Outline for Constitutional Law I

I. Judicial Power
A. Origins and Theory of Judicial Review Marbury v. Madison (1803; Marshall interpreted the Judiciary Act to provide for writs of mandamus to issue originally from USSC, but Marshall said this violated Article III, which provided that only certain types of cases were subject to the Courts original jurisdiction): Court has power to review federal statutes and executive actions. 5 major points: presuppositions, law and politics, frame of government v. law, theories of interpretation, and supreme court as ultimate authority. 1. Origin and nature of constitutions People have original right to establish government (see Declaration). This right is based in a fundamental, universal law (of God/nature). (Marshall presupposes a theory of government based upon the law of nature/God which gave the people certain rights.) The original will organizes the government (see Declaration). (The original right to form a government comes from God. People form government to protect preexisting rights from God. The peoples prudential/political judgment as to form of government must not contradict LON.) (The right comes from God to the people; the people then delegate authority to 3 branches of government, which (Congress) then expresses its will in statutes. The Congress cant exercise pure will, but must exercise its will in accordance with the will expressed in the Constitution, which means that it is ultimately bound by the limitations of the law of nature/God.) Constitution: frame of government and partial listing of unalienable rights. Different methods of interpretation for law and frame of government provisions in Constitution. Court must apply Constitution rather than conflicting statute. (This argument based on the nature of a constitution rather than on a text within the Constitution.) Marshall doesnt argue original and appellate jurisdiction based on general principles of law, but as framework of law. Marshall says it is useless to describe what is original and what is appellate if Congress can change it all. (He basis this argument on the text of the Constitution.) 2. General Principles of Law / General Common Law (Erie made a break with Swift v. Tyson; law no longer viewed as overriding general natural law. Law was no longer reason, but will (contra Aquinas). Justice Frankfurter (in York): Erie is noting more than a different way of looking at the law Marshall (Marbury) and Story (Swift): recognize general principles of law re: original right to establish constitutions and general statements of inalienable rights, necessity of providing remedies for legal wrongs, standards of conduct for government officers, and obligations of individuals who engage in commercial transactions. Both treated Congressional acts and general principles of law as applicable in federal courts.

Where there is a legal right, there is a legal remedy (Blackstone). Remedy for wrong is of the essence of civil libertyDeclaration of Independence, which cites LON (Blackstone would also cite LON). 3. Nature and essence of judicial power Essence of judicial duty is to determine what the law is and apply it to a particular case. (This is not defined in Constitution; Marshall presupposes nature and essence of judicial power, instead of looking to original intent, text, social conscience, or utility.) (Backward looking: judicial decision looking back to what the law and facts are; atonement. Forward looking: political decision making or formulating a law, prospectively; providence. Declaration of Independence has both a legal/judicial and a political/prudential element.) Distinction between law and politics important here: Court can decide on individuals rights (e.g., deliver the commission once signed and sealed), but Court cannot decide political questions (left to executive discretion). Marshall is saying an issue is not political/discretionary (as opposed to legal) just because it involves the president; even president is under law. (1) Acts of Congress and (2) general principles of law limit presidents discretion. Cooper v. Aaron (1958): Federal judiciary is supreme in the exposition of the law of the Constitution. The Courts interpretation of the 14th Amendment in Brown is the supreme law of the land. (Takes Marshalls quote out of context and misapplies it.) B. Power to Review State Court Judgments Martin v. Hunters Lessee (1816): Court has power to review decisions of states highest courts of appeal on issues of federal law. (Marbury dealt with LON issuesnature of constitutions and judicial power; Martin dealt with frame of government issuesallocation of judicial powers between federal and state courts. Thus, the means of interpretation were different in each case.) US Sup Ct has power over all cases arising under federal law (textual argument; also appealed to supremacy clause). Story noted historical view that US Sup Ct had appellate power over state courts that were to decide cases arising under federal law. (Story didnt fashion rule of judicial review based on his own policy judgment that such a doctrine would be beneficial/necessary. But he did consider framers policy rationales in order to ascertain their intent, so that he could properly interpret the text that deals with the frame of government.) Pre-Erie, it seems logical that if federal courts (diversity) could rule based on general principles of law, state courts could rule based on general principles of law that were contrary to federal precedent.

If judicial power is vested, this means that the power to rule based on general principles of law is granted. Judicial power of the United States merely means federal courts have power to interpret issues that are exclusively matters of positive federal law. Article III speaks of both judicial power and judicial power of US. Federal issue: federal courts exercise judicial power of US (Art. III); state courts have duty to apply federal law (Art. VI). State issue (diversity): federal courts have duty to apply state law (after Erie, no judicial power to use general principles of law, but only duty to apply state law); state courts have state judicial power. Under international law, sovereignty consists of four things: land, people, government, and ability to engage in international relations. In US, the sovereign is the federal government together with all 50 state governments. (States cant have international relations, and the Fed doesnt have the full powers of a government, but only enumerated powers). C. Adequate and Independent State Grounds Doctrine Michigan v. Long (1983): If a state is relying on a provision of a state constitution (or state law) in its decision, then it must say so (make it clear) in its opinion. Bush v. Gore (2000): Plurality: Court does not have to defer to FL Sup Cts interpretation of FL law, since this is a presidential election that must be done in the manner directed by the state legislature (Constitutional requirement). D. Utility of Judicial Review E. Methods of Constitutional Interpretation (1) Interpretivists and Non-Interpretivists Calder v. Bull (1798; debate between these 2 views) Applying general principles of LON is one form of non-interpretivism. (2) Textual Method If you can solve something with simply a textual argument, then do it. However, we have to go outside the actual text sometimes, since the Constitution doesnt always define its own terms. (3) Historical Argument Originalism: either original intent or original meaning (easier to determine than original intent). Vectors of history: history is dynamic, not static (originalism); meaning of text may expand/change/modify over time with changing traditions. (4) Structural Arguments

These arguments claim a particular principle or practical result is implicit in the structures of government and the relationships created by Constitution among citizens and governments. (5) Doctrinal Arguments (stare decisis) (6) Prudential Arguments (important today) (7) Cultural Arguments Rooted in widely shared cultural norms, such as moral concepts of justice, theories of human autonomy, and cultural assumptions about fairness. These arguments are persuasive when used in conjunction with other forms of Constitutional arguments (but not much by themselves). F. Tiered Review (1) Minimal scrutiny (rational basis): challenger has burden to prove no rational relation to legitimate government end. (2) Intermediate scrutiny: defender has burden to prove the actual purpose (end) of the statute/action is important and that the statute/action is substantially related to the accomplishment of that actual purpose. (3) Strict scrutiny: defender has burden to prove the law or executive act is necessary to accomplish a compelling government objective (end). Common to all 3: look at nexus between different types of government ends and the means used to accomplish them. End must always be constitutional (legitimate); sometimes it must be important or even compelling. Thomas gets another position out of McCulloch: statute is plainly adapted to achieve government end.

II. Doctrines Limiting the Scope of Judicial Review

A. Direct Political Controls (1) Amendment Unlikely process Something (amendment) against LON cannot be Constitutional. (2) Appointment Not always predictable; may be slow process of changing Court (3) Impeachment B. Congressional Power to Control the Jurisdiction of the Federal Courts Under Article III, Congress may curtail jurisdiction of inferior federal courts. Ex Parte McCardle (1869):

Court has appellate jurisdiction that vests upon establishment of the Court. However, when Congress grants jurisdiction in limited circumstances, it is impliedly excepting nongranted areas of appellate jurisdiction. (Just because the 1867 act was repealed, it didnt mean USSC couldnt hear habeas cases; the old process was still in effecti.e., habeas corpus aided by certiorari.) 3 ways to except appellate jurisdiction: (1) grant a, b, and c, which impliedly excludes d; (2) except d; or (3) except by repeal (grant d, then repeal the grant of d, as in McCardle) Note Storys position (Dean thinks probably right): judicial power of US given in Constitution has to be vested in some federal court at some level (Dean thinks USSC). US v. Klein (1872): If Congress is really simply prescribing a rule for the decision of a cause in a particular way, this is not an exercise of its power to make exceptions and prescribe regulations to the appellate power. (Congress may change the substantive law the courts must enforce, but it may not direct the courts how to decide (rule of decision). Court has held in one case that Congress may not retroactively command federal courts to reopen final judgments.) C. Justiciability: The Proper Role of Federal Courts 1. Advisory Opinions Court cannot give President legal advice. Article II, section 2, clause 1: President may require written opinion of principal officer of each executive department. 2. Standing (1) Article III requirements for standing (case and controversy) (2) Prudential limitations on standing. (3) 3 elements: (a) Injury (i) Concrete (includes aesthetic, physical, pocketbook, deprivation of clear right) (ii) Particularized (personal, non-general), and (iii) Actual/imminent (immediate) How you define the injury has significant effect on whether you can meet causation and redressability. Is injury psychic?can be redressed simply by government doing its job. (b) Causation Links the unlawful act (usually of the government) and the injury. It may look to the future, not just the past.

(c) Redressability Will granting relief really solve the problem (assuage the injury)? Complete solving not required (future is uncertain), merely that relief will substantially solve the problem. Valley Forge Christian College (1982): Harm must be unique to the plaintiff or group of plaintiffs, not suffered by the people as a whole; harm must be individualized, not generalized. Court held that plaintiffs had no standing to challenge governments giving away property to Christian college. (If government would have been giving away money, Court probably would have found standing. Why? Go figure.) Lujan v. Defenders of Wildlife (1992): Aesthetic injury is justiciable, but plaintiffs must demonstrate a past or present aesthetic injury. Here the plaintiffs merely said they were planning to go in the future. Their injury was not immediate (they didnt already have plane tickets to go). Redressability not met here: neither a consultation nor US ceasing to fund the project in Egypt would necessarily solve the problem. Scalia seems to say that all 3 elements of standing are Constitutionally required (injury, and causation and redressability) Contrast Kennedy, who says there must be concreteness, but Congress could alter/diminish the other elements of standing. Thus, the question is: What is Constitutionally required by case or controversy and what are the prudential add-ons to this requirement? Congress/Court can change prudential add-ons, but not Constitutional requirements. Massachusetts v. EPA (2007): States have reduced standing requirements (but not individuals). Injury requirements from Lujan remain; causation and redressability are modified for states (thus implying they are merely prudential requirements). Procedural right created by Congress will apply only to states, not individuals, because of the parens patriae doctrine. Causation and redressability: strongly reduced requirementsthere is a chance that some good might be done. Article III Constitutional Minimum (Mass. v. EPA) (States as plaintiffs) Injury Concrete Particular (loose notion) Immediate Causation: minimal link between wrong and injury Redressability: likely to improve the situation a bit Prudential Additions (Lujan) (Private individuals) Injury Strong notion of particularity Causation: strong link Redressability: highly likely to correct Further Additions? maybe not

