Con Law I I) Nature and Sources of SC Authority A) Checks and Balances 1) Horizontal Separation of Powers 2) Vertical Separation of Powers

a) Federalism b) Indiv. Rights B) Judicial Review: Marbury v. Madison (1803) justifications for JR (7) - SC can in a properly brought suit strike down a legisl. act (Also mentions political question doctrine) 1) Powers of legislature are defined and limited in a written constitution a) How do you attack this argument? Do we in fact have a written const. that limits the powers of congress? Yes. So the underlying premise isnt wrong. What is the holding of Marbury? Court can exercise judicial review. But, there is nothing in the const. that gives the court this power. Marshall concedes this, but says that it doesnt matter that its not written and claims that it just follows that there is judicial review. Just b/c there is a written const., it doesnt tell us who gets to interpret it, and in particular it doesnt tell us that this power is put into any branch of govt. that trumps everybody else. 2) Practical concerns w/ not having judicial review. a) If the congress were to police itself on constitutionality, the const. would be meaningless. Marshall says that a written const. w/o power of judicial review would give the legislature a practical and real omnipotence and he says it would subvert the very foundation of written constitutions. Why does marshall say that this would give the congress a real omnipotence? W/o a check on the legislature, there is a great danger of the legisl making a self-serving reading of the const. What were the framers afraid of when they wrote the const.? Tyranny of the majority (among other things) and the representatives of the majority are in the legisl. Fear that the legisl. will abuse its power...power corrupts. b) Critique this argument. Is a const. meaningless if there is no judicial review? Some countries w/ a written const. have no judicial review or weak judicial review. A written const. could still serve as a guide post. How else might a written const. function w/o judicial review? What might happen to legisl. that ignored this guidepost in the absence of judicial review, so that the law cant be struck down? The executive might refuse to enforce the law...might be a check from the executive branch. What else might happen? The people could kick the legislature out if the people are unhappy that the legisl. ignores the written const. At the very least the const. might provide a point of debate w/in and outside the legislature. It might provide a trigger point for the ever-looming threat of revolution. c) This raises a question...who is better suited institutionally to perform the function of const. interp/review, judiciary or legisl.? Arguments for both. It could make sense for the legisl. to do so, b/c the document emanates from the people and the legisl. represents the people. Argue against the legisl.: legisl. is under political pressure, but SC is appointed for life, so is more free from this. Now were looking at more features of the const. structure to see what the most appealing method is. How else is the court protected/insulated/independent apart from appointment for life? Structurally judges are appointed in a different way than other representatives who have their finger in the

political winds and are accountable to a certain state/district. Judges are supposed to be bound by precedent. d) Its worth going back and looking at what Art. III says about judges and their independence. e) The point is that marshall relies in part, w/o much explanation, on the overall structure and scheme of the const. to say that the power of JR is sound. 3) Marshall says more than that, though, (p. 9...famous quote...It is emphatically the province and duty of the judicial dept. to say what the law is... 4) Sure the ct. can say what the law means, but why can the court say what the law is not? Why can they say a law is invalid? Is the const. law? Isnt the const. different...isnt it different than when you are comparing two laws? What in the const. itself says that it is law? It reads like law, so there is an intuitive sense...but back then this was a novel sort of entity and it wasnt clear that it should be treated the same as other forms of law. How else would you argue that the const. is law? Art. VI says that it is the supreme Law of the Land. Thats a pretty potent weapon in your arsenal arguing that the const. is law. So, it makes sense that courts have the power to reconcile these two bodies of law, constitutional and statutory. 5) Marshall doesnt explicitly point to this Art. VI quote, but he does make a textual argument (bottom of p. 9). He argues that since the const. gives the SC the power under Art. II to have jxn over cases arising out of the const, then the SC should have the power to look at the const. a) How do you attack this argument? How might this clause have effect, even if the SC doesnt have the power of JR? What sort of const. cases might arise other than const. challenges to acts of congress? For instance cases involving school children...desegregation cases against states; prisoner cases...challenging state death penalties; detainee in guantanamo bay...challenging the constitutionality of the executive branch holding them w/o trial. 6) Stupid results/parade of horribles arguments: what if the congress allows ex post facto laws, allows conviction for treason improperly...legislature might abuse its power. a) Attack this arg.: judiciary might abuse it too 7) There are still other arguments by marshall that are subsidiary: C) Constitutional and Prudential Limits on Constitutional Adjudication D) Supreme Court Authority to Review State Court Judgments 1) Martin v. Hunters Lessee (1816) land dispute a) SC has appellate jxn over state ct decisions can strike down state ct decisions b) Case determines jxn, not the court 2) Cohen v. Virginia (1821) lottery ticket prohibition in VA a) SC has appellate jxn over state crim cases 3) Cooper v. Aaron (1958) AR governor resisting desegregation a) District ct ruling affirmed, but ruling also that SC is supreme interpretation of const. is the law of the land (dicta?) E) Political Restraints on the SC: May Congress Strip the SC of its Jxn? II) Structural Vertical Restraints, Federalism A) McCulloch v. MD (1819) Natl Bank 1) Necessary and Proper cl. not indispensable, but not anything goes: reasonably related means, and goal not impermissible or a pretext 2) State taxation of fed bank not allowed

a) Implied negative of the const. structure, supremacy cl.; b) Representational reinforcement: part cant tax the whole, cant tax those that arent your constituents c) many other arguments (see notes) B) Powell v. McCormack (1969) Congress doesnt have power to impose additional restrictions on qualification of members C) US Term Limits, Inc. v. Thornton (1995) States dont have power to impose additional restrictions on qualification of members of Congress 1) Negative implication of Qualifications cl. 2) To be reserved to state, a power must have existed before the constitution a) Therefore no power over fed govt which was created by const. b) Dissent thinks states retain all powers, including over fed govt, except those the Const. withholds from them, either directly (express prohibitions) or indirectly (by authorizing congress to pass laws preempting state laws). 3) Dissent D) Cook v. Gralike (2001) Term limit message on ballot 1) First amendment problems; other problem? E) Commerce Cl. 1) Pre-1937 a) Gibbons v. Ogden (1824) Fed shipping law preempts NY law granting Ferry monopoly i) Fed law must be sustainable under comm. cl. to preempt, and ct finds that it does. Broad language re commerce power: A. Transportation=Commerce: Marshall says that navigation is intercourse between the states and that all of America understands and has uniformly understood the word commerce to comprehend navigation. (textual, plain-meaning argument). B. Marshall drops an acorn that may grow into a mighty oak...he says that congress may be able to regulate activities that affect interstate commerce, but of course he doesnt have to amplify in great detail, b/c of the preemption issue in this case. C. There is a lot of other stuff going on here...Marshall throws out some broad definitions of commerce and distinguishes between completely internal commerce and commerce that is intermingled among the states. Plenary power. Protection from overreaching should come from political process, not the judiciary. b) Channels/Instrumentalities i) Congress may regulate the Channels/Instrumentalities A. Gibbons 1. Shipping of persons across state lines B. The Daniel Ball (1870) 1. Fed licensing/inspection provisions okay even for intrastate ship, b/c operated on a river that was part of a continued highway for commerce, both with other states and w/ foreign countries C. U.S. v. Coombs (1838) 1. Congress can regulate salvaging of shipwreck material above waterline: N&P to the regulation of navigation ii) Commerce Prohibiting Technique (Combination of in commerce and channels/instrumentalities) Congress may block interstate movement of goods or people

A. Champion v. Ames (the lottery case) (1903) 1. Commerce prohibition is okay (prohibition is regulation) 2. Transportation=commerce is enough of justification 3. Majority rejects argument that commerce cl. power was only to encourage, not to inhibit free trade 4. Dissent thought this was just the sort of pretextual invoking of the commerce cl. that was a limitation from McCulloch B. Reid v. CO (diseased cows) (1902) C. Hoke v. U.S. (1913) 1. Congress can prohibit transportation of women across state lines for immoral purposes D. Caminetti v. U.S. (1917) 1. Even w/o commercialized vice, Congress can prohibit taking woman across state lines for purpose of being his mistress/concubine 2. Majority not saying you can punish one for traveling across state lines to commit an illegal or immoral act at the end...transportation was key iii) Super-Bootstrapping: Commerce prohibiting technique meets the N&P cl. A. Hipolite Egg (1911) 1. Confiscation of eggs that had been illegally shipped (defective labeling) was okay. 2. Whether the eggs were in commerce anymore, it was an Appropriate means to the end of preventing trade in them between the states. 3. This case says that in addition to blocking the movement of mislabeled eggs across state lines, congress can also pass a law allowing seizure of the eggs in the destination state despite the argument that the eggs have exited interstate commerce. The SC says that allowing the eggs to escape in this way would defeat the authority of congress to prohibit the movement. 4. The SC relies additionally on the necessary and proper clause in addition to the commerce clause to allow the confiscation to assist in the prohibition on movement. Super-bootstrapping provision...tenuous ruling that congress can prohibit commerce married to the allowing of confiscation based on N and P. Argument is that it is necessary to allow confiscation to facilitate prohibition. B. Broad language from Caminetti, Coenen p. 39 iv) Hammer v. Dagenhart (1918) Speed-bump to the commerce prohibiting technique 1. Child Labor Act provisions against shipping anything in interstate commerce that had been made by cos. not adhering to its rules. 2. Majority said that previous prohibitions had been of goods that were intrinsically harmful. c) In-Commerce Theory i) Swift & Co. v. U.S. (1905) and Stafford v. Wallace (1922) cases A. Cows have to be shipped to a stockyard before entering interstate commerce. Even though congress was regulating intrastate pricing and fraud and such, that is committed purely on an intrastate base, congress can do this regulation, b/c they are regulating something in the stream of interstate commerce....so we get this really different, alternative prong of the commerce clause. ii) Schecther Poultry Corp. v. U.S. (1935)

A. Wage and hour rules struck down, in part b/c the chickens were no longer in commerce once they reached this shop. iii) Carter v. Carter Coal Co. (1936) A. Wage and hour provisions of Bituminous Coal Conservation Act of 1935 struck down, b/c coal mfg occurs before the coal is in commerce d) Affecting Commerce Theory i) U.S. v. E.C. Knight Co. (1895) A. Issue was whether the fed govt could force divestiture of this sugar mfg monopoly based on Sherman Act. On what grounds does the congress say it can force the co. not to monopolize...regulating activities affecting interstate commerce...acorn has sprouted shoots, but the SC chops it down w/ a mighty axe. Acorn cant sprout here, why not? Isnt it obvious that monopoly of sugar mfg will greatly affect the cross border buying and selling of sugar (the very nature of commerce as everyone on both sides agreed in Ogden). The court says that the affect is only indirect. B. Mfg and other forms of production are beyond the reach of congressional regulation. ii) Addyston Pipe and Steel Co. v. U.S. (1899) A. The word indirect is very indeterminate...we see how indeterminate it is here where it was okay to break up the monopoly b/c it would affect prices directly. Conspiracy was for the purpose of fixing prices for the future disposition of the manufactured article. iii) Northern Securities Co. v. U.S. (1905) iv) Shreveport Rates case (Houston, East & West Texas Railway Co. v. U.S.) (1914) A. We have the fed govt regulating the price charged for hauling freight from point A to point X in TX. The court says that congress can do this. How can that be? Isnt this a regulation of purely intrastate commerce just as we had in EC Knight? The goal of the act was to prohibit discrimination against interstate shipping. The court says that the intrastate shipping price will affect the shipment interstate to neighboring Louisiana. Does this make any sense? How do you distinguish Shreveport Rate case from EC Knight? Shreveport isnt about mfg...that does seem to have something to do w/ the courts decision. This movement of goods is commerce, even if not interstate. There is broad language in the case about being able to foster interstate commerce and that its allowable to take all necessary and proper steps to protect it. There is a tension between the Knight and Shreveport cases. v) Railroad Retirement Board v. Alton R. Co. (1935) A. Retirement plan isnt a direct enough effect on interstate commerce. Parade of horribles argument. Pretext alluded to. B. Maximum hour and collective bargaining severed...not addressed on this theory until... vi) Schecter Poultry (1935) and Carter Coal (1936) again A. Schechter: hour and wage provisions applied to this local business only had indirect effect on interstate commerce

B. Carter Coal: Invokes EC Knight and Hammer v. Dagenhart for the proposition that production is a purely local activity...thus wage and hour rules only have indirect effect on interstate commerce 2) 1937-1985 a) Channels/Instrumentalities i) U.S. v. Darby (1941) (foundational case) A. FLSA B. Overruled Hammer, allowed prohib on shipment of goods mfg by workers not paid min wage or subject to max hours C. Commerce prohibiting Technique constitutional, regardless of Congresss motive and whether or not the transported goods were intrinsically harmful or deleterious 1. See also Ky. Whip and Collar D. Sustained wage/hour provisions based on two theories: 1. Affecting commerce theory a. Wage and hour controls affect labor conditions/unrest, etc.; race to the bottom argument 2. Super-bootstrapping a. A reasonably adapted means to the end of shipment prohib; this goes a step further than Hippolite Egg, b/c it allows pre-shipment regulation b. Wage and hour rules only upheld as applied to workers engaged in the production of goods for interstate commerce c. See also Thornton v. U.S. (Cattle ranging across border before shipment) ii) Commerce Prohibiting A. Perez v. U.S. (1941) 1. Congress may exercise its control over the non-navigable stretches of a river in order to preserve or promote commerce on the navigable portions B. Super-bootstrapping 1. U.S. v. Sullivan (1948) a. Ban on interstate shipment of drugs labeled in violation of fed stds applied to pharmacist who bought the drugs after shipment, in intrastate sale, b/c he didnt correctly affix labels to new smaller containers he transferred the drugs to 2. No. Am. Co. v. SEC (1946) a. Comm. cl. permits Congress to attack an evil directly at its source provided that the evil bears a substantial relationship to interstate commerce iii) Super-channels/instrumentalities (Congress has power to regulate something that had at some time been in interstate commerce, regardless of whether it was in commerce anymore and regardless of whether there was a prohib on its shipment in interstate commerce) A. U.S. v. Bass (1971) 1. Fed law against receipt of felon of firearm okay if gun had been in interstate commerce B. Scarborough v. U.S. (1977)

