should
have been determined using 14th Amend and thus would
have focused on human dignity rather than mere economics
b. Crime prevention
i. criminal activities, even when wholly intrastate, may be
regulated if the revenues from those activities affects
interstate commerce (i.e., revenue for an organized crime
outfit)
ii. Perez v. US – such regulation may apply to a "class of
activities" even when the instant activity does not have any
effect on interstate commerce
A. DISSENT: how is loansharking different from
other crime? The power to regulate crime is
reserved to the states in the 9th and 10th Amends
VIII. New Limits on the Commerce Power Since 1995
A. US v. Lopez (1995) – Gun-Free School Zones Act – doing away with rational
basis standard of review [REREAD this CASE while STUDYING]24
23
Def rational basis review: Congress makes a finding of fact and then passes a statute to deal with the
issue; the Court need only decide if Commerce Power thus had a rational basis relation to the fact [often
determined through affectation and aggregation]
18
[NB: this case contains a great summary of the history of commerce clause
decisions, 150-151]
Majority: Rehnquist, Scalia, Thomas, O'Connor, Kennedy
1. Commerce Power does not permit Congress to prohibit possession of
firearms within a school zone. The statute in question is a criminal statute
that has nothing to do with commerce.
2. Categories permitted in Congress's enumerated commerce power (but
there is a limit, says court):
a. may regulate the use of channels of interstate commerce
i. Darby and Heart of Atlanta Motel
b. may regulate instrumentalities of interstate commerce and
persons or things in interstate commerce
i. Shreveport Rate
c. may regulate activities that substantially affect interstate
commerce [includes rational basis and aggregation]
i. Jones & Laughlin and Wickard
3. If this Act were permitted, it would not place any limit on the federal
govt's power because the chain of inferences linking gun possession in a
school zone to substantial economic effects is so tenuous as to be
ludicrous AND could permit a federal police power (a policy fear).
4. KENNEDY and O'CONNER (concur)
a. need for clarity: content-based boundaries (i.e., formalism) is
imprecise to define limits of Commerce Clause
b. representation reenforcement: federalism (the dual governing
structures) enhances freedom and therefore should be supported by
the Court
5. THOMAS (concur)
a. "commerce" was used by the Founders in contradistiction to
productive activities such as manufacturing and agriculture
b. textual argument for a much narrower reading of the Commerce
Clause ("an interpretation of cl. 3 that makes the rest of §8
superfluous simply cannot be correct")
c. substantial effects test: it is wrong for two reasons:
i. a 20th-c innovation (i.e., let's overrule 1937-1995 cases)
ii. appears to grant Congress a national police power
iii. "aggregation principle" is stupid
6. DISSENT – Breyer, Stevens, Souter, Ginsburg
a. Cumulative effect of lots of kids carrying guns to schools could
disrupt the quality of education and thus of interstate commerce
(this is the "costs of crime" reasoning used by Govt to try and
uphold the statute).
b. majority tries to return to the direct/indirect formalism of the
past
24
Emphasized in class: 1) does the statute contain a jurisdictional trigger purporting to link it to interstate
commerce? [no, 152]; 2) importance of legislative fact-finding; 3) federalism: local vs. federal issue being
regulated
19
c. using the "rational basis" connection theory, Court has a lot of
leeway in interpreting constitutionality; therefore, this Act should
be sustained
d. the majority's decision creates three legal problems:
i. counters US Supreme Court precedent that have upheld
Acts with less connections
ii. goes against precedent in Wickard that court can regulate
non-commercial items so long as they have a substantial
effect on interstate commerce [McClung and Perez as well
(160)]
iii. threatens legal certainty in a settled area of law
e. SOUTER (dissent)
i. "the practice of deferring to rationally based legislative
judgments 'is a paradigm of judicial restraint'." (i.e.,
separation of powers)
B. Commerce Clause Review After Lopez
1. Lopez states that the Act as overruled did not contain a jurisdictional
element which would ensure that the firearm possessed traveled through
interstate commerce (cf. 152)
a. Congress amended the Act and placed such a provision in it,
requiring that a prosecutor prove this on a case-by-case basis
2. Policy question: When deciding if exercise of Commerce Power is
justified, we should ask, "is there some reason the federal govt must be
able to do this, some reason why we cannot leave the matter to the states?"
a. e.g., if a problem varies greatly by geography, perhaps it should
be left to the states
b. argument for centralized action emerges when there is reason to
suppose that local variation will be undesirable or ineffective
i. examples: negative externalities (pollution), defense
from foreign enemies, redistribute wealth to help disaster
recovery, prevent races to the bottom, overcome tyranny of
local majorities
3. Statutory interp and clear statement of congressional intent
a. The US Supreme Court will refuse to adopt a broad reading of
legislation in "the absence of a clearer direction from Congress"
b. in other words, the modern Court is much more inclined to
narrow statutory construction vis-à-vis the Commerce Power
4. Theory of enumeration: limits to congressional power under the
Copyright Clause (Art I, § 8, cl. 8)
a. if Lopez can place limits on an enumerated power, then why
shouldn't all of the enumerated power have limits that courts may
impose?
5. Economic vs. non-economic activity: US v. Morrison (Violence
Against Women Act): further erosion of "rational basis" review
20
a. To show an activity is linked to interstate commerce, Congress
must: (Court here limits the "aggregation principle" – key to
majority's opinion is that Congress cannot regulate a noneconomic
activity that can only be made to affect interstate commerce if we
permit effects of individual items of that noneconomic item to be
aggregated)
i. show it involves economic activity
ii. provide a clear statement that the activity affects
interstate commerce
iii. provide factual findings of the burden this activity
places on interstate commerce (clearly not a key element
because we do have tons of findings here)
iv. the link between the activity and interstate commerce
must have a rational basis
b. DISSENT
i. it doesn't matter if the activity is economic or noneconomic, what matters is that the activity in aggregate has
substantial effects on interstate commerce. (The majority
would call this "an attenuated but-for chain of causation.")
This is what allows Congress to exercise the Commerce
Power of the activity.
A. cf. Heart of Atlanta and Katzenbach v. McClung
for examples of just such reasoning in Court
opinion
ii. argues that the majority has "supplanted rational basis
scrutiny with a new criterion of review"
iii. formalistic economic/non-economic distinction used by
majority is too difficult and inconsistent to apply
A. our nation is so closely-knit by technology that
almost any activity affects interstate commerce
when viewed in aggregate. Therefore, it is
impossible to develop subject-matter categories to
exclude activities from regulation under the
Commerce Power
iv. the political process itself will police the limits of
enumerated power; the structure of voting for state
representatives provides this protections (170)
IX. External25 Limits on Commerce Power: State Autonomy, Federalism and the Tenth
and Eleventh Amendments [i.e., is there something clearly within commerce that
Congress nevertheless cannot regulate because it involves a State?]
Flow chart:
1) Court recognizes State autonomy in National League of Cities
2) Court renews supremacy of Federal govt in Garcia; but then begins to specify
25
I.e., are there things outside the Commerce Clause (I, 8, 3) itself that impose limits?
21
limits to that supremacy, though not a complete return to National
3) Court says Congress may not commandeer a state legislature in New York
4) Court says Congres may not commadeer a state executive in Printz
A. Recognition of State Autonomy
1. Prior to 1976, US Supreme Court agreed that the federal govt could not
regulate states-owned property or state taxation, but could regulate just
about anything else
2. National League of Cities v. Usery (1976)
a. Held: Congress had violated federalism by using Commerce
Power to impose wage and hour restrictions on a state employees
i. court pointed to the role of local governments in the
administration of public law and furnishing public services
as things that were traditional state powers and that the
state could best decide how to do
b. Blackmun is the key justice in his concurrence who sides with
the majority but argues that they were using a balancing test rather
than agreeing the Congress had acted beyond its mandate
c. DISSENT
i. The state and federal political process (i.e., the structure
of federalism) is enough o protect the states
3. The Hodel test: National League of Cities requires a 3-part test:
a.. show statute regulates States as States
b. must address matters that are indisputably attributes of state
sovereignty
c. state compliance with the federal law would impair its ability to
structure integral operations in areas of traditional governmental
functions (i.e., formalism)
4. Garcia v. San Antonio Trans Auth (1985): overrules National League
a. the effort to articulate boundaries of "traditional state functions"
had proved unworkable
b. such a distinction invites an unelected judiciary to make
decisions about which policies it likes and which it doesn't
i. in other words, the political process itself [voting;
representation reenforcement??] insures that no unduly
burdensome laws will be promulgated
c. Blackmun, now writing for the majority, gets to use the
balancing test: "Any substantive restraint on the exercise of
Commerce Clause powers must be tailored to compensate for
possible failings in the national political process rather than to
dictate a 'sacred province of state autonomy'."
d. DISSENT
i. How can a legislature be the sole judges of the limits of
its own power via the Commerce Clause?
ii. most congressional laws are drafted by unelected
bureaucrats who know nothing about the States and
22
localities affected by those laws. We must guarantee that
legitimate local interests are protected
5. New York v. US (1992)
a. No matter how great the federal interest, the Constitution does
not give Congress authority to require the states to regulate in a
manner prescribed by Congress
i. Congress may, however, provide incentives to promote
states' regulating in a certain way (181)
A. withholding federal funds (i.e., conditional
spending)
B. regulating private activity within the state under
one of its powers
C. preemption: if state doesn't adopt the rule, the
feds will use supremacy clause to preempt state law
and enforce the federal reg
b. Federalism questions can be asked in two ways:
i. is an Act of Congress within the Art I delegated powers?
ii. does an Act of Congress invade the province of state
sovereignty reserved by the X amend?
c. Why can't federal govt impose a specific law on a specific state?
i. original intent: Framers debated the issue and decided
that Congress should be permitted to regulate individuals
directly but not regulate legislatures
ii. it would undermine indiv freedom because if a State's
people don't want to follow a law, they should be permitted
to elect local reps who will vote to resist the law
iii. electorate would be confused and unable to decide
whom to blame.
d. DISSENT
i.
6. Printz v. US (1997) Scalia, Rehnquist, Thomas, O'Conner, Kennedy
a. Issue: can Congress force local law enforcement to participate
in the administration of a federally enacted regulatory scheme (i.e.,
the Brady Bill for gun regulation)?
b. historical policy and practice argument
i. no evidence that Courts may impress a State's executive
branch into its service (unless the State consented to it)
c. structural argument
i. federal gov't is one of enumerated powers and the powers
remaining to the States are inviolable
ii. must be mindful of dual sovereignty distinction; the
Framers rejected a central govt that would act upon and
through the States (original intent)
23
iii. requiring states to enforce a law would weaken the
power of the federal executive and not give the president
control over those enforcing laws (i.e., Art II, §3)
d. US Supreme Court precedent
i. Hodel and New York show that the Court has never
permitted the Congress to require states to administer a
federal regulatory program
A. also, permitting this would allow Congress to
take credit for a program without having to pay for
its costs
ii. a balancing test would not work here because the law is
a direct imposition of state power, not something that
tangentially touches upon it
e. DISSENT (Stevens, Souter, Ginsburg, Breyer)
i. the necessary and proper clause surely permits the
temporary enlistment of local police officers in the process
of identifying people who should not have guns
A. original intent: Hamilton had said that the feds
would use state officers to collect federal taxes, so
there was a precedent
ii. uses the dual sovereignty argument to say: Senators
from each state are not likely to infringe the sovereignty of
their state in a bad way
iii. by not permitting the Congress to impose minor
functions on local states, the majority perversely gives the
federal govt incentive to create a vast nationl bureaucracy
and thereby aggrandize itself
iv. SOUTER
A.
v. BREYER and STEVENS
A.
7. Reno v. Condon
a. unanimous court upheld act limiting the commercial vending of
personal data by the states
B. State Sovereign Immunity Limits on Congressional Power: Does the Court
have a role as protector of the states against an overly regulatory central govt?
Rehnquist, O'Conner, Kennedy, Scalia,
Souter, Stevens, Ginsburg, Breyer
Thomas
YES. The 11th Amend creates a
NO. The 11th Amend prohibits diversity
constitutional immunity for states against
actions, but not federal question suits.
all federal subject matter, inc federal
question [i.e., these justices add to the 11th The political process itself and the nature
Amend, extending it beyond its clear
of dual sovereignty can protect the states.
textual language, continuing the tradition
of Hans v Louisiana, 197]
24
1. 11th Amend26 and state sovereign immunity
a. says that no state may be sued by another state, foreign nation,
or citizen of another US state
2. Seminole Tribe of Florida v. Florida
a. overruled Union Gas, which had held that Congress could permit
suits for monetary damages against states in federal court under an
environmental statute
b. the majority thus rejected the claim that Congress acting under
its commerce power could abrogate a state's 11th Amend immunity
c. Art I, the Legislative power, cannot be used to circumvent the
constitutional limitations placed on Art III by 11th Amend.
d. DISSENT (Souter, Stevens, Ginsburg, Breyer)
i. prevents Congress from providing a federal forum for a
broad range of actions, inc. copyright, enviro law,
bankruptcy, etc
ii. if Congress puts a "plain statement" in legislation
permitting a federal cause of action against a state, then the
Court should respect that
3. Federalism structure: how far does state sovereign immunity principle
in Seminole extend?
a. Alden v. Maine
i. Congress may not abrogate state sovereign immunity by
authorizing private actions for money damages against
nonconsenting states in their own state courts, even on a
federal claim.
ii. holding justified, not by text, but by structure and
history, for even before the Constitution, states were
considered sovereign, and the 10th Amend codified this
and 11th Amend restored the original constitutional design
(200)
iii. Nevertheless, this does not give the state the right to
disregard any federal laws [?]
A. if such a violation, it falls to the federal govt to
sue the state
iv. DISSENT (Souter, Stevens, Ginsburg, Breyer)
A. sovereign immunity may only be invoked by the
sovereign who issued the law; thus, a state may not
claim immunity to a suit based on a national law
b. Kimmel v. Florida Regents
i. Court in this and other cases invalidated statutes that had
attempted to abrogate state sovereign immunity
ii. DISSENT stated that 11th Amend only places a textual
limit on diversity suits in federal courts, not on a federal
26
11th Amend was enacted as a direct reponse to Chisholm v. Georgia (1793) where a citizen of S.
Carolina was permitted to sue Georgia, pursuant to the language in Art III.
25
court's power to hear suits against states by one of the
state's own citizens
4. Extending state sovereign immunity to federal agency proceedings
a. Federal Maritime Comm v. S Carolina Ports Authority
i. extended the reach of state sovereign immunity from
judicial proceedings to adjudications within federal
administrative agencies
ii. Majority uses structural principles
A. dual sovereignty means that the states "did not
consent to become mere appendages of the federal
govt"
iii. DISSENT
A. administrative agencies are, in effect, part of the
executive branch. therefore, the court should not
interfere with the enforcement of the law that it
deems constitutional
5. Congress may, however, abrogate state immunity in civil rights suits
Ways around the majority opinions
1. Sue a state officer as an individual for injunctive (that is future, not past) relief or even
monetary damages [see Ex parte Young, 197]
2. A state can waive its sovereign immunity explicitly [often occurs if Congress says,
"We will give you this money for x, if you waive your immunity from suit about x."
