Constitutional Law I, Spring 2010
1) Modalities of Constitutional Argument
a) What is a modality?
i) A tool of argument
ii) Language
iii) A way of analyzing a subject
b) Modalities of Argument
i)
ii)
iii)
iv)
Historical - "original intent", what the framers meant
Textual - what the words meant/text meant to people today
Doctrinal - precedent/cases
Structural - relationships implied [Should the court or the legislature
decide?]
v) Prudential - policy argument
vi) Ethical - things we value, civics, traditional commitment, "American"
c) Marbury v. Madison
i) Facts - President Adams appointed his parties' judges before leaving his
presidency, Marbury is a justice of the peace, Madison was charged by
new president Jefferson to stop delivering commissions to justices,
Marbury brought suit for a writ of mandamus (to command Madison to
have his commission delivered)
ii) Questions presented - (1) Right to commission? (2) Any remedy? (3) Can
court provide remedy?
iii) Holding(s): (1) Yes, commission had been vested but not delivered. (2)
Yes (3) No
iv) The actual power to issue a writ of mandamus was given by the Judiciary
Act of 1789
v) The Supreme Court only has original jurisdiction when there is an
ambassador, public minister, or a state as a party; The judiciary act of
1789 does not supersede Article III of the Constitution which says
appellate and original jurisdiction over certain matters is given through
the legislature (Justice Marshall)
vi) IMPORTANT RESULT: Supreme Court can review executive and
legislative acts, but may not necessarily be able to provide the desired
remedy; However, it is the province and duty of the judicial department to
say what the law is
d) Martin v. Hunter's Lessee
i) Property case; U.S. Treaty v. Virginia state law
ii) RESULT: Supreme Ct can review state decisions
iii) Justice Story: If Congress didn't create lower federal courts, then they
wouldn't have appellate jurisdiction.
e) Exceptions and Regulations Clause (Article III)
i) Ex Parte McCardle (1868)
(1) McCardle is an editor in MS writing critical articles of the government
(2) Claimed Military Reconstruction Act was unconstitutional and his
imprisonment was unconstitutional
(3) Congress takes away jurisdiction in a rider to the tax bill, S. Ct can no
longer hear McCardle's claim
ii) U.S. v. Klein (1871)
(1) Statute that allowed person whose property was seized by the Union,
to recover it if they did not aid the enemy during the civil war
(2) If there was a pardon, Congress says the court does not have
jurisdiction and the person will be deemed guilty (by way of getting a
pardon w/no disclaimer of guilt) <-- structural argument overcomes
textual argument
(3) Holding: Cannot use Exceptions and Regulations Clause to restrict
appellate power. This case also eliminated the presidential pardon
2) Justiciability --> Case or Controversy
a) Under Article III, a court may only exercise jurisdiction over
matters in which there is an actual dispute involving the legal
relations of adverse parties, and for which the judiciary can
provide some type of effective relief
b) Standing
i) The leading case is Allen v. Wright, there must be wallet injury and no
state rights asserted; must be direct, palpable, and not abstract
ii) Injury-in-fact - The party invoking federal jurisdiction bears the burden of
proof, may not be too speculative or remote
(1) City of LA v. Lyons (1983)
(a) Facts: Plaintiff was injured by LAPD officer, crushed his larynx. Wanted
the court to grant an injunction against further action by LAPD.
(b) Issue: Can the court award an injunction?
(c) Holding: No.
(d) Rationale: An injunction is awarded to prevent real and immediate
threats in the future. Plaintiff could not show that he was likely to suffer
from the LAPD's policies in the future. "Past exposure to illegal conduct
does not itself show a present case or controversy regarding injunctive
relief..."
(2) Lujan v. Defenders of Wildlife (1992)
(a) Facts: Environmental activists brought suit to challenge a federal
regulation that made the Endangered Species Act inapplicable to federal
funding of projects in foreign nations. Plaintiff alleges three theories of
harm: ecosystem nexus, animal nexus, and vocational nexus. Also
stated that they had planned to return to the affected areas, and that they
would be deprived of seeing the animals.
(b) Issue: Is there an injury-in-fact to Plaintiff?
(c) Holding: No.
(d) Rationale: The plaintiffs have to show that they themselves are harmed
or have a special interest in the thing being harmed. Redressability was
also an issue as the court could not really award the relief requested by
plaintiffs.
(e) Note: If a right is specifically defined by Congress, standing may be
found more easily if there is a violation of that given right.
(3) Some other recognized harms: quality of the environment, the
character of one's neighborhood, consumer choice
iii) Causation
(1) Duke Power Co. v. Carolina Environmental Study group (1978)
(a) Facts: individuals challenged the Price Anderson Act which limited
liability of utility companies for accidents
(b) Issue: Is there causation sufficient to satisfy standing?
(c) Holding: Yes.
(d) Rationale: Construction of the plant already exposed the individuals to
harm (radiation, contamination)
iv) Redressability
(1) Linda R.S. v. Richard (1973)
(a) Facts: Unwed mother brought suit against father for unpaid child
support. Challenged the constitutionality of a Texas policy where the
state would prosecute fathers of legitimate children who failed to pay
child support but did not do the same for illegitimate children. Claimed
denial of equal protection.
(b) Issue: Is there standing?
(c) Holding: No.
(d) Rationale: The mother would not get the relief she seeks. Father would
be jailed if any judicial action were to brought and no payment would not
be ensured.
(2) The relief requested must be designed to alleviate the injury caused
by defendant's conduct. Question to be asked: Will a judgment
alleviate or redress the injury caused?
v) Third Party lawsuits
(1) Singleton v. Wuliff (1976)
(a) Facts: Missouri had state law that said no state medical benefits allowed
to terminate pregnancy. Doctors are the plaintiffs in the action.
(b) Issue: Is there standing?
(c) Holding: Yes.
(d) Rationale: The doctors perform nonmedically indicated abortions and
would be harmed if not allowed to be paid for same. Typically no 3rd
party claims, but this suit is part of the exception. Exceptions based on
(1) relationship of the litigant whose right he seeks to assert (2) ability of
the third party to assert his/her own rights
vi) General taxpayer suits, "generalized grievance"
(1) Article III prevents citizens from bringing claims against government
tax or spending provisions simply because you are a taxpayer
(2) Also prohibited from bringing suits where the only injury claimed is
the shared harm experienced by all citizens and taxpayers
(3) Flast set forth a 2 prong test that said taxpayers can challenge
expenditures made by congress thru the 1st amendment and
establishment clause; (1) must establish a logical link between the
status as a taxpayer and the type of legislation attacked, (2) must be a
link between that status and the precise nature of the constitutional
infringement alleged; must not be a challenge of a federal expenditure
that is incidental to the exercise of another power
(4) Hein made a very narrow exception, taxpayers must bring suit
alleging a specific violation of the tax and spend clause; cannot
challenge executive branch actions that are a result of general
appropriations bills
c) Ripeness
i) Determines when litigation may occur, plaintiff must show that judicial
decision is not premature, must show harm has occurred or imminently
will occur
ii) Abbott Labs v. Gardner (1967)
(1) Facts: Declaratory judgment action, Congress had amended the FDA
act to require the "established name" of drugs to be included on all
drug labels as opposed to a market/company given name, law had not
been put in force yet
(2) Issue: Is a pre-enforcement review of challenged regulations ripe for
judicial determination where the issue is purely legal?