1. Fed ban on possession of gun by felon okay if gun had been in interstate commerce at some time; minimal nexus required to give jxn b) In-commerce i) Currin v. Wallace (1939) A. Congress can require fed inspection of tobacco sold at auction houses customarily involved in sales to be shipped interstate; law applied even when the tobacco was to be shipped intrastate, b/c functionally inseparable ii) Usually Statutory interpretation question of whether activity is in commerce A. U.S. v. Yellow Cab Co. (1947) 1. Cab rides immediately preceding or following interstate train travel are not B. Goldfarb v. VA State Bar (1975) 1. Lawyers doing local title searches are in-commerce, b/c funds for home purchases frequently come from out of state 2. But cf. McLain v. Real Estate Bd (1980) a. Looking at affecting commerce theory, but noting that realtors are not incommerce, b/c they are not necessary for the sale while the title search in Goldfarb was. c) Affecting Commerce i) NLRB v. J&L Steel (1937) A. Upheld NLRA B. Overruled Carter Coal and E.C. Knight; okay to regulate mfg/production, b/c activity, though intrastate in character, had such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions. ii) NLRB v. Friedman-Harry Marks Clothing (1937) A. NLRB action targeting retaliatory discharges of union leaders okay even as applied to small clothing mfg w/ only miniscule share of the interstate market iii) Aggregation Technique A. Wickard v. Filburn (1942) 1. Definitely no categorical exclusion of production from Congressional reach 2. Must rely on political process, not judicial, to restrain this power (citing Gibbons) 3. Congress could regulate each individual member of a group-even assuming each individuals effect on commerce was de minimis, so long as the activity of that individual, taken together with that of many others similarly situated, is far from trivial (substantial effect) 4. Who may be aggregated? a. Ct only aggregated home users, not all wheat growers b. Congress didnt regulate home use of cotton or tobacco iv) Civil Rights Act of 1964 A. Heart of ATL Motel v. U.S. (1964) 1. Discrimination even by locally owned hotel affects interstate commerce substantially (travel) 2. Moral goal of statute doesnt take it out of comm. power B. Katzenbach v. McClung (Ollies BBQ) (1964)

1. Local restaurant that bought food from distributor who bought food shipped interstate could be regulated. a. Pre-dated Bass and Scarborough, so that theory not addressed 2. Aggregated all such restaurants even though this restaurant served locals predominantly 3. Congress just needed rational basis to find activity substantially affected interstate commerce 4. Questions? a. Could Congress regulate all businesses on this ground? All places that served food (even social clubs)? b. Could Congress aggregate racial and religious discrimination? v) Rejection of categorical bans A. Perez v. U.S. (1971) (local crime) 1. Loan shark: Okay to regulate category of crime that has substantial effect on interstate commerce even though the crime was local; no categorical limit on comm. power in this area B. Hodel v. VA Surface Mining & Reclamation Assoc. (1981) (private land) 1. Strip Mining: Okay to regulate use of local lands due to environmental effects on commerce; no categorical ban on Congressional action in this area C. Garcia v. San Antonio Metro Transit Auth. (1985) (Federalism: State favoring external constraints on comm. power) 1. FLSA applies to state employees 3) 1985-Present a) U.S v. Lopez (1995) i) Affecting commerce A. GFSZA didnt concern economic activity, so couldnt aggregate effects of gun possession in school zones B. Can aggregate activity that is an essential part of a larger economic scheme C. No Congressional findings on effect, and no substantial effect visible to the naked eye D. Parade of horribles argument. ii) Channels/Instrumentalities A. No jxnal element to the statute B. No recent movement in interstate commerce C. No concrete tie to interstate commerce b) U.S. v. Morrison (2000) i) VAWA dealt w/ non-economic activity A. Ct stressed no categorical rule that cant aggregate non-economic activity B. VAWA dealt w/ non-economic violent activity...traditional state job to suppress violence ii) Despite extensive Congressional findings, the cost of crime argument proved too much...parade of horribles argument iii) No jxnal element tying the statute to use of the channels of interstate commerce c) Gonzales v. Raich (????) (Home-use medical marij. growing)

i) Congress can regulate, even if growing isnt economic activity, can aggregate homeuse, b/c the point of the overall law is to regulate distribution which is an economic area; Since the law relates to a scheme targeted at interstate markets, it is okay A. Why does the ct permit the regulation of personal marij in Raich? They use the agg wickard theory...normally you cant do this under lopez/Morrison, so why could they do it here? B/c there is an overall scheme. ii) No findings on economic effect, but flipside of Morrison where findings dont save, absence of findings also wont kill iii) Under Lopez, Morrison, and the med marij case, Raich, youre going to have to be focused very carefully on whether the subject matter regulated, not the surrounding activity, is an economic activity A. Even if it cant be classified as econ...it may still poss be regulated under raich if this is a part of a larger regulatory scheme d) In Commerce i) Reno v. Condon (2000) A. Okay for Congress to forbid state sale or distribution of DMV personal info, b/c the data was an instrument of interstate commerce (in commerce) ii) U.S. v. Robertson (1995) A. RICO conviction of D okay, b/c D had invested criminal proceeds in Alaska goldmine which was engaged in interstate commerce (employees, equipment, gold shipments); it was enough that this business was engaged in interstate commerce (shipping out of state, hiring out of state, etc.) that it was okay to regulate lending even though it was purely an intrastate transaction. e) Affecting Commerce i) Arbitration Act Case (The Citizens Bank v. Alafabco, Inc. (2003)) A. Congress still has broad authority to regulate local economic transactions even in wake of Lopez/Morrison 4) External Constraints on Comm. Power a) Federalism/state-authority based external constraints i) Coyle v. OK (1911) A. Congress cant tell a state where to locate its capital B. To what extent are there things that are so fundamental to state that cong cant regulate...not sure how far this restraint from coyle goes ii) But U.S. v. CA (1936) A. FSAA applies to state-owned railroad iii) MD v. Wirtz (1968) A. Upheld application of FLSA to state workers firefighters, etc. iv) Natl League of Cities v. Usery (1976) A. Fed min wage rules dont apply to key state employees like police, firefighters, etc.; strike down application of FLSA to traditional actions of states B. Based partially on 10th amendment C. Overruled MD v. Wirtz v) Hodel (1981) A. Statutes w/in the comm. power may still encounter constitutional barrier rooted in federalism principles vi) EEOC v. WY (1983)

A. Federal age-discrimination ban could apply to states vii) Garcia v. San Antonio Metro Transit (1985) A. Federalism external restraints should relate to defects in the national political process B. Overruled Natl League of Cities 1. Integral operations test unworkable 2. Hurt federalism more than it helped, b/c it forced judiciary to rank state programmatic choices 3. State autonomy adequately guarded by natl political process, const. structure thereof viii) Defective-Process Principle: Emanating from defects in the operation of the national political process A. SC v. Baker (1988) (removal of tax-exempt status for state bonds) 1. No defect in natl political process, so no10th amend problem ix) Anti-Commandeering Principle: Structural limitations on congressional commandeering of state exec or legisl officials A. Testa v. Katt (1947) 1. Congress could force state courts to adjudicate cases and to apply fed law (judges in every state shall be bound by laws of the U.S.) B. NY v. U.S. (1992) (Nuclear waste disposal) 1. Congress cant commandeer state legislative process; Congress could not force state lawmakers to legislate a. Voter accountability problem who do they hold responsible? b. Congress must exercise auth on indivs, w/o using states as intermediaries c. Garcia dealt w/ legisl. applied equally to state and private parties, so distinguishable 2. Congress could still preempt, conditionally preempt, or use conditional spending to get states to comply: if you dont do X, we will w/hold funding or preempt the whole field and prohibit other behaviors that we otherwise wouldnt if you were to go along w/ our proposal C. Printz v. U.S. (1997) (Brady Bill state law enforcement officer had to make reasonable background check) 1. Cant commandeer state executive officials a. Maybe could if it was merely ministerial, like reporting info i. But why is collecting less ministerial than reporting? b. Problem of voter accountability i. But wouldnt locals blame feds if bad? c. See notes p. 31 for arguments d. Dissent says that forcing creation of fed bureaucracy to enforce this will be more impinging on state autonomy than the so-called commandeering D. Reno v. Condon (2000) and Baker v. SC (1988) 1. Okay, b/c it regulated state activity, not the manner in which states regulate private parties 2. Reno: Ct said that the law didnt only regulate states, applied also to private actors that maintained a database of this info

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x) Anti-Liability Principle: Restrictions on exposure of states to monetary damages in private actions (11th amend) A. W/ this 11th amend immun there are a lot of exceptions...states can waive...congress can abrogate the immune by using 14th amend power (as opposed to comm. power or other Art I powers)(many modern cases look to see if there is 14th amend exception) B. Hans v. LA (1890) 1. 11th gives immunity against fed actions against the state by their own citizens C. Ex Parte Young (1908) 1. Fed cts can hear actions to enjoin unlawful state practices (no $ damages, though); state officer may be sued directly to stop a law from being enforced or a policy from being enacted 2. 11th amend doesnt bar actions by other states or by U.S. 3. No 11th protection for actions ($ or injunction) against cities D. Fitzpatrick v. Bitzer (1976) 1. Allowed claim against state for $ damages for sex discrimination violation of Civ Rights Act of 1964...allowed based on 14th amendment allowing this explicit congressional abrogation of the state immunity E. Seminole Tribe v. FL (1996) 1. Congr cant create $ cause of action in fed cts against states under comm power F. Alden v. ME (1999) 1. Even though 11th applies to Jud power of U.S., and Testa allows feds to make state cts hear cases, and FLSA applies to state employers, Congr cant force state courts to hear $ actions by citizens against the state 2. Citizens can still sue for injunctive relief 3. U.S. can still sue the state a. What about qui tam actions? 4. This decision precludes actions for $ damages in patent law, environmental law, etc. against states G. NV Dept of Human Resources v. Hibbs (2003) 1. Sex discrimination suit okay, b/c of 14th/Fitzpatrick H. Bd. of Trustees of Univ. of AL v. Garrett (2001) 1. Disability discrimination suit not okay I. Kimel v. FL Bd. of Regents (2000) 1. Suit against state for age-discrimination under ADEA not allowed by 14th/Fitzpatrick xi) State Protective Statutory Interpretation A. U.S. v. Bass (1971) 1. Unless Congress conveys its purpose clearly, it will not be deemed to have significantly altered the fed-state balance. 2. Process limit at a time when there was little substantive limit on Congressional action; leaves constraints to the political process as stressed in Garcia B. Pond-Filling Case (Solid Waste Agency of N. Cook Cty v. U.S. Army Corps of Engrs (2001)) 1. Refusing to read Clean Water Act to authorize agency rule that precluded filling of localized non-navigable ponds.

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C. Gregory v. Ashcroft (1991) 1. ADEA (age-discrimination) inapplicable to state judges, b/c of their vital role in administering the state judicial system F) Sources of Congressional Authority Related to the Commerce Power 1) Taxing Power a) We know that govt cannot regulate purely intrastate matters w/ comm. cl....is that limitation present w/ the taxing power? Not specifically...this is important...its a fundamental difference between comm. power and taxing power. b) Child Labor Tax Case (Bailey v. Drexel Furn. Co. (1922)) i) Ct held that Congress cant substitute 10% excise tax on cos. using child labor to get around Hammer v. Dagenhart ii) This law was a de facto regulation/penalty, rather than a true tax, so it ran afoul of McCulloch pretext principle: A. detailed and specific regulations tied to it B. Heavy toll on targeted cos. C. Had scienter requirement D. Not proportional E. Involved IRS and Labor Dept in collection F. Came after Hammer c) U.S. v. Kahringer (1953) (bookmaking) i) Okay law, b/c it produces some revenue, despite: A. Negligible revenue obtained B. Congressional intent to curtail/hinder d) U.S. v. Constantine (p. 219) i) Penalty for liquor business that breaks state law e) Sozinsky v. U.S. (1937) i) Tax on firearms dealers okay f) U.S. v. Sanchez (1950) i) Tax on marijuana transfers okay g) Modern ct may reinvigorate tax as penalty limitations, but for now Congress may lay almost any tax it wishes to impose, even if it acts w/ the goal of shaping primary conduct in the real world. 2) Spending Power (if you dont do X, we will w/hold funding) a) U.S. v. Butler (1936) i) Conditioning farm subsidies on compliance w/ fed regulations improper where it is a pretext; relying on Child Labor Tax Case, McCulloch, and Carter Coal ban on comm regulation of production; again it was seen as a de facto regulation b) Charles C. Steward Mach. Co. v. Davis (1937) i) Significant tax on employers...credit for the tax given to the employers (viewed by the ct as a form of spending) if the state adopts a fed unempl. program that meets fed stds. ii) The challengers say that this is basically requiring states to follow fed regulation. iii) Cardozos maj. opinion says that this is const., b/c for it to take effect the state has to employ the program...there is a big difference from butler, b/c the state has to buy in according to state prerogatives.

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iv) More importantly the ct uses this race to the bottom theory of fed regulation...if we dont have fed action, states wont impose this system, b/c employers will exit the state wanting to avoid the program and this will create a big problem. c) Helvering v. Davis (1937) i) Congress has broad power to shape the concept of spending for the public welfare, so long as the concept is not arbitrary d) OK v. U.S. Civil Service Commission (1947) i) Federal funds for the state conditioned on prohibiting certain state workers from engaging in political campaigning ii) Law upheld iii) Spending power cannot be used to induce the states to engage in activities that would themselves be unconstitutional (1st amendment speech at issue here) e) SD v. Dole (1987) i) Percentage of Fed Highway funds withheld unless states adopted 21 yo drinking age ii) Law upheld b/c: A. Law advanced the general welfare B. Congress acted unambiguously, permitting states to know effects of their choice C. No independent constitutional bar on the law (21st amendment at issue here) D. Provision reasonably calculated to advance the federal interest that had given rise to the highway-spending program 1. Identify purpose of the spending program (safe interstate travel here) a. There is a critical point...everything turns on how we characterize the state purpose. 2. Ensure that the condition is adequately relevant to the purpose (cuts down on cross-border road trips for different age limits) iii) At some point the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion (100% withholding possibly???); Just as a tax may be a de facto penalty, conditional spending may be de facto coercion...states dont really have a choice at some point, so congress is actually regulating or coercing instead of providing a condition 3) Other Powers a) 14th amendment i) Congress has some power to pass over-inclusive limits on st A. To protect rights of EP and rights not to have life lib or prop taken w/o DP, congress has to make a clear statement...this req. has been recognized in this area...court will not imply B. State may waive their immunity here too...Pond filling and Bass cases, ct uses statutory interp. tools to protect federalism values b) 13th amendment (slavery) i) Jones v. Alfred H. Mayer Co. (1968) A. Ban on private race discrimination in housing sales okay under 13th amendment c) Treaty Power i) MO v. Holland (1920) A. Ban on hunting migratory birds okay based on treaty obligations even though not okay under commerce power at the time