3. Congress is permitted to abrogate state sovereign immunity, but not under the
Commerce Power, rather using § 5 of the 14th Amend. [see Fitzpatrick v. Bitzer, 197]
The Narrowing Commerce Clause Power Trilogy:
Lopez, US v. NY, and Printz. In NY, O'Conner suggests conditional spending,
rather than legislative commandeering of state legislature, would have worked.
Wise's organizing principles for Commerce Power vs. States' rights section:
Defective Process Theory
Anti-Commandering
Anti-Liability Principle
Theory (X Amend)
(XI Amend)
Garcia: majority holds that
NY v. US and Printz v. US: Seminole Tribe, Alden v.
the political process
there are structural,
Maine, & Kimel v. Florida
inherent in federal govt will historical and federalism
Regents:
protect states from unduly
concerns that prohibit the
burdensome federal laws.
Congress from
-But court reserves right commandeering a state
to step in in the case of a
executive or legislature to
"failing in the national
adopt a federal regulatory
political process" (no such
scheme (though there are
case held this applicable)
ways to get around this with
incentives/threats)
X. Federalism-Based Restraints on Other National Powers in the 1787 Constitution
26
NB: Court oversight of Taxing and Spending power parallels the timeline for
oversight of Commerce Power  i.e., the deferential shift in 1937 (but a shift
back in late 1980s?). As the scope of Commerce Power expanded post-1937, so
did the scope of the taxing power.
A. The Taxing Power as a Regulatory Tool
1. Congress often can use the taxing power where the commerce power
seems to be ineffective
a. There are three kinds of taxing power: Indirect, Direct, Export
i. Indirect: Art I, § 8 – "Congress shall have power to lay
and collect taxes, duties, imposts, and excises . . . [and that]
all duties, imposts, and excises shall be uniform throughout
the US."
A. i.e., licensing tax, sales tax, etc.
ii. Direct: Art I, § 9 – "no capitation or other direct tax shall
be laid unless in proportion to the census" and Art I, § 2
provides that "direct taxes shall be apportioned among the
several states."
A. i.e., property tax or personal tax
iii. Export: Art I, § 9, cl. 5 – "No tax or duty shall be laid
on articles exported from any state."
b. Tax validity
i. a tax that is primarily regulatory (e.g., to penalize or
coerce) is invalid
ii. a tax that is primarily fiscal (i.e., it is a revenue-raising
measure) is valid
2. Child Labor Tax Case (1922: taxing child labor users; never officially
overrulled)
a. Held: Congress may not use its taxing power (as a "pretext"27)
to accomplish objectives that it cannot reach under any of its other
powers. (Furthermore, there is a 10th Amend issue that labor
standards should be regulated by states; 10th Amend concern gone
after 1937).
i. but if Congress could have reached it under another
power, then the Court could not have overturned it
ii. in this case, Congress attempted to tax factories that used
child labor in order to drive up costs of business; Court said
this was clearly regulatory, not fiscal
3. US v. Kahriger (1953: taxing gambling)
a. Held: a federal tax is valid even if it discourages a specific
activity and produces little revenue
27
this language comes from Justice Marshall in McCulloch v. Maryland (1819): "should Congress, under
the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the
government," the Court would have to rule those laws unconstitutional.
27
b. DISSENT: clearly regulatory in nature and an attempt by
Congress to reach something that it could not reach with other
powers
NB for EXAM: the Child Labor test says that Congress can't use its
taxing power to reach anything not reachable under other powers VS the
Kahriger test that says a tax is valid even if it discourages a specific
activity and raises little revenue.
Tests for tax validity:
-cannot tax specific conduct; should be generally defined
-does revenue go into general funds rather than to specific goals
4. Commerce and Taxation Power relationship
a. The more expansive the conception of permissible federal
regulation (post-1937), the more attenuated the area of
impermissible regulatory intrusion through taxation
b. Quaere: how solid is the Court's broad deference to
Congressional spending power in light of the Commerce Power
decision in Lopez?
i. EXAM: will we see a renewed era of judicial activism?
B. The Spending Power as a Regulatory Tool
1. Art I, § 8 gives Congress power to spend money in order to:
a. pay debts
b. provide for common defense
c. provide for the general welfare
2. Scope of the spending power
a. general welfare is required; spending must therefore be fore a
national cause, and not a local one
b. still, Court gives great deference to what Congress determines is
for the common benefit
3. Local vs. general welfare: US v. Butler (1936)
a. Held: Congress may not use its taxing and spending powers to
operate a self-contained program regulating agricultural production
i. regulation of agriculture is not explicitly granted to
Congress; therefore, it is left to the states [a federalism
problem]
b. definition of "general welfare"
i. court holds that the phrase in Art I, §8 is independent
from the other enumerated powers and is limited only by
the req that the tax/spend power is limited to exercise for
the general welfare of the US28
c. DISSENT
28
This is Hamilton's argument. Madison had suggested that the spending power cannot stand alone and
can only be exercised as an extension of the powers enumerated in Art I, §8.
28
i. Court should only be concerned with constitutionality of
laws, not with their wisdom [the removal of unwise laws
should come from our electoral/political process, not the
Court's whim]
ii. clearly the depressed state of national agriculture is a
concern for the "general welfare"
iii. Congress should be authorized to put "conditions of
use" on any payments that it makes [e.g., give money to
rural schools on condition certain standards are maintained]
4. Steward Machine Co v. Davis (1937)
a. Held: Congress may reduce private employers' federal tax
obligations by crediting payments made only to federally approved
state unemployment plans
i. Although it appears to coerce states, what it really does it
provide fairness by not permitting states with
unemployment plans to have their businesses taxed twice.
5. Helvering v. Davis (1937)
a. Held: Congress may tax employers and employees in order to
provide payment for federal old age benefits for Congress has
discretion in determining that this is need for the general welfare
6. South Dakota v. Dole (1987): Federal influence over state regulation
through the spending power
Rehnquist writes for majority "expanding" spending power
a. Held: Congress may withhold federal highway funds to states
that do not adopt federal age standards for the sale of alcohol.29
i. i.e., Congress may attain an objective not in Art I powers
by the use of the spending power and the conditional grant
of federal funds
ii. since this was an indirect attack, there is no concern with
a violation of the 21st Amend
b. Spending power is limited in four ways:
i. it must be used in the pursuit of general welfare
ii. clear statement of conditions: any conditions imposed
must be unambiguous, so the states may make knowing
choices [this could be an escape clause for the Court]
iii. germaneness between condition and purposeconditions
must be related to the federal interest in particular national
programs
iv. the conditions must not be directly barred by other
independent constitutional provisions [or be overly
coercive, see Steward Machine]
c. Butler [coercion language] established that Constitutional
limitations on Congressional spending power are less exacting than
those on its authority to regulate directly
29
EXAM: Would the court have enforced this had it been 50% or 100% of highway funds, or would that
have been considered to coercive?? cf Butler and coercion language
29
d. DISSENT – O'Conner
i. Relationship between the expenditure of federal funds for
highway purposes and minimum drinking age is only
tangentially related to highway safety [i.e., germaneness is
her concern]
ii. slippery slope: if Congress can impose a condition that is
so minimally related to its spending objectives, then it can
interfere in virtually all aspects of state government, merely
by citing some effect on interstate travel
iii. the appropriate inquiry is whether the spending req or
prohibition is a condition on a grant or whether it is
regulation. [balancing test?]
7. Unlike with states' rights and the commerce power, the US Supreme
Court has not yet narrowed its interpretation of the spending power
C. War Powers
1. Constitutional Provisions
a. Art I, § 8: power to declare war, raise and support armies,
maintain navy, make rules for the regulation of the land and naval
forces, and to provide for organizing, arming, disciplining, and
calling forth the militia
b. Art II, § 2: President shall be the commander in chief of the
Army, Navy, state militias when called into US service
c. Necessary and Proper Clause gives president and Congress wide
war and war-recovery powers
2. Woods v. Cloyd W. Miller Co. – (post-war economic controls)
a. Held: Congress may continue to regulate the economy under its
war powers following the cessation of hostilities
i. scope of war powers is very broad: war powers include
the power to remedy the evils that arise from war and does
not necessarily end with the cessation of hostilities
ii. it is possible for Congress to abuse this power by saying
some effect is war-caused, but there is judicial review to
prevent that
D. Treaties, Foreign Affairs, and Federalism
1. Constitutional Provisions
a. Art II, §2: president can make treaties with foreign nations,
provided 2/3 of the Senators present concur
b. Art VI: all treaties made are declared the supreme law of the
land
c. in external affairs, there is no power sharing between states and
the federal govt; federal govt power may be exercised without
regard to state law or policies
2. Missouri v. Holland (1920) – Migratory Bird Treaty Act
a. Held: Congress may implement a US treaty provision that
would be unconstitutional were it an independent Act of Congress
i. 10th Amend is irrelevant since the power to make treaties
30
is expressly delegated (i.e., an enumerated power)
ii. treaty protects a national interest that can only be
guaranteed by concerted action with another nation
iii. Necessary and Proper clause gives Congress power to
pass laws for enforcement of treaty
iv. Dicta: "the treaty in question does not contravene any
prohibitory words to be found in the Constitution"
A. i.e., US cannot use the treaty power to get around
Constitutional provisions
3. Scope and Limits of Treaty powers
a. Reid v. Covert (1957): dicta: it would be inconsistent with
tradition to "construe Art VI as permitting the US to exercise
power under an international agreement without observing
Constitutional prohibitions"
i. confirms Missouri that treaty powers can't be used to get
around provisions in the Constitution.
b. Treaty Power and the Anti-Federalist Revival
i. modern Court has yet to narrow its interpretation of the
treaty powers
Question [possible EXAM topic]
How could federal government regulate ponds on private land very distant from
navigable waters as wetlands? Could they reach it under the Commerce power? Could
they reach it under a Missouri v. Holland-type law about migratory birds?
A: Court is skeptical that this can be reached under commerce. Treaty power:
federalism may prevent this if we can argue that the pond is local and is a subject
traditionally for state regulation; moreover, if Congress can't violate Constitutional
provisions with the treaty power, then it can't reach the ponds. But here, the govt is not
regulating the states directly (as in NY v. US) but private landowners.
What about the spending power to reach the ponds?
Key relationship: Although the Court broadened the Commerce Power along with the
taxing and spending powers and kept the war and treaty powers already broad in 1937,
the Court has only narrowed the Commerce Power since 1985. Still, could this
narrowing have an effect on taxing an spending powers? War and especially treaty
powers seem unassailable.
XI. Federal Limits on State Power to Regulate the National Economy
A. This section switches focus from federal powers limited by Constitution and
states' rights to state powers and how they are limited by national concerns
1. Commerce barrier to state action arises in two situations:
a. Dormant commerce clause: Congress is silent: it has taken no
action, express or implied, indicating its policy on a given subject
matter
31
i. authority rests entirely on the negative implications of the
commerce clause (Art. I, §8)
b. Commerce clause: Congress has exercised its Art I, § 8 powers
and the preemptive effect of the federal legislation under the
supremacy clause of Art. VI
2. Court has recently began to emphasize Art IV, §2: the privileges and
immunities clause
a. which guarantees to the "Citizens of each State [all] Privileges
and Immunities of Citizens of the Several States"
i. this clause can be read as directed against state legislation
that discriminates against out-of-state economic interests
3. 14th Amend equal protection can be used as a tool against economic
protectionism
Historical background: two Court interpretations:
1. "Origin of Powers" – formalistic/ontological – the state could regulate things
that affected interstate commerce so long as state was only exercising its police
power and not its commerce power
2. "Selective Exclusiveness: - look at subject-matter of the regulation. If it is a
subject of national importance, then states can't regulate. if it is merely a local
issue, then states can regulate it.
B. State Regulation and the Dormant Commerce Clause
1. The Constitution nowhere explicitly limits state power to regulate
interstate commerce, nor imposes an explicit barrier to state protectionism
or discrimination against trade.
a. the Court has created the Dormant Commerce clause by using
the federalism structure to draw out the negative implications of
the grant of the commerce power in Art I, §8
2. Constitutional History
a. Framers put in Art I, § 8 because they were disturbed by the
trade wars between the states under Articles of Confederation
b. policy: national unity and prosperity depends on univocality
when it comes to issues of national economic importance
c. policy: every individual will be encouraged to produce goods
with the certainty that they will find a free national common
market
C. The Modern Court's Approach
1. Where Congress has not acted, states may regulate any phase of local
business, even though it has some effect on interstate commerce, as long
as they neither discriminate against, nor impose any unreasonable burden
upon, interstate commerce
a. reasons allowing a state to prohibit importation of out-of-state
products
i. invalid: mere economic protectionism
ii. valid: protection of health and safety (e.g., quarantine
32
and inspection laws)
iii. valid: protection of publicly-owned natural resources
b. states rarely permitted to require in-state processing of a product
before it goes to another state
c. Three categories of state law discrimination:
i. state laws that facially discriminate against out-of-state
commerce (nearly always "per se invalid")30;
ii. protectionist, but not facially discriminatory: i.e., state
laws that favor local economic interests at the expense of
out-of-state competitors; and
A. measured with purpose and effect
iii. facially neutral state laws that unduly burden interstate
commerce (aka Pike "balancing of interests" cases)31
A. Scalia and Thomas would abandon Pike
balancing and leave such judgments to Congress
D. Laws that facially discriminates against out of state commerce
1. Environmental Protection: Philadelphia v. New Jersey (1978)
a. HELD: a state may not prohibit the importation of
environmentally destructive substances solely because of their
source of origin
b. Test: is law protectionist or is it directed at local concerns with
only incidental effects on interstate commerce?
c. "the evil of protectionism can reside in legislative means as well
as legislative ends [claim of health/safety]" (Wise mentions)
i. i.e., whatever the legislative intent, it may not be
accomplished by discriminating against articles of
commerce coming from outside the State unless there is a
reason, apart from their origin, to treat them differently
d. this law is invalid because it imposes on out-of-state commercial
interests the burden of conserving New Jersey's remaining landfill
space
e. this is not a quarantine law because the waste is barred due to its
origin, not its intrinsic quality (i.e., NJ permits its own waste to be
put in these landfills)
f. DISSENT: Rehnquist
i. quarantine laws prohibit importation and are not aimed at
disposal of in-state items
ii. NJ's law prohibits importation of items noxious to the
public's health and should be upheld
2. Policy behind the "principle of nondiscrimination"
a. protectionist purpose is illegitimate
b. social welfare: will bring about national prosperity
i. Court should invalidate laws whose net effect is to export
costs to other states
30
31
251n2: example of when a facially discriminatory law is permitted with baitfish in Maine
Pike balancing decisions often also point to protectionism.