Taxpayer Standing: Mellon (1923): plaintiff alleged spending money for maternal health is beyond enumerated powers; court said no standing here for taxpayer, since everybody pays taxes Flast (1968): plaintiff-taxpayers claimed financial aid to Christian schools violated 1st Amendment; Court found standing for these taxpayers, distinguishing Mellon: taxpayers do have standing when they allege violation of some specific Constitutional prohibition, instead of merely alleging transgression beyond enumerated power. Valley Forge (1982): disposing surplus property (not spending money) to Christian college; plaintiff-taxpayers claimed violation of Establishment Clause; Court said taxpayers here had no standing, since government was giving away property, not money; property clause, not spending powers. Hein (2007): plurality said taxpayers had no standing, since money was disbursed to faith-based welfare by Presidents discretion, not by Congressional mandate. Scalia and Thomas said this was a bad distinction; they would have overruled Flast. (Some wrongs, there is no judicial remedy for; go to Congress, not the Court.) Flast is still good law, but very limited to the facts in that case. Prudential Rules 3. Ripeness and Mootness To be ripe for decision, a plaintiff must (1) have already suffered harm; (2) be faced with a specific present objective harm; or (3) be under a threat of specific future harm. A case is rendered moot if events occur after the case has begun that eliminate plaintiffs stake in the controversy. Exceptions to mootness requirement include the situation where the problem is capable of repetition yet evades review (Roe v. Wade). 4. Political Questions Baker v. Carr (1962; the six factors for whether political question): (1) text commits to another branch (2) no judicially discoverable and manageable standards (3) requires initial policy determination (4) disrespect other branches (5) need for unquestionable adherence (6) embarrassed by differing pronouncements (First requirement is Constitutional core; second requirement is mixture of Constitutional and prudential; the last four are prudential.) (The Court always mentions (1), but usually decides based on (2).) Just because it involves foreign relations does not mean it is not justiciable (correct!). Nixon v. US (1993): Court held issue non-justiciable of whether a certain Senate Rule regarding evidentiary hearings in committee violated Constitutional authority of the entire Senate to try all impeachments. Factor 2: try is too vague to define and get a standard for.

Factor 1: textual argument (sole power to try), original intent argument, and structural argument Stevens concurrence seems to have it right: try and sole arguments are not the point. Constitution places impeachment power in Legislative branch. Souters concurrence in judgment: sometimes (case by case analysis) the Court should review Senates impeachment when it is just a joke (e.g., coin-toss) and is clearly wrong. Marbury: Court cant make decisions: (1) in their nature political (discretionarynot governed by law), or (2) submitted to executive/legislative branches by Constitution/laws. PQD applies to (2), but not to (1), since (1) only encompasses things that do not fall within judicial power anyway. Category (2) is factor 1 in Baker. Category (2) limits judicial power, whereas category (1) does not deal with judicial power. (These 2 categories from Marbury would be better for the Court to use than the Baker factors 2-6, which are really all prudential.) OConnors dissent in Davis v. Bandemer: Equal Protection clause governs gerrymandering situations, but there is no manageable and discoverable standard for Courts to use. Redistricting legislative districts almost always falls into category (1), unless it clearly violates the law (e.g., clearly discriminates unlawfully). Veith plurality (Scalia): Court should never review gerrymandering claims, since there are no judicially discernible and manageable standards for adjudicating these types of cases. Any solution to equal representation for all different groups and sub-groups is political in nature (category (1)). Note: Both political question issue and standing issue could be independently dispositive. 5. Abstention Abstention is a judicial decision to decline to exercise jurisdiction given to it by the Constitution and statute. Abstention doctrines are said by Court to be prudential, not Constitutionally required. Younger (1971): National policy forbidding federal courts to stay/enjoin state court proceedings except under special circumstances. Rationale: Federalism. Pullman (1941): Last word on meaning of Texas law belongs to Texas Supreme Court, not to any federal court. D. The Eleventh Amendment 11th Amendment gives immunity to a state against suit by a citizen of another state in a diversity action. It overruled Chisholm v. Georgia. Hans v. Louisiana (1890): Court ruled that sovereign immunity of a state against suit by its own citizens was implied in the Eleventh Amendment (Legal Fiction). (Apparent premise of Hans: sovereign immunity retained in those places where state never gave it up and Congress never took it away.) Ex Parte Young (1908; officer-suit fiction): Although cant sue state, can sue state official and get injunctive relief, in effect, against the state. (Legal Fictionwhen state official

acts outside the law it is not the state acting.) Must sue state official individually (can sue both in official capacity and in individual capacity). Can get injunctive relief against the state (future relief), but no damages for past wrongs. Can sue state official personally for past monetary damages, but some state officials have absolute immunity for official acts, while others have limited immunity.

III. The Limits of Federal Legislative Power

A. Implementing Enumerated Powers and Default Rules 1. Implementing Enumerated Powers: The Necessary and Proper Clause The object (objectives, goals) of the Federal government is contained in the enumerated powers of the Constitution. The means of the Federal governments objectives are contained in the US Code. Enumerated powers are immutable, but the means (Code laws) are changeable. McCulloch v. Maryland (1819): Necessary and proper clause: A. Discretion of means (Courts cant review it unless it violates the Constitution) necessary B. Limits of lawproper 1. Legitimate end (LON) 2. End within scope of Constitution (enumerated powers) 3. Appropriate a. plainly adapted; not mere pretext b. not prohibited (Necessarydiscretion (not judicially reviewable).) (Properlegal decisions (judicially reviewable).) (B.1. and B.2.object analysis; then means analysis under A. and B.3.) Flowchart of Marshalls approach: I. Lawful object? 1. Legitimate (LON)? 2. Enumerated; within scope of Constitution? II. (If object is lawful) Is the means proper/lawful? 1. Prohibited (express or implied, e.g. from structure) 2. Plainly adapted to achieve lawful object? If notpretext. III. (If means are proper) Is the means necessary? (Discretion; matter of degree of necessity; good for America; legislative judgment, not judicial judgment) 4 problems under the chart: (1) Subjects rather than objects are treated as enumerated powers (the main problem with commerce clause analysis; courts dont ask what the purpose of the commerce clause is)

(2) Objects become treated as a means to non-enumerated powers (3) Standard of directly adopted is changed (3 levels of scrutiny) (4) Courts judge the necessity (any balancing tests of competing interests) Note: Thomas wants to reinstate plainly adapted test, which he recognizes is higher standard than rational basis, but he puts it under necessary analysis, whereas Marshall recognized it should go under proper analysis. For Thomas, both proper and necessary are legal tests; for Marshall, only proper is legal test. 2. Implying Default Rules for Federal and State Power McCulloch v. Maryland (1819; 2nd issue): Taxation is concurrent power; some powers are exclusively federal (Marshall would say power to regulate IC). States cant tax federal banks; Fed cant tax state banks. No judicial remedy for high taxes (unless individual harm to particular plaintiff); only legislative remedy. U.S. Term Limits v. Thornton (1995): Nature of the Union: Stevens (Marshall), populace as a whole formed union; Thomas, people of 13 states formed union. 10th Amendment and nature of reserved powers: Stevens, state may not add qualifications to Constitutional requirements for Congressmen; that power was not reserved, since it didnt exist before 1789. Thomas, state may add qualifications; people reserved power to elect own representatives. Powell: Congress itself may not add qualifications (undisputed). B. Commerce Gibbons v. Ogden (1824): Object/purpose of commerce clause is to break down trade barriers between states and ensure an open/common market between states. Clause should be limited by object, not just subject. Even if it falls under subject of IC, Congress should not do anything that inhibits interstate trade, since the object of the clause is free trade between states. Marshall treats power to regulate IC as exclusive power of Fed government. Later, Court changed and said it was concurrent power, which meant that analysis rested only on subject, and longer on object, of the clause. Both states and Fed can inspect goods; Fed under commerce clause (with one object), and states under police powers (with a different object). Means and subject may be the same, but the objects are different. State and Fed may adopt same means, but must do so to accomplish their respective lawful objects. (Modern courts ignore this distinction, since they dont distinguish between subject and object.) Johnsons concurrence clarifies the object test Marshall is using/assuming, and also clearly states dormant commerce clause concept.

10

Johnson: object is only to take down trade barriers. Marshall: object is somewhat broader; would probably include regulating what endangers IC (Southern Railway). Note: subject and object test fit under enumerated power analysis of Marshall chart, not under means analysis. (The main 2 reasons for the Constitution instead of the Articles of Confederation were national defense and a free market between states.) Chart based on example of tomatoes: Grow and eat: no regulation under Gibbons; regulation okay under Wickard substantial impact in the aggregate on IC. Grow and carry to N.C. and sell: prohibition okay under Champion (see also Dagenhart and Darby). (Meets subject test: regulates interstate commerce; regardless of object being more like police power, as in Championlottery tickets) Grow and carry to N.C. to sell, in old car dangerous to others: meets subject test, and meets object test, since danger is posed to those engaging in interstate commerce. Regulation okay here, Southern Railway. Marshall probably okay with Southern Railway; Johnson maybe not. Object of commerce clause includes preventing things that may hamper intercourse, such as unsafe vehicles, boats, etc. that may clog up thoroughfares. Grow, carry to NC to sell at prices that will drive out local competitors: Shreveport Rate Case says regulation okay to prevent this. (Object here is to ensure even inefficient tomato growers stay in business.) Grow, carry to NC to sell, and pay children nothing (who worked for you): regulation here has apparent object of police power, not commerce power; not okay under Jones & Laughlin. (Note: of these, Wickard, Champion, and Shreveport are most significant today.) Today, Court shifts analysis from object all over to means; Court makes judgment as to what is best for America (necessary). The Court has held in effect that there is one and only one object or power of the federal government, and that is the general welfare. In effect, Congress may now utilize any means to promote its vision of the general welfare unless the Constitution expressly prohibits it. [Deans summary document] 1st deviation from Marshall: regulation of commerce is concurrent, state and federal (Cooley). 2nd deviation: ignore object of the clause (Champion). 3rd deviation: ignore subject of the clause; substantial effect on IC in aggregate (Wickard). 2 major departures from Marshall legacy: (1) no object analysis, just means analysis; and (2) legislative-type decision-making under means analysis. Darby 1 (1941; regulation prohibiting shipment of goods in IC): Object: police powers (wages and hours) This case eliminates Marshalls object test. Subject: prohibiting movement in IC (meets Marshalls subject definition; however, Darby puts subject test under means instead of object; thus, it says prohibiting movement in