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ii) Does it matter whether the treaty just touches this subject? Does the timing of the treaty matter? For example, treaties touch human rights....how about the childrens human rights not to be shot in school zones? d) War Power i) Woods v. Cloyd W. Miller Co. (1948) A. Rent control necessary and proper to deal w/ remedying evils resulting from war G) Union-Protecting Limits on State Lawmaking Powers 1) DCC a) Cooley??? b) Facially Discriminatory Laws i) City of Phila v. NJ (1978) A. Less-restrictive alternatives: ban all waste dumping; set per state cap; B. Quarantine laws inapplicable: danger in transit is a key C. In-state surrogate for political representation of out-of-state interests: 1. In Phil v. NJ, the PA people wanting to ship waste are affected, is there any local surrogate representative? The NJ landfill operators, who very much have a voice in NJ politics, want more demand for landfill space to make more money. If that is true, why should the law be struck down? Just b/c there are local surr reps, this doesnt remove the burden on interstate comm.. Keep an eye on this...in almost every case there will be people in state affected by the reg. 2. The law may still be too burdensome on interstate commerce, particularly if facially discriminatory. 3. The qual and character of in state surr representatives may matter to the court...some are better than others ii) GM v. Tracy A. Apples and Oranges: We have a state rule that deals w/ two types of sellers of natural gas, local sellers (public utilities) and big distributors (who sell across state lines). State gives tax breaks to purchase and sales from public utilities, but no break if GM buys across state line from TN. Court says that this looks like discr., b/c...but the court says no, for there to be discr. everyone must be similarly situated...difference between services offered by distributors and wholesale sellers. iii) Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997) A. Town tries to rely on 3 techniques to get around DCC principle: 1. Effort to create an exemption (for public charities) 2. GM case argument that you are comparing apples and oranges (non-profits are different) a. Rejected for good reason: Majority rejects the nonprofit argument b/c there are a ton of nonprofits involved in interstate commerce. 3. ME baitfish argument that even if the law is discr., there is a significant state interest iv) Export Restrictions (Hoarding) A. Pa v. WV (1923) (natural gas) 1. Ct strikes down law saying that people taking natural gas cant transport it out of the state until local needs are met

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B. Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997) (services) v) Import Restrictions A. Bacchus Imports, Ltd. v. Dias (1984) (HI, local liquor - tax, though) vi) In-State Processing Requirements A. Dean Milk Co. v. City of Madison (1951) (milk processing w/in 5 miles) 1. Surrogate representation: people in IL want to take their milk that was processed in IL and sell it in Madison, but they cant. Do the IL people have any sort of surrogate representation in Madison? There are buyers of milk in WI...every family in Madison almost...are they adversely affected by this law? Yes, having a lot fewer suppliers will increase the price. The tens of thousands of voters affected may be surrogate representatives, but why would you be troubled by the argument that these voters would be good surrogate representatives? a. They may be allies of the local processing plants...might work there...at least might be protective of their neighbors. Lets assume thats not true. b. There are surrogate representatives and then there are surrogate representatives. These buyers vote...when they vote are they likely to take into account this business about milk? Probably not...why is it predictable that they wont band together and worry about what is happening to their own pocketbooks? Maybe the citizens wont notice the change in prices...even if some people notice and tell others, there will be transaction costs for the people who notice the change the go around town telling other milk buyers that the milk is slightly more expensive...an economist would say that this is a very disorganized random group of milk buyers and it is therefore hard to band together to take political action...on the other hand, the processing plants are a concentrated group w/ a lot at stake who are in a good position to take political action. c. FN 1 says that it is immaterial that WI milk from outside the Madison area is subjected to the same proscription as that moving in interstate comm. Is it? Argue that the ct is wrong: Why does it matter that farmer coenen elsewhere in WI cant bring his milk into Madison? Coenen could be a surrogate representative on state level, but he doesnt vote in Madison...Farmer coenen could try to get the state to overturn Madison law, but that isnt too likely (might be too hard to organize, again. and things might be going fine for coenen). Coenens area might put in their own local protections. 2. Ct says there are less restrictive, reasonable alternatives to this scheme B. So. Central Timber Dev. v. Wunnicke (1984) ( C. C&A Carbone v. Town of Clarkstown (1994) 1. In this case we have a town ordinance that if you have waste in town, you have to take it to one particular local plant...majority strikes it down 2. The court says that the law is not const., b/c there is a reasonably adequate alternative: could adopt safety regulations for the handling of waste wherever it goes (this will at least work locally). Town says that this isnt the purpose...the purpose is to keep a financially viable waste treatment plant in town and need to guarantee revenue. Ct rejects this, ct says that the city can

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subsidize the plant...ct is permitting the city to favor an in-city, and thus instate entity...the problem according to the court is that the city adopted a rigid rule that is more problematic...w/ subsidy there is still a choice for where people take waste, less restrictive. 3. Again local surrogate reps arent sufficient 4. Majority says this is more restrictive than Dean Milk, b/c out-of-staters cant even relocate to comply w/ the restriction, since the law favors one particular plant 5. Hypo: How is Carbone fundamentally diff than Market Participant exception? Even if it were a state facility, the nature of what the state is doing is fundamentally diff than the SD cement case (can, but dont need to, buy from us, no one is being forced to do anything, no one being regulated in SD case)...In contrast, in a case like the publicly owned waste recg station hypo, state is making two rules: state plant will only deal w/ state residents and YOU MUST deal w/ us (this is regulation). D. Pike v. Bruce Church (1970) ( E. Foster-Fountain Packing Co. v. Haydel (1928) (shrimp hulling) 1. c) Facially Neutral, but Discriminatory in Effect i) Baldwin v. G.A.F. Seelig, Inc. (1935) (Particularly important, seminal) A. We have a law that establishes a minimum price rule for sales w/in NY. Dealer has to pay at least X to a producer whether the producer is in NY or out of state, say VT. VT producer cant take less. B. The court strikes this down...Cardozo says its like a tariff (though we could point out differences). This law prevents price competition...out-of-state seller might be willing to sell less than X, b/c he may be producing more. This is the heart of Cardozos opinion...out of state person may be more efficient and this law takes away the advantage that the other seller has earned. ii) Henneford v. Silas Mason Co. (1937) (compensatory tax) A. iii) H.P. Hood & Sons v. DuMond (1949) (denial of milk receiving station) A. Recheck notes, p.58 B. iv) Milk Control Bd. v. Eisenberg Farm Products Co. (1939) A. ? d) Facially Neutral, but Discriminatory in Purpose i) Hunt v. WA State Apple Adver. Commn (1977) (apple labeling) A. ii) Cities Service Gas Co. v. Peerless Oil & Gas Co. (1950) A. The ct emphasizes that OK had a concern in the dissipation of its chief natural resources, whereas in Hood, the state was trying to keep in the milk produced. B. In Hood, the milk is headed one way and the law redirects it. In City Service, however, the state is enacting a minimum price law. Why would you charge a minimum price? Why dont you want to charge low rates? The state is just trying to keep the gas in the ground; not trying to divert it from out of state to in state uses.

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iii) Buck v. Kuykendall (1925) ( A. e) Facially Discriminatory Exceptions/Non-exceptions i) DCC applies to local govts A. Fort Gratiot Sanitary Landfill, Inc. v. MI Dept of Natl Resources (1992) 1. Mandating sending local waste to local landfill not okay...alternative: govt could subsidize to keep it in business, but cant discriminate against waste processors ii) Facially discriminatory, but no other way for state to accomplish reasonable goal A. ME v. Taylor (1986) (ME baitfish case) 1. Law banning importation of minnows facially discriminatory, but allowable b/c there was no other way for ME to protect its local baitfish population from parasites f) Facially Neutral Pike Balancing i) Pike ii) Transportation cases: A. SC State highway Dept v. Barnwell (1938) 1. Truck length, SC, limits okay, despite affecting 90% of highway traffic in state B. So. Pacific v. AZ (1945) 1. Train length, slack action, extraterritorial effects, invalid, safety gained is a wash b/c more trains required or longer rerouting required C. Bibb v. Navajo Freight Lines, Inc. (1959) 1. Requiring contour mud flaps in IL is invalid when almost all other states authorize straight mud flaps and some require straight D. Kassel v. Consolidated Freightways Corp. (1981) 1. Truck length limits not okay in IA, surrounding states, exceptions for border cities iii) Other balancing cases: A. Edgar v. MITE Corp. (1982) 1. State cant restrict corporate takeovers...see below B. Hunt? (apples) 1. Apple labeling ban discriminates more than it helps any legitimate state goals C. MN v. Clover Leaf Creamery Co. (1981) 1. This is a simple law: cant sell milk in plastic non-returnable containers. Upheld. 2. Good vehicle for working through Pike balancing type analysis (notes p. 59-60) g) Extraterritoriality (vice of extraterritorial regulation) i) States may not structure the terms of private trade in other jxns: A. Brown-Forman Distillers Corp. v. NY (1986) 1. Liquor cos. had to certify at the beginning of the mo. that NY price didnt exceed lowest charged anywhere in the nation for the mo....law invalid b/c it improperly projected state authority into other states...co. cant give lower prices in other states once NY price is certified w/o getting NY regulatory approval B. Healy v. The Beer Institute, Inc. (1989)

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1. CT law that beer distributors couldnt charge higher prices than lowest charging any adjoining state at that moment...invalid b/c it had extraterritorial practical effects...creates price gridlock through similar laws elsewhere, volume discount issue, mo. long price issue C. So. Pac. RR v. AZ again ii) But state laws do not offend dormancy doctrine just b/c they have extraterritorial effects 1. Dean Milk: ct suggests requiring out of state producers to meet stds and inspecting to ensure compliance iii) State lacks authority to justify the imposition of burdens on interstate transactions by relying on supposed regulatory benefits that accrue primarily to persons w/ whom the state lacks any meaningful connection A. Edgar v. MITE Corp. (1982) 1. State cant restrict corporate takeovers of foreign corps. w/ no IL resident shareholders (law applied if 10% of co. stock owned by residents or corp. target had principal office or specified amt of financial assets in the state) B. CTS Corp. v. Dynamics Corp. of Am. (1987) 1. IN can regulate takeovers of domestic corps. h) OR Waste Sys., Inc. v. Dept of Envtl. Quality (1994) i) Excluding non-locally-generated hazardous waste is unjustifiable, when it causes same problems as locally-generated hazardous waste i) Exxon Corp. v. Governor of MD (1978) i) Barring ownership of gas stations by producers and refiners not invalid just b/c it primarily affected out of state cos. Valid state interest in prohibiting vertical integration of station ownership ii) Contrast this law w/ the one struck down in Hunt (WA Apple case)...that case had less of an onerous effect, but less of a state interest too. 2) DCC Exceptions a) Quarantine Exception (narrowed) i) Bowman v. Chicago & NW Ry. Co. (1888) A. May prohibit importation of diseased cattle B. Same w/ diseased rags...( what case???) ii) Phila v. NJ (1978) A. Quarantine laws are permissible only when the very movement of the excluded goods risked contagion and other evils B. Problems associated w/ the waste in this case occurred after shipment (leaching, etc.) and were no diff. for local or out of state cos. iii) Chemical Waste Mgmnt v. Hunt (1992) A. Narrowed further: struck down AL measure that imposed a special charge on the importation of hazardous waste produced in other states...didnt consider transit issue, but found that AL permitted in state generation and landfilling of same material b) Congressional Consent Exception (Congressional exemption from implied DCC limitations/scrutiny must be unmistakably clear ME baitfish) i) Prudential Ins. Co. v. Benjamin (1946)

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A. McCarran-Ferguson Act exempted state taxation of insurance industry even if outright discriminatory ii) EP Exception to Congressional Consent Exception A. Metropolitan Life 1. Here is a law that discriminates in favor of in state insurers, but congress has consented under the same McCarran Act...but the ct says no, b/c the law violates the EP cl. also and congress cant consent to a violation of the EP. 2. Why does it violate EP? To pass muster under the EP, there has to be a legitimate state purpose for the law and the law must be rational way to advance that purpose...here the ct finds the purpose no good and doesnt get to whether it rationally advances the purpose...on the face violation to penalize foreign insurers to promote local businesses. 3. Northeast Bankcorp case, fn 29, p. 296...the met life principle is limited. c) Subsidy Exception i) West Lynn Creamery v. Healy (1994) A. Non-discriminatory tax coupled w/ state subsidies B. Majority would not view each permissible part in isolation: saw this as a de facto refund/rebate for farmers C. Scalia in concurrence pointed out that the tax didnt go into the general treasury d) Market Participant Exception i) Hughes v. Alexandria Scrap (1976) A. MD required more costly/onerous documentation by out of state scrap firms to get state payouts for removing junk cars from the side of the road...valid b/c it was the state directly paying out the money (no regulation going on of private behavior) ii) Reeves, Inc. v. Stake (1980) A. SD, in time of shortage, could restrict sales from state-owned cement plant to SD residents B. Should be able to reap where it has sown and benefit from its own monetary investment C. Encourage SD to build this plant which is helpful to residents iii) White v. MA Council of Construction Employers, Inc. (1983) A. Upheld Boston law requiring blding contractors engaged by the city to give a specified minimum percentage of jobs to city residents B. State/city can favor locals in hiring C. State/city can favor locals in hiring via contractors, b/c they are essentially working for the state iv) Limits on MPE A. Natural Resources 1. Ct in Reeves distinguished between cement (product of elab. mfg process) and natural resources located in the state by happenstance and scarcity 2. One diff between natural resources and mfg things is the ability to protect state interests by building own cement plant, but state is at the mercy of other states if no natural resource is in that state a. Accord So.-Central Timber plurality b. Doesnt apply to resource of land...every state has it c. What about resources that require elab. extraction?