(3) Holding: Yes.
(4) Rationale: A judicial decision may be rendered pre-enforcement when
the issue is purely legal and the impact of the proposed law is direct
and immediate. The law affected the day-to-day business of all
prescription drug companies; specifically because the manufacturers
would either have to incur considerable costs to comply or risk
criminal prosecution.
d) Mootness
i) Plaintiff must submit a live controversy
ii) Case won't be dismissed if an injury is likely to recur; wrongs capable of
repetition, but evading review
iii) Roe v. Wade - established that pregnant litigants cannot have their cases
dismissed on the issue of mootness (due to not being pregnant
anymore)
iv) Defunis v. Odegaard
(1) USSC, 1974
(2) Facts: A college student was denied admission to UWash law school,
obtained preliminary injunction, but was 3rd year law school student
by the time the case came to the S.Ct
(3) Case was moot
v) 3 exceptions: Recurrence, remedied behavior, class actions
e) Political Question
i) Baker v. Carr
(1) USSC, 1962
(2) Facts: Malapportionment case brought under the 14th amendment,
Tennessee hadn't re-drawn its districts since the 1901 Apportionment
Act
(3) Issue: Does a constitutional challenge to a state apportionment act
present a political question?
(4) Holding: No.
(5) Rationale: Bringing a challenge under the Equal Protection Clause
make the claim more justiciable(less of a political question)
(6) Established 6 standards of determining whether there is a political
question
(a) A textually demonstrable constitutional commitment of the issue to a
coordinate political department
(b) A lack of judicially discoverable and manageable standards for resolving
it
(c) The impossibility of deciding the case without an initial policy
determination calling for nonjudicial discretion
(d) The impossibility of resolving it without expressing lack of respect due
to other government branches
(e) An unusual need for unquestioning adherence to a political decision
already made
(f) The potentiality of embarrassment from a variety of announcements by
different governmental departments on one question
ii) Vieth v. Juberlirer
(1) Facts: Questioned the decision handed down in Davis v. Bandemer
political gerrymandering case
(2) Issue: Are political gerrymandering claims justiciable?
(3) Holding: No.
(4) Rationale: There is no real redress in the judicial branch for the issue
in question. It would be hard to enforce proper placement of the
district lines.
3) The Commerce Power
a) Art. I, Section 8(3)
i) Scope of the Commerce Power
(1) Channels - the use of channels of interstate commerce
(2) Instrumentalities - the regulation or protection of instrumentalities of
interstate commerce or persons or things in interstate commerce,
though the threat may come from intrastate activity
(3) Substantial Effects --> Aggregate effects and must be "economic
activity"
b) Initial era - broad interpretation of commerce power 1820-1890
minimally used
i) McCullogh v. Maryland
(1) USSC, 1819
(2) Facts: Federal government decided to create Bank of the United
States, Maryland had a law in place that taxed all non-MD chartered
institutions including Bank of the US
(3) Issue: Does Congress have power to create a national bank? If yes,
does MD have the power to tax the national bank?
(4) Holding: Yes/No
(5) Rationale: (for issue 1) History has shown that Congress did have the
power to charter a bank, it was done during the very 1st Congress.
States have ceded some soveriengty to federal government by
ratifying the Constitution in each state's constitutional convention.
(6) Rationale: (for issue 2) Article 1, Section 10(2) --> If government has
the power to create and preserve, there cannot be another power
given to the state to destroy
(7) Prudential argument: With no money or banks to move money, the
government has trouble carrying out its enumerated powers
ii) Gibbons v. Ogden
(1) USSC, 1824
(2) Facts: NY legislature created a law enabling a ferry operation to be a
monopoly [Ogden], gibbons operated a competitive ferry boat and
says he is allowed to do so under a federal coasting law/license
(3) Issue: Does Congress have authority to grant coasting licenses? If
yes, is the NY statute valid against the federal law?
(4) Holding: Yes/No
(5) Rationale: Textual argument --> Court says navigation is included
with commerce. Historical argument --> The framers obviously meant
to include navigation of waters as a means of commerce. Congress
has plenary power unless the power is expressly forbidden by the
Constitution
(6) At this time, any state law regulating commerce was preempted by
any federal statute regulating commerce
c) 1890-1937 narrow interpretation
i) U.S. v. E.C. Knight - What is "commerce"?
(1) Facts: American Sugar Refining Co. bought 4 major refineries and
had controlled the sugar production in N. America
(2) Issue: Can Congress suppress a monopoly via statute?
(3) Holding: No.
(4) Rationale: The commerce power does not give the power to suppress
monopoly. Also does not empower Congress to regulate
manufacturing.
(5) Manufacture(production) v. Commerce(distribution)
ii) A.L.A. Schecter Poultry Corp. v. U.S. - what does "among the states"
mean?
(1) Facts: Slaughterhouse operator bought chickens from in-state and
would ship them elsewhere after processing them. Did not sell poultry
in interstate commerce. ALA was convicted of violating an
employment provision under the "Live Poultry Code"
(2) Issue: Is the implementation of the Live Poultry Code within
Congress' commerce power? Can Congress regulate intrastate
transactions that have an indirect effect on interstate commerce?
(3) Holding: No/No.
(4) Rationale: Stream of commerce was broken once Schecter purchased
and had receipt of the chickens. The fact that the chickens had once
been part of the stream of interstate commerce does not
automatically subject them to federal regulation.
iii) Hammer v. Dagenhart - Initially a child labor action, 10th amendment
issues
(1) Facts: Congress passed a law prohibiting shipment in interstate
commerce of any products of any mills or factories that employed
children
(2) Issue: Is it within the authority of Congress in regulating commerce
among the states to prohibit the transportation in interstate
commerce of manufactured goods, the product of a factory that
employed children?
(3) Holding: No.
(4) Rationale: The production of goods intended for interstate commerce
is matter of local regulation. Congress cannot control the labor
involved with production merely because the goods are intended for
interstate shipment. Cannot use commerce power to regulate local
trade and manufacture. The commerce clause was not intended to
give to Congress a general authority to equalize conditions amongst
the states.
d) 1937 - 1995 New Deal Era, very broad and often used
i) NLRB v. Jones & Laughlin Steel Corp.
(1) Facts: NLRB found that Jones was engaged in unfair labor practices
affecting commerce; found to be discriminating against members of
unions for hire and tenured positions
(2) Issue: Does Congress have authority to regulate labor practices if
"labor" is intrastate?
(3) Holding: Yes.
(4) Rationale: Although activities may be intrastate in character when
separately considered, if there is a close and substantial relationship
to interstate commerce, then congressional control is appropriate.
The term "affecting commerce" means in commerce, or burdening or
obstructing commerce or the free flow of commerce, or having led or
tending to lead to a labor dispute burdening or obstructing commerce
or the free flow of commerce."
ii) U.S. v. Darby
(1) Facts: Darby was prohibited by law to ship certain products that were
manufactured by employees who earned less than minimum wage or
worked more hours than the statutory maximum
(2) Issue: Can Congress use FLSA to regulate labor practices?
(3) Holding: Yes.
(4) Rationale: Shipment of manufactured goods interstate is such
commerce and the prohibition of such shipment by Congress is a
regulation of commerce.
iii) Wickard v. Filburn
(1) Facts: Wickard ran his own farm, ended up producing more wheat
than was allowed by federal statute
(2) Issue: Is the fine assessed by federal law a constitutional use of the
Commerce Clause?