11

IC can be used as a means to accomplish the object of a police power. (This is what Champion did too.) Darby 2 (1941; regulation of wages and hours): Object: police power (unfair competition). Substantial effect testCongress can regulate if substantial effect on IC, even if not going across state lines. Means: regulating intrastate activity (not necessarily commercial activity). This departs from Marshalls subject test, allowing for regulation of intrastate activity. (Looks like Congress can do anything as long as there is substantial effect on IC; under Wickard, Congress can regulate things that affect IC in aggregate.) (Into this category put: Wickard, Jones & Laughlin, the Shreveport Rate case, and Heart of Atlanta Hotel. Even Lopez fits here, just putting a little brake on these prior cases without overruling them.) Heart of Atlanta (1964; law prohibiting racial discrimination): Object: end discrimination and thereby protect IC. Means: regulate racial discrimination Test here is substantial effects test. (Not use Marshalls object or subject test.) Wickard v. Filburn (1942; regulating agricultural production): Object: maintain prices if in the aggregate has substantial effect on IC Means: regulation of intrastate non-commercial activityany activity Jackson says restraint on commerce clause is only political judgment and it not for courts to deal with. This clearly contradicts Marshall, who insists that courts apply object and subject tests. U.S. v. Lopez (1995; outlawed possession of firearm in school zone): Object: stop crime if substantial effect (police power) Means: regulate non-commercial (mere possession), intrastate, economic activity. Rule: must be economic activity that has substantial effect on IC. Same as Wickard except it limits means to regulation of intrastate economic activity (not just any activity). (Court says can regulate something that is an essential part of a larger regulation of economic activity.) There also must be substantial effects on IC, one important factor for determining which is Congress setting out facts supporting the substantial effects. (After Raich, the Court basically defers to the legislative judgment; it will probably use rational basis test.) (Both Wickard and Lopez depart from Marshalls object and subject tests.) (Congress repassed the law with a new phrase prohibiting possession of guns having crossed state lines; this stretches standard (2) (see below) to fit channels of IC.) Thomas: concerned to keep police powers away from Fed; insists on defining commerce; goes back to text of Constitution, but doesnt go back to the object of the clause; his proposal is that it must be commercial and interstate (which gets him back at least to standard (2), but not all the way back to (1)). U.S. v. Morrison (2000):

12

Court didnt defer to Congressional findings of substantial effect here, since Court said if there is no economic activity, then you dont even go to substantial effects. Court is probably saying: if 1) economic activity, then it looks at 2) Congressional findings on substantial effects, and if no Congressional findings, Court will scrutinize effects more closely. Note: If it is only a matter of degree (Jones & Laughlin Steel), then this means it is a matter only for Congress, not for the courts. 4 standards of regulation: (1) Free trade object (Gibbons: subject and object) (2) Channels of IC (prohibit movement); Champion, Darby 1; this is alive and well today; focuses on subject but ignores object of clause (3) Instrumentalities (protect from interference); Shreveport, Southern Railway (this one would probably fit under Marshalls approach, whereas Shreveport probably fits under substantial effects category) (4) Substantial effects on IC; Darby 2, Wickard, Lopez, Raich; dont define subject or object of IC, but rather give Fed government all police powers, since everything has effect on IC. (Note: on exam, focus on (1) and (4), not on (3).) Ideal: Fedenumerated powers (defense and commerce); Statepolice powers (minus defense and commerce; LON limits). Today: Fedpolice powers (through substantial effects taken to logical extent; no LON limits, although conservatives want to put economic activity limit on it; thus, we have lost federalism); Statepolice powers (minus defense). Gonzales v. Raich (2005; CA resident cant have medicinal marijuana; Stevens for majority): Economic activity here (although not commercial or interstate) that can be regulated since it has substantial effect on IC. Rational basis std/review: regulation okay if Court can imagine a logical connection where there would be a substantial effect. Scalia (concurring): possession is non-economic; however, it is part of regulatory scheme to stop IC; uses prohibition (Champion) approach. OConnor (dissenting): non-economic here; even if it were, still couldnt regulate it here, since we need to save federalism; gives factor test (political); she says it must be economic activity having substantial effects on IC. Thomas (dissenting): must be commercial and interstate (neither one here); plainly adapted test from McCulloch; Court cant just hypothesize about a rational connection. To prove substantial effects: Stevensrational basis; OConnorsome kind of proof (Congressional record); Thomasmaybe he wants to get rid of substantial effects test; at least he wants to impose plainly adapted test. Substantive/Procedural Immunity

13

No substantive immunity for statesonly legislative recourse. There is procedural immunity for statesFed cant directly compel states to regulate. (1) Fed regulation of wages and hours of employees of private employers: use commerce powers to justify (states use police powers to justify). (2) Fed regulation of hours and wages given by state as employer: Usery: no regulation here for governmental (sovereign) functions, such as police force; can regulate wage standards if state is running ABC store, since that is not a traditional governmental function, but rather a proprietary function. Garcia (Blackmun): can regulate here (overruled Usery); too hard to determine what is and isnt governmental or proprietary function; Congress will protect the states, and the Court will defer to the legislature; no a priori reasoning about the nature of a state. (Dissent: not propose clear test to use, but opposes majority for leaving states in hand of Fed, which will not protect the states.) (3) Fed can influence states to implement wage and hour regulations: conditional payment to states. (4) Fed cant order states to pass laws regulating private activity. Fed must either regulate directly (1), or conditionally influence the states (3). (5) Fed can permit states to discriminate against out-of-state commerce (can tell State 1 it can charge exorbitant rates to State 2 if State 2 has to deposit waste in State 1). New York v. US (1992): *Lawful ways the Fed can solve this problem of radioactive waste (1) Directly regulate private activity (if substantial effects on IC) (2) Directly regulate state activities (3) Preempt state regulations (4) Place condition of not regulating (state can either regulate according to federal standards or have state law preempted by federal regulation) (enumerated power other than spending clause or taxing power) (5) Give states money as an incentive for state regulation (spending clause plus others perhaps) (6) Allow discrimination by states (not by private entities, Shreveport) against out-of-state (dormant commerce clause) (7) Tax private entities or even states (taxing power in addition perhaps to IC power) (Note on taxing power: the object is to raise revenue, not to penalize/regulate) *Unlawful way the Fed can solve this problem: Fed forcing state to regulate Rule: without a Federal statute permitting it, one state cant discriminate against out-ofstate commerce. (Here, there was such a statute.) Here, the first two sets of incentives were okay; they fell into categories under lawful ways Fed can solve the problem. The third set of incentives was not okay; Fed was offering coercive penalties (states must take title and be held liable unless they regulate the private entities) instead of offering encouraging incentives. New York: Fed legislature cant commandeer state legislatures

14

Printz: Fed cant commandeer state executive officials Martin v. Hunters Lessee and Testa: State judges must follow Fed law (but Fed cant commandeer state judges to be arm of Fed government; cant tell states to structure their courts and jurisdictions of those courts in certain ways). Printz v. US (1997): Basic rule: The states are not administrative arms of the federal government. Majority would evidently permit Fed to regulate states in certain ministerial functions, e.g., reporting missing children. Ends: regulation of IC (through substantial effects); limit firearms Means: states administer; commandeer state police. (Since the end is considered lawful, this must be struck down, if at all, on grounds that means is unlawful. Either prohibition or pretext.) Majority finds implied prohibition in structure of Constitution; dissent says no express prohibition, so okay. Art. II says President has all executive powers of US; Congress here was trying to make state officials have US executive responsibilities. Fed cant commandeer states to act as administrative agents to act on the people (generally, Fed cant operate on the states, only on the people). Stevens: Fed powers were enlarged by the Constitution, so Fed can still operate on states, as well as on the people. (Wrong!) C. Taxation Bailey v. Drexel Furniture Co. (1922; problem was child labor): Law by Congress: tax 10% of those who have scienter that they have employed a child (sounds like regulation) Proper object of tax clause: raise revenue (parallels Gibbons in looking to object of clause and underlying object of the law). Pretext here of pursuing unlawful object; law struck down. US v. Kahriger (1953): Purpose of the law was to stop professional gambling, but Court upheld it. Court apparently overruled Bailey, since this was a regulation; it couldnt have raised much revenue, since it would have put the bookies out of business and there would have been no more bookies to tax. This case virtually does away with the object test (Bailey); as long as Fed raises revenue on the face of the statute, the Court will uphold it. D. Spending Note: If Congress can actually regulate the subject, then the conditions it puts on spending can amount to regulation, and it is okay. US v. Butler (1936):

15

Court recognized this would have been invalid under taxing power, since it (1) is a regulation (cant regulate through taxing power), and (2) it is a wealth-shifting mechanism (which doesnt fit definition of tax). Is it valid under spending clause? Spending clause limited by general welfare. Court adopts Hamiltonian view of spending clause: spending power not limited to enumerated powers, but only by general welfare; it cant be a regulation, but you can have conditions; Fed can spend where it cant regulate, but it cant spend to regulate. Example: Congress can give money for education; it can attach conditions as long as it does not constitute a regulation. Dissent: coercion is the test; thus, conditions to accepting money cant constitute regulation. (Majority says sometimes it can constitute regulation, although not always.) Issue according to Butler: regulation or condition? Steward Machine (1937; Congress was trying to pressure states into adopting unemployment compensation laws complying with federal standards): Not explicitly reverse Butler, but definitely takes different approach: as long as Congress doesnt coerce, but merely encourages, it is okay. Issue under Steward Machine: coercion or encouragement? S.D. v. Dole (1987): 4 elements to satisfy spending clause: (1) General welfare (Hamiltonian view of) (question of coercion naturally fits here, although Rehnquist deals with coercion under (4)) (2) Unambiguous condition (example case from supplement: witness fees not unambiguously stated) (3) Related (directly related) to the particular program (4) Independent prohibition (other Constitutional provisions) Rehnquist (majority): no independent prohibition in Constitution here, since the condition doesnt induce states to engage in unconstitutional activities. Rule stated here: The independent constitutional bar limitation on spending power is not a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Instead, this limitation means that the spending power may not be used to induce the states to engage in activities that would themselves be unconstitutional. Rehnquist also says there is not coercion here. Court still asks whether there is coercion, but even if there is, Court still asks whether the condition is directly related to the purpose of the spending. (OConnor: safety regulations are not directly related to purpose of constructing highways.) OConnor (dissenting) also implies that even if Congress said the purpose included safety, it would be unconstitutional. Rational basis testno rational relationship between means (21-yr drinking age) and end (safety), since it is both under-inclusive and over-inclusive (which usually means that rational basis test is failed). To sum up spending clause: Lopez: little restriction on commerce powers; Fed cant flat out regulate everything (but it can spend conditionally).