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B. Foreign Commerce 1. So.-Central Timber plurality discussed fact that the law requiring in state processing of timber bought from state affected foreign buyers, particularly Japan, when this is the realm of Congress alone C. Downstream Restraints 1. So.-Central Timber plurality keyed on downstream regulatory effect of the requirement: regulated interactions between log buyers and processors, both private entities. Must relatively narrowly define the market the state is participating in. (see state univ. hypo, coenen pp. 312-313) D. Channels of Commerce 1. State owns roads, but one does sense that roads are special. Maybe there is a Roads exception, or infrastructure exception...they are the pathways through which a large portion of comm. is conducted (like a nat resource) v) Some exceptions that were tried but failed: charitable org exception, wild animal exception worked for a while, but failed later. 3) The Dormancy Doctrine and State Tax Laws a) Complete Auto Transit i) 4-part test 4) Other Implied limits on state activity a) McCulloch 5) Privileges & Immunities Cl. - (Priv. AND Immun. cl....there is also the Priv. OR Immun. cl. in the 14th amend (well talk about this later...dont get them confused).) a) Analysis: i) First question, does cl. apply at all? A. Doesnt apply to corporations B. Pike Balancing, ct will strike down laws that dont discriminate on their face at all...could laws like that be challenged under P and I even though superficially they are nondiscriminatory? Probably not...Coenen, p. 340n.18...Hillside Dairy...laws that discr. facially can be challenged under P&I...how much further. C. Blackmuns Camden dissent said discr. based on locality was okay D. Mkt participant exception doesnt apply directly (main holding of Camden, but in apply other two steps of our analysis, the ct will take this into account and poss. even see it as crucial) ii) Fundamental right? A. Fundamental state cant discriminate B. Non-fundamental state can discriminate as a sovereign entity that is trustor and protector of its own people C. Camden, p. 319, paragraph 2...very important: Ct suggests that in applying the fundamental right/interest inquiry there is a big difference between true public employment (fire fighters, waste management) where govt is in K/ual privity, and private employment. iii) Balancing A. Substantial state interest? Reason for the discr? Is there a particular evil that the law is directed at (see courts language in Camden) B. Does the discr. bear close relation to this interest? b) Camden

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i) Deals w/ group of individuals who say they are not being treated equally and so they make an argument under P&I cl. This case follows almost immediately after the White case where an almost identical municipal ord. was upheld against DCC challenge...points out the importance of issue spotting to win the day. ii) Which question gets more attention in Camden? The first...does a law that discr. based on munic. rather than state resid. have the P&I cl. apply? iii) Blackmun, dissenting: A. Textual argument: 1. Cl. applies to discrimination between states (...in the sev. states), but here there is discr. w/in the state...most state residents dont have these priv. and immun., so the cl. cuts against application to this law a. Rehnquist responds w/ common sensical view that the law ipso facto (by definition) also discr. against out of state resident...out of state not treated the same as Camden residents B. Historical argument: 1. P&I cl. came from a specific art. of confed. and the idea was to promote interstate comity...no evid. that the framers were concerned about discrimination against in-state residents. Simply no hist. evid. that the framers had this sort of law in mind, since there were none around back then, so there was no reason for ct to go after the law. Merely pointing out that these laws didnt exist doesnt really say whether framers liked or didnt like them. C. Structural argument: 1. State political process will protect out-of-state interests. Why does he say that ct doesnt need to protect out-of-staters who want to work in Camden? B/c other NJ residents will take care of this in the political process. a. Rehnquist responds by saying, 1) that since this is part of a statewide program, other areas of the state can enact their own similar restrictions and basically that the other in-staters wont be good surrogate representatives. iv) Does it matter that the state is spending its own money, as opposed to when the state is applying regs to private parties? There is no exception that removes the case entirely from priv. immun. cl., but the ct does point out that this will be taken into account as one factor in the strict scrutiny analysis...ct says this may be the crucial consideration...quite interesting: when we say does the cl. apply at all?, we say the MP exception doesnt apply at all, but when we do the balancing later, we say it may be the crucial factor c) ???NH lawyer case i) To be a member of the state bar, must be a resident of the state. Does P&I cl. apply? Yes...clearly discr. ii) Does this discrimination implicate a fundamental right? Yes, b/c this isnt the govt discr. as to who its own sanitation workers are, this is a discr. as to someone who isnt being hired by the govt at all...private actors who want to set up own business...we have a disadvantaging w/ respect to the fund right of people to ply their trade in calling of choice. iii) But there might be an acceptable justification for why the state can do this...majority thinks the state rationales for doing this are flimsy...Rehn. dissents protecting state

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autonomy again, saying state has interest in developing in-state lawyers to have pool of legislators. A. How would you attack this state interest (majority rejects this)? You dont have to be an atty to be a good state rep. How else would you attack this line of reasoning? You are not prohibiting in state residents from becoming lawyers...premise that there will be a lessened group of lawyers is tenuous/weak/speculative. B. Also keep in mind that w/ all these state interests youre going to want to investigate whether there is a less restrictive alternative. 1. NH says that nonresident lawyers wont know local rules and procedures...a less restrictive way to address this is to have a local rules test for bar admission. iv) Must work through this framework...making highly particularized determinations about what the state interest is and what less restrictive alternatives exist that will work at least nearly as well. Similar to going through DCC analysis. 6) Preemption (Supremacy Cl.) (notes pp. 70-72; Coenen 358-370) a) PG&E v. State Energy Resources Conservation and Dev. Commn b) Cipollone c) Silkwood 7) Intergovernmental Tax Immunities a) Also have to do w/ restriction of abilities of states to tax certain things. Seminal case: McCulloch. To the extent this doctrine limits what states can do, it has increasingly been viewed narrowly. States cannot tax the fed govt and states cannot discr against entities connected up w/ the U.S. Also some limited limitations on fed govt to tax states 8) Intergovernmental Regulatory Immunities a) National Cities...reincarnated in part by U.S. v. NY and Printz. Limits fed govt ability to restrict state officers. b) Johnson v. Maryland...ct relies on McCulloch to say there are limits on ability of states to regulate entities connected up w/ fed govt similar to the limit on states to tax these entities. c) This is a highly underdeveloped area of law (case were given is from 1920), but it may be an area that can invalidate state law. 9) Interstate Relations a) Extradition cl.. Full faith and credit cl. requires states to honor judgments and actions of other states w/ some poss of congressional override...now coming up w/ recognition of gay marriage from other states. This is discussed in Conflicts of Laws class. b) Also includes P&I cl. as weve seen...if I travel to WI, I have to be treated like a person who lives there...framers trying to unify the people of the several states. Coenen, from GA, must be given police protection if he goes to TN, but we see that this is a tough thing, b/c states need to sometimes be particularly responsive to their own citizens (this is what it means to be a state), so there are some limits to this notion that nonres must be treated like residents (see e.g. Baldwin, Elk Hunting Case). III) Horizontal Separation of Powers A) Executive Encroachment on Legislative Power 1) Steel Seizure Case (Youngstown) a) Black

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i) Pres is legislating; Actions neither supported by statutory grant nor by constitutional grant of WP, Exec. Power, or duty to faithfully execute the laws b) Douglas i) This is a takings; Congress must do takings compensation, b/c they control the purse c) Frankfurter i) He implies that enough instances would add up to a pattern of past behavior that might justify what the pres. has done, but here there have only been a few isolated instances that didnt add up enough to constitute a past course of performance d) Jackson i) Jackson divides the world into three pieces: A. Instances where cong. has expressly or implicitly auth. what the pres has done B. Cases where Congress has not spoken C. Cases where cong. has expressly or implicitly refused to allow what the pres. has done ii) According to Jackson this case falls into the third category. Why? He says that congress has given three policies that are inconsistent w/ this pres. action e) Vinson i) Thinks congress has approved by allowing past instances and by passing laws supporting the Korean War 2) Clinton v. NY (p. 396) a) Line-item Veto Act b) This is fundamentally diff. than the steel seizure case, b/c were clearly in the first rather than the third category: congress has approved this explicitly. But a majority of the ct strikes it down. c) The majority says that the constitution doesnt give the president the power to amend or repeal laws. They characterize the striking out/canceling out of parts of the law as legislating by repealing or amending. The majority characterizes what the pres. does as legislating, which is what congress does. i) Dissenters say he is executing the law. How can they say this when the pres. is striking out part of a legisl. act? B/c the congress gave the pres. this power in another act....just like congress gives the pres. power to tear up a trade treaty or to spend a lump sum of money as he sees fit in other cases. A. Stevens distinguishes these, b/c this discretion was given in the actual law that could be changed...here the power is given as an umbrella power. Why does that matter? Its not clear why it is, but it seems to be the operative principle that the majority sees as critically important. 3) Executive Agreements/Foreign Affairs: a) U.S. v. Belmont i) Can pres enter into executive agreements w/o congressional treaty auth.? ii) In conjunction w/ recognizing USSR (specific power given to the pres in Art. II, sec. 3), FDR enters agreement w/ USSR allowing U.S. to take over claims of USSR against Americans having funds in Russian cos. iii) Can pres. tie any agreement to recognition? The ct in Belmont doesnt have to go this far, but they do say that side agreement w/ settlement of claims is okay here. b) Dames & Moore v. Regan

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i) We have an exec. agreement not connected up w/ a recognition of any kind. Two parts to this agreement: A. First, the agreement cancels attachments of Iranian property in the U.S. B. Second, the agreement extinguishes the claims ii) The court readily concludes that there is not problem w/ the pres. removing the attachments of Iranian property. Why? B/c congress spoke specifically in the Intl Emerg. Econom. Powers Act that the pres. may nullify transactions w/ foreign govts in times of emerg. iii) The court mainly talks about the portion of the agreement that wipes out the lawsuits. A. What is the best support for the courts conclusion that there is implicit auth of this power? Court says it has been historically a longstanding practice of settling such claims by exec. agreement w/o the advice and consent of the senate. B. The court talks about statutes...moving from general intl power and practice to the specific...what particulars in the enactment of past statutes like the IEEPA or the Intl Claims Settlement Act lead the court to conclude there is implicit authorization? Congress has amended the Acts many times, but it has done nothing to take away the pres.s power to settle claims. C. Fn 1, there was legisl introduced to limit the power, but this was rejected. Not only was there a failure to act, but there was a time congress didnt pass this type of law. Imp. question: To what extent should it legally count that Congress has not acted? The const. gives the congress the power to legisl and gives a process of passing both houses and going to the pres, but here we have congress not acting and the court gives that some significance. D. p.357, top, in finding implicit authorization, its particularly true as respects cases such as the one before us, involving responses to intl crises the nature of which Congress can hardly have been expected to anticipate in any detail. Why does this emergency situation matter w/ respect to applying Jacksons three-part characterization formula? B/c if congress didnt have a chance to pass on this type of situation earlier, this is less of an implicit restraint on this power...implies silence on the situation E. Courts analysis is a combination of Jackson and Frankfurters steel seizure approaches c) WPA i) Various provisions of the war powers act: A. Pres has to bring troops back w/in 60 days if congress doesnt act in support. B. See pp.360-361 ii) Where does this power to pass this resolution come from for congress? Power to declare war. But this limits pres. power...perhaps the war power in combination w/ necess. and proper cl. d) Curtiss-Wright i) Cong. passes resolution that permits pres. to prohibit the sale of arms to countries fighting in South Am. FDR enacts an embargo. C-W is indicted for violating. ii) Why does CW challenge? There is the non-delegation doctrine that limits the ability of congress to give other people its legisl power. The doctrine has been almost meaningless since 1936.

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iii) Why does the court in this case reject the argument that we have an unconst., overly broad delegation of auth? B/c In this vast external realm...the pres. alone has the power to speak. Pres. has exclusive power as the sole organ in the field of intl relations. A. But, be careful about everything you read in SC decisions...the const. gives congr. many powers in the field of intl relations...treaty ratification, war powers, spending power, foreign comm. power...other necess. and proper... B. The case has a very broad dictate, but take it w/ a grain of salt. 4) Habeas Corpus Suspension 5) Detention of people during times of war a) Ex Parte Milligan i) Writ of HC has been suspended (during civ. war) ii) Nevertheless the ct throws out the military tribunals conviction and death sentence. A. Milligan was taken prisoner in a friendly state, hes a citizen 1. What if Milligan had been grabbed in Ga? Court says that it might be different, b/c GA was a rebellious state. B. What if Milligan were grabbed in IN, but it was proven that he was in the confed. army? Does the proof have to be offered in an Art. III court or can the proof come in a military tribunal w/o the same protections? 1. Court talks about the IN courts still being fully functional, so maybe he should be tried in a civilian court even though hes an enemy combatant. 2. Argue against: Like the D, Haupt, in Ex Parte Quirin, citizen who is enemy combatant may be tried... C. The court does emphasize that this detention occurs in a state that isnt under martial law...not a place in which the war is being fought, a place where the courts are open. 1. Note the courts emphasis in Milligan of an idea that also surfaces in the Steel Seizure case: that fed authorities arent permitted to define the theater of war any way they want, b/c otherwise opportunities for abuse are great. b) Ex Parte Quirin i) Saboteurs come into U.S. having been trained in Germany to sabotage. Haupt is a US citizen. Conviction by military court is upheld. ii) What if the Ds had landed on the coast, kept on their uniforms, marched into a base and started shooting at U.S. soldiers? The court makes a difference between lawful and unlawful combatants. A. In this hypo, the Ds are lawful combatants (in uniform, attacking military installations). Argument that the US is now a theater of war is stronger when they are acting like military people in military uniforms. Weve at least spotted an issue here...court in Quirin and other cases distinguishes between lawful and unlawful combatants...unlawful can be treated differently than POWs who can just be detained for the duration of the hostilities. iii) Congress had authorized military tribunals to try offenses against the laws of war (in declaration of war)...including sabotage. May or may not be important depending on whether the pres. had this power under the const. Could use Jackson tripartite analysis if not. c) Johnson v. Eisentrager

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i) Permitting the trial and conviction by military trib. of person seized and held abroad during WWII d) Rasul v. Bush i) Does the ct overrule Johnson v. Eisenstrager? Can make a distinction that the prisoners in Rasul were in territory under jxn of US (though US doesnt have sov. control). ii) What if Rasul, who was seized in Afghanistan, was taken to a US military installation in Afghanistan? He wants to challenge his detention in court, saying you have the wrong guy. Same result? This might be more like Eisenstrager, and he could be tried. iii) What if govt transfers Rasul to Gitmo, but after this ruckus they transfer him back to Afghanistan? Can he challenge in court during his second stay in Afghanistan? If he makes his petition while in gitmo, yes. What if he was transferred two days before making the petition? The court seems to point to the fact that he was in US terr. at some point, so he could challenge still. Could also argue that since he is not a US citizen and is in foreign jxn, he can be tried by military under Eisen. iv) The SC only ruled that Rasul had a right to seek habeas, but what does he have to do to get habeas? Must show that the detention is illegal. A. Who decides? Whats the std of proof? Whatever the std, here the dist. ct. says they were persuaded he was an enemy combatant and could be detained. B. How long can he be detained, though? He may be held for the duration of hostilities. But how long is that? Lets say ten years from now, Rasul seeks habeas again...can he get out? This is a huge issue with this conflict. 1. OConnor seems to limit it to the duration of the hostilities in Afghanistan, not the war on terror in general. Still, hostilities in Afghanistan may go on forever too. 2. Also, others could characterize the conflict as the global war on terror. e) Hamdi v. Rumsfeld i) How is Hamdi on p. 373 diff. from Rasul? Hamdi is an American citizen. The am. citizen in Hamdi is being held in the U.S., rather than at gitmo or some foreign country. ii) A majority of the justices read the AUMF act as saying that this military detention of citizen enemy combatants is authorized. iii) What relief does Hamdi seek here? He wants to be able to challenge his classification as an enemy combatant. The military says, of course, we get to decide that and we have decided that, and he is an EC. Why does Hamdi get relief? iv) According to OConnor and the plurality, what happens now? Hamdi is given Due Process. What does that mean? He must receive notice of the factual basis for his classification, and a fair opp to rebut the govts factual assertions before a neutral decision maker. (plurality allows some relaxed process though). v) Scalia and Stevens would let him off all together. B) Congressional Encroachment on the Executive Power 1) Non-delegation a) From the beginning the court has said that this is all congress can do...it cant delegate legislative authority.