(3) Holding: Yes.
(4) Rationale: Must consider the "aggregate effect of similarly situated
people", regulating the production of wheat had an effect on
interstate commerce
iv) HOA Motel v. U.S.
(1) Facts: Declaratory judgment action, Motel that catered to out-of-state
clientele challenged Civil Rights Act saying it exceeded Congress'
Commerce Clause power
(2) Issue: Is the CRA(1964) constitutional under Congress' commerce
clause power?
(3) Holding: Yes.
(4) Rationale: Cannot discriminate in public accomodations. Denying
accomodation to out of state travelers due to race substantially
affects interstate commerce.
v) Katzenbach v. McClung (Ollie's BBQ)
(1) Facts: Ollie's BBS refused to serve African Americans in their
restaurant (catered to local residents), 46% of their food served was
purchased for a supplier who dealt in interstate commerce
(2) Issue: Is this a constitutional exercise of Congress' commerce clause
power?
(3) Holding: Yes.
(4) Rationale: Racial discrimination in restaurants had a depressing
effect on the economy. The burden on interstate commerce was
sufficiently substantial.
e) 1995 - present limited use
i) U.S. v. Morrison
(1) Facts: Sexual assault case, Female college student was assaulted by
male athlete and school found that he only used abusive language
toward victim, U.S. filed charges against Morrison and wanted to
pursue civil remedies against the defendant under the federal
Violence Against Women Act which allows for compensatory and
punitive damages against a criminal defendant
(2) Issue: May Commerce Clause regulation of intrastate activity be
upheld only where the activity being regulated is economic in nature?
(3) Holding: Yes.
(4) Rationale: The federal statue does not contain a jurisdictional element
that shows Congress's power to regulate commerce. Court wanted to
prevent a trickle-down effect. Congress may not regulate
noneconomic, violent criminal conduct on the sole basis of the action
having aggregate effects.
f) Tenth Amendment and the Commerce Clause
i) New York v. U.S.
(1) Facts: Congress wanted to institute an environmental policy that
encouraged states to dispose of radioactive waste (there were 3
provisions, monetary incentives, access incentives, and take title
provisions) the take title provision is at issue in this case
(2) Issue: May the government order a state government to enact
particular legislation?
(3) Holding: No.
(4) Rationale: Congress cannot compel state legislatures to enact a
federal regulatory program. Can regulate individuals, not state
governments. Congress cannot "commandeer" state governments.
Can impose regulations that pre-empt state laws by enacting a federal
law.
(5) This type of power if allowed, would reduce accountability of state
officials
(6) Federalism is a way to diffuse power, does not matter if state
consents
(7) Dissent: Constitution does not prohibit national government from
acting as a referee to prohibit one state from bullying another. Federal
regulations are enacted and forced upon states all the time i.e.
immigration and tax collection
ii) Printz v. U.S.
(1) USSC, 1997
(2) Facts: Federal act established an online network for background
checks for gun purchasers. States said that enforcing and
supervising the use of the federal online network was onerous and
violated the 10th amendment
(3) Issue: Can the federal government issue directives requiring the
states to address particular problems, or command the states'
officers to administer a federal regulatory program?
(4) Holding: No.
(5) Rationale: Congress cannot proscribe state executive officials to
follow a federal law that would diminish the executive power of the
president. The Constitution gives the Congress the power to
regulate individuals, not states. Can't get around this prohibition by
issuing directives to "individual" state officers.
iii) 10th Amendment protects incidents of state sovereignty
(1) Congress cannot commandeer state legislatures
(2) Congress cannot press into service state executive officials
4) Tax and Spending Power
a) U.S. v. Butler
i) USSC, 1936
ii) Facts: Challenged Agricultural Adjustment Act which set limits on farm
production on certain crops, taxed excess crops and gave grants to
those who stayed within the limits
iii) Issue: Is the assessed tax valid use of Congress' tax and spend power?
iv) Holding: No.
v) Rationale: The Act invades the reserved rights of the states. The actual
tax and grants are means to an unconstitutional end. Congress can only
tax and spend on things that are enumerated in Article I, section 8.
Agricultural production is a purely state concern. Constitutional means
--> unconstitutional end
5) Powers under the post-Civil War amendments
a) In the Civil Rights Cases (1883) Congress may regulate state and
local government actions, not private conduct.
b) 13th amendment - can regulate state and "private" action, only
prevent from having slaves
c) 14th amendment - can regulate state action, "state actors"
d) In Jones v. Mayer, Court said Congress could regulate the sale of
property in regard to prohibiting discrimination; this power is
given through the 13th amendment "determine the badges and
incidents of slavery"
e) U.S. v. Morrison - should have laws directed at the state
university system, and not private individuals (which is why the
civil claim was not upheld under the 14th amendment)
f) City of Boerne v. Flores
i) USSC, 1997
ii) Facts: Flores wanted to build onto his church and were denied a city
permit to do so; the archbishop brought suit alleging that the denial was
a violation of the Religious Freedom Restoration Act
iii) Issue: Does RFRA unconstitutionally exceed Congress' power under the
Due Process clause of the 14th amendment?
iv) Holding: Yes.
v) Rationale: Congress' power to enforce the 14th amendment is remedial,
can institute preventive legislation that deters violations; cannot create
new rights but can only protect and enforce existing rights.
6) Federal Executive Power - executive privilege and
emergency powers
a) Inherent Presidential power
i) Youngstown v. Sawyer - Steel company seizure case
(1) USSC, 1952
(2) Facts: The president directed the Secretary of Commerce to seize the
steel companies in order to prevent a strike from the steelworkers
during the Korean War; Congress also set steel prices and wages
controls
(3) Issue: Does the executive order exceed the president's constitutional
powers?
(4) Holding: Yes.
(5) Rationale: The seizure was not authorized by any express or inherent
powers. War powers or the role as commander-in-chief did not
authorize the taking of private property. The President's power is at
its maximum when he acts pursuant to express or implied
congressional authority. In the absence of congressional grants of
power, the President acts solely on the basis of his powers as
specified in the Constitution.
(6) Concurrence (J. Jackson): President has power in 3 instances
(a) Through express or implied powers given by Congress (enforcement)
(b) Through his constitutionally based powers (Article II)
(c) When Congress exceeds their authority and the President is acting
within his sphere of authority
(7) J. Black: "theater of war" --> President was outside the theater of war
(8) J. Douglas: An emergency does not create powers, only marks an
occasion to use the power you already have
(9) J. Vinson: Extraordinary times = extra powers
ii) U.S. v. Nixon
(1) USSC, 1974
(2) Facts: Nixon does not want to wholy submit to a subpoena duces
tecum, challenges the subpoena based upon executive privilege;
Nixon argued that the USSC did not have jurisdiction under
separation of powers doctrine
(3) Issue: Can executive privilege be subject to judicial review?
(4) Holding: Yes.
(5) Rationale: Separation of powers is supposed to provide checks on
power as opposed to creating an absolute privilege by nature of
executing its duties. It is imperative for the Court to say what the law
is. Executive privilege may be used to protect foreign policy, military
plans, national security interests. Cannot be a generalized need for
confidentialty
iii) Cheney: Civil suits do not justify intrusion into executive privilege like
criminal suits do
b) Non-delegation doctrine - the principle that Congress may not
delegate its legislative power to administrative agencies
i) A.L.A. Schecter Poultry Corp. v. U.S.