16

New York v. US Dole: Congress cant commandeer state authorities, so they condition spending on state regulation/legislation. Printz Steward: Congress cant commandeer executive branch, but Steward gets around it somewhat under the spending clause. E. Treaty Implementation MO v. Holland (1920; statute was struck down; so Congress entered into a treaty and then passed a statute to implement the treaty; then there was a regulation involved based on the statute): Holmes (majority) upholds the treaty. MO argues enumerated powers limit treaty capability. Holmes responds that Art. VI, cl. 2 differentiates between laws (must be made in pursuance of Constitution) and treaties (must simply be made based on authority of US). Holmes thus adopts formal ratification standard for a treatys validity (with limitation of national concerns). Standards for judging whether a treaty is lawful/constitutional: (1) Formal ratification standard (2) Enumerated powers (3) Express prohibition (Reid v. Covert (1957)) (4) Some things by very nature are international (Jeffersons approach) Under LON, US and all nation-states are bound by international law (including customary) even if not in specific treaty. See Declaration of Independence. Today, international law is seen as including human rights, since disrespect of these rights can cause war. Thus, this is seen to give countries right to enter into treaties enforcing specific domestic rights. Object of states in regulating wills and estates is police power. Object of Fed in having treaty allowing foreigners to inherit from parents is an international object. (Note: use the McCulloch object test for this problem.)

IV. Limiting the Scope of State Power over Interstate Commerce

Wilson v. Black Bird Creek Marsh co- Means: Del. Authorizes company to dam a stream to drain malaria swamp. Ends: health (public power. Ask Proper: 1) is it plainly adapted? Yes (pretext: nterferance is a regulation but thats not enough.. the key is whats the purpose..here health) 2) any express constl prohibition? No 3) any law of nature? No. Wilson damages dam and says that lwa authorizing the dam was unconstitutional b/c violates c.c. by effecting interstate commerce. (congress doesnt speak=dormant) A. Dormant Commerce Clause Implicated when state regulates and Congress has not preempted the state regulation by federal legislation. Marshall: Exclusively Federal.

17

Dormant commerce clause: state regulation of IC struck even without federal statute. Preemption: of state police power regulations that conflict with federal regulations of IC. Concurrent State & Federal (Cooley): Dormant commerce clause: some state regulations of IC struck even without federal regulations. Preemption: some state regulations struck only if federal regulations conflict Congress may alter above interpretation of dormant commerce clause and allow state regulation of IC. Gibbons v. Ogden (1824): Object for Fed is regulating IC; object for state is police power; means may be the same. Legislative decision as to which interest is more important is to be made by Congress (but Court today makes this decision). Black Bird Creek (1829): Means: dam a stream Object: police power (healthmalaria) Passes Marshalls test for proper object and means. Complainers only remedy would be legislative (state or Federal)is it necessary (legislative judgment)? Here, state was regulating under police power, not regulating IC. Only if Congress passed a law pursuant to its commerce powers (e.g., prohibiting dams on navigable waterways) that conflicted with the states lawful exercise of its police powers would the state law be struck down. It would not be a case of federal commerce power trumping state commerce powers. It would be a case of federal commerce power trumping the state exercise of a police power that unnecessarily interfered with interstate commerce. In effect, if the states in the lawful exercise of a police power impose a burden on interstate commerce, it is for Congress to determine whether the burden on interstate commerce outweighs the benefit of the states exercise of its police powers. [Deans summary document.] Marshall analysis of dormant commerce clause issue (McCulloch): (1) Is the object of a state statute lawful? (a) Legitimate? (b) Within scope of Constitution (reserved police power, not enumerated power)? (2) Is the means (state statute) proper/lawful? (a) Does Constitution expressly or implicitly (e.g., by its structure) prohibit this means? (b) (By definition, no preemption in dormant commerce clause case) (c) Plainly adapted to achieving lawful object? If notpretext for unlawful object (either enumerated power, such as commerce power, that is exclusively federal, or illegitimate power) (3) Is the means necessary? (a) Where lawful state statute imposes incidental burden on IC, Congress, not courts, is to determine whether burden on IC outweighs benefit of states exercise

18

of its police power. Political/prudential decision involving measuring degree of necessity and weighing burden vs. benefit. Cooley v. Bd. of Wardens (1851; 1st big shift away from Marshall position): Object: regulation of IC Means: local pilot law (permitted by Congressional act in 1789) (safety/police power) Curtis (Both can regulate/ concurrent) (majority) says 1789 act permitted states to regulate IC instead of Fed choosing to regulate IC; Curtis says this is a grant of commerce power (whereas Dean thinks this was simply a recognition of legitimate police powers) Subject matter: navigation. Does not look at ends but looks to whether local or natl matter Rule adopted here: States cannot regulate IC that is national in nature, but they can regulate IC that is local in nature (unless Congress passes law that preempts state regulation that is local in nature). (This test shifts analysis to subject rather than object.) (Marshall would analyze this case thusly: object is safetypolice power, and it is plainly adapted, so only remedy is in Congress preempting by statute.) Marshall would uphold, and only congress could regulate Today, Court shifts analysis from object all over to means; Court makes judgment as to what is best for America (necessary). Court has now said essentially that all ends are legitimate for states to pursue, since power to regulate IC is concurrent; very difficult now to find unlawful object. Thus, idea of a pretext is logically irrelevant, since basically all objects are permissible. 1) purpose-facial- per se invalid; strict scrutiny 2) purpose- hidden 3) effects 4) Burden- pike balancing; burden in IC First question: what category? Second question: what standard of review? 4 categories to analyze whether means are proper (really looks like necessary analysis): (1) facial discrimination against out-of-staters (IC) (2) discriminatory purpose (3) discriminatory effect (not purposeful discrimination; excessive burden on outof-state commerce) (4) burdens or incidental effect on IC (burden both in state and out of state) Standard of Review for 4 categories: (1) Per se invalid with exception (ME minnow case (facial discrimination): no nondiscriminatory alternative to protecting important state interest). No deference to states legislative judgment. (2) No consistent standard applied by Court. Court shies away from finding discriminatory purpose, but it did find such in H.P. Hood & Sons v. DuMont; Court applied invalid per se test. (Court would likely allow ME minnow exception in this situation.) (3) No consistent standard applied by Court. Court much more likely to find (3) than (2); probably apply invalid per se the stronger the discriminatory effect or the

19

appearance of discriminatory purpose; probably apply a balancing test under (4) the weaker the discriminatory effect or the evidence of discriminatory purpose. (4) Burden on IC vs. Safety benefit3 varieties of weighing: (a) Southern Pacific: pure balancing (51-49; like preponderance/evidence). Defer to states judgment. (b) Pike: clearly excessive (maybe 60-40) (c) Kassel (Rehnquists dissent): safety benefit more than trivial (maybe at least 10) High deference. (Note: (a) and (b) look like balancing tests, but (c) looks more like just general weighing.) (If strong discrimination under (2) or (3), maybe strict scrutiny.) (Spectrum of standards of review: (1) looks pretty close to strict scrutiny, but Court doesnt use this language; intermediate (substantial) (used in P&I cases, see below; Pike balancing; plainly adapted; rational basis.) (Under category 4, Marshall would probably say this is permissible exercise of state police power that has incidental effect on IC; it is for Congress to decide whether to preempt with its own regulation of IC.) 1. Facial Discrimination Philadelphia v. N.J. (1978): Purported object is police power (safety; health). Maybe object is saving taxpayers by favoring some over others. Balancing process to determine whether means is properly national or local (not to determine whether end is legitimate). (Cooley distinction between what is national and what is local cant be determined by looking just at subject matter.) Category 1; std/review is per se invalid. (Maine minnow case refined the standard: no nondiscriminatory means; there was no other way of protecting Maines interest, so law was okay.) Decide dont need to know what object is, so logically dont need to ask if plainly adapted, so come up with new rule: if its a facial discrimination its almost always unconstitutional , only upheld if no other alternative to accomplishing legitimate state end. Add question 4 under proper 4) no fed statute. Pike test: compare value of police power to the harm to interstate commerce and the harm to IC would have to be excessive, weighted in favor of state. Categories 1)Facial discrimination 2)Purposeful discrimination 3)Discriminatory effect Balancing Balancing Paradigm Strict Scrutiny Strict Scrutiny Powell Brennan Balancing Rehiquest

20

4) Burdens IC

Pike Balancing

Special deference Stron presumption balancing

4. Burden on IC vs. Safety Benefits Southern Pacific v. AZ (1945): End: police powersafety. Category 4: burdens on IC Std/review applied here: balancing relative weights of state and national interests involved. (Pikes clearly excessive test is different than simple balancing.) Blacks dissent recognizes that balancing of safety interests and IC interests should be done by the Congress, not the Court. (Today, Scalia pushes this point.) (For cases under categories 2 and 3, see Deans Table.) (From Scalias concurrence in West Lynn Creamery) *4 ways to help the farmers: (1) Tariff (2) Tax exemption for in-staters (3) Earmarked spending from nondiscriminatory tax (the situation here) (4) Give subsidy from general fund The first 3 are impermissible; the last one is permissible. A use tax: overt discrimination that intends to place insiders and outsiders on equal footing and actually does sonot treated as discriminatory, but okay. States as Market Participants: An Exception to the Dormant Commerce Clause (A) State as State (Regulator)Lion No out of state waste for out dumpscategory 1; invalid per se. (B) State as Market ParticipantGoat Only let in staters put waste in our state-owned dumpcategory 1, but okay, since private dump owner can do the same. State acting as private person can discriminate in the same way a private person can. (C) State as emerging Public FunctionChimera City dump is going to be the only dump in town. (Carbone)category 1, but apply Pike balancing test. South-Central Timber Development, Inc. v. Wunnicke (1984): If state acting as market participant, rather than as market regulator, no limitation of dormant commerce clause.

21

Market participant doctrine not apply here, since AK is regulating downstream. State may not discriminate as a regulator. Court distinguished White: state may impose burdens on commerce only within the market in which it is a participant; state may not impose conditions having substantial regulatory effect outside of that particular market. (State cant do by K what it cant do by regulation.) After concluding market participant exception not available, Court proceeded to say this was per se invalid (category 1); thus, no balancing test. Carbone (1994): State said dump owner could charge more money, since everyone had to (under ordinance) bring their solid waste to him; state setting up exclusive dump. Court applies per se invalid test and strikes down statute. United Haulers (?): Only 1 fact different from Carbone: dump owned by city instead of private party. Court upheld this statute. 6 Ways States Can Discriminate in Favor of (Confer Benefit on) Residents: (1) Discriminatory regulations (Philadelphia v. N.J.) (2) Discriminatory taxation (Fulton Corp. v. Faulkner) (3) Facially evenhanded taxation with exemptions targeted at residents (Bacchus Imports) (4) Facially evenhanded taxation coupled with in-state subsidy from the tax revenues (West Lynn Creamery) (5) Discriminatory public investment choices by a state as market-participant (Reeves, White) (6) Subsidy to local interests from general tax revenues (assumed valid in West Lynn Creamery) *Only (5) and (6) are valid under the dormant commerce clause. B. Privileges and Immunities Clause of Article IV 5 Major Differences Between Article IV, section 2 and Dormant Commerce Clause: (1) Corporations may bring commerce clause challenges, but are not citizens under P&I and thus are not protected by it. (2) P&I clause only protects certain rights that are fundamental to promotion of interstate harmony. However, dormant commerce clause applies to all interstate commercial activity. (3) No market-participation exception to P&I clause. (4) Congress cannot consent to state acts that violate P&I clause, but it can consent to state regulation of IC that would otherwise violate dormant commerce clause. (5) Standard of review in P&I cases is intermediate, between Pike balancing and strict scrutiny. (State aswhat creature?)