33
ii. Founders intended that the States would "sink or swim"
together (Cardozo's words)
c. representation reinforcement32
i. i.e., out-of-state interests are, by definition, formally
unrepresented in a state's political process
3. Facially discriminatory taxes and fees
a. invalidation of a law imposing hazardous waste disposal fee on
wastes generated out-of-state
b. only Rehnquist thinks that these can be valid if the fee imposed
is equivalent of what an in-state waste generator paid in taxes that
are used to create new disposal sites
c. invalidation of law that taxed in and out of staters equally, but
then refunded the money to in-staters [cf. Butler, 211, where court
invalidates similar circular reasoning]
i. SCALIA: only way to protect local industry validly is to
subsidize it from a state's general fund (254)
ii. Rehnquist, Thomas, Scalia: this law should be upheld;
the Court has arrogated too much power under an
interpretation (the "dormant" commerce clause) and should
leave these concerns to Congress33
A. counter-arg: can Congress possibly
micromanage the states in this way? Also, wouldn't
this actually be more restrictive on state authority?
d. invalidated (5-4) law that gave a tax break to charities within
Maine that served Maine residents
i. Dissent: this is merely a tax exemption designed to
compensate those who provide services that the state itself
would otherwise have to provide [were this law directed at
for-profit concerns, it would be invalid]
4. Facial Discrimination by Localities – Dean Milk Co. v. Madison
a. HELD: a local (i.e., municipal) statue that has a valid purpose –
i.e., health and safety – but discriminates against interstate
commerce cannot be upheld if there are "reasonable
nondiscriminatory alternatives."34
i. local law does not counter a federal law
ii. however, regulation has discriminatory effect on
interstate commerce
A. not permitted when reasonable
nondiscriminatory alternatives are available to
protect these local interests
B. Two alternatives exist:
32
def representation reinforcement: judicial review is needed to protect interests that will be systematically
disadvantaged in the political process [cf. Baker v. Carr]
33
i.e., dormant commerce clause is in great tension with the new federalism of the modern court
34
cite Dean Milk for this proposition – NB FOR ALL IMPORTANT CASES, SUM THEM UP IN A
PHRASE (like in CivPro)
34
1. US Public Health Service Inspections
2. out-of-town ratings systems
iii. policy: permitting the enforcement of this locally
discriminatory regulation would invite multiplication of
preferential trade areas contrary to the Commerce Clause
b. Factors court looks at in making its decision:
i. can ordinance be justified in view of the character of the
local interests; and
ii. the available methods of protecting them
A. i.e., are there "reasonable and adequate
alternatives" available
B. does availability of these alternatives show that
the intent of the legislation was actually
discriminatory and so it prejudices the court to
holding thus? [EXAM]
c. DISSENT
i. this holding elevates the right to traffic in commerce for
profit above the power of the people to guard the purity of
their daily diet of milk
ii. no showing that Dean Milk could not have processed its
milk in the 5-mile boundary required by the regulation
5. C&A Carbone, Inc. v. Clarkstown
a. HELD: a municipal government is not permitted to require that
all solid waste within its boundaries be processed by a specific
local processor.
i. though ordinance was entirely local, it affected interstate
commerce because required waste disposer to send waste to
local processor when it was cheaper to ship elsewhere
ii. this is a "local processing" ordinance that has been
shown to be invalid in Dean Milk
iii. discrimination against interstate commerce in favor of
local business or investment is per se invalid unless the
municipality has no other means to advance a legitimate
local interest
b. DISSENT
i. law does not discriminate by origin of waste, but says
that any waste must be processed in local processing
facility
[NB: had plant been city-owned and therefore a public
sector monopoly, the law would likely have been upheld]
E. Laws that favor local interests (i.e., protectionism)
1. How to determine if a law is discriminatory?
a. purpose/effects: this can be difficult, but Court says that proof
of a forbidden purpose may be inferred from the effects of a state
35
rule [though, what about laws that had no such purpose, but end up
with such effects? or laws with the purpose to discriminate, but no
obvious proof effects?]; or
b. Pike balancing: balancing legitimate local justifications such as
health against the burdens on commerce – i.e., local benefits vs.
interstate burdens
2. State Barriers to Out-of-State Sellers: Baldwin v. Seelig
a. HELD: A state may not protect intrastate producers against lowcost out-of-state competition to assure an adequate and safe supply
of an essential commodity. In other words, a state may not use its
admitted powers to protect the health and safety of its people as a
basis for suppressing competition.
i. purpose of statute was to suppress competition between
states in milk distribution
ii. state may impose regulations to ensure citizen health, but
not citizen wealth
3. Henneford: motives alone will seldom, if ever, invalidate a tax that
apart from its motives would be recognized as lawful. Moreover, the
purpose of the tax here was equality not preference.
4. de facto discrimination: Hunt v. Washington State Apple Advertisers
a. when ordinance is held to be discriminatory, burden is on the
state imposing the law to justify both
i. the local benefits flowing from the ordinance; and
ii. unavailability of nondiscriminatory alternatives
b. Wise says that this case could be re-written to be about
protectionism [review for EXAM]
5. State Barriers to Out-of-State Buyers
a. if effects on out-of-state buyers of a state ordinance are merely
incidental, then court will uphold the law (269)
b. HP Hood & Sons v. Du Mond
i. HELD: states may not suppress interstate competition
with the motive of protecting the health and safety of their
people
c. Cities Service Gas v. Peerless Oil and Gas
i. state law imposing minimum prices on the sale of local
natural resources (gas) upheld as a proper conservation35
measure, even though most of gas shipped in interstate
commerce
d. Highes v. Oklahoma (1979)
i. overruled Greer (1896) which held that states could
prohibit export of wild animals because they were deemed
state property;
35
i.e., this is a valid motive [compose list of valid and invalid motives]
36
HELD: Commerce clause precludes a state from mandating
that its residents be given a preferred right of access, over
out of state consumers, to natural resources located within
its borders or to the products derived therefrom
A. this property theory is false
B. law prohibiting export of minnows is facially
discriminatory against interstate commerce
ii. Rehnquist, as always in these case, dissents
A. law was part of state's legit interests to regulate
its natural resources for the benefit of its citizens
e. New England Power v. new Hampshire
i. unanimous court strongly condemned state restrictions on
the export of its own natural resources
F. Facially Neutral Laws and Pike Balancing
1. Test: "Does the burden on interstate commerce outweigh the benefit to
the regulating state?" [Wise, see p. 278 case for good example of
balancing before Pike]
2. Pike v. Bruce Church
a. when effects on interstate commerce are only incidental, the law
will be upheld
b. in this case, effects were unduly burdensome to cantaloupe
farmer who would have had to make a $200k outlay to comply
with statute – another "local processing ordinance" [so, with this
language, is the Court actually looking to discriminatory effect?]36
3. State Burdens on Trade
a. Exxon v. Governor of Maryland37: permissible barriers to
incoming trade
i. upheld a law prohibiting producers of petroleum products
from operating retail service stations in Maryland
A. law does not discriminate against interstate
goods
1. doesn't prohibit flow of goods
2. permits non-refiner interstate companies
to own gas stations
B. law does not favor local producers and refiners
1. no petroleum produced in Maryland
ii. "The commerce clause protects the interstate markets,
not particular interstate firms, from prohibitive or
burdensome regulations."
b. Minnesota v. Clover Leaf Creamery: environmental protection
favoring local industry
36
Wise: always look to this double motive in cases; "the three different approaches under Dormant
Commerce Clause overlap each other a bit – good for EXAM"
37
good case to distinguish from Dean Milk and Hunt [see footnote in book, 293, that does this]
37
i. upheld law that banned sale of milk in plastic containers
but permitted it in other types of nonreturnable containers
(mainly from pulpwood, a major state product)
A. Court agreed with states conservation argument
that plastic containers "present a solid waste
problem, promotes energy waste, and depletes
natural resources."
1. i.e., this is Pike balancing because these
concerns outweigh any protectionism
ii. law is fair because requirement is on all milk producers,
not just those out of state
A. law does not require containers to be made from
Minnesota pulp-wood
[iii. NB – hypo arg against court holding: by banning
plastic, this discriminates against out-of-state producers of
plastic while promoting in-state producers of wood pulp, so
this measure is actually protectionist.]
4. State Burdens on Business Entry
a. a law that distinguishes between out-of-state and local business
is economic favoritism and constitutes and impermissible burden
on interstate commerce
i. e.g., prohibiting out-of-state banks from owning local
banks
b. CTS Corp v. Dynamics Corp38: neutral corporate anti-takeover
statue
i. HELD: a state may adopt anti-takeover statute that has
the effect of making it more difficult for out-of-state
entities to take control of the state's corporations.
A. because statue applied to in-state entities as
well, the statute did not discriminate against
interstate commerce
B. corporations are creatures of state statutes, and
so states should be given deference in their
regulation of in-state corporations
1. because a change in management will
affect shareholders greatly, the state that
chartered the corporation has an interest in
regulating the method of these mergers
ii. SCALIA says that Pike balancing should be done rarely
if at all. He says that since the law affects all corporations
(in and out of state) equally, that should be enough to
uphold it, regardless of local benefits or costs.
A. (299) – balancing State needs against needs of
interstate commerce should be left to Congress
[separation of powers]
38
compare to MITE corp, p. 295
38
B. SCALIA and THOMAS: Court should only
strike down laws that are facially discriminatory
i. although SCALIA doesn't like dormant
commerce clause cases, he will pay
deference to stare decisis to help add
stability to commerce
ii. THOMAS: perhaps court can regulate all
of this under import-export clause
First exception to Dormant Commerce Clause: if Congress later authorizes
something that has been struck down by Court, then Court will permit it
G. The "Market Participant" Exception to the Dormant Commerce Clause: if a
state is acting as a market participant rather than a market regulator, the dormant
Commerce Clause places no limitation on its activities
1. South Central Timber v. Wunnicke
a. HELD: a state may not impose post-sale ("downstream")
obligations on a purchaser of the state's natural resources [NB: in
effect, this is a local processing ordinance]
i. no indication that Congress meant to give Alaska this
power; if such an intent exists, Congressional consent
"must be unmistakably clear."
A. existence of a federal program similar to the
state's is insufficient evidence to support inference
that state's action was authorized by Congress
ii. Commerce Clause scrutiny must be strict in light of three
factors present in the state law:
A. foreign commerce is restrained
B. state is selling a natural resource
C. state imposes restrictions on the sale
iii. market-participant doctrine is limited to allowing states
to place burdens on commerce within the market in which
the state participates
A. the Alaska law imposed a substantial regulatory
effect outside of the market
b. Hypo: how could Alaska have achieved the same effect and not
been overruled?
i. pay subsidy to in state processors from general fund
ii. own and operate its own processing plant
iii. only sell to pre-existing processing plants
c. DISSENT
i. plurality uses anti-trust law more than Commerce Clause
ii.
XII. The Privileges and Immunities Clause of Article IV
39
A. Art IV, §2: "The Citizens of each State shall be entitled to all Privileges and
Immunites of Citizens in the Several States."\
1. Historical context:
a. Framer's meant to foreclose any one State from denying citizens
of other States the same "privileges and immunities" accorded its
own citizens. That is, no discrimination based on state citizenship.
2. to justify an exception under this clause, the state must show two things:
a. nonresidents are a peculiar source of the evil sought to be
avoided; and
b. the discrimination bears a substantial relation to the problem
3. Court: there is a mutually reinforcing relationship between Privileges
and Immunities Clause and the Commerce Clause
a. therefore, P&I clause protects citizens from discrimination based
on state residency
i. protects "essential activities," such as activities pursuant
to livelihood, transfer of property, access to the state's
courts, etc
A. e.g., "hunting" not considered essential so states
can discriminate vs out-of-state hunters
4. some difference between P&I and commerce clause
a. corporations enjoy no protection under P&I
b. P&I is a right, so Congress can't waive it for certain state
programs like it can waive commerce clause restrictions
c. stricter judicial review
d. P&I does not extend to all commercial activity, but only
fundamental rights
e. there is no "market-participant" exception to P&I
B. United Building v. City of Camden
1. HELD: the interstate P&I clause (aka, "comity" clause) applies to
municipalities that require contractors to hire the municipality's own
residents to work on the municipality's construction projects.
a. municipalities derive power from state, since state cannot
discriminate this way, neither can the municipality
b. since it discriminates against out-of-state workers, court justifies
intervention as representation reinforcement
c. TEST for P&I applicability
i. is there discrimination against an out-of-stater?
ii. is the privilege or immunity "fundamental" for
purposes of the clause?
A. e.g., the opportunity for citizens of any state to
seek employment is "sufficiently basic to the
livelihood of the Nation"
B. property ownership
iii. court's test (intermediate level of scrutiny):
1. is there a "substantial reason" for the
discrimination that will permit it? That is, is the
40
local evil deleterious enough to permit the
ordinance as the appropriate remedy?
2. does discrimination bear a substantial
relationship to the State's objective?