(1) USSC, 1935
(2) Facts: Congress had created the National Industrial Recovery Act and
the Code of Fair Competition stemmed from it and prescribed certain
labor standards for poultry business for the President to delegate to
various industries/business groups/boards
(3) Issue: can Congress delegate legislative power to the President?
Does the enabling legislation go too far?
(4) Holding: No/Yes
(5) Rationale: There must be limitations on the President's discretion.
The Act supplies no standards to any trade, industry, or activity. Also
does not provide rules of conduct for any potential codes the
President would make.
ii) Panama Refining Co. v. Ryan
(1) USSC, 1935
(2) Facts: NIRA authorized the President to prohibit transportation of oil
produced in excess of state limits
(3) Issue: Can Congress delegate legislative power to the President
without setting policy standards and issuing guidance?
(4) Holding: No.
(5) Rationale: No guidelines give the President too much discretion.
iii) Whitman v. American Trucking Association, Inc.
(1) USSC, 2001
(2) Facts: A challenge to the Clean Air Act; EPA was going to develop
and review ambient air quality standards
(3) Issue: Are administrative agencies allowed some level of discretion in
setting regulations? Should economic considerations be involved
with environmental regulations?
(4) Holding: Yes/No.
(5) Rationale: Congress must have an intelligible principle or standard to
guide the administrative agency's exercise of authority. Must have the
policymaking portion given by Congress.
c) Congressional authority to increase executive power
i) Legislative veto - a resolution passed by one or both
legislative houses that is intended to block an administrative
regulation or action
ii) Chadha
(1) USSC, 1983
(2) Facts: Chadha appeals an INS ruling that he was deportable (appeal
to INS ALJ), his deportation gets suspended under 3 tests, Judiciary
Committee issues a resolution that had a veto provision in the INA act
(Section 244(c)(2)), the veto would include 6 aliens that were not
deemed to have met the undue hardship prong
(3) Issue: Does an action of one house of Congress under Section
244(c)(2) violate Article I, Section 7 of the Constitution?
(4) Holding: Yes.
(5) Rationale: Must uphold the system of bicameralism. Also, follow the
procedure of "presenting" the legislation to the President.
Bicameralism serves a purpose that facilitates full study and debate
in separate settings. If the power was not on the list of unreviewable
actions, then it was not meant to be done by just one house of
Congress. One house may not pass actions that re "legislative in
power and effect".
(6) Concurrence: The house took on an adjudicatory role by affecting
individual rights (ruling on 6 persons being deported). Says there is a
separation of powers issue.
(7) Dissent: The legislative veto acts a check on administrative/executive
power.
iii) The Appointment Power - Article II, Section 2
(1) Morrison v. Olson
(a) USSC, 1988
(b) Facts: Reagan told the EPA to withhold some documents in response to
a subpoena, Morrison is the independent counsel that was appointed in
the case regarding subpoenas. The attorney general does initial
investigation and then independent counsel is appointed by the Special
Division (has jurisdiction pursuant to the Ethics in Government Act). The
aspects of the I.C.'s appointment included: (1) A.G. could remove at any
time for good cause (2) Termination of appointment upon notification (3)
Congressional oversight
(c) Issue: Is the appointment of independent counsel a violation of the
Appointment Clause of the constitution?
(d) Holding: No.
(e) Rationale: Congress may appoint inferior officers only. Certain factors
apply in order for an officer to be determined inferior: (1) removal by a
higher executive branch official(2) limited jurisdiction (3) limited tenure
(4) limited duties. The independent counsel satisfies all of the factors, so
the Act is constitutional.
(f) Dissent: Investigation of crimes is clearly an executive function. This Act
takes away sole discretion from the President.
(g) There are two kinds of appointment: superior and inferior
iv) The Removal Power
(1) Not constitutionally provided for; does lie with the President, unless
there is a statutory limitation
(2) Myers, Humphrey's Exec, & Pres. Johnson - President has the power
to remove officers without advice and consent of the Senate; but
cannot disregard Act of entire Congress that forbids or limits removal
d) Separation of Powers and Foreign Policy
i) U.S. v. Cutriss-Wright Export Corp.
(1) USSC, 1936
(2) Facts: Border dispute between Bolivia and Paraguay; Curtiss-Wright
had been indicted under an executive order for providing machine
guns to Bolivia; non-delegation chall
(3) Issue: Can Congress delegate power to the President in the area of
foreign policy?
(4) Holding: Yes.
(5) Rationale: Enumerated powers are given by virtue of rights taken
away from the states; do not have power currently to engage in
external foreign policy. The President is the sole organ in foreign
negotiation. The presidency is a unified position as opposed to
Congress who inherently may dissent and may not be on the job at all
times.
ii) Treaties and Executive Agreements
(1) Dames & Moore v. Regan
(a) USSC, 1981
(b) Facts: U.S. hostages were taken in Iran; U.S. froze Iranian assets under
IEEPA. The hostages were released pursuant to an executive agreement
which stated it would settle all claims and litigation between the
countries through arbitration.
(c) Issue: Does the President have plenary power to settle claims against
foreign governments through an executive agreement?
(d) Holding: No.
(e) Rationale: Outstanding claims between national and foreign
governments are sources of friction; however, executive agreements
have long been tools to extinguish claims against foreign governments.
Where the settlement of claims has been determined as necessary to
resolution of a foreign policy dispute, executive agreements may be
used.
iii) War Powers
(1) Resolution was put in place to prevent any more wars without
congressional declaration
(2) Facilitates communication between the two branches
(3) Fisher article: Commander-in-chief power Article II, Section 2, p. 1;
powers have expanded since WWII, Defensive action is allowed
without Congressional intervention (direct attack, defensive war,
preventative war - int'l law says every sovereign has right to
preemptive strike, after exhausting all diplomatic means)
(4) Fisher article: President has historically been able to intervene in
foreign nations to protect American life and property
(5) Fisher article: Emergency powers - situations where President must
act quickly, public necessity for expeditious action (i.e. Lincoln
suspending writ of habaeus corpus during civil war, Roosevelt
executive order 90066 forcing Japanese to relocation centers
(6) Hamdi v. Rumsfeld
(a) USSC, 2004
(b) Facts: A U.S. citizen (Hamdi) was detained as an enemy combatant in
Afghanistan and transported him to S.C. military camp; Hamdi
challenged his status as an enemy combatant and the constitutionality
of holding him without presenting formal charges or proceedings
(c) Issue: Does the executive have the authority to detain citizens who
qualify as enemy combatants? Can citizens challenge the designation
(as enemy combatants) under due process and habaeus corpus
constitutional provisions?
(d) Holding: Yes/Yes.
(e) Rationale: Citizens who are detained are afforded certain rights under
due process. Must get notice of charges/relevant facts and have a
hearing before a neutral decisionmaker.