22

Political rights: voting, public office, police officer (states dont have to give these rights to out-of-staters) Benefit rights: public school, welfare, medical benefits (states dont have to give these rights to out-of-staters) Freedom rights: property, court access, travel, employment, taxation (states do have to give these rights to out-of-staters) Must treat out-of-staters the same as in-staters with respect to P&I. However, P&I dont include every right of in-state citizen. Court today will say P&I only include those things necessary to insure interstate harmony. Older cases look to Corfield and idea of fundamental rights to determine what P&I are. Camden (1984): *2 steps in analysis: (1) Is there a burden on privileges and immunities? (Held: job/calling was a burdened privilege and immunity.) Test: whether sufficiently fundamental to promotion of interstate harmony so as to fall within purview of P&I clause. (2) Is there substantial reason for discrimination? Nonresidents must be shown to constitute a peculiar source of the evil at which the statute is aimed. (Held: record insufficient here to make this determination; remanded.) (Same factual situation as White, which would be okay under dormant commerce clause, since state is treated as a goat. Under IV.2, state is treated as a lion and prohibited from this action.)

V. Separation of Powers
A. Executive Action The powers of the president under Article II: (1) Executive power (2) Commander-in-chief (of armed forces, not of America) (3) Faithfully execute (4th possibility: nebulous inherent power (necessity); Jackson mentions but rejects this) 1. Domestic Affairs President does have some legislative powers, e.g., veto power. However, there must first be law from Congress. Power as commander in chief, however, doesnt depend on legislation. Youngstown Sheet & Tube Co. v. Sawyer (1952; steel seizure case with Truman): Generally, law must come before execution (Constitution, statute, or international law). President cant execute a law until there is a law; if President tries to execute where there is no law, he is in reality making law.

23

Here, no law either express or implied by Congress. Thus, Court looked to Constitution for express/implied power; no express power, so looked for implied powerparticularly in the commander in chief power; not implied from this power. Rationale: When there is an emergency, Congress can act really fast; President doesnt need to act without Congress appropriating the funds and authorizing him first. This was legislative power, but President cant be a lawmaker. Jacksons concurrence: Can have 3 situations: (1) Where Congress expressly authorizes (strongest) (2) Where Congress is silent (3) Where Congress expressly denies Where Congress authorizes, Presidents action can only be stricken if Constitution prohibits the Federal Government from doing that particular thing. (Appointment and Removal) Article II, 2, cl. 2: A. Ambassadors, other public ministers B. Supreme Court Judges C. Other officers 1. Principal officers (cabinet secretaries) (President appoints with advice and consent of Senate) 2. Inferior officers a. President b. Courts c. Heads of executive department Buckley: an officer of US is any appointee exercising significant authority pursuant to the laws of the US (not all Fed employees are officers). *5 Questions for Appointment & Removal (know the answers to master this topic): 1. Can Presidents removal power be restricted? Myers, Humphreys Executor, Morrison 2. Can Congress appoint? No 3. Can Congress remove except by impeachment? No; Bowsher 4. Can Congress give courts power to appoint purely executive officers? Yes; Morrison 5. Who is an inferior officer? Morrison a. Limited duties b. No general policy-making power c. Limited term Paradigm: Congress creates department. President appoints with advice and consent; can remove at will. President would appoint AG (principal officer) and US Attorneys (inferior officers); they would have executive powers, therefore, not legislative or judicial powers.

24

Myers (1926): Law: President cant remove postmasters (purely executive authority) without advice and consent of Senate (just as he appointed them). Struck down. President has exclusive power of removing executive officers he has appointed and Senate has confirmed. Advice and consent is only for the appointment process, not removal. This is reasonable implication from duty to execute the laws, which President alone bears, not Senate with him. President must be able to do his job. Rule here: President can remove at will. Humphreys Executor (1935): Law: FTC established as executive agency independent of President; President appoints Commissioners (with advice and consent) for terms, but can only remove them for inefficiency, neglect of duty, or malfeasance in office. Upheld limitations on Presidents removal power. Rule: If Congress grants more than purely executive power to agency, it can then restrict Presidents removal power. Court distinguished between purely executive powers (Myers: no restrictions; remove at will) and quasi-legislative/quasi-judicial powers (here with FTC). Bowsher (1986): Law: Comptroller General (legislative and executive duties); Congress removes for inefficiency, negligence. Struck down. Congress by itself cant remove any executive officer except by impeachment. To permit execution of the laws to be vested in officer answerable only to Congress would reserve in Congress control over the execution of the laws. Morrison v. Olson (1988): Law: AG can seek appointment of independent counsel (inferior officers) by DC court; executive powers (investigate and prosecute); removable only by AG (not by President) and only for good cause. Upheld. Morrison was inferior officer, under 4 factors: remove by AG for cause, limited duties, limited jurisdiction, and limited tenure. Rule/holding here: this good cause limitation on Presidents removal power is okay, since it doesnt sufficiently deprive President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws. (Can take some of Presidents constitutional power, but not too much. Appointment here may have been lawful, but statutes removal provision was not.) This changed the standard in Myers to new standard: Congress can erode Presidents removal power as long as it doesnt interfere too much with Presidents duty/ability to execute the laws. Court here changed its mind as to rationale underlying Humphreys Executor. 2. Foreign Affairs When president is given executive power, this includes all foreign affairs power, unless there is some specific exception.

25

Article II: sections 1 and 3 both contain faithfully execute clauses. Faithfully executing the laws ( 3) is subset of faithfully executing the office of President ( 1). *Article II; different kinds of powers granted to President: (1) Legislativeveto; recommend legislation (2) Executivedepends on statute to be executed; commander in chief (3) Housekeepingappointments (each branch gets to appoint its own helpers) (4) Federative (dealing with foreign countries)treaty (Locke) Curtiss-Wright (1936): If given to President, then it is executive in nature. (Wrong Constitution divvies up federative powers between President and Congress.) *Just because it is in Article II does not make it executive in nature; you must look at the nature of the power itself. Federative powers not explicitly delegated to either President or Congress: Congress should do it under necessary and proper clause. However, if all foreign powers are viewed as inherently executive, President automatically gets to do it. Foreign affairs power is exclusively in the Federal government. Everyone agrees on this. There is disagreement over nature and extent of Presidents powers. There are also some problems in area of state/federal relations. 3 main issues: 1. Foreign affairs powers exclusively Federal powers 2. Federal-state relations and foreign affairs 3. Separation of powers and foreign affairs (Congress or President) Issue 2: Zschernig (1968): Subject of inheritance is police power (state issue), but the object of affecting foreign affairs was exclusively federal. Thus, OR law struck down that barred inheritance by nonresident aliens. Crosby (2000; MA barred state agencies from buying from companies doing business with Burma): Subject here looks like housekeeping for MA, not regulation or even market participant. Court, however, looks at it in terms of MAs actions having effect on foreign relations and strikes down the law, since Congress had provided for Federal regulation on this issue and the Court held Fed law preempted MA law. Garamendi (2003): no express preemption; CA exercising police powers of making sure people get their insurance payments; maybe court finds preemption and maybe it does balancing test to see whether interests in foreign relations outweigh CAs police power interest. Under issue 2, take similar approach if treaty involved. Issue 3: Dames & Moore (1981; President entered into executive agreement with Iran to release hostages; there is also an executive order: (1) nullify attachment of property in prior lawsuit; (2) transfer attached property to Iran; (3) terminate claims/lawsuits): *Jackson Framework (from Youngstown Sheet & Tube): 1. Congressional express approval. Here, we have express legislative approval of (1) and (2) + executive agreement + executive order. Thus, strongest position; President only prohibited if Federal government couldnt do it at all.

26

1.5. Implied legislative approval. Here, Court found implied legislative approval of (3) (+ executive agreement + executive order). 2. Congress silent. (If only executive agreement + executive order, President would probably still have authority, since the situation here involved invasion of foreign embassy with ambassadorssevere infringement of intl law.) 2.5. Implied legislative disapproval. 3. Congress disapproved. Black approach: Youngstownexecutive order that was exercising legislative power; no good. Curtiss-Wrightexecutive order, but okay, since legislature had delegated this foreignaffairs power to the President. Blacks approach applied to Dames & Moorelegislature has delegated; executive order is thus okay. Sometimes an executive agreement must be lawful: if incidental to carrying out express presidential power (e.g., need to make agreements relating to having embassy to put up ambassadors), or if necessary to implement treaties, it would also be okay. War: Prize Cases (1863): President cant initiate war (allows for defensive war). (1) Offensive war: President needs authorization from Congresseither (a) declaration of war or (b) other authorization (an authorization is basically same as declaration). (2) Defensive war: President needs no authorization from Congress. Article II: commander-in-chief implies duty to defend if attacked. (With a declaration, Congress should be making the decision whether to go to war, not giving President blank check.) UN authorization: not meet Constitutional requirement of Congress being the one to authorize/declare. Just War: 1. Just cause (cause of action) 2. Lawful authority (jurisdiction) 3. Proportional force (remedies) 4. Other options? 5. Can we win? 6. What cost? 7. End in peace? The first 3 are legal questionsall 3 elements of legal complaint; the last 4 are prudential questions. All these questions have been given to Congress to decide. War Powers Resolution: Claims to just set out what the Constitution requires. (Most of this Resolution is correct; only thing unconstitutional is allowing President a 92day window to carry on any war he wants to.) 2(c): either (1) declaration of war, (2) specific statutory authorization, or (3) national emergency by attack. (This is correct.)