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b) How do you distinguish between delegating away own legisl. auth and letting someone else execute the auth youve granted. Court says that congress must give some guidelines on exercising of the auth. i) In the modern day these guidelines are very vague...FCC must pass laws in the public interest and necessity...very vague. c) There is the possibility of judicial review (courts making sure that agencies follow certain rules established by certain congressional acts and some established by courts to keep agencies from becoming too powerful), but agencies have practically limitless power otherwise. 2) INS v. Chadha a) Congress tries to create a check to keep agencies from being out there on their own. i) One check is the legislative veto: congress gives a whole lot of power, but the power can be knocked out by congress in a reserved power to veto the agency. b) This comes to a head in the discrete decision by the AG to suspend the deportation of an illegal alien. The AG suspends the deportation pursuant to a grant of power by the congress. This is a grant w/ standards (hardship, good moral character, etc.) that the AG must apply. Even though the AG grants this suspension, the House of Reps. vetoes this, so Chadha has to go. c) For Burger (majority) the critical fact is that the decision isnt made jointly w/ the senate, just the house and its not presented to the president: there is neither bicameralism nor presentment, which are both required by the constitution to pass a law. i) White in dissent thinks the bicameral and presentment reqs were satisfied by passage of the initial law, so the const. is silent about this. d) White argues that what we should be worried about is whether there is an aggrandizement of one branchs power or an invasion by one branch into the area of another. Why does white not see a power grab here? i) Whats really happening here is that congress has actually given a ton of power away...congress is enormously increasing the power of the executive branch in the agency scheme, but then it is just putting in this one small check to take back a little of what it has given away...this is not a power grab according to white. e) Also White says, look at this functionally, not formally, and youll see that a departure from the status quo only occurs w/ the consent of the house, the senate and the pres. f) There is a lot to be said about this case. For example, youll recall that in the WPA, one of the provisions is that the pres has to bring home the troops is both houses of cong. pass a resolution that says the pres. has to bring home the troops. Is that const. after Chadha? Argue no: Although bicameralism is satisfied, presentment isnt, b/c the president doesnt have an opportunity to veto. i) Argue against yourself (argue that this is a diff. kettle of fish than we had in Chadha): How would J.Jackson analyze whether this two-house veto is constitutional? Is the war powers just diff than the context of rulemaking? Does it shift us from a formal look at the power of rulemaking to the nebulous area of zones of authority? 3) Bowsher v. Synar a) Court slam dunks congress again. Congress came up w/ an inventive way to deal w/ big problem of balanced budget. b) Burger (majority): why does he find the act unconst.? B/c the congress retains the power to remove the comptroller (w/o impeachment), they cant invest him w/ the power to

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execute the laws. Notice the loaded words: execute, power to remove...these things cant go together i) In fact the comptroller can be removed w/o impeachment (for neglect of duty, etc.) ii) In fact the comptroller is administrating the law...deciding how much of the budget in various departments needs to be cut. c) J.Stevens writes an opinion concurring in the J. He doesnt focus so much on this business of congressional removal auth. and he certainly doesnt seem to agree that the comptroller is exercising executive power. He thinks tremendous legislative power is being given to the comptroller and congress cant delegate its legislative power to a congressional assistant (could see chadha the same...legisl power delegated to congressional assistant in the form of one-house). d) White dissents again w/ similar arguments: White says that it is a delegation of exec. power, but he says it isnt a big deal in the real world. In theory if the person delegated to was subservient to congress it might be a problem, but he doesnt see that this is the case here. In theory the guy may be removable by congress, but in reality its harder to do so by the statutory system than it would be by impeachment and that seems to be the test. e) Bowsher concerned who got to control the removal of an official said to be involved in executing the law. Court said congress cant retain for itself this power. Strong dissent from White that we should consider the practical difficulty involved in removal...pres. had to approve such an act. C) Appointment/Removal Powers: 1) Buckley v. Valeo a) Whats the issue? Whether congress can delegate to leaders of congress the responsibility to appoint members to this commission. According to the challenge in this case, what cl. of the const. is violated? The appointments clause saying that pres. has power to appoint superior officers. Congress may delegate duty to pres, court, dept. heads when appointing inferior officers. b) Court doesnt reach issue of whether the officers at issue are inferior or not, b/c Congress cant appoint either inferior or non-inferior officers. Pres. must appoint non-inferior officers. Pres., dept. heads, courts of law may appoint inferior if congress so designates. Even if these indivs. on the commission are inferior, congress cant appoint them. i) There may be a set of legisl. officials which may be appointed by the legisl...not called officers at all. ii) What if congress makes the power of the FEC only to recommend fed election legisl.? Then it would be okay for congress to appoint the members, b/c this would be a purely legisl. function and congress can appoint its own legisl advisors, so to speak. c) Notice the attempt to escape the appointment cl. on policy grounds: cant give the pres. this power, b/c the purpose is for the FEC to monitor the pres. The ct. says this is a rational argument...like in chadha, it might be a good innovation, good idea...but there are certain limits in the text which require more than this. 2) Removal power: The removal power of the pres, unlike appt power is only implied from the const...nothing explicit in the const., but this power in general has been recognized for a long time. Where does this power come from? Pres. has all the exec. power. Why does that matter? Why does it follow from this grant that the pres. has some measure of power to remove people in the exec. branch? There is some suggestion that the removal power is implied by the appt power, but thats tricky, b/c the appt power isnt unlimited (must have

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senate approval, and inferior officer appt can be delegated to other people). Also, deciding who is executing laws is part of executing laws. 3) Myers a) Ct says that congress cant require the senate to consent to removal of certain postmasters...cant limit pres. removal power in this case 4) Humphreys Executor a) Restriction that pres. may only remove FTC officers for good cause. b) Why a diff. result? i) The ct says that in Myers the officer served a purely exec. function, but in Humphreys, the ct says that the officers have quasi-legisl and quasi-judicial functions...makes rules to some extent and adjudicates disputes about whether certain firms have violated those rules (like anti-merger laws). c) Congress can create independent agencies that are tech w/in the exec. branch, but that exercise quasi-legisl. and quasi-jud powers and cant be removed at will by the pres. The so-called fourth branch, technically w/in the exec. branch, but limiting pres. removal power. d) The court doesnt question Myers in Humph, but reaffirms the power of pres. to remove completely purely exec. officers w/o restriction. 5) Morrison v. Olson a) Appointment: i) Ct. upholds independent counsel law even though the IC isnt appointed by the pres. ii) How can the court get around Buckley v. Valeo? A. Court says that the nature of the ICs job, though exec. in nature, isnt essential to the duties of the exec. So what, what is the signif. of that to the appointment cl.? B. Who appoints the IC? The Special Division of the US CT of Appeals (3 circuit judges), appoints the IC. Why does that matter for purposes of the appointments cl? B/c the cl. says that congress may delegate appointment of inferior officers to the courts of law. iii) So, here the ct has to decide, unlike in Buckley, whether we have inferior officer involved. A. Ct says that the IC is inferior, b/c the IC can be removed by the AG for good cause and the AG has a role in initiating the creation of the IC position. Why else does the ct conclude that we have inferior rather than superior officer? 1. IC is only in office for a temporary amt of time. 2. There is a multi-factive analysis here...no simple formula. 3. Also the court emphasizes that the job given to the IC is very discrete/focused, not jxn wandering all over the map. 4. Cabinet officers are non-inferior officers, but other officers may be non-inferior officers (none of the material holds that only cabinet officers are non-inferior). 5. What if congress passed a law saying there will only be one cabinet officer....does that make everyone else inferior? No B. Scalia in dissent (my notes p. 94-95) b) Removal: i) The role of the IC is executive in nature (role is not to inform and advise congress, but to investigate and prosecute crimes of exec. officials). Prosec. is purely exec.

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function. Pres.s power to remove the IC is restricted...pres. cant remove willynilly...pres. must establish good cause to support the removal (through the AG). A. So, is there an unrestricable power of the exec. to remove purely exec. officers as Myers/Humph seemed to hold? No, this case is not consistent w/ that proposition. B. So, how in Morrison does the court get around the decision in Myers? 1. The ct. asks whether the power to remove IC essential to pres. power. Very diff question. 2. Having abandoned the purely exec. test from Myers, the court has to examine this question about whether the imposition of this limitation on pres. removal impedes the pres.s ability to perform his const. duty. 6) Mistretta a) Facts? b) No problem under nondelegation doctrine c) Majority isnt troubled by cross branch appt of inferior officers. d) Ct engages in a functional analysis, says this isnt that big of a deal, b/c courts have been involved in a sentencing context for a long time. D) Immunity: 1) Absolute Immunity: a) Absolute: D gets off automatically b) We see there are some absolute immunities in some contexts for some govt officials. c) Absolute immunity for prosecutors and judges acting w/in their official jxn. 2) Qualified Immunity: a) Qualified: (diff beast) exists so long as the offs actions do not violate clearly established statutory or const rights of which a reasonable person would have known. Qualified immunity is qualified...even if you can assert qual immunity, it may be harder to establish along the way. 3) Executive Immunity: a) Federal executive officials can be enjoined by the courts: see Marbury, Steel Seizure, US v. Nixon i) MS v. Johnson: ct refuses to enjoin the pres w/ regard to fed statutory commands w/ re to the fed Reconstruction Statutes. b) Does the pres have immunity sometimes from money damages? Yes, See Nixon v. Fitzgerald. c) How about non-president executive officers, can they be sued for money damages remedy? Yes...Harlow v. Fitzgerald. d) Can the president be sued for money damages? you did something wrong to me Mr. pres., therefore Im suing you for money. Yes...see Clinton v. Jones. e) What are the reasons for recognizing an absolute immunity for official actions of the pres? i) Dont want him to be distracted A. The suit itself could distract him from his duties (but this wasnt dispositive in Clinton v. Jones). ii) Dont want him to be overly cautious in his official actions f) The court in Clinton says that the immunity extends to acts extending to the outer perimeter of his duties...quite broad. The absolute immunity is ironclad, but the scope is not self-defining (like other legal rules, it has some soft edges.)

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g) Now we know that key white house aides get qual immunity (Harlow)...a fortiori, lesser officials will only have qualified immunity 4) Harlow v. Fitzgerald a) What happened to Fitzgerald? Why does he bring suit? He was a whistleblower and he lost his position w/ the Dept. of the AF. He sued Nixon and other officials...including Harlow, who was a pres. aide...top liaison to congress. He claims it violated his 1st amend rights and sought money. b) What defense do defendants Nixon and Harlow assert when Fitz sues them for money? Immunity. Does the immunity defense go away if the defendants in fact violate the constitution? No, thats the point of the defense...even if weve violated the const, we still have this shield against a money damages action. 5) Nixon v. Fitzgerald a) One interesting thing in these cases is that the courts decisions are based on attempts to use common sense and make real-world type predictions. In Nixon v. Fitz, the court says that they are nervous that many people will sue the pres for official actions. 6) Clinton v. Jones a) Here the ct does not provide an immunity to the president...even this relatively small immunity of postponing the lawsuit until the pres. is not the pres. anymore. b) How is the case distinguishable from Fitzgerald (both are civil suits)? i) Clintons actions were before he took office...the subject of the lawsuit is his behavior before he took office. Why does this matter? Court says that the pres. might be distracted by the lawsuit (pres. Clinton certainly was distracted). The type of lawsuit by Paula Jones wont make the pres. timid w/ decisionmaking while pres., b/c by definition it affected something that happened before he was president. A. Is that a good distinction? Do you think the pres should have gotten an immunity in Paula Jones case? Do you think he should have gotten temporary immunity until he is out of office? c) Pres. shouldnt be above the law...didnt the court put the pres. above the law in Fitz when they gave pres and not others immunity at the outer edge of exec. duties. 7) U.S. v. Nixon a) According to the lawsuits, there are three separate questions floating around: i) Can the pres. be subject to judicial process at all? ii) Is the determination of the applicability of the pres. priv. a political question...is it one that by const. text or otherwise a determination to be made by the pres. himself rather than the ct.? iii) If not, does the pres. priv. fly here? Does pres. immunity foreclose the suit? b) As to the first question, weve seen that MS v. Johnson is not necess. dispositive...it dealt w/ an attempt to get an injunction w/ regards to a policy decision that pres. had made. Here it is not a decision dealing w/ an implementation of policy so much, more dealing w/ request for evidence. i) Notwithstanding MS v. Johnson, the ct says that the pres. can be ordered to give the tapes...relying on steel seizure case. How would you distinguish steel seizure? Steel seizure case was against the sec. of commerce, not the pres. ii) What is the biggest argument against the pres.s position that he isnt amenable to suit? There is a tension between the judiciary carrying out its function, and the pres.

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invoking const. protection. Why? Court can still try these guys and there is a right to have all the evidence at a criminal trial. c) Is it a political question? Should the pres. in this instance get to decide whether the exec. priv. applies, or should the court decide? Going as far back as marbury, the ct has seemed to realize that there are times when political questions are to be decided by the pres. instead of the court d) Third question involves application of pres. priv. The ct says there is some form of exec. priv. (this is an important hidden component of the case)...there is some right of the pres. not to give evidence where others would. Pres isnt above the law, but the ct tries to reach appropriate accommodations. i) The court clearly emphasizes that the US v. Nixon case doesnt involve military, foreign policy, etc. E) Impeachment 1) Walter Nixon a) Whats the holding of the Walter Nixon case? This particular claim is nonjusticiable ...big word that gets thrown around a lot...be careful w/ its use. b) The majority says that we have one of those political questions the court has been talking about. Court wont decide what try means here...leave that to the determination of the senate. i) Arguments from text...the court particularly likes the word sole. ii) Arguments from context that there are more precise words around these vague words. iii) Arguments from history: no evid. from hist. of framers that this is reviewable. iv) Arguments from structure/policy: notion of checks and balances. v) The court basically says that judicial review of the senates determination would be inconsistent w/ the framers insistence on a system of checks and balances. Majority says that impeachment is the only check the legis. has on the judicial branch. If the judiciary can review this check, then there is no check really w/ respect to impeachment of judges...fox guarding the henhouse problem again. c) J.White feels just opposite...he says that the system of checks and balances supports the view that there should at least be some review. Why? He says that judicial review would just ensure that the senate adhered to a minimal set of procedural stds, and w/o them the majority of the senates view could be exercised w/o check. i) White thinks the majoritys interpretation of sole is a bunch of poppycock. He thinks the importance of the word sole is to separate the parts of the impeachment power between the two houses...framers not concerned w/ interference w/ judicial branch. Text and context arguments again. 2) Hypo: Lets say the house impeaches and the senate convicts a president b/c the pres has vetoed several pieces of popular legisl. The pres. brings a suit challenging the impeachment. Whats the issue? What is the legal ground that he rests the suit on? Was there a trial? Yes. Was there conviction by 2/3 of the senate? Yes. Were the senators under oath? Yes. So what grounds are left? Whether this constitutes high crimes, and misdemeanors. a) The senate authorities are going to respond that the pres. cant make this argument, b/c the issue is nonjusticiable. b) Distinguish from Walter Nixon Case: i) No fox guarding the henhouse concern here

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A. Although the fox guarding the henhouse concern isnt present, wouldnt it be strange to have diff rules depending on what type of official is being impeached. ii) Even if it is nonjusticiable for the court to decide what is a high crime or misdemeanor (internal constraint of impeachment cl.), it may be okay for the court to review external const. constraint, b/c the pres. has the veto power, so this limits congresss power to penalize him regardless of what high crimes means. iii) Perhaps the majority would realize that this is just the type of situation the concurrence was warning about. c) The court is worried about review of impeachment verdicts of presidents tying up the government...the court in W.Nixon case talks about this fear w/ presidential impeachments. 3) Hypo 2: What if the senate passed a rule that half the senate could convict? Can that be challenged? This directly contradicts the explicit language of the impeachment cl. Its an internal constraint though, and didnt the w.nixon court say that the judiciary was chosen not to have any role in impeachments (p.43)? Maybe this is some of the broad language we would try to dismiss as dicta. 4) Treason, Bribery, and high crimes and misdemeanors...subjective stds of impeachment. a) Whatever the rule on justiciability of these cases, the legal issue is still there. The courts might not be able to decide it, but the house and senate have to decide it. Early in the class, we emphasized that const. law is not just the business of judges. b) Argument that it should only include criminal acts. i) Textual: high crimes ii) Contextual: Treason and Bribery are crimes iii) Policy: Bright-line is better; risk of retaliation against the president if we use a broad definition. c) Is shoplifting a high crime/misdemeanor? If you say no, note the interesting thing that is happening: now we have a principle that HC/D isnt limited to crimes and now weve also said that it doesnt include all crimes. Others would argue that any crime is impeachable. But is it a high misdemeanor? d) The proponents of the view that the phrase isnt limited to crimes: i) Policy behind the impeachment cl. is that the power to impeach the pres. is given to remedy when the pres. fails to uphold the const...other things beyond crimes can subvert this ii) Goal of the cl. might be to prevent injury to the state...rather than just injury to a private person. iii) There is history floating around here. The argument at common law is that high crime/misdemeanor is a thing involving an abuse of public trust, abuse of power. It is a term of art, rather than something we look to the dictionary for a technical definition. iv) What if the pres. moves to Jamaica and hangs out w/ Jimmy Buffett for a year drinking margaritas? Can he be impeached for that? Here we dont have an abuse of power, but more of an abdication...pres. isnt really doing his job. e) Are there two different substantive rules for the House and Senates powers? Different roles, but same substantive language? f) Should the threshold be different for judges than presidents? Should the house/senate be more, less, or equally strict in deciding what is impeachable?