(f) Dissent (Scalia): AUMF is a subtle enactment of the Suspension Clause
(Art. 1, Section 9, cl. 2); Congress should have put the public on notice of
suspending habaeus corpus rights
(g) Congressional response to Hamdi: passed Detainee Treatment Act of
2005 which strips habaeus corpus rights from non citizens; S.Ct in
Hamden says the DTA does not apply to pending cases; Congress
passes Military Commissions Act in 2007 which sets up combatant
status review tribunals, says non-citizens have no access to federal
courts, strips habaeus corpus rights from pending cases
(7) Boumediene v. Bush
(a) USSC, 2008
(b) Facts: 6 individuals were captured and held at Guantonomo Bay; they
filed a writ of habaeus corpus stating constitutional and international law
violations; MCA was in place and took away federal jurisdiction to hear
HC petition cases; Boumediene sues again arguing the MCA was a
violation of the Suspension Clause
(c) Issue: Does the constitution and suspension clause apply to
Guantanomo Bay? Is the MCA unconstitutional?
(d) Holding: Yes/Yes.
(e) Rationale: Even if you formerly deny sovereignty, whenever you
exercise the power outside of your borders, that power is subject to
judicial review. Bill of rights applies especially when the U.S. is intending
to make a place a territory. Separation of powers doctrine prohibits the
use of the Act because it removes legal constraints/barriers to
decisionmaking, and combines two functions. CSRTs lack several
things (detainee cannot present full evidence), Guantanomo Bay is not
run by the U.S. and is more of a permanent site; writ of habaeus corpus
then applies
(f) Factors to be considered when extending the writ to extraterritorial
places: (1) citizenship/combatant status of detainee and adequacy of the
determination process (2) nature of site of apprehension of defendant (3)
prudence, government interest, practical concerns
(g) Rationale (cont.): Also, when suspending habaeus corpus rights, there
must be an adequate substitute: the defendant must be given a
meaningful opportunity to say why the charges are wrong; the factfinder
must have the power to release the party; and must say something about
the process limited the party's ability to present facts. As it stands now,
the DTA does not have an adequate substitute for the suspension of HC.
7) Limits on State Regulatory and Taxing Power
a) Preemption of State Laws
i) Ellis article
(1) Only thing standing in the way of complete government is ourselves
(2) In formation of new republic in 1780s, there were conflicting views: 1)
use state constitutions as road maps (3 branches of gov't); 2)
Bicameral legislature, proportional to state population; 3) All state
laws subject to federal veto (did not happen)
(3) Lawmakers did not want people to remain "attached to the state",
wanted to further a national identity
(4) Madison believed that factions are the demise of democracy; factions
usurp minority rights
(5) A larger republic prevents smaller factions from tyrannizing the
minority
(6) Supremacy Clause is instituted in place of a federal veto
ii) Express Preemption
(1) Lorillard Tobacco Co. v. Reilly
(a) USSC, 2001
(b) Facts: Cigarette advertising and sales case; Mass. Atty General wants to
protect children from being targeted by tobacco producers and
advertisers; wanted to control placement of ads and cigarette products
in stores
(c) Issue: Does FCLAA preempt MA state law from executing any further
regulation aimed at regulating cigarette advertisements (both outdoor
and point-of-sale)?
(d) Holding: Yes.
(e) Rationale: Congress had an express provision prohibiting states from
adding any additional requirements to the statute. Court first looks at
congressional intent of the law generally. Congress considered the
issues that the MA government is seeking to address. Says the States
cannot pick and choose which provisions they follow.
(f) Dissent (Stevens): Agrees with content versus location line of argument.
Congress intended to warn public of the hazardous effect of smoking.
Says there is no real burden on advertisers, may have same content just
need to place them in different locations
iii) Implied Preemption
(1) Conflicts preemption - when a federal and state law are mutually
exclusive, so that a person cannot comply with both, then the state
law is preempted
(a) Florida Lime & Avocado Growers v. Paul
(i) USSC, 1963
(ii) Facts: California regulation limits the amount of oil in mature
avocados, will not allow them to be distributed and sold; federal law
has its own regulation which does not set forth any particular
measurement
(iii) Issue: Is California law preempted by federal law?
(iv) Holding: No.
(v) Rationale: When a federal regulation sets a minimum standard, state
law that sets a stricter standard, there is no conflict. FL growers
could leave avocados on the vine a little longer in order to comply
with CA law.
(2) Impedes achievement of federal objective
(a) Pacific Gas & Electric Co. v. State Energy Resorces
(i) USSC, 1983
(ii) Facts: There was a CA law in place that delayed the issuance of
nuclear plant licenses until there was demonstrable technology to
dispose of the nuclear waste
(iii) Issue: Doe the Atomic Energy Act passed by Congress preempt the
CA law?
(iv) Holding: No.
(v) Rationale: State safety regulation is not preempted only when it
conflicts with federal law. Congress has allowed the States to
determine as a matter of economics whether a nuclear plant should
be built.
(3) Field preemption - where federal law wholly occupies a field; clear
congressional intent to have federal law occupy a particular area of
law
(a) Hines v. Davidowitz
(i) USSC, 1941
(ii) Facts: PA passed an alien registration act, a year later Congress
passed an alien registration at with different requirements
(iii) Issue: Is the PA law preempted by the federal alien registration act?
(iv) Holding: Yes.
(v) Rationale: Dealing with foreign national is a "federal" field.
(b) Questions to ask: Has Congress enacted a complete scheme of
regulation? Is federal law intimately blended/intertwined with federal
duties?
b) Dormant Commerce Clause
i) The principle that state and local laws are unconstitutional if they place
an undue burden on interstate commerce
ii) Two functions of the Commerce Clause: an authorization for
congressional actions AND limiting state and local regulation
iii) The Commerce Clause power is not exclusive - there are powers that are
inherently given to the state for regulation (public health, family law,
safety, education, police powers
iv) Interests of the dormant commerce clause: (1) Free/unimpeded national
market (2) State sovereignty
v) H.P. Hood & Sons v. DuMond (Comm'r of NY)
(1) USSC, 1939
(2) Facts: NY denies Hood's license to get a new plant to distribute milk
based upon a NY law that makes a condition of issuance of a license
that such issuance will not tend to be destructive of competition in a
market already adequately served; Milk was taken from other states
and not exclusively NY dairies and milk suppliers
(3) Issue: Does the NY law unduly burden interstate commerce?
(4) Holding: Yes.
(5) Rationale: States cannot create laws that spur local economic
interests while shutting out those from other states.
vi) Cooley v. Board of Wardens of the Port of Philadelphia
(1) USSC, 1851
(2) Facts: PA law required all ships to use local pilots or pay a fine
(3) Issue: Is the PA law an undue burden upon interstate commerce?
(4) Holding: No.
(5) Rationale: The state law does not discriminate out of staters, places
the regulation upon all ships equally. Such matters were of local
interest, rather than a national interest.
(6) TEST: If local interest outweighs the national interest and the
regulation does not discriminate against interstate commerce, the
states are allowed to regulate that subject of commerce.
vii)
Balancing Test approach to Commerce Clause
(1) South Carolina State Highway Dept. v. Barnwell Bros. Inc.
(a) USSC, 1938
(b) Facts: SC law probited the size and weight of some trailers on their
highways
(c) Issue: Do the prohibitions impose an unconstitutional burden upon
interstate commerce?
(d) Holding: No.
(e) Rationale: Few subjects of state regulation are so peculiarly of local
concern as is the use of state highways. the state has a primary and
immediate concern in their safe and economical administration. It was a
nondiscriminatory regulation.
(2) Southern Pacific Co. v. Arizona ex rel.