27

48-hr notice; then 60 (maybe 90) days; then President has to withdraw under section 5(b). (This is unconstitutional, but because it gives President too much powerpower to go to war offensively without either declaration or authorization.) 8(a)(1): appropriation bill (giving money for war) is not ipso facto an authorization. 8(a)(2): cant send armed forces into hostilities unless treaty is supplemented by legislation specifically authorizing it. Resolution after 9-11: Congress essentially delegates power to decide to go to war to President, instead of making the decision itself (which it should do). Under UN Charter, nation can go to war by itself only for defensive reasons and only for so long as security council thinks the nation needs to defend itself. Military Commissions Table: Procedure in administrative law casesMatthews factors as to what DP requires: (1) private interest, (2) government interest, and (3) risk of error. Screening: if in US, any detainee (foreign or not) gets habeas petition. Habeas also applies in Gitmo, since Court treated it as part of US. Issue of ultimate trial from Hamdan: what type of procedure? *Intersections of the chart that are most important: (1) Hamdi and screening (balancing test of Matthews) (2) Hamdan and trial (cant use military commissions in these situations; they are not a regularly constituted court within Geneva Article III; must have either domestic court or court martial here) (3) Boumedienne and habeas corpus (Congress suspended habeas for Gitmo prisoners, specifically including pending cases (response to Hamdan); Court said this was unconstitutional.) (Stevens is wrong in Hamdanmilitary commissions should not be held to same standard as courts-martial and domestic courts.) 2 kinds of hearings in habeas action: (1) Screening (initially decided you are a combatant; (2) Military Commission (do they have to give a regular trial instead?) Jackson Framework: Congress & Presidentdo we have any of the following: international law; executive order; statute; constitution? *Jackson Framework: When can President act alone? Has congress given permission? (Court says it must clearly violate Constitution for Court to overturn action by President and Congress together regarding habeas.) Terrorist Cases Issues: (1) Habeas Corpus; (2) Type of Proceeding, (a) screening for status (civilian or combatant?) and (b) trial for crimes; (3) Procedures at Proceeding. Screening (remember Hamdi): very little process; mere affidavit of someone who doesnt really know the person, saying he is a combatant; not even a hearing. To be held as a combatant until end of war, you have to have a trial for it. The MCA (Boumedienne) said Geneva Conventions dont apply! (Note: if President goes to war unlawfully, PQD would prohibit courts from looking at the issue, since Congress has plenty of power to punish President (impeachment, financial appropriations). No standing for plaintiff challenging legality of a war; even if standing, PQD would prevent court from reaching this issue.)

28

For screening issues (and perhaps even trial issues), go through Jackson framework (see Hamdi, where different opinions held different categories). (A) Jackson Framework (B) Habeas Right (C) Proceedings and Procedures (1) Screening (2) Trial (a) Military tribunal (international) (b) Military commissions (national) (c) Courts-martial (national) (d) Domestic courts (national) Treaties vs. Executive Agreements: President may enter into executive agreement instead of a treaty if the subject of the agreement is within some enumerated power given to the President alone. B. Legislative Action and the Administrative State *5 main issues (know this material to master delegation for exam): (1) May Congress (& Pres) delegate legislative and judicial powers to an executive agency? Yes. (2) May Congress (& Pres) delegate quasi-legislative, quasi-judicial, and executive power to an independent agency? Yes; Humphreys Executor. (3) May Congress (& Pres) delegate and reserve legislative authority to itself (Congress)? No; Chadha. (4) May Congress (& Pres) delegate legislative power to the President? No; Clinton. (5) May Congress (& Pres) delegate legislative power to the courts? Yes; Mistretta (fed judges on commission to produce sentencing guidelines). 2 basic principles going on: formalism and functionalism. Kennedy has 2 moods: formalist and romantic (functionalist). Court reviews all administrative procedures on basis of Administrative Procedure Act (APA) 10(e)(2): (A) abuse of discretion; (B) contrary to Constitutional right; (C) in excess of statutory authority. Mistretta v. U.S. (1989): (Congress may not appoint or remove except by impeachment; its only role in appointment is advice and consent of Senate, and creation of department/officers.) Limits on Congress power to delegate: not excessive delegation, intelligible principle, and sufficiently specific and detailed. Standard for FCC is public interest, convenience, or necessity (general welfare and political means analysis). FCC exercises executive power, quasi-legislative power, and quasijudicial power.

29

*Test: it doesnt undermine power of judiciary or power of Congress too much; so its okay. Rehnquist is a functionalist: okay to delegate legislative powers to judicial branch, because it doesnt upset the boat too much. (Black was a formalist [words have meaning]: one branch cant exercise power of another branchperiod.) Scalia dissents in Morrison and Mistretta: cant give away executive power; cant give away legislative power; however, Scalia has no problem with a narrow view of Humphreys Executorcan give away quasi-legislative and quasi-judicial power. Scalia is a formalist. He says Congress cant delegate pure legislative power, but it is okay to delegate some legislative power to executive branch/agency when mixed with executive power (matter of degree political decision). From Mistretta and Morrison: Congress can do it as long as it doesnt substantially undermine function of particular branch. Bicameralism and Presentment: Administrative state: Congress delegates rule-making (legislative) authority. Both houses approve the enabling act and President approves and signs. Thus, you have both bicameralism and presentment. Court has said there is no problem with a department making a regulation that doesnt itself go through bicameralism and presentment. INS v. Chadha (1983): Court didnt strike action of INS as unconstitutional delegation of legislative power, but did strike action of House as unconstitutional exercise of legislative power. Problem here according to Court was: no bicameralism and no presentment. (Inconsistency here is that the INS and ALJ power was not stricken too, although it involved legislative power without bicameralism and presentment. If House can delegate legislative power to administrative agency, why cant it keep some for itself?) Congress makes a law and President signs itINS has power to hold hearings as to whether someone should be deported. Then it goes to Congress. If either house vetoes, the INS ruling is overturned. Court struck this down, saying it was legislative act, failing Constitutionality because it only went to one house (failing bicameralism) and didnt go to President (failing presentment). (Thus, this rationale implies that the whole administrative state is invalid, but Court makes an arbitrary distinction.) Administrative state is mechanism for implementing entitlement system (titlements violate Art. I, 9). Waves of administrative agencies in America: 1. Regulation of economy (e.g., railroads); protection of big business 2. Welfare state 3. Health and safety Clinton v. City of New York (1998): Normally: Congress enacts lawPresidentvetoCongress 2/3Law Line item veto: Congress passes lawPresidentsignscancels

30

Majority: cancellation power is legislative power; President is trying to exercise legislative power without going through the process of Congress passing and presenting to President. [2 hypos for putting in Congressional appropriation bill: (1) President may choose to spend if he finds certain conditions to exist. (2) President may choose not to spend if he finds certain conditions to exist.] Majority: distinguish between (1) and (2); President cant do (2). (Formalist approach, but distinctions between (1) and (2) not too persuasive. This is President changing law rather than executing law (as (1) would be).) Scalia: not a dimes worth of difference between (1) and (2); both are okay. Formalist approach. He would analyze this under issue of delegation: all delegation of executive power includes some sort of legislative power delegation; this is okay delegation here. There may be some delegation of legislative power that doesnt require going back to Congress (bicameralism and presentment); this is basis of whole administrative state. (If President had to act or not act (instead of having discretion), Stevens (majority) probably would have said it was okay, since President at that point would not be making law.) With entitlement bills, President has interest in spending all entitlements. With regulation bills: President has interest in not spending all the appropriations for law enforcement and regulation. C. Immunities and Privileges (Note: members of Congress are absolutely immune from civil/criminal suits or grand jury investigations premised upon their legislative acts. They are also temporarily immune from civil suit during pendency of congressional sessions.) 1. Executive Immunities Nixon v. Fitzgerald (1982): President absolutely immune from civil liability for his official actions. Clinton v. Jones: President not immune from civil liability for acts committed before he became President. Reason for the difference: President needs to carry out official duties without fear of losing his fortune. Clinton: suit can go on while President is in office, but district court should respect Presidents time/schedule. An issue: official vs. unofficial actions. 2. Executive Privilege U.S. v. Nixon: President not defendant, but he has tapes. Rule: general interest in executive privilege doesnt outweigh interest in getting evidence in criminal case; criminal justice outweighs general executive privilege; however, executive confidentiality may outweigh if there were military, diplomatic, or sensitive national security interests.

31

2 basic points from this case: (1) qualified executive privilege based on general separation of powers; (2) weigh various interests: criminal case outweighs general executive privilege; national security matters outweigh criminal justice matters; (balancing test).

32

VI. Substantive Due Process

Brief Summary of Procedural Due Process: (1) Notice (2) Hearing (a) Pre-termination or post? (Criminal/civil: hearing is before; administrative law: maybe before or after) (b) How trial-like is the proceeding? (Phone call to administrative personnel?) (3) Matthews factors (a) E.g., disability and welfare (b) 3 factors: private interest, government interest, and risk of error. 14 Amendment (proper understanding): (1) Privileges and immunities: fundamental rights (2) Due process: process (procedural protection of the fundamental rights under P&I clause) (3) Equal protection: even positive rights in addition to fundamental rights have to be given equally to all. (Today, due process includes fundamental rights.) Substantive Due Process: 2 basic eras: (1) Economic rights (Lochner); (2) Intimate relations (Griswold). Lochner was discredited: there are no substantive due process rights; it is only procedure; Griswold then said: there are substantive due process rights in area of intimate relations. A. Incorporation Doctrine (1) Fundamental Fairness (FF): Twining (1908): fundamental principle of liberty and justice which inheres in very idea of free government (2) Incorporation (judges can run wild with idea of FF; just apply Bill of Rights to states) (a) Selective incorporation (everyone else) (b) Total incorporation (Black and Douglas) 2d, 3d, grand jury, and 7th Amendments are the only ones that arent incorporated today. (Note: incorporation fits under prohibition analysis, which is under proper means analysis of Marshall chart. In incorporation analysis, talk about generalities/particulars.) Life, liberty, and property: how define? For liberty, look at Bill of Rights. Twining v. NJ (1908): Even though this violated DP under 5th Amendment, state could do it, since it didnt violate DP under 14th Amendment. Palko v. CT (1937): Not violate FF for state to appeal criminal conviction. Cardozo: fundamental fairness described several different ways (e.g., very essence of a scheme of ordered liberty, so rooted in traditions and conscience of people as to be ranked as fundamental, rights such that neither liberty nor justice would exist if they were sacrificed, etc.