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IV) Checks on the Judicial Power A) Impeachment (see above) B) Justiciability - Justiciability is a word you should use carefully: many categories under this umbrella (standing, cases and controversies, etc.), but some people only apply it to the prudential 1) Limits on what cases courts can hear: a) Textual limits: i) case or controversy ii) Subject matter jxn? Fed courts can hear fed question and diversity cases (and a few others...like where state is a party, etc.) (Great variety of cases brought in the real world involve neither and go into the state courts.) b) Statutory limits: i) Limits on fed jxn: amt in controversy (limits fed jxn) ii) Other statutory limits which well turn to later this week re fed question. c) Prudential limits: i) There are cases and controversies the court cant decide due to prudential limits imposed on itself. E.g. 3rd party standing rule.
ii) Is it legitimate that the court recognizes limitations beyond Constitutional and Statutory?

d) Recognized limit on the power of the fed courts w/ regard to issuing advisory opinions i) What text does the Court rely on to refuse? A. There is Art II text talking about the pres. being able to call on the heads of depts. for advice...implied negative on getting advice from the courts. B. From Art. III, the cases and controversies cl. also carries a neg. implication that courts cant do other things in addition to deciding cases and controversies, including writing dear George letters. C. There is also the grant of the judicial power: (1) judicial decisions are final and binding, not just advice. ii) Other policy reasons: A. Less likely to get as good a well-thought out decision when the decision is in the abstract rather than when we are dealing w/ a particular dispute B. The judiciary necess tries to decide things as narrowly as poss as a rule...to do so, you need details C. Court can see more clearly in a highly specific context...court can see the consequences more clearly 1. An argument on the other side is that a real world case applies political pressures that an abstract case wouldnt. D. Why is adversary nature good idea? If there is someone with something at stake on both sides, the parties are more likely to bring out all the facts. Also the adversary process tends to focus debate and provide specific ways to analyze the issue...gives the court a place to start. 2) Standing a) Important Questions: i) So, what is a prudential limit v. const. limit? ii) To what extent can cong. confer a right it might characterize as an immed. injury as compared to a distant injury? b) Elements: i) Injury in fact ii) Causation 34

iii) Remediability c) 3rd Party Standing - Claim cant be based on rights of third-party i) The push of the reliance on the third party standing issue is that the first-parties are the best people to bring suit. Why are the parties whose const. rights have been trampled the best to bring the suit? B/c their harm is more essential...directly injured, so they will be the better advocate in most cases. ii) There are exceptions to the third party standing rule. When? The materials arent entirely specific about this, top p. 64, the materials suggest the court will bend these prudential rules when justifications exist...third party standing may be allowed when there is some sort of obstacle to the person w/ first party standing bringing suit...some sort of impediment. A. Singleton v. Wolf, court says doctors do have the ability to bring suits to challenge abortion laws even though the general rule of third party standing wouldnt have allowed it. Patient may not bring suit due to privacy concerns. B. First party injury, combined w/ obstacle to bringing the suit provides exception to the rule. d) Warth v. Seldin i) Claim that zoning restriction discriminates against low income people, violates statutory and const. law. Lily-white suburb....Plaintiffs say it is from an intentional effort to exclude low income ii) Result: Court doesnt reach the merits...this is the point of the standing doctrine...precludes the court from reaching the merits of the case. iii) The suit has been brought by these differing sets of plaintiffs. All these plaintiffs are sent packing...Powell knocks them out one at a time: A. Ortiz, etc. (excluded persons) 1. Causation problem - insufficient allegations that the injury is CAUSED by the restrictive rule 2. Powell says that the Ortiz Ps are trying to build a house of cards...whether they could actually live in Penfield isnt just w/in their own control...would have to have developers willing to come in and build houses that are the right price and attractive to Ortiz, etc....he thinks this is all too speculative to prove causation (too speculative comes up often w/ causation) B. Rochester Taxpayers (more tax burdens) 1. Court says even if there is a first person injury, by the behavior of penfield, the taxpayers cant bring suit, b/c the claim is based on the rights of third-parties. What third-party? Whos substantive legal rights are at issue? If there is a cnst. wrong being done here, it is being done by excluding people...the taxpayer injury is merely a ripple effect to this const. wrong. C. Metro Act (Penfield Ress) (No diverse community) 1. Metro Act sues on behalf of its members (Penfield residents)...can sue on behalf of members so long as: (1) members have been injured and (2) the claim is germane to the associations purpose 2. Whats metro acts theory as to how theyve been injured? They want to be in a more diverse community. That is an injury to them, but the claim gets thrown out. The injury has been caused by the Penfield law, but they dont

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have standing...why? The court focuses clearly on the third-party standing rule. D. Home Builder (lost money/lost business alternatives) 1. The ct says that the claim is too mushy, too unfocused, too undeveloped...the idea here being that they havent really shown that they were injured in fact. This is often the sort of ruling that is connected w/ ripeness...havent shown youve been actually threatened, let alone actually injured, so you havent matured your claim. a. Why have this ripeness limitation? i. If there is no injury, its hard to know what an appropriate remedy would be. ii. How about the quality of decision making...is a P of this nature a good P for purposes of advancing the goals of the adversary system? Why is the court slow to take up the claims of people who havent taken on a building project? Not sure the P cares and would be a good advocate. b. Home builders dont have a concrete claim...not ripe. 2. There is a third-party standing problem in addition to the ripeness problem. E. Penfield Better Homes (Lost Project) 1. Penfield better homes did take on a project, so why are they shot down? They abandoned their project a while back. They were injured and they alleged causation, but they cant have a remedy anymore. 2. This brings us to another concept: mootness. They had a claim, but it is now moot. a. Why have a mootness doctrine? These people were injured, but they dont care anymore. 3. Penfield Better Homes...not a prob. w/ concreteness...but a problem w/ the party being a good advocate if they dont care anymore...could be a problem w/ sep of powers too, b/c no controversy anymore. e) Ripeness i) United Public Workers v. Mitchell A. Classic Ripeness Case B. P said that they were being banned from exercising political speech by law banning exec. branch employees from campaigning...wanted declaratory J. C. Court throws the claim out...why? Not ripe. Declaratory Js are valid...can bring action if you are in a bind and are afraid your act will violate the law...Doe v. Boren??? doc plans to perform the abortion tomorrow, can bring suit to make sure its okay. D. Mitchell Ps talk in a general way about wanting to participate in campaigning. Need to plead w/ more specificity, so court can have concrete controversy....wants someone to come to the court in an adversary process to vigorously fight for their side. Draft an affidavit: I, Mr. P, exec. employee, want to participate in the campaign of Candidate X by knocking on doors on Broad street on Wednesday and I plan to say ???...very important to say what you will be saying, b/c the right to speech is the implicated right here f) Mootness

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i) Mootness is another important subject ii) The first affirmative action case to get to the SC called Defunis(sp?) A. White guy got denied admission to law school, he learned there was an affirmative action plan, so he sued. While his suit was pending, he reapplied and got in. When the case got to the SC, he was 3L, does he have standing? The court found that the case was moot. Distinguished Roe...found that Roes activity was repeatable, but going to law school iii) There's another exception the voluntary cessation rule iv) Gov stops dong something unconst and there is a chance they might go back to doing that g) Clear Statement Rule i) Court will whenever poss. interpret statutes to avoid const. questions...a form of a kind of clear statement rule...interpret the statute to avoid this (important lawyering tool when you have a statutory construction case) h) Taxpayer/Voter Standing i) Frothingham v. Mellon Taxpayer sues to enjoin a fed spending program...challenger says it exceeds congressional power under the tenth amend. Frothingham stands for the proposition NO...in general a taxpayer cannot sue to challenge a spending program even though it arguably imposes an injury on the taxpayer. The court here says that is not enough...this is too diffused, generalized, widely shared injury. But in Frothingham itself the court recognizes that this principle is not absolute: municipal taxpayer may have standing. ii) Flast v. Cohen: exception to Frothingham...the taxpayer here has standing. The taxpayer relies on the establishment cl. to limit congr. spending power. Why would people challenging fed law under est. cl. have standing in fed court to challenge a fed spending program? What the court is doing here is for a specific type of substantive claim, is creating a different sort of jxnal rule. Why? What is different about the injury in Flast as compared to Frothingham? A. What does the est. cl. guard against? State should not make any law establishing a religion: core is that govt should not be est. a religion. If a govt establishes a religion using your tax money, have you been injured? Might say yes, affects your rights to freedom of worship. If your tax money is being used to establish a religion, have you been compelled to subsidize something you deeply dont want to do? Maybe. This takes us back to conceptualizing injury. What is the claim? Who is the person protected by the legal rule involved? Need to do third party standing analysis. There is something here that takes us out of the injury being highly diffused. iii) Valley Forge case creates exception to Flast v. Cohen: Fed agency gives property to a church group...court distinguishes Flast, b/c it involved the exec. rather than the legisl. and it involved property instead of money. Are these strong distinctions? Does it make any sense to diff. between giving money vs. taking the money, buying property and giving it away? Whether it makes sense or not, that is the rule. Many would say that this doctrine over time is shaped by ideology of the court. iv) Richardson (CIA doesnt make expenditures public)...P says that he wants the info as a voter to make intelligent decisions. Court says the P doesnt have standing to ask

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for the info. Why? The court says the injury is excessively generalized. That brings us to Lujan. v) Lujan v. Defenders of Wildlife A. see notes p.109 vi) FEC v. Akins has to distinguish Lujan: one might say there are certain types of generalized grievances and then there are others. i) Legislative Standing i) Ct is nervous line item veto case indiv members of congress cant challenge even though there's a provision in the statute that says they can ii) But the ct does not overrule Coleman which also involves legis that takes away the effectiveness of their votes C) p. 76 touches on a list of different checks on the jud branch: general ability of people to squak/protest, const. amendment (avail to outright overturn SC decisions...efforts along these lines in recent years to overturn Flag Burning ruling), more subtle things congress can do like mess w/ the size of the court (FDRs attempted court packing plan...failed miserably, but prob. got SCs attn.), congress can control the times the court meets (affect Marbury), congress controls the courts budget...there are lots of ways for this interbranch dialog to occur. We see this loud and clear right now w/ the Miers appt, w/ many people in and out of govt going bonkers saying that she doesnt suit them...attempt to get someone else appointed. D) Congressional Power to Limit jxn of the fed cts including the SC to hear certain cases 1) In re McCardle a) Why does McCardle bring a lawsuit? Why is he seeking a writ of Habeas Corpus? What provisions of the const. does he think he was restrained in violation of? What happened to McCardle? He was being held in military custody. So what might a person object to constitutionally about such confinement? i) Free speech argument, since he was put in jail for publishing an incendiary newspaper. ii) Due process deprived of liberty w/o due process of law...sounds like he had no process at all here b) In the cir. court McCardle loses. He files appeal to the SC as allowed under the 1867 Act, briefs are filed, arguments are heard, then congr. passes an 1868 act that takes away jxn of the SC to hear appeal under the earlier act. c) The court concludes it doesnt have jxn...so the holding is that, at least, congress has some power to remove, under Art. III, the appellate jxn of the SC even re const. claims. d) One way of thinking about McCardle is to think what the narrowest way is to view its holding...could McCardle gotten back to the SC w/o invoking the 1867 Act? i) Yes, under the Yerger holding where the court ruled it had jxn b/c it had original jxn in habeas matters (Yergers subsequent claim became moot, b/c he was released). ii) McCardle wasnt necessarily out of luck, he could use this route to get back to the SC...see the last paragraph of McCardle where the court relies on this fact. Ct there says that the 1868 Act didnt abolish all of the courts habeas corpus power. iii) Is it part of the holding of McCardle that congress can only close one avenue of habeas, ONLY if they leave another open? Could be argued either way...tantalizing. 2) My notes pp. 111-113; Book pp. 82-84 notes 2 and 4. REREAD; Print? 3) Interesting thing is that congress has never done it...congress has talked about it a lot...the risk hangs over the SC...check on keeping the views of the court from wandering too far as they interpret the const.