(a) USSC, 1945
(b) Facts: AZ law placed a traincar restriction on both passenger and freight
rains. Nationwide practice shows that trains carry significantly more
cars than the AZ law allows. Southern Pacific argues that the law is
financially burdensome and not physically efficient.
(c) Issue: Does the AZ law unduly burden interstate commerce?
(d) Holding: Yes.
(e) Rationale: Court considered (1) the nature and extent of the burden
which the state regulation imposes on interstate commerce and (2)
whether the relative weights of the state and national interests involved
make inapplicable the rule, generally observed, that the free flow of
interstate commerce and its freedom from local restraints in matters
requiring uniformity of regulation are interests safeguarded by the
Commerce Clause from state interference
viii) Determining Whether a Law is Discriminatory
(1) Discriminatory state laws block the idea of a "national market"
(2) When looking at a state regulation must ask: (1) Does the law
discriminate against out-of-staters? (2) Is there a legitimate local
interest in the regulation?
(3) If a law is facially discriminatory then use balancing test, adequate
alternatives
(4) If a law is facially neutral, must then ask if it has a discriminatory
purpose or effect; is the burden on interstate commerce "clearly
excessive?"; is there a legitimate local benefit/interest?
(5) Facially Discriminatory Laws
(a) Rigorous scrutiny, look at text of statute
(b) City of Philadelphia v. New Jersey
(i) USSC, 1978
(ii) Facts: NJ bans solid waste from coming in from out-of-state
(iii) Issue: Did the NJ state law unduly burden interstate commerce?
(iv) Holding: Yes.
(v) Rationale: State cannot discriminate against article of commerce
coming from outside the state unless there is some reason apart
from their origin, to treat them differently. The law is "virtually per se
invalid."
(c) C & A Carbone, Inc. v. Town of Clarkstown, NY
(i) USSC, 1994
(ii) Facts: Local ordinance established that all waste had to go through a
central transfer station and pay an $81 fee to use the stateion, or face
a fine or 15 days in jail. City was trying to create revenue to pay for
the central transfer station after 5 years.
(iii) Issue: Is the local ordinance per se invalid?
(iv) Holding: Yes.
(v) Rationale: At issue is not the commodity of waste, but rather the
service of processing it and/or transporting it. Any ordinance that
deprives nonlocal businesses from access to local markets
discriminates against interstate commerce. Cannot use local
regulatory power to favor local businesses.
(vi) Dissent (Souter): Town was financing a local government entity.
"Aids in satisfying a traditional government responsibility"
(6) Facially Neutral Laws
(a) Purpose OR effect - congressional history, evidence of effects
(b) Hunt v. WA State Apple Advertising Commission
(i) USSC, 1977
(ii) Facts: WA, the largest producer of apples in the country displayed
their own superior grading system on their products and crates. NC
law required only USDA grading on apples. Complying with the NC
law would be extremely costly for the WA apple industry
(iii) Issue: Is the NC law discriminatory and therefore in violation of the
Commerce Clause?
(iv) Holding: Yes.
(v) Rationale: The statute is discriminatory for 3 reasons: (1) it raises the
cost of doing business in NC for WA apple growers; (2) it strips away
WA's competitive and economic advantages it had earned through
its grading system; (3) the statute has a leveling effect which
insidiously operates to the advantage of local producers
(c) West Lynn Creamery Inc. v. Healy
(i) USSC, 1994
(ii) Facts: Fund created by a tax on milk which awarded subsidies to MA
farmers such that the MA farmers weren't really paying the tax
(iii) Issue: Does the tax scheme discriminate against interstate
commerce?
(iv) Holding: Yes.
(v) Rationale: The dormant commerce clause prohibits economic
protectionism - that is regulatory measures designed to benefit
in-state economic interests by burdening out-of-state competitors.
The purpose and effect of the pricing order was to divert market
share to Massachusetts dairy farmers, which necessarily injures
dairy farmers in other states.
(7) Analysis if a Law is deemed discriminatory
(a) Dean Milk Co. v. City of Madison
(i) USSC, 1951
(ii) Facts: Madison ordinance made it unlawful to sell any milk as
pasteurized unless it was processed within 5 miles of the city. Illinois
corporation brings suit.
(iii) Issue: Is the ordinance constitutional?
(iv) Holding: No.
(v) Rationale: Court used balancing test to weigh the local interest
against burden on interstate commerce. The ordinance creates an
economic barrier protecting local industry against out-of-state
competition. There were other less discriminatory alternatives
available in order to obtain quality milk.
(b) Maine v. Taylor and United States
(i) USSC, 1986
(ii) Facts: Maine enacted a law to prevent nonnative baitfish from being
imported, did not want parasites to harm native fish.
(iii) Issue: Is this facially discriminatory law unconstitutional?
(iv) Holding: There were no other available alternatives to accomplish the
state interest of preventing economic risks. Maine has unique and
fragile fisheries.
(v) TEST: State must show that the discriminatory law serves a
legitimate local purpose and the purpose cannot be achieved by
available nondiscriminatory means
(8) Analysis if a Law is deemed non-discriminatory
(a) Loren J. Pike v. Bruce Church
(i) USSC, 1970
(ii) Facts: Arizona law required that all cantaloupes be packed in Arizona
if they were grown there. Church sent its cantaloupes to California
to be packed and filed suit to enjoin the AZ law.
(iii) Issue: Is the AZ law unconstitutional?
(iv) Holding: Yes.
(v) Rationale: The state's interest is tenuous. The $200k packing plant is
clearly excessive and not compelling. State just wanted to enhance
the reputation of local producers.
(b) Bibb v. Navajo Freight Lines, Inc.
(i) USSC, 1959
(ii) Facts: IL statute required different truck mudflaps than nationally
required. IL said there was a safety interest in requiring the
contoured mudflaps.
(iii) Issue: Is the nondiscriminatory law unconstitutional?
(iv) Holding: Yes.
(v) Rationale: The IL law would add burdensome costs to doing
business in interstate commerce. The mudflaps had no known state
safety benefits. The statute heavily burdens interstate commerce.
(c) Consolidated Freightways Corp. of DE v. Kassel
(i) USSC, 1981
(ii) Facts: IA law prohibited use of certain large trucks within the state
(iii) Issue: Is the IA law unconstitutional?
(iv) Holding: Yes.
(v) Rationale: IA failed to present evidence that the statute helped to
reduce highway evidence. The IA statute would force the carrier to
divert its routes or use smaller trucks which in turn would incur more
costs.
(9) Exceptions to the Dormant Commerce Clause
(a) If there is congressional approval or market participation (the state is
running a business, they can then discriminate who they sell or
purchase from)
c) Privileges and Immunities
i) Only applies to private individuals (not to aliens or corporations)
ii) Only applies to statutes that have discrimination
iii) What are the privileges and immunities of citizenship?
(1) Constitutional rights
(2) Important economic rights (right to make a living)
iv) What justifications are sufficient to permit discrimination?
(1) Substantial state interest
(2) Close relationship to discrimination
8) Constitutional Protection of Civil Rights and Civil Liberties
a) Bill of Rights is a leash on the central, federal government not
state governments
b) Rejection of Application before the Civil War
i) Barron v. Baltimore
(1) USSC, 1833
(2) Facts: City of Baltimore diverted water away from Barron's wharf and
Barron alleged that the city deprived him of his property without just
compensation under the Takings Clause of the 5th Amendment.
(3) Issue: Was the city's action constitutional?