33

Adamson: some things required in the Bill of Rights are not required by FF; thus, these things wouldnt bind the states under 14th Amendment. (Today, however, Bill of Rights is seen to apply to states in same way it applies to Fed (where incorporated against the states). Exception to this rule: unanimous jury required in Fed, but not in state.) Harlan goes with FF, not full incorporation; he says FF is not limited to Bill of Rights, and that everything in Bill of Rights is not FF. Barron v. Baltimore (1833; Marshall opinion): Bill of rights does not apply to states. Rationale: (1) Presupposition: if American people form this government in the Constitution, they can only limit this government in the Constitution; (2) Textual argument: Art I, 10 gives limitations on state governments, and takings clause isnt there; (3) Historical argument; original intent. Slaughter-House Cases (1873): Object of 14th Amendment: protect African-Americans. However, the Amendment is not limited to African-Americans. Court quotes Corfield: P&I involve natural fundamental rights. Court wants difference between state P&I and US P&I. (Note: Art. IV, 2 protects outsiders, not in-staters against their own state governments. 14th Amendment allows Louisianan to go to Fed government when LA is giving him a rough time.) Court: certainly framers of 14th Amendment didnt mean to change whole structure of Federalism in our government; thus, only rights protected by 14th Amendment are those already protected; no new protections. (However, clear text of 14th Amendment indicates that it did change the federal structure of our government.) Essentially, this Court says 14th Amendment doesnt protect citizen of a state against his own state. (However, beginning with Lochner, Court said 14th Amendment does protect citizen against his own state.) 6 points from Slaughter House: (1) Art. IV P&I = fundamental rights (e.g., Corfield: not depend on positive law) (2) Engaging in a lawful calling is a P&I of natural law. (3) 14th Amendment ratification debates cited Corfield. (See 5; this is pretty good evidence that privileges and immunities mean same thing in 14th Amendment as in Art. IV, but majority rejects plaintiffs position in (5).) (4) 14th Amendment protects citizens of US against their own states (majority and dissent agree on this, but disagree over what P&I are). (5) Plaintiffs: P&I must mean same thing in Art IV and 14th Amendment (majority rejects). (6) Plaintiffs: LA plaintiffs fundamental right (P&I under Corfield view) is protected by 14th Amendment from infringement by LA (majority rejects: cant get relief against own state). Analysis here: Is the end/object permissible? (1) Legitimate? Majority says this doesnt matter, since(2) Scope of Constitution? No (14th Amendment doesnt protect all FR; thus, state violations of its own citizens FR must be resolved in state legislature.) Dissent: Object analysis: economic regulation is not legitimate, as it interferes with basic right to K. Also, it is within scope of Constitution; 14th Amendment permits Fed to uphold

34

fundamental rights of citizens against their own states. Means analysis: no prohibition on the means (states enacting monopoly). However, no reasonable nexus to legitimate end (it is plainly adapted to illegitimate end, but not to legitimate end). P&I of US citizens under 14th Amendment is not as broad as P&I of state citizens under Art. IV. Saenz: right to travel is a P&I, and it is interfered with when state denies welfare benefits! Thus, P&I clause still has life in it. Saenz v. Roe (1999): Article IV wasnt breached here, since it doesnt protect resident of CA from CA. 14th Amendment protects here. Right fashioned as right to migrate/travel: this is P&I of US citizen; thus, under 14th Amendment, Fed can enforce it intrastate. (In reality, the right to welfare is what is involved here, but majority cant call welfare a FR, since then the wealthy have the same right to welfare as the poor do.) Thomas (dissent): 14th Amendment protects fundamental rights (Corfield) (he would agree with dissenters in Slaughter-House); no protection here, since welfare is public benefit (not privilege), not FR. B. Economic Rights Today, virtually no protection of economic rights; legislature is free. Generalities to Particularities (as with Biblical Law): (1) Life, (2) Liberty, and (3) Property Under (2) liberty: testify in own defense (FF); privilege against self-incrimination (amend. V); confront witnesses (amend. VI); double jeopardy (amend. V; Palko); jury in civil trial (noamend. VII; not FF); unanimous jury (amend. VIFed, not state). Under privilege against self-incrimination: prosecutors comments on silence (Adamson); jury instructions on silence (Twining); force to take stand; out-of-court use of confession against him. Under confront witnesses: cross examination; hearsay. *What level of generality/particularity will a case be decided on? Lochner v. New York (1905): Means: limitations on hours to work (Court views as limitation on right to K). I. Ends analysis: (1) Scope of the Constitution: is it exclusively federal (national security, foreign relations, Marshallregulate commerce)? If not exclusively federal, then it must be concurrent or purely state. (2) Legitimate: Economic rights or police powers? Majority says the end here is economic regulation, which is illegitimate; Harlan says this is police powerhealth of bakers (if minimum wages, fixing prices, or subsidiesredistribution of wealth); Holmes says that even economic regulation is a legitimate end (police power). Today, Court takes Holmes position. (Today, virtually all ends are legitimate; thus, no need for pretext /

35

plainly adapted standard. Thus, analysis shifts completely over to means under prohibition.) (3) Jurisdiction of Federal courts: Court says it does have jurisdiction to decide whether right to K is being violated. (Majority here is interpreting rights as broadly as dissenters in Slaughter House had interpreted privileges and immunities.) II. Means analysis: Proper? (1) Prohibition: either Constitutional limits or Fed statute that preempts state statute? Majority says no problem here. (2) Plainly adapted: this is what majority focused on, saying health was a pretext and real object was regulation of economic rights. Harlan said it really is exercise of police power for health purposes. Harlan uses language indicating more than minimal scrutiny; his standard of review is pretty much the same as the majoritys plainly adapted standard of review (although he comes out with different conclusion). With Holmes, standard of review becomes different when all ends basically become legitimate. For Holmes, no ends analysis, and no plainly adapted test; only a prohibition test. For Holmes, the Constitutional limits under the prohibition test are fundamental principles as they have been understood by the traditions of our people and our law. **There are no substantive economic rights. Thus, use rational basis test, which is easy to meet, especially since all ends here are basically legitimate (including end of economic regulation itself). C. Privacy Rights 4th Amendment protects a type of right to privacy. There is general right of privacy, but it doesnt necessarily include the particulars asserted by the Court (e.g., abortion). Basic problem: getting from general principle of liberty down to particulars: (1) Total incorporationist view of Douglas and Black (still problem of fleshing out particulars under each of the amendments in the Bill of Rights) (2) FF view of Goldberg and Harlan. (Limit judges in their interpretation of substantive due process to only those rights included in FF.) Look at one or more of: (a) history and tradition; (b) evolving conscience; and (c) balancing of interests. Substantive infringements of constitutionally fundamental liberties are presumptively void; burden on state to prove infringement is necessary to achieve compelling government objective. Substantive infringements of non-fundamental liberties are presumptively valid; burden is on challenger to prove the infringement is not rationally related to legitimate government objective. Myer v. Nebraska (1923): right to teach German to children. Pierce v. Society of Sisters (1925): right to send children to parochial and private schools. (Note: Meyer and Pierce keep coming up to prove idea of substantive DP, even though Lochner is discredited.) Skinner v. Oklahoma (1942) (issue of forced sterilization): rights of marriage and procreation. Freedom right: state cant interfere with it, but doesnt have to provide it.

36

Benefit right: state has duty to provide it (e.g., right to have defense counsel provided) Unconstitutional conditions doctrine: government may not penalize the exercise of a constitutional right, but may refrain from subsidizing the exercise of that right. (Refusal of state to fund abortion is thus okay. A penalty would be states denial of medical welfare benefits to anyone who had obtained an abortion.) Essentially, government may not use its power to subsidize to induce people to forgo rights they might otherwise exercise using their own resources; government may simply decline to spend its money to support private choices with which it disagrees. Analysis: I. Ends: (1) Scope of Constitution (2) Legitimate: interstate commerce, police powers, or economic regulation? II. Means: (1) Necessary (2) ProperProhibition (a) Constitution (b) Federal Statute (3) Nexus (this really today fits under necessary analysis, since it is legislative decision-making, not judicial)relationship between state and private interests If legitimate state interest (important: rational basisrational/reasonable connection. (Marshall: plainly adapted test to make sure there is no pretext for unconstitutional end; end simply has to be legitimate and within scope of Constitution.) If important state interest (very important): intermediate scrutinysubstantial connection. If compelling state interest (very, very important): strict scrutinynecessary / least restrictive alternative / narrowly tailored. (Default is strict scrutiny for FR.) Heightened scrutiny refers to anything above minimal scrutiny. (Nexus becomes part of a balancing test: state interests vs. private interests; for Marshall, nexus was connection between means and ends.) *For DP on exam, follow this analysis: (1) Alleged right? (What level of generality/particularity?) (a) Who has a right? (b) What are those rights? (2) Source of that right? (a) Deeply rooted in history and tradition (b) Precedent (c) IICOOL (implicit in the concept of ordered liberties) (d) Social consciousness (3) Standard of review? Senior FR is based implicitly or explicitly in Constitution (think Bill of Rights and incorporation, esp. 1st Amendment). For this class, think of what comes out of DP in 14th

37

Amendment: abortion, marriage, sexual conduct. Strict scrutinyusually; cf. Casey: undue burden; Lawrence: rational basis. 1. Origins: Contraceptive Use Griswold v. Connecticut (1965): (Douglas writing for majority; remember, he is a full incorporationist.) 1st Amendment: includes right to receive information, think, associate with others. (Holmes is right on this: general statement of a right includes many particulars not specifically set forth; deduce particulars from general statements in Bill of Rights.) No ends analysis here; Court doesnt even ask whether regulation of contraceptives properly comes under police power of regulating for public morals. Goldberg (concurring): anything could be legitimate if for general welfare. Any fundamental right can be overridden if government has sufficient compelling interests (including forced sterilization). Harlan (also concurring) and Goldberg find right to privacy in marriage as part of general head of right to liberty. Douglas, however, finds right to privacy in penumbras of various Amendments; the emanations from several Amendments overlap in the area of a right to privacy. 2. Abortion The abortion cases involve legislative type of decision-making by the Court. Roe v. Wade (1973): Court goes from libertyprivacyright to abortion (fundamental). Court gets from right to privacy to right to abortion by arguing from: (a) history and tradition (finds a right because abortion wasnt always criminalized as capital murderthis is bad history and bad reasoning), as well as (b) evolving conscience of people. Court eventually comes to (c) balancing interests. Womans FR to privacy remains same throughout pregnancy. States interest in mothers health is always legitimate and becomes compelling only at end of first trimester. States interest in potential life is always legitimate (maybe substantial?) and becomes compelling only at end of second trimester (viability). Thus, eventually state interests outweigh womans privacy interest. Implication: only compelling state interest outweighs a FR. Thus, 1st trimesterno restriction; 2nd trimestermay impose restrictions for mothers health; 3rd trimestermay prohibit abortion with exceptions for mothers life and health. Step 1: get to privacy and fundamental right. Step 2: any limits on the right? Apply strict scrutiny and require compelling interest. Casey claims that Roe did not impose strict scrutiny standard of review. Whites dissent: let the people do the balancing, not us. He doesnt say that fetus is human being. He says Court may have the power to do this, but it is imprudent. Rehnquists dissent: this is economic-social right (if a right at all); thus, rational basis test should be applied. Casey (1992): Only line is at viability.