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V) Print Amar day??? VI) Rights A) Barron v. Baltimore (alleged 5th amendment taking by city...dredging ruined wharf) 1) BOR applies to feds not states before 14th amendment 2) Despite counter-arguments, well-settled that BOR dont apply to states before the civ. war. B) Civil War Amendments 1) 13 abolishes slavery 2) 15 deals w/ right to vote of afr-ams. 3) Both important, but specific 4) We can say now, looking backwards, that the 14th is of a different sort...radical expansion of natl power. 5) In partic. there is a tremendous expansion of natl judicial power...the ability of the fed cts to mess w/ state laws and operation of state courts is massively expanded by the 14th amendment. C) Slaughterhouse cases 1) Involves Substantive DP...its a gripe about the govt depriving me of something I want to do in the real world...in this case pursuing my calling 2) According to the challengers of the law in the La. Slaughterhouse case, why is there an interference w/ substantive right to pursue ones calling at issue in the case? Claiming that La. law forcing independent butchers to close down abridges priv. and immunities, violates DP, violates EP, creates involuntary servitude...four args. Court rejects them. In so doing the court has one overarching reason...why dont these arguments apply in this sort of case according to the court? B/c these three amends. were put in place to protect the freedoms of freed slaves and these Ps arent freed slaves...that is huge to the court...the purpose of the civ war amends. runs through the courts analysis. 3) Butchers rely primarily on cl that states may not abridge privs. and immunities of citizens of the US. What is the problem w/ this arg. to ct? He says that the cl. only applies to rights of citizens of US, not rights of citizens of states...complex textual arg. that first sentence distinguished between these two categories. Argument by the court that the people have two separate bundles of rights: this cl. only allows people to claim rights in the US citizen category. Abstract, eh? a) What are the rights of the US citizens? What is the ct nervous about if we recognize rights like this as rights of US citizens? Its a federalism argument...dont want fed cts to decide cases like this or fed cts will be deciding everything; states wont remain key players in determining large majority of laws about your status as a person...huge nervousness about federalism and worry about separation of powers where jud. branch will be deciding what is a priv. or immunity. b) J.Miller(maj.) gives the US citizen right bundle a narrow definition. 4) Field in dissent thinks there is an interference w/ P&I of citizens of US here a) Field is saying that if amend is saying that states cannot interfere w/ P&I already given...Court concedes that P&I already existed at law, were either express in const. or were implied by nature of natl govt...Strong idea of structural or nontextual rights. b) Also says that it is a bad textual arg. by maj., b/c their reading would render this part of the amend meaningless...already had protection from abridging of the natl rights. c) He also says that the right to pursue a lawful employment is fundamental right of all free govts. He relies on Corfield v. Coryell (enumeration by older Justice of rights that

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belong to all free citizens including lawful employment.) argument that this isnt lawful employment...dispute between the maj, dissent over this. d) Also makes an arg., citing to Adam smith about the nature of human labor. Is it appropriate for SC justice to rely on Adam smith in interpreting 14th amendment? Is Adam smiths argument re fund. nature of some rights persuasive regardless? D) Incorporation: how do the BOR and 14th amend fit together? 1) Hurtado no right to grand jury indictment; not overruled 2) Palko state can take appeals, no double-jeopardy applied to states; overruled by Benton 3) Adamson - holds that state can allow prosecutor to point out that D didnt testify; this is explicitly overruled. 4) Total Incorp.: a) J. Black (Adamson dissent): i) What is justice Blacks approach? Black advocates that all of the BOR should be incorporated. What is total incorporation? That when we passed the 14th amend, we made all rights of BOR applicable to states. ii) What is Blacks position on what comes in under the 14th amend? Entire BOR. What doesnt come in? Anything else. iii) Black does advocate this historical purpose argument...big part of his pitch for total incorp. Why else does he think total incorp is the way to go and is much preferable to the approach of Palko, etc.? He saw the other approach as ad hoc and gave too much discretion to the ct. He feels that his approach is a bright-line rule...the clearly marked const. boundaries laid down in the BOR. But is that an accurate description of the BOR? No...not a clearly marked boundary for things like cruel and unusual punishment, unreasonable searches and seizures, etc. So this bright-line test justification for Blacks position is poppycock, right? Not necess...seems less poppycock than whether this is fundamental to the scheme of justice...or fund to the scheme of justice of the Anglo-am system. At least there is a body of precedent that has grown around the BOR. 5) Selective Incorp.: Some JJ. saw the 14th amend as only applying fundamental rights to states and not all BOR rights are fundamental. So how do we decide whether a right is fundamental for selective incorporation? What is the inquiry the ct will make to decide whether a right is fundamental or not? The BOR is only one potential source of rights...others could come from other places. a) J.Frankfurter (Adamson concurrence): i) Talks about whether the denial of the rights offends the notions of justice in the analysis of English speaking people. Basically the right has to be fundamental more than being in the BOR...has to be fund in some sort of cosmic sense, though that may be difficult to ascertain. ii) Frankfurter is uneasy about blacks total incorp approach b/c he thinks it incorporates too much and too little. Why is he worried about incorporating too many rights into the 14th amendment? FEDERALISM. He thinks states should have flexibility in fashioning their criminal justice systems...incorp everything will impose a uniform system. On the other hand, he thinks Black incorporates too little...how can you not incorp. the right to beyond a reasonable doubt. b) J.Cardozo: i) will justice be denied, if the right isnt applied...

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c) JJ. Harlan, and Powell d) J.White (writes the Majority in Duncan v. La.): i) Not the same approach to selective incorporation as the above justices...another attempt to articulate the test for what fundamentalness is....seems to suggest that were going to be more broad here than at least Cardozo seemed to be ii) Jot-for-jot: if the right is found to be incorporated, it applies against the States in the same way it applies against the federal gov., case law and all. e) J. Murphy: i) I agree w/ Black that there is total incorp., but I also agree w/ Frankfurter that this isnt all that is incorp...may be other rights that come into the 14th amend, even w/ crim proc....the have your cake and eat it to approach to incorp. E) SDP 1) Background a) Calder v. Bull (1798 pre-Marbury) - debate on nature of the judicial role between Chase and Iredell. i) They are arguing whether there is law independent of the const and Iredell is nervous about natural rights being judicially enforceable, thinks there is too much leeway for judges...just as Black was worried about Justices having too much discretion to use their opinion to decide what is a fund right and what is not. b) Fletcher v. Peck i) Marshall, author of Marbury, throws in some dicta that he too may believe there are some enforceable unenumerated rights, but the ct doesnt have to rely on these rights...falls back on the contracts cl. as a textual argument. c) Dred Scot i) Tawney relies at least in part on the 5th amend DP cl. to recog a subst right of slaveholders to retain rights to their property. Of course Dred Scot is today cited as evid for why subs DP is a bad idea. Be that as it may, following the civ war, the 14th is put in place and the 14th creates a handle for recog of rights against the state in addition to against the fed govt w/ the BOR d) Munn v. NY e) Santa Clara Cty v. So. Pac. RR 2) Rise of SDP a) Lochner v. NY (Bakery Regs struck down) i) All justices (majority and dissent) agree that here is a liberty of K protected by 14th amend...so why isnt it a no-brainer that this law does interfere w/ liberty of K? In some earlier cases the ct has said that maximum hr. laws are okay. (i.e. Holden v. Hardy, ct. said it was okay to limit hours minors worked underground in mining to 8/day.) So how do we decide that its okay to regulate on the Holden side of the line, but not on this side? A. What are the purposes of this law? What are the purposes of the state prohibition? The state claims to be concerned about public welfare/public health. Those are big terms. When the ct talks about public health/welfare, whos health are they worried about? The majority talks about the general public. 1. How will this law protect the general public? a. People working too long may make unhealthy bread 2. Welfare of the workers in the bakeries?

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a. Illness of workers b. Exploitation of needy workers/taking advantage/unequal bargaining power B. The maj doesnt think this line of work is as bad as mining like in Hardy. The point is that the maj says that state regs are okay to protect the workers sometimes. What is it about the character of the jobs that is different to the ct? What concern does the ct express if it recognizes the enforceability of a maximum hour law for bakers? One thing to be watching and noting is that the process unfolding here is much like the process in the DCC process...looks at goals and purposes of the law to be sure that they are valid and then decides if the means are appropriately related, tailored to the goal. C. Why doesnt the majority think this is seriously a concern about public health w/ unhealthy bread and such? The court uses one way of looking at means...mentions a less restrictive alternative...law is okay to give regs about conditions like mandating wash closets, drains, etc. Can the state regulate things about the worker? 3) Decline of SDP a) Muller v. Oregon i) Ct upholds maximum hour law for women, even though it had struck down the similar law in Lochner...the general lore is that the ct does this b/c of a brief filed by the lawyer, Brandeis, filled w/ scientific info about women working long hours (similar to Harlans lochner dissent attempt). ii) Following this decision, states continue to press forward w/ reg of things like min wages, max hours, unionization rights, child labor laws...some are upheld, some are struck down. Brief history pp.500-503 b) Nebbia v. NY i) 1934: concerning a price control law that targets milk. The law says in effect that grocers must charge a specific amt for milk...grocer throws in loaf of bread and is charged. Grocer claims liberty of K. ii) Does the ct. overrule lochner and say there isnt a liberty of K? No. Does the ct change the test for examining whether a law unduly interferes w/ freedom of K? What is the test? Here the ct says that the means selected shall have a real and substantial relationship to the aims. The fight between majority and dissent here is over whether the means fit the ends. iii) McReynolds in dissent goes bonkers, thinks the real liberty being invaded is the fundamental right to conduct his own affairs. He doesnt say hes against price control always, but he doesnt think the means will work to reach the sought end here. c) West Coast Hotel v. Parrish i) Decided in 1937...after the great transformation of the cts decisions w/ commerce cl. like Jones and Laughlin steel which had begun to overturn previous decisions. here we have the same thing w/ subs. DP. In WC Hotel the ct backs down and allows a regulation of wages; overrules Adkins. Its okay for the state to have the goal of ... in this case. d) Carolene Products i) Deals w/ a law regulating the sell of filled milk...special interest legislation...again the justification for this law seem a little sketchy, so much so that a lower court strikes the law down as not rationally related to a valid state interest. Most important thing

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about the case is the famous footnote four...perhaps the most famous passage in modern const. law. Go back and reread it very closely, for here the ct is trying to sort through when should we examine legislation more carefully, what is the judicial role? Ct talks about three things: legisl that is w/in prohib of const on its face, (second???, P. 508), cases involving prejudices against discrete and insular minority (may be a special condition that justifies elevated review) e) Williamson v. Lee Optical i) Sort of modern incarnation of the courts restraintist stance on reviewing modern economic regulation...look how far the court goes to uphold what seems to be a fairly stupid law...court just speculates why the legisl. might pass this law...law might make sense in some circs....not going to review the legisl. decision. ii) We see the ct dealing w/ this state law thats really quite burdensome for opticians and there isnt much of a justification that makes sense, but the ct doesnt seem to care...notice though that the ct doesnt say they wont ever overturn econ legisl...carries forward the rational connection between means and ends test. A. In applying the test the ct is extremely deferential: legislature might have concluded... 4) Revival of SDP a) Privacy i) Contraception A. Griswold v. CT 1. Douglas concerned about snooping into bedroom by govt a. Privacy interest from penumbras of other enumerated BOR 2. Harlan concerned about public airing of private marital relationship a. 14th stands on its own bottom 3. Goldberg concerned about personal liberty/autonomy a. Relies on 14th, mentions 9th 4. A huge question floating around is whether Gris was correctly decided. How can Gris be distinguished w/ Lochner which has been repudiated (that ct is interfering w/ state laws too much based on nebulous liberty concept of 14th amendment)? a. Can say that economic rights are not fundamental. That is the ultimate argument people reach, but why not? Why are these economic rights not the same? Economics are a construct as opposed to something natural in people, but what about the counter argument that Adam Smith and John Locke say your labor is the essence of who you are and that you should have control over the fruits of your labor? Why is procreation any more fundamental? Why is non-procreation more fundamental? b. Does it matter that only women get pregnant? Are women a discrete and insular minority per the carolene footnote in 1965? Does it matter that only one state has this type of law? What tradition do we look at...at what point in time? B. Eisenstadt 1. giving traction to liberty interest in single and marrieds to bear or beget children. ii) Abortion

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A. Roe v. Wade 1. In Roe the element of privacy that comes to the fore is this Goldbergean idea of privacy: this autonomy aspect of privacy; the right to choose the way you live your life....this drives Roe. a. 7 justices agree that there is a fundamental liberty interest at stake b. Talked about what the meaning of fundamental was...pointed out that there have been a variety of different strands of thinking on personal autonomy: i. bodily integrity ii. associational integrity iii. way of life integrity...ones future iv. sexual equality...perhaps given some impetus by Carolene fn (women as discrete/insular minority at the time) c. Blackmun at the top of p. 559 talks about a set of other things that there is an interference by abortion laws w/ fundamental rights: risk of physical harm from childbirth, distressful life and future, ... All of these consequences, psych, phys, social, what you do w/ your life, etc. flow from the decision to have an unwanted child. 2. Important here as everywhere else to recognize that decisions of this kind involve two key steps: a. decide whether a fundamental right is implicated i. If not, then were in Williamson v. lee optical...very deferential ii. If so, then aggressive form of review: ct asks if the law is necessary to advance a compelling state interest b. Whats the justification for the law? Does the state have a strong enough justification to abridge even a fundamental right? B. Casey 1. Undue burden test: The plur defines what an undue burden is at the bottom 578-top 579....placing subst obstacle in the path of the woman C. Partial Birth (Stenberg v. Carhart) 1. Law banning partial birth abortions without exception for mothers health held unconstitutional. b) Extended Family Household i) Moore A. Moore involves the right to be in a family relationship and not have it disadvantaged. B. Strict scrutiny for zoning ord definition of family not including grandparents, grandchildren that were cousins...state interest tenuously related ii) Belle Terre A. no privacy rights among unrelated people w/ regard to housing ord iii) Roberts (p. 599) (all-male club; associational rights) A. The issue in the case is the freedom of association claim by an all-male business org. (Jaycees) B. The org cant exclude female members notwithstanding claim made by them that they have this freedom of association. C. How do we decide whether this right to intimate association identified in Roberts is implicated?

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1. How do we decide whether a family-like unit has be created, at least in an informal sense? a. Ct points out, the relative smallness b. High degree of selectivity c. Whether children are involved d. Seclusion of others: there are certain parts of relationship that are not public, e.g., sex. D. The right to intimate association recognized in Roberts dicta hasnt gotten a lot of application. c) Marriage i) Loving v. VA A. case saying the state cant prohibit interracial marriage, relying on Subst DP in addition to EP cl. ii) Zablocki (p. 591) A. Zablocki involves the right to marry B. illustrates Substantive EP. We encountered in Skinner case involving mandatory sterilization. This has been described as SDP in disguise. C. Ban on marriage when nonsupported noncustodial child is out there...struck down D. Fundamental right to marriage E. Scalia would define the right at the highest level of specificity possible when looking at tradition to decide what rights are fundamental 1. Nose counting too...if the law is novel restraint, even scalia may find a fundamental right F. Still have to do means-end testing 1. Valid state goal? 2. Must also ask if the means is narrowly tailored to achieving the goal. a. Better alternatives? b. Now, think about overincludsiveness and underinclusiveness. In what ways is this law under inclusive? Fathers who owe child support and dont want to get married arent affected. G. In Zablocki, the ct in a very focused way distinguished Califano v. Jobst (FN1). Here we get a powerful example of theme that runs through con law, i.e., there may be a big difference b/w an indirect burden on fund right and an outright prohibition. Jobst harkens back to abortion funding casesMcCrae, Harris, Websterits a totally diff thing for tstate to prohibit abortion than for state not to subsidize. Here, in similar fashion, it is a diff thing to prohibit the would-be husband to get married vs. depriving people of govt subsidization if they choose to get married. d) Parenthood i) Michael H. A. Involves the claimed fund right to enjoy status of parenthood. B. The facts here are that the claimant is the claimed bio father, who has entered into an adulterous relationship with mother who is married to someone else. Now the mother and her H want to keep this other guy out. The guy says as the father he has a right to his kid.