(4) Holding: Yes.
(5) Rationale: The 5th amendment restrains federal government action,
not state action. Look to the text and framer's intent.
ii) Slaughterhouse Cases
(1) USSC, 1873
(2) Facts: LA law gave monopoly to one slaughterhouse and required all
slaughtering and butchering to be done there, all others would have
to pay a fee to the slaughterhouse; Plaintiffs alleged violations of the
13th amendment and 14th amendment
(3) Issue: Is the Privileges and Immunities Clause applicable?
(4) Holding: No.
(5) Rationale: Court dismissed 13th amendment argument, said framers
only intended to remedy African slavery. Court also dismisses 14th
amendment argument saying equal protection clause was meant to
facilitate race relations, not protect the economic rights of white men.
c) Incorporation of the Bill of Rights into the Due Process Clause of
the 14th Amendment
i) The Due Process Clause brings in certain fundamental rights to be
asserted against the states; Privileges and Immunities Clause says
states should apply existing rights uniformly to both in and out of state
citizens
ii) Due Process Clause is a funnel for only some of the bill of rights; not all
of them will be deemed "fundamental" (2nd, 3rd, 5th (rt to grand jury
trial), 7th, 8th amendments have not been incorporated)
iii) Twining v. New Jersey
(1) USSC, 1908
(2) Facts: Criminal defendant did not testify on his behalf, asserted 5th
amendment protection against state law
(3) Issue: Does the NJ law violate the 14th amendment by depriving
persons of due process?
(4) Holding: No.
(5) Rationale: The 5th amendment is not incorporated via the 14th
amendment. The privilege against self-incrimination is not a
fundamental right of national citizenship. Privilege against
self-incrimination was not historically part of the concept of due
process. Taking of private property and right to hearing rank above
self-incrimination.
iv) Duncan v. Louisiana
(1) USSC, 1968
(2) Facts: Criminal (Duncan) was charged with battery and served 60
days in prison and had a $150 fine. Duncan wanted a jury trial, LA law
did not allow for this.
(3) Issue: Does the LA law violate the due process clause of the 14th
amendment?
(4) Holding: Yes.
(5) Rationale: Right to jury trial is a fundamental right under the 6th
amendment gives a safeguard against overzealous prosecutors or
biased judges.
v) Palko v. Connecticut
(1) USSC, 1937
(2) Facts: Palko argues the double jeopardy clause applies to the states
(3) Issue: Is the 14th amendment violated?
(4) Holding: No.
(5) Rationale: Double jeopardy privilege is not a fundamental right. Must
be a thing that is "rooted in the traditions and conscience of our
people as to be ranked as fundamental." Must also ask if it is
protected as part of the "essence of a scheme of ordered liberty"
d) Application of the Bill of Rights to Private Conduct
i) The Civil Rights Cases: US v. Stanley
(1) USSC, 1883
(2) Facts: Challenge to the CRA of 1875 which prohibited discrimination
in accommodations. Four individuals were criminally charged in
direct violation of the law
(3) Issue: Has Congress the constitutional power to make such a law?
(4) Holding: No.
(5) Rationale: It is state action of a particular character that is prohibited.
Congress does not have power to legislate upon subjects which are
within the domain of state legislation; only provides mode of relief
against state action.
(6) Dissent (Harlan): Should look to congressional intent and beyond the
"black letter law"
ii) State action limitation/doctrine - that the Constitution only applies to
gov't
(1) promotes federalism
(2) preserves a zone of private autonomy
(3) can also mean that private actors have the freedom to ignore the
Constitution and the limits contained within it
iii) Exceptions to the State Action Doctrine
(1) Public Functions
(a) Private entity must comply with the Constitution if it is performing a
traditionally governmental task
(b) Marsh v. Alabama
(i) USSC, 1946
(ii) Facts: The city of Chickasaw was a company-owned town. A
jehovah's witness was giving out material on the street, and was
warned about not soliciting but continued to solicit. Woman was
arrested and charged with a trespassing violation of state law.
(iii) Issue: Can people who live or visit this company town be denied
freedom of press and religion simply because a company has legal
title to the town?
(iv) Holding: No.
(v) Rationale: The more an owner for his advantage opens up his
property for use by the public in general, the more do his rights
become circumscribed by the statutory and constitutional rights of
those who use it.
(c) Jackson v. Metropolitan Edison Co.
(i) USSC, 1974
(ii) Facts: A woman continuously did not pay her electricity bill and
eventually Metro shut off her electricity. Jackson alleged she is
constitutionally entitled to a hearing and to be put on notice of the
electricity being shut off. Due process challenge
(iii) Issue: Does a heavily regulated public utility company who shuts off
electricity of a customer become subject to the 14th amendment?
(iv) Holding: No.
(v) Rationale: Even if a private company is given a monopoly, and is
heavily regulated, they are still not subject to 14th amendment. There
is not a sufficiently close nexus between the state and the challenged
action to say Metro's actions are that of the State as well. Even PA
law does not recognize the furnishing of utility services as a state
function or municipal duty. Must look at whether the activity has
been traditionally exclusive done by the gov't. Could potentially open
the door to any business "affected with a public interest."
(d) Evans v. Newton
(i) Involved the use of a park that had originally been entrusted to the
city of Macon, but required that it be racially segregated. The city
decided to no longer enforce racial segregation and the trustees
sued.
(ii) Rationale: If the city remains entwined in the management or control
of the park, it remains subject to the Fourteenth Amendment. Mass
recreation through the use of park is plainly in the public domain;
and state courts that aid private parties to perform that public
function on a segregated basis implicate the State in conduct
restricted by the 14th amendment.
(2) Entanglement
(a) Private conduct must comply with the Constitution if the gov't has
authorized, encouraged, or facilitated the unlawful conduct
(b) Shelley v. Kraemer
(i) USSC, 1948
(ii) Facts: Restrictive covenants case, limited habitation in a particular
neighborhood to only whites, could not sell houses to non-whites.
Owners of another property brought suit against Shelley (black
residents) to enforce the restrictive covenant
(iii) Issue: Does the 14th amendment prevent judicial enforcement by
state courts of private racially restrictive covenants?
(iv) Holding: Yes.
(v) Rationale: The court is easily seen as government actors and cannot
enforce unconstitutional private action.
(c) There must be (1) deprivation rooted in state authority (2) has to be fairly
attributed to a "state actor"
9) Economic Liberties
a) Economic Substantive Due Process
i) Procedural due process - procedures the government must follow when
it takes away a person's life, liberty or property
ii) Substantive due process - focuses on the sufficiency of the justification
for governmental action; must show a compelling reason
iii) Allgeyer v. Lousiana
(1) USSC, 1897
(2) Facts: Insurers were prohibited from insuring in the state unless they
had a place of business or agent in LA; Allgeyer purchased marine
insurance from a NY insurer and was convicted under state law
(3) Issue: Does the LA state law violate the Due Process Clause of the
14th amendment?
(4) Holding: Yes.
(5) Rationale: Citizens have right to contract, and the LA state law
interferes with that right. The term "liberty" of the due process clause
encompasses several rights such as the right to be free from the mere
physical restraint of his person, right to live and work where he will,
right to earn his livelihood by a lawful calling, right to pursue any
livelihood, right to enter any contract which may be proper,
necessary, and essential to carry out any purpose
iv) Lochner v. New York
(1) USSC, 1905
(2) Facts: Lochner was convicted of violating a state labor law that
limited employment in bakeries for no more than 60 hrs/wk and 10
hrs/day.