2. DISSENT
a. court should not have extended the P&I to municipalities; there
is no justification for this extension
Dormant Commerce Clause
1. covers more economic activity
2. covers more potential plaintiffs or
economic actors
3. no need for discrimination against an
out-of-stater; merely need a "substantial
burden" on interstate commerce
4. market participant exception
5. Congress may legislatively permit
violations of commerce clause (see 324)
6. dormant commerce clause is merely an
inference from absent language
7. applicable to anyone engaged in
interstate commerce
Acts as an implied restraint upon state
regulatory powers. Such powers must give
way before the superior authority of
Congress to legislate on (or leave
unregulated) matters involving interstate
commerce. (p. 309)
Privileges and Immunities Clause
1. covers less economic activity (i.e., only
fundamental areas)
2. covers fewer economic actors (e.g.,
corporations have no protection under this
clause)
3. must involve discrimination against an
out-of-state resident
4. NO market participant exception
5. Congress cannot excuse violations of the
interstate P&I clause
6. Interstate P&I clause is an explicit,
textual right
7. does not protect aliens, only citizens
Imposes a direct restraint on state action
in the interests of interstate harmony [so,
analysis is more subjective?] (p. 309)
XIII. Congressional Ordering of Federal-State Relationships by Preemption and Consent
A. Preemption of State Authority – Supremacy Clause, Art VI
1. Congress may preempt state law by:
a. express statement
b. field preemption39: implied occupation of a regulatory field
[Rice]
i. Court requires clear showing that Congress intended to
occupy the field
A. scheme is so pervasive that reasonable inference
that Congress left no room for state
supplementation; or
39
both field preemption and conflict preemption are applied under factually specific conditions; that is, in
an ad hoc manner to each case – there is no set formula
41
B. field in which federal int is so dominant that the
federal system will be assumed to preclude
enforcement of state laws on the same subject
c. conflict preemption: implied preclusion of conflicting state
regulations [Hines; Florida Lime]
i. under facts of a case, does a state law stand as an obstacle
to the accomplishment and execution of the full purposes
and objectives of Congress?
ii. compliance with both federal and state law is a physical
impossibility
[d. NB – the current court in its favoritism to states' rights will
presume that Congress didn't intend to regulate unless there is a
strong evidentiary showing]
2. Problems arise when federal statute does not clearly disclose (i.e., no
explicit preemption) its intended impact on state laws.
a. is federal interest dominant so that it must override states?
b. scheme is so pervasive as to make reasonable reference that
Congress left no room to supplement it
c. even where Congress has not entirely displaced state regulation
in a specific area, state law is preempted where it conflicts with
"purposes and objectives" of federal law [a policy test]
3. Pacific Gas and Electric v. State Energy Resources Comm'n
a. HELD: in view of avowedly economic purpose behind the
disposal means requirement, the requirement was not preempted
by federal law since federal law primarily dealt with nuclear safety
issues
i. States have traditionally regulated utilities for reliability
and economic matters, so Congress needs EXPRESS
preemption to override a traditional area
b. TEST for preemption (when federal govt completely occupies a
given field or identifiable portion of it) is:
i. whether the matter on which the state asserts the right to
act is in any way regulated by the federal govt
4. Preemption and the foreign affairs powers – Crosby v. National Foreign
Trade Council [extreme judicial deference to feds in this area]
a. HELD: State law barring state entities from buying goods and
services from companies doing business with Burma was
preempted by previous, though lesser, federal sanctions on Burma
i. State's more stringent provisions were an obstacle to the
accomplishment of Congress' objectives
ii. Congress manifestly intended to limit economic pressure
against Burma to a specific range
iii. state law interferes with President's authority to speak
for the US and undermines his diplomatic ability
B. Consent to State Laws
42
1. Issue: can Congress validate state laws that would otherwise be invalid
under the dormant commerce clause?
a. YES, according to Prudential Ins v. Benjamin (1945).40
i. so long as Congress explicitly permits states to violate
the commerce clause, as they had in this case, the Court
will not hold it invalid
2. Equal protection as a limit on state protectionism
a. Metropolitan Life v. Ward (1985)
istate authority to exclude foreign corporations from doing
business within its borders does not justify imposition of
more onerous taxes or other burdens on foreign
corporations than those imposed on domestic corporations,
unless the discrimination between the types of corporations
bears a rational relation to a legitimate purpose.
XIV. SEPARATION OF POWERS (i.e., horizontal limits between federal branches)
A. Framers' notions of separation
1. prevent tyranny and promote efficiency
a. efficiency often sacrificed in name of preventing arbitrary
governement
2. separation not intended to be airtight, as president participates in
legislative process and Congress must ratify treaties negotiated by pres
B. Executive Encroachments on Legislative Powers41
1. Youngstown Sheet & Tube Co. v. Sawyer ["The Steel Seizure Case"]
a. HELD: The president, citing an aggregation of his constitutional
powers, may not exercise a lawmaking power independent of
Congress in order to protect serious national interests.
[main opinion is formalistic]
i. no act of Congress permits it
ii. no express Constitutional provision permits it
A. the president should see that "the Laws are
faithfully executed," by implication not permitting
him to make them
1. President may only recommend laws or
veto laws
B. President is commander and chief, but settling
labor disputes is for lawmakers, not the military
[iii. the formalistic argument: since Art I expressly details
legislative power, shouldn't we just assume that Art II
powers can only be those not listed in Art I?]
b. had Congress passed a law identical to the executive order, it
would be Constitutional
40
Possible EXAM thing: McCarran Act of 1945 exempted state regulation of insurance industry from
commerce clause restrictions, but not from Equal Protection clause protections (327).
41
NB – not all disputes between executive and legislative branches become judicialized: political question,
not ripe, all the other reasons. compare this case to Ex parte McCardle
43
c. FRANKFURTER [more functional/flexible]
1. "it is a constitution we are expounding" (McCullogh),
meaning that court should not try to define all powers, just
see if the power challenged fits or not
i. historical gloss: this means that when something
has been practiced repeatedly by President, and
never questioned by Congress, we might see this as
part of the powers vested in the president
2. Congress has spoken on the issue of seizure and said
President may not do it [Taft-Hartly Act 1947]
d. JACKSON [more functional/flexible]
"The Constitution contemplates that practice will integrate
the dispersed powers into a workable government. It
enjoins upon its branches separateness but interdependence,
autonomy but reciprocity" (336). The three categories
below flow from this notion:
1. Maximum Pres Power: when president acts pursuant to
Congressional authority because it combines Congress' and
Pres' constitutional powers
2. Questionable Pres Power: presidential action in the
context of Congressional silence which Congress could at
any time change
3. Minimum Pres Power: president acts in a manner
incompatible with Congress, courts may sustain power only
if they can say such a power is beyond control of Congress
(the highest level of scrutiny)
e. DISSENT
1. use of presidential powers should be decided in part by
the context in which they were employed
2. President has a duty to execute legislative programs to
support the troops in Korea.
A. his seizure of steel mills was an effective means
of performing this duty
B. his actions were clearly temporary and subject to
congressional direction
Wise's categorizations:
FORMALISM
a stricter standard
court applies this standard when a branch is
attempting to expand power at cost of
another branch
FUNCTIONALISM
easier for court to uphold actions of a govt
branch
court applies this test when a branch is
trying to reach accommodation to deal with
new problems not envisioned by the
Founders
44
2. Executive Authority to Make National Domestic Policy
a. Most scholarly opinion is that the more flexible and functional
approach is best when deciding separation of powers issues
i. since society is increasingly complex, there is a need for
a national government that can – without partisanship –
impose and enforce detailed and expert regulation over
complex industries
3. Executive Authority over Foreign and Military Affairs
a. should/does the president have more autonomous authority to act
in foreign affairs? are there more explicit constitutional grants of
such authority?
b. Executive agreements
i. these are unilateral agreements that are not treaties
ii. yet, do they also override state law as treaties do?
A. court said yes, they override (1937)
c. Dames & Moore v. Regan (1981) REHNQUIST write for court
i. HELD: the President may, in response to a national
emergency and to comply with an executive agreement
with Iran, issue an executive order that nullifies
attachments and liens on Iranian assets, direct those assets
be transferred to Iran and suspend claims against Iran that
may be presented to an Intl Claims Tribunal.
A. specific statute authorized the actions of the
President in a declared national emergency re:
nullification and transfer of assets
B. suspending legal claims not specifically
authorized
1. no direct statutory authorization, but
several similar statutes
2. therefore, it seems Congress has given
President great latitude of action under
circumstances similar to those of this case
3. "history of Congressional acquiescence"
to similar conduct
ii. past practice does not create power, but a long-continued
practice, known to and acquiesced in by Congress, raises a
presumption that the action is taken with Congressional
consent
d. President, Congress, and War Powers
i. only Congress can declare war (Art I, §8, cl. 11)
ii. only Congress can raise and support armies and navies
(Art I, §8, cl. 12 & 13)
iii. but President is Commander and Chief (Art II, §2)
iv. President has defensive powers if country is attacked,
but does he have offensive power?
45
A. Congress has the war power so the decision to go
to war can't be made lightly or quickly
v. is the question of whether or not military force was used
constitutionally even a justiciable question?
vi. War Powers Resolution of 1973
A. President may only commit US troops pursuant
to:
1. a declaration of war;
2. specific statutory authorization; or
3. a national emergency created by attack
upon the US, its territories or possessions, or
its armed forces
B. Within 48 hours of committing troops, President
must report to Congress
C. After 60 days, the President must withdraw the
troops unless:
1. Congress has enacted specific
authorization for deployment;
2. has extended by law the 60-day period; or
3. Congress is unable to meet as a result of
attack on the US
D. Quaere: is the Resolution unconstitutional or just
a definition of the word "war" from Art I?
e. Padilla v. Rumsfeld
i. HELD: because Padilla's detention was not authorized by
Congress, the Pres does not have Art II powers to detain as
an "enemy combatant" an American citizen seized on
American soil outside a zone of combat.
A. statutory language actually forbids this
B. therefore, Pres must, by Youngstown, show such
power is inherent in his Constitutionally granted Art
II powers
C. Congressional Encroachments on Executive Power
Congress has two options: i) retain control over executive officers' actions
ii) retain control over executive officers' jobs
1. Controlling Executive officers' actions
a. Congress can be very specific and limiting in the delegation of
power to agencies so that their rulemaking power will in turn be
limited
i. cabinet agencies are directly part of executive branch
ii. independent agencies were not envisioned by the
Constitution: SEC, FTC, FCC, FAA [creatures of
Congress and Executive to help regulate the country]
46
b. when Congress delegates power to agencies, they often must
make rules for the execution of that power (i.e., they perform a
legislative function!)
i. rarely has the Court held that Congress has violated the
nondelegation doctrine (p. 351)
ii. Court will uphold so long as legislative act creates "an
intelligible principle to which the person or body
authorized to act is directed to conform" (351).
A. if there were a strict interpretation of the
nondelegation doctrine, then Congress would have
to do everything itself and there would be no
modern administrative state
iii. but is the delegation of such broad powers dangerous to
democracy?
bringing a court challenge may be difficult because getting standing will be tough when
there is not affect on an individual, but just a challenge of power between Congress and
the Executive – nonjusticiable
c. Can Congress use a one-house veto in an adjudicatory situation?
i. INS v. Chadha (1983)
A. HELD: a single house of Congress may not
invalidate a decision by an officer of the executive
branch to suspend deportation of an alien because it
violates the separation of powers and is a legislative
act outside of the required bicameral structure for
legislation.
-This is an attempt at Congressional
aggrandizement
i. formalistic and original intent reasoning:
explicit Constitutional provisions define the
role of executive and legislative branches
and cannot be violated
A. Court says the one-house veto
was like a law because "it had the
purpose and effect of altering the
legal rights, duties and relations of
persons" (355)
ii. Art I, §1 requires all bills to be passed by
both House and Senate and presented to the
President for approval [bicameral clause]
a. policy: legislation must be
carefully considered by many before
it is enacted
iii. Art I, §§1, 7, cl. 2: every order shall be
presented and approved by the president or
47
overridden by 2/3 of both houses
[presentment clauses]
B. concur: when House determines that an alien
doesn't meet certain criteria, the House has assumed
a judicial power in violation of the separation of
powers
C. DISSENT – very functionalist
i. legislative veto is an important if not
indispensable political invention that acts as
a check on bad rulemaking by administrative
agencies
ii. without legislative veto, Congress must
either:
A. make numerous and very specific
laws for all things; or
B. abdicate lawmaking function to
executive branch42
iii. the majority's Art I decision
unfortunately seems to invalidate all
legislative vetoes
Formalism
things can be categorized into one of three
branches of government and then analyzed
by text of Constitution
Court should be active in insuring that the
political branches resolve these issues and
do not aggrandize their powers at the
expense of the other branch
no branch can both make the law and
execute it
if a function of an officer is executive, then
officer cannot be removed by Congress
except by impeachment (Bowsher)
textual: reference to words of Constitution
structural: reference to structure created by
Functionalism
governmental powers overlap and cannot
be categorically distinguished
problem is also aggrandizement, but should
be analyzed with an evolutionary/balancing
approach rather than direct textual
reference; allowing the branches to come
up with new approaches to work with govt
in the modern era
is this more protective of individual liberty
because it retains more congressional
oversight than a strict textual separation
would43
politics: since we have two-party system,
legislation may take into account the need
to balance party control over certain
administrative appointments
if an act is trying to encroach on another
branch or aggransize itself, it should be
42
DISSENT (358) - modern govt delegates so much power to administrative agencies that it is clear that
what they are doing is law making. So, why should Art I be read to prevent the Congress from having a
check on this lawmaking power that only Congress was able to delegate in the first place?
43
congress continues to pass and president to sign laws that contain these vetoes. therefore, the other two
branches are thumbing their noses at the judiciary??
48
the text
formalism running rampant can cause
political experiments to be killed in infancy
(see Bowsher)
struck down – if not, then upheld
d. Bicameralism and Presentment
1. after Chadha, court struck down bicameral veto
provisions in regulatory statutes
2. policy: is it possible that since the modern administrative
state gives so much power to the executive that
congressional vetoes actually restore the balance of power
rather than work against it?
e. Can the President use a line-item veto?
1. Clinton v. NY (1998) – formalist argument44
A. HELD: Line-item veto violates Art I, §7, cl. 2 of
Constitution that requires President to veto a bill
before it becomes a law and return the entire bill to
Congress
i. original intent also supports this
interpretation
ii. policy: when Pres rejects a portion of
law, he is rejecting the policy judgment
made by Congress and substituting his own
judgment
A. in other words, it would enable
the President to create a new law
B. DISSENT – Scalia (functional)
i. Says the issue is this: does line item veto
delegate to President a nondelegable power?
a. historically, Congress has
appropriated lump sums and left
spending or not spending to Pres
discretion. This is analogous to lineitem veto
C. DISSENT – Breyer (functional)
i. by Jackson's concurrence in
Youngstown,45 the line-item veto is
consistent in light of the need for a workable
government
ii. President is not repealing or amending
anything, merely exercising powers given to
him by Congress.
iii. act doesn't violate text of Constitution
44
clearly, if it is possible to make a formalistic argument, that is best because it is based in text
MUST know the three parts of Jacson concurrence in Youngstown. When adopting a functionalist
approach to separation of powers, Court always uses the tripartite heuristic.
45
49
iv. act doesn't violate principles of
separation of powers
2. Congressional Control over who holds executive office
a. Appointment of Executive Officers
i. Art II, §2, cl. 2 – "Appointments clause"
A. President gets to appoint, with advice and
consent of Senate, cabinet ministers, judges to US
Supreme Court, and Ambassadores.
B. Congess can vest power to appoint inferior
officers in either the President, heads of
departments, or Courts of Law
1. Congress is plainly excluded by the text
from appointing executive officers
ii. Buckley v. Valeo: formalistic (clear textual precident)
A. if Congress is in sole charge of appointments to a
group, then the group can only legislate – it can
NOT execute laws
b. Removal of Executive Officers
i. Constitution is silent with respect to removal except for
the impeachment clause
ii. Bowsher v. Synar (delegation of spending power)
HELD (formalist): Congress may not assign to
Comptroller General the function of determining which
accounts of the federal budget must be cut to meet deficit
targets because it violates the separation of powers in the
method of removal of CG.