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C. What is the result? He is kept out of the relationship. Is that sound / fair / appropriate? 1. No. he and the child have a right to know each other. 2. Argue against yourself. Here, we are in a multy-person situation. It isnt just the bio dads interests at stake here, also have the interests of the child. What argument that letting the dad in will hurt the child? It will upset his family structure. There are two other people with interests at stake: Husband and Wife. Liberty interest asserted by father is not asserted in a vacuum. e) Sexuality i) Bowers A. No fundamental right to homosexual sodomy.; White talks about a long history of laws against homosexual sodomy. If we frame the right as dealing w/ homo sodomy, it sets up this analysis. B. How does Blackmun phrase the right? He broadens it to say that the relevant tradition is being left alone. ii) Lawrence A. Texas law against homo sex in the home...struck down by the ct. B. Ct explicitly overrules Bowers. Ct makes several controversial moves along the way. C. The ct looks at things in much more detail in Lawrence, particularly contemporary legal ruling. D. The ct in Lawrence itself emphasizes the notion of the activity occurring in a private place, spatial privacy E. In addition, the majority in stating the ruling says that the statute serves no rational interest...the language of low-level scrutiny...many, though, say that this case really used heightened scrutiny, and that under Lee optical std the law would be upheld. F. Scalia upset about ruling after the rhetoric in casey 1. How else would we distinguish Lawrence from Casey? In Casey the ct was talking about the public relying on the decision, but here the reliance on bowers was by the judiciary and legislature. Assuming there has been this reliance, is this something that is appropriate to look at? Cts look at whether there has been reliance or not. Casey emphasized that people have adjusted their entire lives around the possibility of securing an abortion to end an unwanted pregnancy. 2. Here Scalia says that cts and legislatures have relied on Bowers...but there are fewer Sodomy laws now, so is that true? Also this is a different kind of reliance. 3. Overruling roe would be taking away a right, but overruling Bowers would be granting a right. To a certain extent, so what? Some people would argue that we are a rights oriented society. 4. The ct also relies on the modern developments that have occurred in Europe. The European ct of justice recognized a right of sodomy. f) Gay marriage i) g) Right to Die

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i) Cruzan A. parents of a daughter who is in a perm veg st want to disconnect her feeding tube...there was some evidence that the daughter, ms. Cruzan, had indicated prior to her becoming involved in a serious auto accident that she wouldnt want to live under such circs., but that evid. was shaky...no written will, etc. B. MO SC says that under these circs. tube cant be removed...MO law required clear and convincing evid and that burden wasnt met here. C. The Q in the US SC is, was that const.? The SC says yes. D. In the process of doing so, however, the justices seem to find that there is some kind of fund const interest in choosing not to live through the means of choosing to discontinue treatment. 1. The problem here was that the patient hadnt shown that choice. ii) Washington v. Glucksberg A. Issue: 1. Majority framing of issue: right to commit suicide. 2. Breyer framing: right to die w/ dignity. 3. Does it matter how we frame the issue? The second sounds better. We can see the power of language, the power of labeling that comes into play here. This doesnt just matter for how it sounds, but also matters for what information tradition provides: for example, its easy to say that there is no tradition to allow suicide, but there may be a tradition to allow a right to die w/ dignity. B. What state law is challenged? The prohibition against assisting suicide as applied to terminally ill and mentally competent people that want to take their lives. C. The ct says that this statute isnt unconst. Why? 1. The court doesnt think this comes under the vague notion of liberty. Why not? Weve seen this vague notion applied in other contexts, like medical decisions. 2. Ct talks about history. Says there has been prohibition on suicide for hundreds of years. 3. That isnt the only thing the court relies on, however. The ct also relies on more modern developments, not just what happened seven hundred years ago. How? The ct looks at where Washington voters and voters in almost all other states have rejected laws allowing assisted suicide. This issue has gotten much attn in political process...the process is engaged and has left us w/ this particular result. a. Interesting question whether this is an appropriate analysis...some would say that the whole point of rights is to override mistakes in the political process. 4. In Cruzan the ct would indicate that there is at least some measure of a protectible privacy interest in this right to die setting, but the ct says no here. How is this case diff than Cruzan such that the const. right is weaker here? Its the difference between choosing to discontinue life supporting treatment and actively assisting suicide. a. The ct points out that there is a long tradition of allowing refusal of med treatment...considered a battery to give it w/o consent. Competing long histories for diff claimed rights.

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h) Miscellaneous i) DeShaney v. Winnebago City A. State places child w/ father who beats t he child so severely that he is retarded. Child/mother sue the state. CT says that you are suing the wrong person, the rights in the const. dont force the govt to take steps to protect someone. ii) Kelly A. Take at p. 613: Kelly, rule that police had to cut hair short. Does this rule infringe in personal autonomy to define how you look? The ct says no, emphasizing that this is a police dept. iii) Whalen A. p. 614: right to privacy in more traditional sense....claim against state for keeping certain records...ct found there were enough safeguards...(look into this more????) F) PDP 1) Background a) First, for the DP cl. to be triggered, there has to be at stake life, lib or prop. i) This is the subject matter of most of the cases we read for today: cases like the college teachers, or the welfare case. b) Second, if life, lib, or prop is at stake, has the person whose life, lib, or prop been taken away or threatened to be taken away been give DP of law? i) What process is due? is the subject of Mathews v. Eldridge, p. 639 c) Also, State action must be implicated: has the person been deprived of life, lib, or prop...or has there been some sort of intervening cause that means the state hasnt deprived the person...well look at state action doctrine more later. 2) What is a property interest? a) Goldberg v. Kelly (Welfare Benefits) i) Court asks both of the questions: 1) has there been deprivation, 2) what process is due. ii) The court says that the termination of welfare benefits is a deprivation of property. A. This is what Charles Reich called the new property: its something quite unlike blackacre or something someone transfers by way of inter vivos gift, but it doesnt matter according to the court...continuing to get your welfare check is a prop interest today. iii) The ct next asks what process must be due before the benefit may be terminated: watershed determination in this case, said that there was not DP given, b/c there was no pretermination hearing before the benefits were terminated. b) Roth i) Issue: whether a non-tenured professor has a property interest in continuance of his job...thus giving him some sort of procedural protection in connection w/ the decision not to rehire after expiration of the 1 yr K in particular whether such a property interest exists w/ a context of there being a real world reality that virtually every non tenured K is renewed. A. Court says there isnt a protectible property interest in the end. ii) Property, although a word in the US const, is a thing that exists by and large as a result of background principals of state law. So the court says that we have to look to the law of WI to determine whether Roth has a prop interest. A. The ct concludes that WI doesnt create a prop interest in Roth in continued employment. Why? The ct says there is no prop interest held by Roth, b/c he

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doesnt have tenure...the ct throws around some big phrases: diff between unilateral expectation and legitimate claim of entitlement...must look at subconst. law to decide which we have....look to state law. Can the benefit be removed under only certain limited conditions? That is, is there some sort of just cause req before the job is terminated? c) Perry v. Sinderman i) In Perry the ct says that the terminated professor has at least pleaded the fact that he has de facto tenure, that he can only be terminated for specific causes. But Roth has not pleaded that and he cant plead that...hes only been there short time, one year K, hasnt been retained...no duty to retain unless just cause even if almost all people in the same position get K renewed...thats diff than saying there is a legal responsibility for the state to renew the K. d) Arnett v. Kennedy i) Rehnquist focuses in on this idea whether or not somebody has a property interest is a fxn of state law, or civ service law...non const law. ii) The facts are that we have a nonprobationary civ service employee...statutory law under the fed system says the person can only be dismissed for certain causes, but gives the procedures reqed to dismiss. iii) Rehn says that the property interest is a fxn of sub const. law, so we have to look at all the sub const. law...since the law says that the person isnt reqed to get a pretermination hearing, thats part of the prop interest. Have to take the bitter w/ the sweet: this job protection package (or lack thereof) is part of the prop interest. (only gets three votes for this, though). A. The reason they wont go along is quite straight-forward: they say if you buy the bitter w/ the sweet doctrine, DP will become meaningless: state can create the prop interest such that the only procedure you are due is what the state says when they define the property interest. e) Loudermill i) The ct definitively rejects REhns position in Arnett and this is still the law today. A. Lets say that tenured people may only be fired for good cause and their job shall not give rise to claim of entitlement or property interest under 14th. Does the person have a prop. interest? Can see args on both sides: prop springs from state, so they can say no. ON the other side, can argue that its not up to the state to decide, its whether the state has created this interest substantively: substance rather than form dictates that the employee has property interest. f) Bishop v. Wood i) Police officer. City ords. say that police officer is a permanent employee (sounds good for the police officer), but the ord. also says that he [is subject to dismissal if he] fails to perform work up to the standard of the classification or continues to be negligent, inefficient, or unfit to perform his duties. A. Seems like he can only be discharged for cause. ii) He is fired w/o DP iii) He claims he is in the Perry world, rather than the Roth world and is entitled to DP. iv) The ct says no. v) In effect, despite some broad language thrown around (partic by dissenters who accuse the ct of revitalizing bitter v. sweet approach) that isnt what the ct does. The ct says

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that whether a person can be terminated for cause is a matter of state law and the majority says that even though this ord. is in the rulebook, it doesnt mean as a matter of state law that the policeman may only be terminated for state law...he may be terminated for these reasons specified, but not ONLY these reasons. District court interpreted the ord. as not being for cause only...so the reality is that the officer only had a unilateral expectation of continued employment, not a legitimate claim of entitlement. vi) It doesnt matter where the for cause part comes from: can come from K, from implied K (Perry), from ord., from statute, etc. But it has to be there. Goldberg welfare regs had this: saying the benefits could only be terminated for certain reasons (number of people in the home, income level, etc.) 3) Liberty interest? a) Roth again i) Other question in Roth: was there a deprivation of liberty? Roth says that his non renewal makes him look like a bozo...cant get another job easily. ii) Ct says no. State just didnt renew...it didnt simultaneously make a public announcement that he was incompetent, so he cant make a claim re a stigma, injury to his reputation. iii) Ct distinguishes WI v. Constantineau when govt. published damaging info about someone, circulating ....and found that there was a damage to reputation b) Paul v. Davis i) Court there says that the distribution of police flyers to merchants that specifically identified someone as an active shoplifter did not constitute a deprivation of liberty: in other words the govt doesnt have to bring in the person and give them a chance to disprove this before these items go up. Again the majority opinion is written by Rehnquist. What rehn says is that constantieau is different. Here all you have is the circulation of flyers...this is different having an injury to reputation standing alone...WI v. Constant was damage to reputation couple w/ other deprivation ii) In Roth if the govt published a newspaper article that he was incompetent in combination w/ non renewal, this combination would be deprivation that would req DP. A. Neither alone would be deprivation (see Roth and Paul v. Davis) B. Reputation Plus doctrine iii) There are suggestions in Paul v. Davis that the 14th protection of liberty, like the 14ths protection of property hinges on state law. Refers to state law when saying he doesnt have interest in reputation. c) Meachem i) Prisoner is transferred to more restrictive prison in state. prisoner says this is deprivation of liberty, but the ct says that there is no rule about this in the state, so the prisoner has no protected liberty interest. ii) These cases seem to take the bait of Paul v. Davis, in suggesting that liberty is a fxn of state law just like prop interests under 14th. d) Vitek v. Jones i) Prisoner is transferred from a prison to a mental health facility. Is this transfer a deprivation of liberty? ii) Prisoner makes two claims:

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A. State can only transfer me to mental facility only for cause...state rule that this can only be done if state reasonably believes he has a mental problem. So under meachem he has liberty interest. Ct agrees B. Also argues that even if he doesnt have state liberty interest, he has lib interest anyway, b/c this transfer is a big deal, is highly stigmatizing. Ct agrees in an alternative holding that liberty can be taken away if the govt infringes in a persons interest in a very dramatic way. Here the ct finds that there is a large stigma attached to mental inst, particularly where there is mandatory treatment, so there is deprivation of liberty. The deprivation can occur, but some process is due. e) Hewitt v. Helms i) This doesnt end litigation in the prison context. Prisoners are filing claims all the time to the effect that they are entitled to a hearing. What if the prison takes away privileges and they have rules that this will only be done for cause? May only be due small process, but still may be arguable. ii) The court goes down this path in Hewitt v. Helms, where prisoner transferred to solitary confinement. Ct says this can only be done for cause and thus triggers liberty interest: see holding one of Vitek v. Jones f) Sandin v. Conner (overrules Hewitt?; distinguishes Vitek) i) In 1995 the ct reshuffles the deck in Sandin v. Conner w/ regard to prison context: another case where prisoner transferred to disciplinary confinement. Prisoner says you have to give me a hearing b/c this can only be done for cause by prison rules (rules say this cant just be done willy nilly). ii) In sandin the court says that they had gotten this wrong in the prison environment: for cause rules dont give liberty interest...Hewitt is wrong...only if there is a severe deprivation, like in Vitek will there be a liberty interest. Otherwise, even if there is a for cause rule, there is no deprivation so long as the treatment is in the ballpark of how other prisoners are treated. iii) So sandin doesnt have a claim, b/c his lock-down is std...even though there is a for cause limit on what the state is doing. iv) How far does this go? Is this limited to prison setting? The sandin ct distinguishes employment cases. v) Notwithstanding this retrenchment in sandin, we still have lots of cases: Goldberg, Perry, etc. that the ct decides there is a deprivation such that we have to decide what process is due before the prop/lib can be taken away. 4) What process is due? a) Goss v. Lopez i) One way to deal w/ the whole area is to define the prop/lib interest broadly, but then say that there has to only be minimal process. ii) Student says he must get process to be suspended due to for cause rule: ct agrees, but says that he only gets a little process. b) Mathews v. Eldridge (p. 639) i) Three-part Mathews v. Eldridge test that is supposed to tell you what processes you are entitled to: hearing, lawyer, burden of proof, formality, etc. many possibilities. Decisions are highly contextual.

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ii) Mathews had to do w/ deprivation of Soc sec benefits...P said it was just like Goldberg v. Kelly and thus reqed pretermination hearing. The ct says no: emphasizes factor 1 of the test: private interest...welfare is needed to live, but disability benefits arent the same, b/c they are given even if youre rich (automatic) so they arent willing to give as much protection for those. c) Hamdi i) Similar issues: what process is due when someone is being deprived of physical liberty when the state claims they are enemy combatant? Skinner?

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