(3) Issue: Does the NY labor law violate the 14th amendment? If yes, Is it
a valid exercise of state police power?
(4) Holding: Yes/No.
(5) Rationale: Although the state does have power to prevent individuals
from entering certain lands of contracts must be balanced against the
liberty of contract and the police power/interest to be served.
v) Coppage v. Kansas
(1) USSC, 1915
(2) Facts: Coppage was convicted of violating a state law that made it a
crime to require employees to agree not to join a union
(3) Issue: Does the state law violate the 14th amendment?
(4) Holding: Yes.
(5) Rationale: There is liberty to contract. Employers and employees
have freedom to contract on terms they see fit. (guaranteed by Art. I,
section 10, cl. 1
vi) Muller v. Oregon
(1) USSC, 1908
(2) Facts: There was a state law that prohibited the amount of hours
women worked per day (no more than 10 hrs/day).
(3) Issue: Does the state law violate the due process clause of the 14th
amendment?
(4) Holding: No.
(5) Rationale: Women are built differently and have exclusive
reproductive responsibilities.
vii) Nebbia v. New York
(1) USSC, 1934
(2) Result: A state is free to adopt whatever economic policy may
reasonably be deemed to promote public welfare, and to enforce that
policy by legislation adapted to its purpose.
viii) The End of the Lochner Era
(1) West Coast Hotel Co. v. Parrish
(a) USSC, 1937
(b) Facts: WA had a minimum wage law for women, the employer brought
suit challenging the law under the 14th amendment.
(c) Issue: Does the WA law violate the 14th amendment due process
clause?
(d) Holding: No.
(e) Rationale: Change in structural emphasis, no constitutionally express
given right to contract. The freedom of contract may be restricted in the
employment context for the protection of health and safety, and to
ensure good work conditions.
(2) U.S. v. Carolene Products
(a) USSC, 1938
(b) Facts: Congress passed the Filled Milk Act which prohibited interstate
shipment of a certain kind of skimmed milk. Carolene was indicted for
violation of the Act. Carolene argues there is no rational basis for the
law.
(c) Issue: Whether the Act violates the 5th amendment (due process
clause)?
(d) Holding: No.
(e) Rationale: There was congressional evidence showing that the filled
milk was unhealthy and regulatory legislation is presumed to be
constitutional unless there is a rational basis showing the facts to be
otherwise. Footnote 4: turning everything over to the legislature may
cripple minority rights; court still reserves right to review
(3) Williamson v. Lee Optical of OK, Inc.
(a) USSC, 1955
(b) Facts: There was a state law that prohibited fitting or duplicating lenses
without a prescription
(c) Issue: Did the state law violate the due process clause of the 14th
amendment?
(d) Holding: No.
(e) Rationale: It is for the legislature, not the courts, to balance the
advantages and disadvantages of the new requirement (even if
seemingly needless or wasteful).
(f) The court is extremely differential to legislature, no economic law struck
down since 1937
ix) "Switch in time" - no more using the 14th amendment due process
clause to regulate economic laws; change in horizontal structure; legal
formalism (discoverable categories of common law) --> legal realism (law
as politics)
(1) BMW of N.A. v. Gore
(a) USSC, 1996
(b) Facts: BMW had a policy where if a car was damaged during
(c)
(d)
(e)
(f)
manufacture and was less than 3% of the value of the car then they
would repaint it and sell it as new; Plaintiff sues BMW for compensatory
and punitive damages was awarded $2million in punitive damages and
$4k in compensatory damages
Issue: Is the punitive damage award grossly excessive such that it
violates the due process clause of the 14th amendment?
Holding: Yes.
Rationale: There were other ways that were less than $2million that
could have punished and deterred BMW's conduct. The harm caused by
BMW was purely economic and had no intentional or reckless aspects.
Three factors to consider when determining award is "grossly
excessive": (1) reprehensible conduct (2) ratio of compensatory to
punitive awards (3) available criminal and civil sanctions
Dissent (Scalia): No constitutional limits on punitive damages so leave it
to the legislation (structural argument)
(2) State Farm Mutual Auto Ins. v. Campbell
(a) USSC, 2003
(b) Facts: Car incident where Campbell was involved, State Farm doesn't
want to settle for policy limits, assures the Campbells that they wouldn't
have any personal liability; Campbells lose and are subject to a
judgment over the policy limits; Campbell sues State Farm for bad faith
and was awarded $1million compensatory damages and $145million
punitive damages. Reversed at UT Ct of Appeals and was reinstated at
UT Sup. Court
(c) Issue: Is the punitive damage award grossly excessive in violation of the
due process clause?
(d) Holding: Yes.
(e) Rationale: Cannot use simply a pattern of bad behavior as a basis of
punitive damages. Generally single digit ratio is better.
(3) Phillip Morris USA v. Williams
(a) USSC, 2007
(b) Facts: Williams' husband died lung cancer after smoking cigarettes most
of his life. Brought suit against phillip morris for misleading them about
the dangers of smoking. Was awarded $800k in compensatory damages
and $79.5mil in punitive damages
(c) Issue: Can a punitive damage award stand if harm to non-parties is
considered?
(d) Holding: No.
(e) Rationale: Such an award amounts to a taking of property from the
defendant without due process.
(f) Theory of law: Defendants must be put on notice of all other claims and
must be given a chance to defend themselves
b) The Contracts Clause
i) Article I, section 10, clause 1 - only applies to state governments
ii) Home Building & Loan Ass'n v. Blaisdell
(1) USSC, 1934
(2) Facts: MN statute allowed that foreclosure, execution sales of real
estate could be postponed during an emergency (extends period for
redemption); was during the great depression
(3) Issue: Is the state law in violation of the contracts clause?
(4) Holding: No.
(5) Rationale: Several factors are to be looked at when assessing
whether a state law is consistent with the contracts clause: (1) an
emergency exists; (2) legislation is addressed to a legitimate end; (3)
the relief afforded and justified by the emergency could only be of a
character appropriate to the emergency; (4) the conditions upon
which relief is granted do not appear to be unreasonable; (5)
legislation is temporarily
iii) Energy Reserves Group, Inc. v. KS Power and Light Co.
(1) USSC, 1983
(2) Facts: Natural gas price control case, KS law fixed the price of natural
gas such that it could not be raised arbitrarily
(3) Result: 3 part test for modifying private contracts
(a) Is there a substantial impairment of contract?
(b) Is there a legitimate public purpose?
(c) Is the purpose reasonably related?
iv) Allied Structural Steel Co. v. Spannaus
(1) USSC, 1978
(2) Facts: Pension plan case, MN state law required certain private
companies to provide pension plans to qualified employees who had
worked at least 10 years; Allied's plan was set to vest at 15 years
(3) Issue: Does the MN law violate the contracts clause?
(4) Holding: Yes.
(5) Rationale: The legislation was not enacted to deal with a broad,
generalized economic or social problem.
v) United States Trust Co. v. New Jersey
(1) USSC, 1977
(2) Facts: Port Authority had contract to use tolls to pay off bonds, but
wanted to use the funds to subsidize railroad services
(3) Result: There has to be a (1) necessary or essential interest (2)
alternative means of achieving their goals