A. Congress may not reserve for itself the power to
remove executive officers except by impeachment
(this statute would have permitted it by Joint
Resolution)
1. in effect, this would make the office
answerable to Congress, a clear violation of
separation doctrine46
B. DISSENT – functionalist [EXAM – good
example of functionalist arg says Wise]
1. this is a novel and far-reaching response
to national deficit crisis and should not be
struck down for a formalistic reason
2. By Youngstown, political branches of
govt should be able to integrate their powers
on their own terms
3. Moreover, since Comptroller can only be
removed by a joint resolution47, this act
46
Chadha makes clear that congressional control over the execution of laws is constitutionally
impermissible (371).
47
must be passed by both Houses of congress and signed by the President
50
actually satisfies the bicameral and
presentment criteria in Chadha (!) and so
should be upheld.
iv. limiting Presidential power of removal
A. court permits some restraint on this if the officer
in question is not "purely executive" (375)
1. Humphrey's Executor: officers in
independent agencies created by Congress
where the statute specifics the term and
causes for removal may be removed by the
President only for those causes
2. NB – all this assumes that independent
agencies are constitutional [would not a
strictly formalistic approach not wipe away
these independent bodies?]
v. Morrison v. Olson – creation of independent counsel
HELD: Congress may establish and appoint independent
counsel that is removable for reasons listed in the statute.
(REHNQUIST delivers the opinion) mix of functionalism
and formalism
A. the provision does not:
1. violate the Appointments Clause;
2. violate the limitations in Art III for
limiting judicial power to cases and
controversies because the Appointments
Clause is a source of authority independent48
of Art III; or
3. impermissibly interfere with the
President's authority under Art II (i.e., it
does not violate separation of powers)
B. characterize the position itself: because ind.
counsel an "inferior" officer who could be removed
for good cause and had temporary tenure, no
violation of Appointment Clause
1. inferior officers can be appointed, by
statute, by cabinet head, or by court itself
a. such statutorily-based
appointments must not be
"incongruous" with the body given
appointment power49
2. superior officers can only be appointed by
the President
48
does this mean that if you can justify a Congressional power textually, then it trumps an inference you
can make from another part of the Constitution?
49
p. 377 – emphasized by Wise
51
C. Separation of Powers [the functionalist
approach]
1. Unlike Bowsher, the removal power is
vested in executive branch in the person of
the Attorney General [analogous to
Humphrey's Executor]
2. "good cause" termination means
executive retains ample authority to ensure
ind counsel does his job correctly
3. doesn't impede President's ability to
perform his constitutional duty [i.e., there is
no aggrandizement to Congress]
D. DISSENT – SCALIA (formalist)
1. enforcing laws is a purely executive
power, therefore Congress cannot have
control over even the smallest percentage of
executive power
2. ind counsel not "inferior" because not
subordinate to another officer
3. Scalia would overturn Humphrey's
Executor
D. Executive Privileges and Immunities
1. US v. Nixon [functionalist?]
a. HELD: President does not have immunity from criminal
prosecution under all circumstances
i. because Special Prosecutor has been given powers to
bring the case to trial, it renders the case justiciable and not
a political question
ii. separation of powers50 does not prevent judicial review
of Pres's claim of privilege because it is the duty of courts
to review such issues
iii. unless a national security issue, in camera review of
presidential documents can outweigh a blanket presidential
privilege
A. i.e., the court performs a balancing test
B. privilege treated as a rebuttable presumption, so
burden on Special Prosecutor to show the need for
the evidence
iv. policy: privilege must yield to substantial need for
evidence at trial
A. i.e., the need to develop all relevant facts in the
adversary system is both fundamental and
comprehensive
50
separation of powers is always a structural argument [borderline between formalism and functionalism
because the idea is created by the text, but applied in a more wishy-washy way]
52
2. There is an absolute Presidential immunity from civil liability in some
cases (Nixon v. Fitzgerald)
a. President cannot be held liable for money damages stemming
from his acts while in office, unless Congress takes explicit
affirmative action otherwise
b. policy: this will prevent the Pres from being unduly cautious in
the execution of his Constitutionally vested duties
c. DISSENT: placing absolute immunity on office of the Pres
rather than specific activities of the Pres places the President above
the law
3. Clinton v. Jones [functional]
a. HELD: claims of private citizens relating to actions prior to
President's term in office may be adjudicated while the President is
in office
i. policy: although some official conduct of public servants
is immune from money damages in order to permit them to
carry out their duties effectively (e.g., prosecutors), this
immunity does not apply to unofficial acts
ii. President not above the laws:
A. impeachment in public life
B. all laws in private life
iii. just because the trial may burden the President's time,
does not mean that it is unconstitutional by separation of
powers doctrine (395)
iv. delay of trial could lead to prejudice against Jones' claim
by loss of witnesses, etc
v. policy: if greater protection of President becomes
necessary, Congress can pass legislation
4. Criminal Prosecution
a. an impeached officer may be charged while in office
b. an unimpeached officer may be charged upon leaving office
INDIVIDUAL RIGHTS
What are the limits of governmental power over individual rights? It is difficult to
interpret protections under the explicit rights – e.g., freedom of speech and religion, etc –
but even more difficult are the vague assurances of due process and equal protection.
What sorts of claims can be made against governmental action?
XV. Bill of Rights and the Post-Civil War Amendments: "Fundamental" Rights and the
"Incorporation" Dispute
A. 14th Amendment
1. Passes after Civil War
2. "Incorporation Dispute": did the 14th Amend force the states to apply
all guarantees in the federal Constitution to state actions (criminal
proceedings, freedom of speech, etc)?
53
a. in other words, were all Bill of Rights guarantees "incorporated"
into the 14th Amend and therefore applied to the states?
b. or, was 14th Amend an independent limitation on states that was
merely informed by the Bill of Rights ["implicit in the concept
of ordered liberty"] – aka selective incorporation51
B. The Pre-Civil War Situation
1. Constitution itself mainly concerned with governmental structure;
almost no mention of individual rights
a. Art I, § 9: a few limits on Congress
b. Art I, § 10: a few limits on States
2. Bill of Rights added to guarantee the federal government would not
override individual rights
a. Especially the 10th Amend, reserving non-enumerated powers to
the States and the people
b. Barron v. Baltimore (CJ Marshall; 1833)
HELD: Bill of Rights restricted to the national government and
did not limit state authority
i. since states each have their own constitutions, they are
bound by those documents and not the federal Constitution
which only binds the federal govt.
ii. nor is there any expression within the Bill of Rights
indicating that it should be applied to the states
C. The Purpose and Impact of the Post-Civil War Amendments [13, 14, 15th52]
(See p. 415 for brief history of the enactment of these Amendments)
1. Slaughter-House Cases [narrow interp of the 14th Amend, saying that it
was enacted for the policy purpose of promoting the freedom of ex-slaves,
and not designed to change the basic interp found in Barron v. Baltimore]
a. Court believed that neither Congress nor the ratifying states
intended the new amendments to apply beyond correcting
prejudice against ex-slaves or preventing slavery from being
reinstated
i. Ps in this case have made no denial of equal justice
claim; therefore, not protected under 14th Amend
[NB: however, text of Amendment seems to apply to all
persons, not just blacks.]
b. Court should only determine "privileges and immunities" on a
case-by-case basis, and not make some sweeping generalization
c. 14th Amend clearly distinguished between citizenship of the
states and citizenship of the United States in its opening sentence
i. it only protects the P&I of US citizens; states can do what
they will to their own citizens
ii. Court says Congress did not intend to shift protection of
all rights from States to federal govt (p. 419; Wise says this
is nonsense).
51
52
court adopted this approach, but as of today, nearly all of the rights have been incorporated anyway!
These amendments specifically state in their text that Congress may enforce them through legislation.
54
iii. 14th Amend enacted in shadow of Civil War which was
the ultimate assertion of federal power over the states!
d. DISSENT
i. 14th Amend does not create any new "privileges and
immunities," but merely says that those that exist cannot be
taken away by State legislation
ii. as under Art IV, §2 secures P&I between citizens of
different states, so the 14th Amend makes all citizens of US
equal
iii. since Louisiana law upheld, it violates freedom of labor
[law controlled butchers] which is a "fundamental" right
that should be protected under 14th Amend
iv. that is, the 14th Amend recognizes rights inherent to
citizens of all free governments [mechanism for protecting
non-textually expressed rights – matches CL tradition of
consensus recognition of fundamental rights (421)]
Lecture notes: majority turned the 14th Amend into something that wasn't very useful.
Dissent says that this is a terrible interpretation. Rather than reject Slaughter House,
court left it behind and began to deal with the Due Process clause.
2. Aftermath of the Slaughter-House Cases
a. one of the main architects of 14th Amend, however, had said
that a central purpose of 14th Amend was to overrule Barron v.
Baltimore. So, was the interpretation in Slaughter-House
manifestly wrong?
b. other scholars think the Slaughter-House ruling was correct in
light on contemporaneous events
c. Privileges and Immunities53 of national citizenship
i. the interpretation in Slaughter-House has prevailed to
date, so that it protects a few rights of national citizenship,
but not state citizenship
A. e.g., right to travel, vote for national officers,
petition Congress, enter public lands
B. other rights have come to be protected by Due
Process and Equal Protection Clauses54
d. Durational residency reqs cases [pp. 426-428]
i. if classification affects a fundamental interest, then we
apply a higher level of scrutiny to the state legislatively
created classification [and, in these cases, strike down the
legislation]
Wise – "this clause may have been a better candidate to protect the rights of people because it has a
substantive ring to it; whereas Due Process and Equal Protect sound very procedural."
54
Wise focuses on these other clauses as the key area the Courts uses to protect/extend rights to citizens
53
55
ii. fundamental interests: money to buy food; medical care
(but higher education is not and may be subject to
durational residency)
iii. is benefit readily portable or not (infra).
3. Right of Interstate Migration and Saenz v. Roe: a revival of the P&I
Clause? [NB – no explicit textual right to interstate migration – so Court
has never limited itself to textual contents.]
a. any sort of durational residency law [e.g., to collect welfare or
be able to vote] is subject to strict scrutiny because they burden
the right to interstate travel
b. Saenz v. Roe55
HELD: A state may not limit a new citizen to the welfare benefits
he would have received in his previous state, only raising his
benefits to those received by long-time residents after he lives in
the new state for at least one year. [This held in spite of 1996
Congress Act that seemed to permit exactly this sort of law!]
i. The "right to travel" has three components:
A. right of a citizen of one State to enter and to
leave another State;
B. right to be treated as a welcome visitor when
temporarily in the territory of the other State [Art
IV, §2 – Interstate P&I Clause]; and
C. right to become a permanent resident of a new
State and be treated like all other residents [Court
says, this is protection is premised on the 14th
Amend P&I Clause].
1. 14th Amend's Citizenship Clause does not
permit "degrees of citizenship"
2. some scholars see this equal citizenship
idea as the key implication of this case
ii. as long as the benefit received by a new resident is not
"readily portable" [e.g., college education, divorce] then
state should not be able to restrict access by length of
residency
iii. DISSENT – REHNQUIST
A. right to travel is not the same as the right to
become a citizen of another state; such a conflation
has led to various court decisions [Shapiro, Dunn,
Maricopa see pp. 426-428]
B. policy: Court should pay deference to states'
needs to require someone establish a bona fide
residence before receiving benefits of that state
55
Wise: what makes this decision so interesting is that it holds out the possibility for a reinvigoration of
the P&I Clause of the 14th Amendment.
56
1. if states are permitted to limited tuition
decreases until a duration of residency is
fulfilled, then why not welfare?
iv. DISSENT – THOMAS
A. 14th Amend should only address fundamental
rights, rather than public benefits established by
positive law
B. Still, Thomas says that he would be open to a
reevaluation of 14th Amend P&I Clause and its
implications based on Framer intent [1865-8]
EXAM: gay marriage and how 14th Amendment can be used to argue for substantive
due process right for gay marriage; but Thomas would say that in the past, gays were
discriminated against and so there is no substantive right.
-penumbra or due process protection: where does the protection end? if we are
going to allow gay marriage, how can we forbid polygamy? if marriage is merely
a contract between consenting adults and not somehow tied to male/female
reproduction?
-what else on the "parade of horribles" may be permitted: bestiality,
incest? after all, we have permitted adultery and fornication and
homosexual conduct to be struck down as possible criminal acts
4. Implications of Saenz
a.
XVI. Substantive Due Process: Rise, Decline, Revival
A. Introduction
1. substantive due process is a very controversial area
2. Slaughter-House Cases had rejected any notion of substantive due
process
a. however, dissent view wanting to protect fundamental values
prevailed by the end of 19th century
3. Substantive due process is a protection of economic and property rights,
as symbolized in Lochner
a. today, using substantive due process to assure special protection
of economic and property rights is discredited
57
4. However, substantive due process has been used to protect noneconomic fundamental values such as:
a. protecting autonomy and privacy
b. preventing restrictions on abortion
c. preventing restrictions on contraception
5. Questions:
a. are the fundamental values grounded in constitutional text,
history, and structure, or are they extraconstitutional judicial
infusions?
b. are there basic values that reflect a national consensus?
c. should the court impose fundamental values?
B. Substantive Economic Due Process and Economic Regulation: Rise and
Decline of Judicial Intervention
Wise – "the basic idea here was that courts could impose limits on political
branches to redistribute wealth"; later abandoned by court
1. Antecedents
a. fundamental rights exist: natural law ideal said that a
Constitution was not the source of rights, but a reaffirmation of
preexisting rights
b. Calder v. Bull positivist vs naturalist
i. willingness to entertain natural law arguments
A. in contrast to positive law (i.e., that law is only
what is explicitly stated, either in Constitution or
statutes)
ii. willingness to invalidate laws without explicit reference
to the text of the Constitution (social compact, Magna
Carta, etc)
iii. [NB: this is an important distinction for the role of
judicial review – in our system, the positivist view has won
out.]
c. The early Marshall Court
i. quickly decided to require Constitutional justification for
any legal invalidations
d. Due Process before the Civil War
i. hints of due process, but no decisions holding that way
e. Substantive Due process appears in opinions
i. rate regulation and the Munn case
A. suggestion that there existed a "public good" that
may be a basis for judicial intervention in the
regulation of private property
ii. Mugler v. Kansas
A.
iii. Allgeyer Case
A. first invalidation of a law on substantive due
process grounds
58
B. held that persons must be free, not just in their
persons, but in the enjoyment of all their faculties
i. i.e., freedom to contract based on the
contracts clause (Art I, § 10, cl. 1)56
ii. Court began to stretch the contracts clause
to say that it created a vested right57
2. The Lochner Era: Judicial Intervention and Economic Regulation
Lochner v. NY (1905)
a. HELD: a state may not generally prohibit private agreements to
work for more than a specified number of hours [bakery contract]
i. general right to contract part of individual liberty
protected by the 14th Amend
A. this right is, however, subject to reasonable
conditions imposed pursuant to govt police powers
ii. policy: court is not substituting its judgment for a
legislature, just determining if regulation is within state's
police powers
iii. directly regulating employment is not a legitimate end
[parallel in temporal development/change to judicial
analysis of commerce power]
b. DISSENT
i. the conditions imposed by the state were reasonable
because they related to health concerns
ii. HOLMES: a Constitution is made for people of
fundamentally differing views, and just because we find a
view shocking, does not mean we should declare it
repugnant to the Constitution; policy decisions should be
left to legislature
A. dominant opinions should prevail, even under
14th Amend unless they infringe on fundamental
and traditional principles
3. Problems with Lochner
a. became synonymous with inappropriate judicial intervention in
the legislative process
b. broad reading of "liberty" to include things other than freedom
from physical restraint
c. are the limits placed on the legitimate exercise of police power
by a state vis-à-vis freedom of contract simply to narrow? [i.e., is
the state restrained too greatly?]
d. did lochner court err by using strict scrutiny rather than a mere
rational basis test when analyzing a law re: contract?
4. Court's definition of substantive due process:
56
couldn't use Due Process clause to apply to states in 1st half of 19th century because it didn't exist; the
federal government, however, had a due process clause in Amend V that applied to it.
57
soon became clear that court was trying to make too many things into contracts in order to regulate them
59
a. ends or purposes: is the object or legislation legitimate,
appropriate, necessary? does it promote health, safety, welfare,
morals as part of police power? [illegitimate ends includes
interference with individual right to K] This is a question of law
answered by statutory interpretation. – in effect, Court is setting
itself up the second-guess legislature
b. means: are the means to accomplish the legislation's ends
reasonable and appropriate? is there a real and substantial
relationship between the means used and the legitimate end?
c. effect: what is the effect of the law on the liberty of the parties
involved, on their property, on their lives? if effect is too drastic,
law might violate due process.
5. Judicial Scrutiny of Economic Regs during Lochner Era
a. court upholds some laws limiting hours when justified by
protecting women's health; later permitted limits for both men and
women
b. court struck down law prohibiting employees from joining
unions as a violation of due process
C. Modern Era: The Decline of Judicial Scrutiny of Economic Regulation
1. Nebbia v. New York
a. HELD: a state may strictly control retail prices [i.e., set min and
max prices] even if such controls inhibit the use of private property
and the making of contracts
i. a law does not offend due process as long as it has a
reasonable relationship to a proper legislative purpose/end,
is not arbitrary or discriminatory, and the means chosen are
reasonably related to the ends sought
ii. no area is outside regulatory ability of the police power
b. DISSENT
i. businessmen prohibited to conduct business freely and
consumers are deprived of their liberty to buy a necessity of
life
2. West Coast Hotel v. Parrish
a. HELD: state imposition of a minimum wage for women workers
in order to protect them from abuse is not arbitrary and has a
reasonable relationship to its end
i. policy: protect the weak [i.e., women are naturally in a
weaker position to bargain; it is legit for states to want to
protect them]
3. Post-New Deal: Minimal Judicial Scrutiny or Judicial Abdication?
a. US v. Carolene Products
i. HELD: federal prohibition on interstate transportation of
filled milk permitted as having a reasonable relationship to
the end of protecting public health
A. where a policy is enacted in response to certain
facts, the legitimacy of that policy can be
60
challenged by showing that those facts no longer
exist [i.e., use of a "Brandeis Brief" filled with facts
that counter legislative policy]
B. still, court says challenges to a legislature's
"rational basis" would be very difficult
ii. FOOTNOTE 4: judicial intervention is more appropriate
the less political processes may be trusted to even out
factional winners and losers over time."
A. representation reenforcement
B. if claim brought on an express right in
Constitution, then higher review
C. if law affects a minority group, then apply a
higher level of review
NB: [again, protect the weak] – read and think
about (p. 474)
4. Williamson v. Lee Optical
a. HELD: the 14th Amend does not prohibit all state business
regulation that is not essential and directly related to the harm it
intends to cure
i. court will not strike down laws regulating business or
industry conditions merely because they are unwise
A. the people as voters must be the guardians of
legislative abuse
b. NB: Court has not invalidated an economic regulation on
substantive due process grounds since 1937
i. Court begins to see Due Process clause as too "vague" to
use to nullify legislative judgment (477)
ii. only in reducing excessive punitive damages has
substantive due process been suggested for use with its
limits on deprivation of property
A. However, Ginsburg, Scalia, Thomas, and
Rehnquist dissented to this idea
iii. 1998 decision used substantive Due Process in part to
prevent a law imposing retroactive economic burdens on a
coal company
A. Breyer, Stevens, Souter, and Ginsburg dissent
XVII. Constitutional Safeguards of Economic Rights
A. The Takings Clause
What limits does the takings clause impose on the ability of a state [since 5th
Amend originally applied only to feds (Barron v. Baltimore), but become
applicable to states via 14th Amend] to take property and give it to another?
5th Amendment: "nor shall private property be taken for public use, without just
compensation"
Wise: Takings requirements:
- eminent domain power is implied in the text of takings clause because it says
government may take land so long as it pays for it
61
-taken for public purpose
-government must pay just compensation
(these final two the source of litigation)
1. 5th Amend absorbed into the 14th Amendment "due process" clause
before any other rights (1897)
2. Public Use requirement/limit
a. court gives great deference to legislative determinations of what
is a "public use"/"public purpose"
i. need only be "rationally related to a conceivable public
purpose"
b. some permitted public uses:
i. taking land the selling to private developer to further
urban redevelopment project
3. Regulatory takings: somehow affects a portion of the property
interest. The key is: how much effect is enough to make a taking?
-instead of a condemnation and taking, what if government
regulates the property in some way that substantially diminishes its
values? Should govt give compensation for this diminution?
a. Pennsylvania Coal and foundations of regulatory takings law
Holmes' rule: "While property may be regulated to a certain
extent, if regulation goes too far, it will be recognized as a taking."
i. HELD: a state may not use its police power to destroy
previously existing property and contract rights without
compensation
ii. factors to consider to determine boundary between
regulation and taking:
-extent of diminution in property value
-extent of the public interest
-nature of the regulation [e.g., preventing profitmaking; altering property rights]
iii. DISSENT
A. a restriction imposed to protect public health,
safety, or morals from dangers threatened is not a
taking
b. Other factors for regulation/takings boundary:
-relative value of property taken to property preserved and
the public interest in that preservation58
58
Miller v. Schoene: legislature decreed all red cedars within 2 miles of apple orchards be destroyed in
order to prevent infection of apples. Legislature made a judgment to protect one type of property (apple
orchards) that it deemed more valuable to the public and destroy another type. The state paid only for the
cost of removal of the trees, not any loss of value to property missing trees. Court says that this is fine.
62
examine
impairment
relative to
entire property
interest
vs.
any impairment
in property
interest
c. Keystone Bitumous Coal
STEVENS
public purpose – state may regulate property without
compensation when it is abating a use that would be a
public nuisance [i.e., protect health, safety, welfare]
degree of impairment of property rights and the reasonable
investment-backed expectation – since coal company only
lost a small % of its coal, this was not a taking the way
Pennsylvania Coal was (a balancing approach)
REHNQUIST, SCALIA, O'CONNER
-"public purpose" is a useless distinction as it is merely the
prerequisite for taking
-if, from property owner's perspective, the right to any of
his property is destroyed, then it is as if the govt took the
coal for its own use
d. what does "property" mean under the Takings Clause?
-real property
-personal property
-intangible interests; intellectual property
-regulatory imposition of a new financial liability [i.e., if
govt requires you to use your wealth in an unanticipated
way, this may be a taking]
zoning: upheld as legitimate since it normally applies to everyone;
landmark regulation or spot-zoning: may be discriminatory when it applies to only a few
e. Penn Central balancing test: zoning and environmental laws
i. court says that all challenges to takings must be
determined on an ad hoc factual determination basis, using
the various criteria developed in previous cases
-health, safety, morals, general welfare
-however, even when a legitimate public purpose, if
profitable use of property too greatly infringed, may
still be a taking; i.e., court must examine the
"investment-backed expectations" [penn coal]
-regulation cannot arbitrarily single out a particular
parcel for treatment different from its neighbors
[i.e., no one gains while others lose]
ii. DISSENT – REHNQUIST, STEVENS
-this is not prohibiting a noxious use
-benefits gained [preserving a landmark at cost of
multi-million dollar loss] not offset by benefits
flowing from preservation of merely 500 other
landmarks; i.e., the law does not secure an "average
reciprocity of advantage" to all so regulated
63
f. A per se rule for "permanent physical occupations"
i. when govt authorizes any permanent physical occupation,
even a minor one, these is a taking per se for which
compensation must be paid
A. e.g., law requiring landlord to permit cable
company to install cable in all the houses was a
taking
B. Dissent argued that the issue should be evaluated
under a multifactor test, not an overly formalistic
rule
g. A per se rule for regulations denying "all economically
beneficial use" – Lucas v South Carolina Coastal Council,
SCALIA59
i. confiscatory regulations – i.e., those that prohibit all
economically beneficial use of land – are takings per se
A. must prevent private land from being passed
without compensation into a form of public service
under the guise of protecting health welfare of the
public
B. compensation can only be avoided if the
proscribed right was not part of the owner's land
title to begin with (i.e., from a background of state
CL nuisance and property law)
ii. KENNEDY: in unique, sensitive situations, state may be
permitted to confiscate by regulation
iii. DISSENT: STEVENS
A. this per se rule effectively freezes state common
law and denies legislature much of its power to
determine and change laws re: property rights and
uses
B. Seems like a return to Lochner: not allowing the
political process to determine the status quo
h. regulatory takings and the timing of government action
i. property holder may receive damages for period during
which a regulation took from him, even if that regulation
later repealed
ii. property buyer may challenge a regulation imposed on
his property before he purchased it!
i. conditions on development permits as "takings"
conditional exactments
59
Note: this is unusual for SCALIA because he does not look to original intent because regulatory takings
do not appear to have any place in original intent. Takings both in the late 18th century and implicitly in
the text of the Amendment seem to be direct, obvious expropriations.
SCALIA appears to be following Holmes in Penn Coal: i.e., it's a question a degree, people.
64
Nollan
gives us the "essential nexus" requirement
[NB: Wise says this is very similar to the
"germaneness" requirement in South
Dakota v. Dole]
Dolan
gives us the "rough proportionality"
requirement and requires the city to make
an "individualized determination" when
making regulations.
-in other words, it shifts the burden of
proving something is or is not a taking to
the government
-also means that more things likely to be
deemed takings than before
NB: both of these decisions involve non-state legislatures; would this standard be
applicable to a policy/legislative determination of such a body?
NB: perhaps these tests only apply to regulatory takings, not direct governmental
expropriation where permanent physical occupation of land occurs
i. Nollan v. Cal:60 if there is no adequate nexus between
the condition and the purpose of the building restriction,
then court applies heightened scrutiny of the means-ends
relationship between the development condition and the
state's regulatory purpose [i.e., can't put a public path
across property as a condition for granting a permit unless
pay for it; but could impose height/placement of building
restrictions without compensation]
ii. Dolan v. City of Tigard
A. clarified the two-part test:
1. whether the "essential nexus" exists
between the "legitimate state interests" and
the permit condition exacted by the city?
2. whether the degree of the exactions
demanded by the city's permit conditions
bear the required relationship to the
projected impact of the proposed
development?
a. use a rough proportionality
standard
b. higher than rational basis
B. DISSENT: STEVENS, GINSBURG
1. This is a return to Lochner: that is, this
inappropriate heightened judicial
intervention on review of state police
powers
a. to which REHNQUIST might say:
"hey, we are just doing what we do
when we protect all fundamental
rights in Bill of Rights, like free
60
Wise says to compare with South Dakota v. Dole
65
speech; subjecting things to a higher
level of scrutiny"
XVIII. Revival of Substantive Due Process for Noneconomic Liberties: Reproduction,
Family, Sex, Death
Summary of the Important cases:
Pierce, Meyer: child rearing and education are fundamental
Skinner: procreation is fundamental
Loving: marriage is fundamental
Griswold, Eisenstadt: contraception is fundamental
Roe: woman's right to pre-viability abortion is fundamental
"Lochnerizing" – def – stepping in where the court doesn't belong and acting as a superlegislature? Lochner really shows the eternal judicial battle for the justification of the
court's interpretations [there is no Constitutional provision telling the court how to make
its decisions]: - did the court use person value judgments [called illegitimate secondguessing of legislature in Lochner]; or
- was the court finding societal values implicit in the Constitution?
WISE's Summary of Important Substantive Due Process Issues:
1. Pierce, Meyer hint at it
2. concept was used in economic cases, but
3. concept was then abandoned after Lochner era
4. court tries to find another way to protect these sorts of individual liberties, and
does so with the penumbra concept in Griswold
5. But substantive due process also mentioned in Griswold concurrence and then
in Skinner: which raise issues of –
- implicit in ordered liberty
- deeply rooted in history & tradition
Substantive Due Process now protects personal rights
A. Antecedents
1. Meyer v. Nebraska (1920s, written in hey-day of economic substantive
due process)
a. created a broad definition of liberty that basically encompassed
everything that did not harm others
b. only in emergency situations (e.g., war) could it legitimately be
curtailed by the government
2. Pierce v. Society of Sisters
a. Pierce Compromise: state can't remove private schools, but it
can regulate them to make sue that they teach about democracy
and other things in the state's interest
3. Skinner v. Oklahoma (1942)
a. economic due process has been discredited
66
b. yet, a sterilization law struck down. DOUGLAS looks for a way
to do this without "due process"
i. protecting minority groups (i.e., Carolene Products fn. 4)
ii. use of equal protection clause to apply strict scrutiny
iii. thereby protects a "right" (procreation) not directly in
the Constitution
Wise: we must ask ourselves here, if we reject Lochner, how can Griswold, Roe, etc be
correct?
B. Contraception – Griswold v. Connecticut - DOUGLAS
1. HELD: rights created by implication in the Bill of Rights may be
transferred to the states by the 14th Amend due process clause which
create a zone of privacy preventing a law regulating use of contraception
within that zone
a. specific/express guarantees in the Bill of Rights have
penumbras, and these peripheral rights must remain secure so that
the specific, enumerated rights also remain secure
b. several specific rights create a zone of privacy; contraception
between married people should fall within that zone
c. Douglas continues to try to find a way to strike down laws
without reference to substantive due process
2. Concurrence
a. the 9th Amend catch-all permits the right of privacy to exist and
apply to all people, rather than 14th Amend
b. 9th Amend lends strong support that the "liberty" protected in
5th and 14th Amends is not restricted to rights specifically
mentioned in the first 8 amends
3. Concurrence – HARLAN – very important
a. no need for the above ratiocinations, just use the 14th Amend on
its own to reach the holding that the Connecticut laws are
unconstitutional
b. rights are "implicit in the concept of ordered liberty"
c. liberty is "a rational continuum" that includes "a freedom from
all substantial arbitrary impositions and purposeless restraints"
4. Concurrence – White
a. laws must meet strict scrutiny under 14th Amend due process
clause, though are not automatically invalid if reasonably
necessary to the effectuation of a legitimate and substantial state
interest and not arbitrary or capricious in application
5. DISSENT
a. since text of Constitution does not mention the vague concept of
"privacy," but rather the specific right to avoid illegal searches and
seizures, the Court cannot create this right out of thin air
b. this is a Lochner decision
67
c. change in the Constitution should not be made by judicial fiat
and improper interpretation, but by the Amendment process
provided in the text of the Constitution
6. Wise – Limitations on the Opinion
a. based mainly on "marital" relationship
b. stresses physical location (the home) of privacy
c. doesn't question the ability of the state to regulate the list of
horribles (homosexuality, fornication, adultery)
DOUGLAS
-tries to tie everything to
GOLDBERG
-the 9th
the text of the Constitution
by use of penumbras
-this is his way of avoiding
Lochner
Amendment is
sufficient for
protecting the
right of marriage
Criticisms:
1. doesn't really distinguish
from econ due process
because we could reach the
same decision (property is
a penumbra right) that we
did with 14th Amend
2. if Constitution is specific
about which parts of
privacy it wanted to
protect, what logic permits
the creation of a
penumbra?
HARLAN
DISSENT
-let's just use liberty concept and
the due process clause of 14th
Amend
-says that Douglas' approach is
actually too narrow because it can
only protect things directly related
to what is in the Bill of Rights
-this is clearly a
Lochner decision
where justices are
making a
legislative policy
decision
-nothing in the
Constitution
permits
invalidating this
law, even though
we agree that it is
stupid
-responds to accusation that he is
Lochnerizing:
judges can use their personal
opinions to resolve cases, so long
as those opinions are informed by
1) history; 2) basic societal values;
3) knowledge that tradition is
important, but one of our traditions
is breaking from tradition when
it is warranted.
C. Penumbras, Liberty, Privacy
Doesn't take long for the Griswold decision to be expanded to other related areas,
including the "horribles" [guess what, US Supreme Court decisions have
penumbras, even if rights do not]
1. Eisenstadt v. Baird
a. clarified that the right to privacy found in Griswold was not
exclusive to a married couple, but to each individual within that
couple. Thus, the court was protecting individual rights.
b. right of privacy = "the right of the individual to be free from
unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child"
2. Carey v. Population Services Intl
a. said a state could not prohibit minors from purchasing
contraception
D. Abortion61
61
this case raises all of the questions about what is the appropriate role of the court; what are justifications
for judicial intervention; etc. Raise these issues on EXAM
68
1. Roe v. Wade – we are doing substantive due process here
HELD: the right to privacy is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy. Therefore, a state
criminal abortion statute written without regard to pregnancy state and
recognition of other interests62 involved violates due process.
a. only personal rights can be held to be "fundamental" or "implicit
in the concept of ordered liberty"
b. as a practical matter, an unwanted child is a burden on mother,
family, and the unwanted child itself
c. the right to privacy is not absolute and unqualified, but must be
considered against important state interests in regulation.
i. Wade argues fetus is a "person" within the meaning of
the 14th Amend
A. court says that "person" is clearly used
postnatally in 19th century
B. even experts don't agree when LIFE begins, so
the court shouldn't speculate
C. CL tradition has never recognized the unborn as
persons in the whole sense
ii. because a woman does carry a potential life inside her, at
some point the state may intervene in her right to privacy
and regulate her decisions
d. court cannot decide when life begins because there is no
consensus
i. therefore, can't we argue that they should have allowed
state legislatures to make abortion decisions
e. state regulations and compelling interest:
i. before 3 months: no compelling interest; no regulation
permitted; decision left to woman and doctor
A. mortality rate is higher with a full-term
pregnancy than with an 1st trimester abortion
ii. 3 mo – viability: state may regulate abortion procedures,
but not preclude them, due to compelling interest to protect
woman from unskilled abortionists
iii. viability – birth: compelling state interest in protecting a
life capable of surviving outside of womb; may prohibit
except when life or health of mother endangered
NB: as medical science advances, full-term pregnancy
becomes safer for mother and viability becomes earlier.
Eventually, the two overlap and then the decisional
framework breaks down.
e. the state's "compelling interest" must stand up to strict scrutiny
f. DISSENT – REHNQUIST
62
in the end, then, due process decisions are balancing tests?
69
i. agrees that 14th Amend protects rights beyond the Bill of
Rights, but only from deprivation without due process of
law, not from absolute deprivation
ii. strict scrutiny does not apply; the "rational relation to a
valid state object" test in Lee Optical is applicable
iii. breaking pregnancy into three stages and outline
permissible regulations sounds like legislation; i.e., this is
Lochnerizing
2. Doe v. Bolton
a. court strikes down a portion of Georgia law that required a
woman to, in effect, consult with six physicians before getting an
abortion
3. Roe v. Wade and Constitutional Values
a. no more penumbras for privacy; 14th Amend directly used
b. is Roe distinguishable from Lochner?
i. is what Roe really did was allocate decision-making on
certain issues on reproduction to the private-sphere and
limit public-sphere decisions about it to narrow instances?
ii. so, decisions over labor relations are something properly
allocated to public sector
c. does Stone's fn 4 in Carolene Products apply?
i. are women minorities who need to be protected?
ii. since they can vote and are a majority, maybe they don't
need court protection
4. Abortion Regulation from Roe to Casey
a. almost no political restrictions on early-term abortions have been
permitted by the Court, except:
i. parental consent requirements for minors so long as the
req does not "unduly burden the right to seek an abortion"
and if there was a judicial bypass procedure so that a parent
couldn't impose an arbitrary, absolute veto
ii. limitations on public abortion funding
a. Maher v. Roe: HELD: Medicaid may be
withheld from paying for non-therapeutic,
medically unnecessary abortions even though
Medicaid pays for childbirth
1. this was upheld under rational-basis
review which gives govt wide discretion in
choosing among competing demands for
limited public funds
b. Harris v. McRae: HELD: federal govt may refuse
to pay for abortions except in cases of rape, incest,
or where mother's life is in danger
70
1. a woman's freedom of choice does not
entitle her to financial resources to avail
herself of the full range of her choices
2. STEVENS (dissenting): this law should
be struck down because the denial of
funding, unlike Maher, reaches medically
necessary abortions.
c. Rust v. Sullivan: HELD: upheld law prohibiting
any project from receiving federal family planning
funds from counseling women on their option to
have an abortion
1. Due process clauses confer no affirmative
right to governmental aid
b. Judicial questioning of Roe
i. Akron v. Akron Ctr for Repro Health
a. still strong Roe support in majority
b. OCONNER suggests that the strict scrutinytrimester framework of Roe should be replaced with
"an abortion regulation is not unconstitutional
unless it unduly burdens right to seek an abortion"
i. first judicial agitation for a new standard
of review
ii. therefore, must not be saying abortion is a
fundamental right, for fundamental rights
demand strict scrutiny
ii. Thornburgh v. Am Coll OBGYN
a.
iii. Webster v. Reproductive Health Services
a. SCALIA: overrule Roe
b. OCONNER:
5. Planned Parenthood v. Casey
-statute challenged on its face before it could be enacted [this is
technique for prohibiting a law without actual harm]
Main points in joint opinion: [OCONNER, KENNEDY, SOUTER]
-The essential holding of Roe should be retained because of stare
decisis63 and a woman's liberty interest. This essential holding has three
parts:
1. right of woman [derived via substantive due process from the
NB: the opinion
word "liberty" of Due Process Clause] to obtain abortion before
squarely went to a
viability and obtain it without undue burden from the State because
woman's rights,
rather than
State's interests before viability not strong enough;
making it a
[i.e., the State cannot place, in purpose or effect, a
medical issue as
substantial obstacle in path of woman seeking to abort a
Blackmun had in
his Roe opinion
nonviable fetus]
63
dissenters laugh at this and say: shit, stare decisis either means you keep the opinion or you overrule it.
don't just pick and choose.
71
2. State may restrict abortions after fetal viability; and
3. State has legitimate interests from the outset of pregnancy in
protecting the health of the woman and the life [Roe had basically
ducked the issue of "life" and when it starts] of the fetus that may
become a child
HELD: the undue burden standard is the appropriate means of reconciling
the State's interest with the woman's constitutionally protected liberty
Therefore, the constitutionality test for a law regulating abortion is "does
it place in purpose or effect a substantial obstacle in the path of a woman
seeking to abort a non-viable fetus?" [although only 3 justices support this
new standard, it is the de facto standard of review for abortion questions as
O'Conner and Kennedy probably wouldn't uphold laws using strict
scrutiny]
-overrules trimester scheme (because viability and woman's safety have
become overlapping since 1973) in Roe and replaces it with a line drawn
at viability. Therefore, state may further its interest in protecting potential
life, while not restricting right to an abortion before that point
-after viability, state may tightly regulate or even proscribe
abortion, except where it is necessary to preserve the life or health
of the mother
-Informed consent and 24-hour waiting period not undue burden because
gives woman time to be sure her decision is the right one [how is purpose
to encourage child birth not a purpose/effect to place a substantial
obstacle?]
-therefore, after Casey, state has greater ability to impose a view
that abortion is bad (though not prevent it with an unviable fetus)
-Spousal notification requirement is an undue burden and cannot be
sustained
-in a well-functioning marriage, such a requirement is unnecessary;
in a poorly-functioning, abusive marriage, the woman would be a
slave to her stupid husband's wishes
-parental notification permitted, provided there is a judicial bypass
procedure
-reporting of statistics re: abortions is permitted
STEVENS (Ginsburg/Breyer here) – favors maintaining Roe
-informed consent should not be permitted to include the State
giving woman brochures that try to encourage her to have the child
rather than abort; this is impermissible interference with a woman's
decisional autonomy
-24-hour waiting period unnecessary and is an undue burden,
except perhaps in the case of minors
BLACKMUN
72
-state restrictions on abortion violate a woman's right to privacy in
two ways:
1) compelled continuation of a pregnancy infringes on a
woman's right to bodily integrity by subjecting her to
physical intrusions and risks;
2) deprives woman of right to make her own decision about
reproduction and family planning [held as a right in
Griswold and Eisenstadt.
-implicates gender equality by conscripting women's bodies for its
use of increasing population
-such restrictions must survive strict scrutiny: i.e., the restriction
is both necessary and narrowly tailored to serve a compelling
governmental interest
-he would maintain the trimester scheme and not use the
vague/unclear "undue burden" scheme
REHNQUIST
-we should overrule Roe and adopt the rational relationship test as
the only criterion of constitutionality; "undue burden" test is a
judicial invention
-i.e., we should adopt the Webster test: "a woman's interest
in having an abortion is a form of liberty protected by due
process, but States may regulate abortion procedures in
ways rationally related to a legitimate state interest. [cf. Lee
Optical]
-historical traditions do not support Roe (when 14th Amend
adopted, most states had statutes outlawing abortion; in 1973, most
states only permitted abortion to preserve life or health of the
mother); abortion is not the same as marriage, contraception,
procreation because it involves the "purposeful termination of a
potential life"
SCALIA (with Rehn, Thomas [and White]):
-states may permit abortion-on-demand if they choose; but the
Constitution does not require that they do so
-it is not a liberty protected by the Constitution because it is
nowhere mentioned in the Constitution and traditionally US states
were opposed to it.
-under rational basis standard, the Penn statute should be upheld
-Roe's creation of strict scrutiny is based on a political value
judgment, not the Constitution.
6. Implications of Casey
-is the Court's take on the spousal notification requirement
somehow an acknowledgement of abortion regulation as part of a
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gender hierarchy? Should the decision be made on equal
protection grounds instead of substantive due process?
Mazurek: forbidding certain professionals from performing
abortions okay as long as doctor's still permitted to do it.
Dissent (Ginsburg, Breyer, Stevens say there seems to have
been a clear purpose to make abortions more difficult to obtain,
which would violate Casey)
Stenberg: Majority (Breyer, Stevens, O'Conner, Souter, Ginsburg)
say a law prohibiting D&X abortions without an exception for
health of the mother is unconstitutional under Casey's req that if
medical opinion deems a procedure necessary, under some
circumstances, to protect a woman's health.
Dissent (Kennedy, Rehnquist, Scalia, Thomas): Casey
permits a state to take sides in abortion debate after viability and
come down on the side of protecting the unborn over the mother's
interests. Slippery slope: so long as a doctor can say someone in
his profession supports any type of abortion, he can then say it is
necessary for woman's health and give that woman an abortion she
desires.
NB: if Kennedy, who was on the majority in Casey, is not
on same side, what does this say for long-term prospects for
viability of the Casey decision?
D. Family Relationships
1. ISSUES: does substantive Due Process include a right to marry,
divorce, retain relationships with one's children, or decide the composition
of the household in which one lives?
a. there are three conflicting interests to balance:
-the parents
-the children
-the state
2. Loving v. Virginia (1967)
-strikes down the state's ban on interracial marriage mainly on
equal protection, but added a substantive due process logic:
-marriage is a fundamental human right, essential to the
orderly pursuit of happiness by free men and "fundamental
to our very existence and survival" [skinner]
[-we might, trying to support gay marriage quibble
with the fact that it is sex between a man and
woman that is essential to survival, not sex within
marriage]
-this right cannot, therefore, be denied on the basis of racial
classifications
3. Zablocki v. Redhail (1978)
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-under substantive due process notion of liberty, the right to marry
is "fundamental" [therefore any law touching it is subject to strict
scrutiny; i.e., state must show that its interests do not directly and
substantially interfere with that right]
-Loving and Griswold established that marriage is fundamental to
the right of privacy
-this law prohibiting marriage for failure to pay child-support
while promoting a legitimate state interest was simply too
oppressive of the right of marriage to be upheld
STEVENS
-Constitution permits direct and substantial regulation of
right to marry, but not when an identifiable group is
discriminated against with the legislation [in this case, the
poor]
REHNQUIST – dissent
-this should merely be rational basis review, and we should
maintain the "traditional presumption of validity" as
expressed in cases like Lee Optical
4. Turner v. Safley
OCONNER – since marriage is a fundamental right, it remains in place
even in prison and any regulation upon it is subject to strict scrutiny.
Therefore, law requiring warden to give permission for marriage of inmate
is forbidden
-further, marriage is often the prerequisite to receiving certain govt
benefits and so should not be restricted from those who want its
benefits
Extended Family Relationships
1. Moore v. East Cleveland (1977)
-government cannot define what is a family
2. Trocel v. Granville (2000)
Oconner, Rehnquist, Breyer, Ginsburg
-state court decision granting grandparents visitation rights over the
objections of a "fit, custodial mother" violated her due process rights
-parental rights are fundamental under substantive due process; court
should be deferential to parent's decision so long as that parent adequately
cares for the child
Thomas – concur
-stare decisis and substantive due process precedent control this case, and
therefore, the plurality holds correctly; even though he thinks substantive
due process is nonsense
DISSENT
STEVENS/KENNEDY – seems clear that Due process leaves room for
state to decide what is the impact on a child of a possibly arbitrary parental
decision
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SCALIA – if a right is unenumerated, then laws can infringe upon it
because the court should not decide either way
Tradition and Family Relationships – Michael H. v. Gerald D.
SCALIA, REHNQUIST – when we resort to tradition, it must be the most
specific-level of tradition available (cf. originalism)
OCONNER, KENNEDY – should the court choose, it may use a more general
tradition, even when a more specific-level of tradition is available
caveat: dear mr. scalia, isn't tradition just as malleable as the concept of liberty
and due process that you say is bullshit, signed, Brennan, J.
(cf. Harlan in Poe v. Ullman: tradition is to be both valued and rejected)
E. Sexuality
1. Do the rights of married people recognized in the Griswold – Roe line
of cases extend to others? If yes, which others?
2. Bowers v. Hardwick (1986) [until Lawrence v. Texas, the only
consideration of general sex and fornication issues]
REHNQUIST, OCONNER, SCALIA
HELD: a person does not have a fundamental constitutional right to
engage in consensual homosexuality (NB: how the majority narrows the
putative right that is being analyzed).
-reversed decision of appellate court that had cited Griswold,
Eisenstadt, Roe to support the assertion that the anti-sodomy law
violated a right to privacy
-no connection between family, marriage, procreation and the acts of
homosexuals to engage in sodomy; thus the majority narrows/limits the
holdings of the Pierce/Meyer – Griswold – Roe line of cases
HARLAN
-to prevent judicial fiat in establishing unennumerated rights, the court has
looked to two ways of grounding such declarations:
1. rights implicit in the concept of ordered liberty
2. rights deeply rooted in this nation's history and tradition
-homosexuality meets neither of these criteria
-but leaves out Harlan's language that "sometimes we
should break from tradition"
-after concluding that homosexual sodomy is not a fundamental right,
court must still find a rational basis for upholding the law: legislating
morality is that rational basis
DISEENT – STEVENS, et. al.
-this case is not about the right to engage in sodomy, but the highly valued
right among civilized people, "the right to be left alone"
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-rights are protected under due process not because they contribute to the
general welfare of society, but because they form so central a part of an
individual's life [i.e., they are personal rights]
-dissent broadens64 the Pierce – Griswold –Roe line of cases to say that the
true right being adjudicated here is the right to conduct intimate
relationships in one's home in a way of that person's choosing is
fundamental to Constitution's protection of privacy
-there is a nexus of intimate conduct and right to privacy
p.572 makes the "protect gay activities" argument for EXAM
NB: the Griswold dicta says that we are not questioning laws against fornication,
sodomy, the "evils" presaged what the decision actually would open [the camel's nose is
not troubling, but eventually the camel is inside your tent, and that is annoying]
Implications of Hardwick
Homosexuality, due process, equal protection
RECALL that Kennedy, Souter, O'Conner were the joint opinion in Casey
3. Lawrence v. Texas (2003)
KENNEDY, STEVENS, SOUTER, GINSBURG, BREYER
HELD: Texas statute prohibiting sodomy between two people of the same
sex was unconstitutional when the persons engaged in consensual conduct
in the privacy of their own homes because it impinged on their exercise of
liberty interests under Due Process of 14th Amend. Bowers v. Hardwick
is overruled.
-"liberty protects from unwarranted govt intrusions into a dwelling
or other private places"; liberty presumes an autonomy of self
-"in our tradition, the State is not omnipresent in the home"
-The statutes at issue here and in Bowers did not merely prohibit a
particular sex act, but rather sought to control a personal relationship that
is within the liberty of persons to choose [cf. Casey] without being
punished as criminals (i.e., dissent is Bowers was correct)
-No American historical tradition of making laws aimed specifically at
homosexual conduct. To rely on history would require upholding all laws
aimed at any form of non-procreative sexual activity
-laws against same sex conduct did not emerge until 1970s, and
only 9 states have such laws
-citing Judeo-christian tradition is using law to enforce one's
morality on others; this is unconstitutional.
-intimate decisions, choices central to personal dignity and autonomy are
central to the liberty protected by the 14th Amend
64
good EXAM/argument technique: when a precedent is bad for you, you narrow its implications; when a
precedent is good for you, you broaden the area to which it applies
77
-the concepts of freedom and liberty guaranteed by the Constitution may,
can, and do change with the generations; the court must recognize this
OCONNER – concur
-she does not overrule Bowers, but would invalidate the Texas statute at
issue here on Equal Protection grounds because it targets sodomy only
with a same-sex partner
[Problem: if you invalidate a law on Equal Protection, that means
that the majority can just redraft the law to apply to everyone is
society]
DISSENT (SCALIA, REHNQUIST, THOMAS)
-while the outcome of Bowers was overruled, the majority did not create a
fundamental right to engage in homosexual sodomy [??]
-stare decisis: in Casey, 3-judge joint opinion said that criticism of Roe
was a reason to reaffirm it, while in this case, they said dispute is reason to
overrule
-strict scrutiny under substantive due process should only apply to
"fundamental liberty interests" that are ALSO "traditionally protected by
our society"
-any other liberties may be abridged or abrogated by a validly
enacted state law if that law is rationally related to a legitimate
state interest [i.e., the battle is over a definition of fundamental,
traditional liberties; whichever side you choose, the outcome of the
case is obvious]
-the Texas statute easily meets rational basis as it reflects belief
that Texans want to criminalize certain forms of sexual behavior
(cf, fornication, bestiality, incest, etc)
-says majority's conclusion that homosexual sodomy was permitted by
states since it was rarely singled out for criminal statute is nonsense; the
Bowers conclusion in this regard should stand
-an "emerging awareness" of an alleged liberty does not make it into a
fundamental right
Themes for Privacy: 1) bodily autonomy
2) protected liberty interest
Levels of Battle on Court in Substantive Due Process Issues:
1) is it a fundamental right or a liberty interest?
2) should the right/interest be broadly or narrowly defined?
NB: in Lawrence v. Texas, court able to protect a right, but without raising
it to the level of a fundamental right
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Right to Die: not inherent in substantive due process; this is not a topic that warrants
heightened scrutiny
Cruzan v. Missouri Dept of Health (1990)
REHNQUIST (writing for majority); OCONNER (concur):
-a competent person has a liberty interest that includes the right to refuse
life-saving treatment
-however, when the person is not competent, that right must be exercised
by a surrogate
-each state can set its own rules of decision for permitting a
surrogate to make this decision; therefore, Court permits Missouri
to require clear and convincing evidence of the incompetent's
wished
SCALIA (concur)
-courts have no business in this issue; it is for state political process to
decide
DISSENT (STEVENS) [cf. OCONNER in Glucksberg]
-if this liberty interest exists and a person has no interest in continued
treatment and the cessation of treatment would not adversely affect third
parties, then there can be no possible basis for the State to insist on
continued treatment [freedom to be left alone]
Washington v. Glucksberg (1997) – facial challenge
REHNQUIST (writing), GINSBURG, SCALIA, THOMAS
-state law against "causing" or "aiding" a suicide does not offend the 14th Amend
-state also refuses to classify "withdrawal of treatment" as a suicide
-narrowly defines the "liberty interest" to be protected as "the right to commit
suicide with another's assistance"
-note that this is a bodily integrity type claim, which is much weaker than
a personal autonomy type claim (as Breyer and Souter below would
attempt)
-history/tradition: it has always been a crime to assist suicide; at time of adopting
14th Amend it was a crime in most states; still is a crime in most states today
-the technique of looking at what is deeply rooted and implicit in the
ordered concept of liberty combined with detailed description of right
based on that research, limits crazy judicial creation of nonsense
fundamental rights (p. 580)
-"personal autonomy" from Casey is not so sweeping as to protect all intimate
personal decisions
{WISE mentioned these interests}
-state's have an unqualified interest in the preservation of human life (Cruzan);
interest in preventing suicide;
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interest in protecting integrity and ethics of the medical profession;
interest in protecting vulnerable groups from abuse, neglect;
state fear that this will be a slippery slope to voluntary or involuntary euthanasia
-since there exists no fundamental "right to die" the law easily meet rational basis
review
OCONNER (concur)
-since this is a facial challenge, no need to reach a decision on right existing
[could such a right exist under the right test case?] Suggests that in an as-applied
challenge under the right conditions, law may not be applicable to an individual.
For example, with BREYER she might hold that if pain too extreme, to not permit
it to be alleviated, even with very high, possibly leathal dose of drugs, it would be
improper
STEVENS (concur)
-facially, the statute is unconstitutional, but in certain actual impositions on
individuals, it may be invalid
-argues that individuals have a liberty interest in preserving the diginity of their
deaths and the memories that survive them (cf. Cruzan)
SOUTER (concur, but for different reason)
-we simply need to see if laws create "arbitray impositions" or "purposeless
restraints"; i.e., due process protects the freedom to be left alone (cf, Harlan in
Poe v. Ullman) – a sort of balancing approach
-ways to make the argument that it is a right (following Poe)
1. suicide has been decriminalized (one of society's breaks from tradition)
2. this act by the state of decriminalization gives freedom of choice much
like that in instances of bodily autonomy (e.g., abortion)
3. there exists a traditional right to medical care and counsel to allow the
patient to make the final decision (e.g., abortion – it is a woman's choice,
though she will likely consult a doctor)
-however, this current law is not arbitrary and purposeless due to state's asserted
right to prevent involuntary euthanasia
BREYER (concur)
-would use a much broader formulation of the right to be tested as "the right to
die with dignity" (i.e., look to the personal control/autonomy issue)
NB: five justices hint that in an as-applied challenge, they may be willing to strike down
a similar law (GINSBURG, SOUTER, STEVENS, OCONNER, BREYER)
-While SOUTER & STEVENS seem to suggest that there may be a liberty interest in
active assistance in suicide or death with dignity
Vacco v. Quill (1997)
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only four justices in majority
There is a distinction between assisted suicide and withdrawing life sustaining
treatment:
-Assisted Suicide
-patient dies from medication
-doctor and patient have intent to end life
-Withdrawing treatment
-patient dies from underlying disease
-not necessarily intent to end life
[STEVENS not convinced that in majority of cases the
intent of parties will be much different]
-court says that the right to refuse treatment is grounded in bodily integrity and
freedom from unwanted touching, not a "right to hasten death"
Right to Die and Supreme Court Opinion
suicide when one is
healthy or temporarily
ill
generally no right to
commit suicide; state
interest in preventing it
so that depressed people
can get treatment
withdrawal of life
support when on is
terminally ill
competent adult may
refuse or surrogate make
the decision, in
conformance to any
state laws (Cruzan
following CL rule that
forced medical
treatment was battery,
therefore, comporting
with history and
tradition)
physician assisted
suicide when one is
terminally ill
active euthanasia by a
physician when one is
terminally ill
PROCEDURAL DUE PROCESS
The claim that due process requires some form of individualized hearing. Typically,
claimant asserts some relationship to government (employee, licensee, welfare recipient)
and claims that it cannot be terminated without a hearing.
-there is no right to due process, only a right not to have life, liberty, property
deprived without it
To answer the question, court must decide what "liberty" and "property" in the 14th
Amend mean.
From 1970s, the court has increasingly found that the interest sought to be
protected is not included in the constitutional notion of liberty and property.
Furthermore, the court normally draws on state law of federal legislation as the limiting
principle.
policy: increased fear that if hearing required for everything, states may stop providing
benefits (e.g., welfare) that they were not required to provide in the first place
EXAM: know Roth, Loudermill, Eldridge
81
Case Name
Goldberg v. Kelly
(1970)
Board of Regents
v. Roth (1972)
Holding
evidentiary hearing
required before welfare
benefits terminated
no right to hearing before
terminated from job
Liberty definition
procedural due process
applies only to the
deprivation of interests
encompassed by the
14th Amend's
protection of liberty and
property;
to determine those
interests, we must look
to the nature of the
interest protected, not
its weight
Perry v.
Sindermann
(1972)
Arnett v. Kennedy
(1974)
rejected federal civil
service employee's claim
to hearing prior to
dismissal
Bishop v. Wood
(1976)
Cleveland Bd Ed
v. Loudermill
(1985)
Paul v. Davis
(1976 –
problematic
due process requires that
life, liberty and property
cannot be deprived
except by constitutionally
adequate procedures [the
bitter with the sweet is
wrong]
injury to reputation by
police public shaming of
shoplifter not a
deprivation of liberty
narrow definition of
liberty
Vitek v. Jones
(1980)
involuntary transfer of a
prisoner to a mental
hospital implicates a
Property definition
only REHNQUIST
dissented
since a de facto tenure system
existed, S entitled to hearing
on whether he had this
property right
the law had established
removal procedures, which
did not include a hearing;
where grant of a right is
bound up with procedures to
determine that right, a litigant
must take the bitter with the
sweet
"at will" employees have no
property interest, unless state
or local law creates on for
them
while a state law can create a
property interest, if the law's
procedures are not valid for
removing that interest, it will
be a violation of due process
in other words, the question
"what process is due?" can
only be answered by the
Constitution
for reputation to be
protected as a liberty
interest, it must be
coupled with a more
tangible interest (such
as employment);
liberty is merely what
the Framer's said:
"freedom from
restraint"
liberty interest may
emanate from powerful
federal interests apart
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Case Name
Holding
liberty interest; a hearing
is required
Liberty definition
from state-law rules
Property definition
PROPERTY
The Roth Approach: "the nature of the interest"
-although it is the Court that ultimately will characterize the nature of the interest,
the interest itself must have been created by state law
-existence of an interest: state law
-significance of an interest: federal law
LIBERTY
Paul v. Davis Approach
-confined "liberty" to the Framer's definition of "freedom from restraint"
-seemed to permit reprehensible conduct, such as torts
Once an interest is found, how does court determine what process is due?
Mathews v. Eldridge (1976): balancing test looking at the interest involved, the
risk of erroneous deprivation will determine if there is a need for a brief hearing
or a trial-like procedure, and the Government interest
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