38

Mothers interest in bodily integrity seems to be less than a FR; Court never comes out and says woman has FR to abortion. (Is Court saying that abortion is not a FR (dissent: if fundamental, then strict scrutiny has to apply)? Or is Court saying that some FRs deserve strict scrutiny, while others deserve only intermediate scrutiny (some FRs are more fundamental than others)?) States interests in mothers health and in potential life are always substantial. (After viability, interest in mothers health is perhaps compelling, and interest in potential life is probably compelling.) Before viability: may impose restrictions for mothers health and potential life if (1) no undue burden or substantial obstacle, and (2) design is to inform choice, not hamper. (Undue burden test is intermediate scrutiny with legislative balancing.) After viability: may prohibit abortion with exceptions for mothers life and health. Casey said Roe did not give proper recognition to the value of states interests that run throughout the pregnancy. Probably intermediate standard of review here: substantial state interest in potential life throughout pregnancy (does it increase at the end of the pregnancy or not?) (Undue burden in Casey is treated as intermediate, although it kind of looks like balancing.) Here, 4 of the 5 regulations survive the undue burden test; only one that fails is requirement to tell husband. Womans interest/right is spoken of in terms of an interest, rather than a right. (If rights are interests, then we need balancing test, so state can maximize everyones personal interests.) American Convention on Human Rights, Art. 4.1: Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. (This arguably allows balancing childs life against mothers interest. in general language.) Courts cases today balance states interest in life, not childs interest in his own life. No one on the bench has yet called an unborn child a person or human being. Kennedy has referred to child in Gonzales, but this is all we have. Stenberg v. Carhart (2000): Everything same as Casey. Court interpreted statute to prohibit both D&X (intact D&E) and D&E. Court had 2 reasons for striking down the statute: (1): it created an undue burden because all other abortion options were riskier than intact D&E and D&E; and (2): no exception for mothers health. Gonzales v. Carhart (2007): Court seems to treat mothers liberty interest as less than a FR. States interests in (1) mothers health, (2) potential life, and (3) other social values; always substantial interests; perhaps (1) and (3) become compelling after viability; probably (2) becomes compelling after viability. Court cited numerous state interests that were in addition to interests in mothers health and potential life.

39

Court clearly distinguished between D&X and D&E. Upheld statute prohibiting D&X. Before viability: prohibition on D&X is not an undue burden, because there are other options (in particular, D&E). After viability: prohibition on D&X without a health exception is okay because childbirth or other abortion methods are just as safe. No health exception here was not a problem, since Congress found that it was never beneficial to mother to have D&X after viability (natural birth or other abortion method is safer than D&X after viability). Dissenters: sometimes D&X is safer for the mother than D&E; sometimes D&E is dangerous for mother. Scalia and Thomas: let the states resolve this; rational basis test permits prohibition on abortions as legitimate state interest. Note: Court cant avoid problem of deciding whether unborn child is a human being by merely relegating abortion issue to the states. Peterson case: guilty of killing 2 people or just 1 person? If the test is undue burden, it may be that when we get all the medical and scientific facts in, there is no undue burden to prohibit abortion in 2nd trimester. Europe prohibits abortion in 2nd and 3rd trimesters, and permits abortion in 1st trimester. *Court appears posed to accept this standard. 3. Family Relationships The family cases come up with holdings on case-by-case basis. Hard to find rules from these cases. (Like act utilitarians. Rule utilitarian: rules to form everyones decisions. Act utilitarian: consider each decision on its own merits as to what is best for America.) Michael H. (1989): (Go from libertyemotional attachmentfamilyfathermarried father has exclusive paternal rights over children born into the marriage.) Scalia says CL particular right at bottom of chain decides this case. Brennan goes up to level of family to decide that it includes a right of visitation to children born illicitly. Scalia focuses on history and tradition; Brennan focuses on evolving conscience. Moore v. City of East Cleveland (1977): (1) Alleged right: Grandmother has a right to have son, his son, and another grandson/cousin to live together. The family (as an entity) is who has the right. The right is the right to live together. Court says the right is a family-based right, not based on association of individuals. (However, in Casey, OConnor said marriage is 2 individuals, not a corporate entity; this is why wife doesnt have to give notice to husband. However, she did say that state could require parental consent for a minor to have an abortion. Thus, H and W are not a family, while parent/child is a family?)

40

(2) Right rooted in history and tradition (OConnor in Casey had refused to follow history and tradition of viewing marriage as one entity, and instead decided to follow changing consciousness of our people.) (3) There are legitimate state interests here (preventing overcrowding, etc.). Court seems to apply intermediate scrutiny. This is apparently not a FR, but something less than a FR, such as an interest. Stevens: this is a taking without due process and without just compensation. What is a family? (1) Biological (genetic) (2) Functional (3) License (Scalia in Troxel: no judicially enforceable liberty interest of parents in child-rearing; test is childs best interests. Thus, license from state lets you raise your children.) (Note: license to marry shouldnt be viewed as bottom line of right to marry, even though state has legitimate interest in marriage.) *(4) Covenant (marriage is a stronger relationship than parent/child); includes adoption, which is not biological. State recognizes, not creates, the family and marriage. Covenant can explain Michael H., but biological perspective cant. Biological father has no covenant relationship with child born into another marriage. Covenant only formed between the child and the married couple. Abusive parents can eventually sever the covenant, in similar manner to how marriage covenant can be broken/severed.) Loving v. Virginia (1967): 2 potential ways to resolve this case: (1) DP FR to marry; or (2) EPCourt didnt buy argument that EP wasnt violated because blacks and whites were treated equally. 4. Right to Die [Not tested.] 5. Consensual Sexual Choices Bowers v. Hardwick: (1) Court treated alleged right as FR (very particular). Plaintiff wanted case to be resolved at more general level of sexual intimacy. (2) No FR to sodomy. (3) Minimal scrutiny: legitimate end here was morals; means here was prohibiting sodomy; rational connection (nexus): prohibiting conduct is rationally related to end of promoting moral conduct. Blackmuns dissent: no FR, but he would strike down the law on grounds that morality by itself cannot be a sufficiently legitimate state interest. Lawrence v. Texas (2003): (1) Court here goes up to the more general level of privacy right to intimate personal relations.

41

(2) Court doesnt come out and say there is a FR to sodomy, but it almost treats it as such. (a) Court discredits history and tradition relied on in Bowers by saying the old laws were simply trying to prohibit non-procreative sex. (b) Precedent of Romer (c) (d) Social conscience (European Court of Human Rights); this is where Court focuses. (3) Minimal scrutiny. Court found no legitimate government end; enforcement of morals is not a legitimate state end. (Implicitly, they are looking at this as fundamental right, but they dont come out and actually say it. It looks as if they are applying some type of heightened standard of review. Maybe a quasi-fundamental right?) OConnor (concurring in judgment): Decide on EP, not DP. Under EP, moral disapproval of a particular class is an illegitimate state end. (OConnor apparently would say that morals are legitimate end of government under DP analysis, but not under EP.) Scalia (dissenting): Impossible to distinguish homosexuality from other traditional morals offenses, such as bigamy, adultery, etc. (Note: homosexuality, adultery, premarital sex, etc., have been criminalized because they are harmful acts that have harmful consequences. Scalia should have added to his argument the interest the state has in prohibiting homosexuality because of its harmful consequences.) Thomas (dissenting): No FR; no right to privacy. Uncommonly sillyis the end of morals uncommonly silly? Is the connection uncommonly silly? No one in Bowers or Lawrence talked about the states interest in public health; seems that people dont want to talk about the scientific aspects of the health problems promoted by homosexuality. H.L.A. Hart (J.S. Mill): can only prohibit what will cause physical harm. Lord Devlin: only basis for declaring something immoral is outrage to society. Harm/outrage debate is not talked about in these sodomy cases, which is a mystery. **Homosexual marriage and fundamental rightsgreat question for exam!

42

VII. Equal Protection

DP under 5th Amendment incorporates EP clause of 14th Amendment. DP in V encompasses what EP in XIV involves. 3 ways to get heightened scrutiny under EP: (1) Fundamental rights (DP) (think 1st Amendment) (2) Equal protection component of DP (think voting; no fundamental right to vote under DP, but combining DP with EP gives us strict scrutiny for voting rights) (3) EPsuspect class (think race), or quasi-suspect class (think gender [or illegitimacy]) (Note: invidious discrimination is linked with suspect class.) Default level of EP review: minimal scrutiny. Plaintiff must prove either (1) the classification does not rationally advance a legitimate state objective, or (2) the objective is illegitimate. When evaluating the rational connection, look at under- and over-inclusiveness (not necessarily dispositive). Economic minority: not trigger EP concern. A. Minimal Scrutiny: Default Level of Review Railway Express Agency, Inc. v. New York (1949): Means: classes here are (1) Pat the Plumber advertising on his own truck, and (2) Pat the Plumber advertising on others trucks. End: safety of drivers (legitimate) Nexus: rational basis test here; any conceivable legitimate end will be sufficient (statute doesnt have to state the legitimate end on its face). Court here said it was okay to promote the end by prohibiting only some ads instead of prohibiting all ads; this will be left to legislature. In other words, state can take incremental approach; EP doesnt require all or nothing. Jackson (concurring): sounds like he will dissent until the end, where he permits distinction between mere hirelings and others, viewing it immoral to be a mere hireling. Williamson v. Lee Optical Co. (1955; classes were (1) opticians and (2) ready-to-wear): Court used very minimal scrutiny and left the reason for making this distinction to the state legislature. New York City Transit Authority (1979; classes were (1) methodone users for over 1 year and (2) non-methodone users; end was safety for subways): Court said this was okay, even though this statute was both over- and under-inclusive. MA Bd. of Retirement v. Murgia (1976): okay to distinguish between over-50-yrs-old and under-50-yrs-old for police officers. No FR to public employment; age classifications are not suspect; thus, minimal scrutiny here. United States Railroad Retirement Board v. Fritz (1980): Means: classes were (1) retirees who are currently working in RR or over 25 yrs by 1974; (2) retirees who have 10-25 yrs but not a current employee. Those in class (2) think they will have vested security in the RR, and Congress changes the rules on them.

43

Ends: promote working for RR; maintain solvency of retirement system for RR. No suspect class here, and no illegitimate end; thus, Court applies rational basis. Congress stated purpose for revamping its statute was to preserve vested rights. (Unions drafted statute.) Court says there are plausible reasons for Congress action here; thus, it upholds this statute under rational basis standard. Brennan (dissenting): Can use conceivable purpose unless Congress actually states its end/purpose. Here, Congress stated its purpose of preserving vested interests, and excluding class (2) does the opposite of this. USDA v. Moreno (1973): Ends (specified in statute): both stamp out hunger and strengthen agriculture. Means: classes were (1) households with members biologically related; (2) households without everyone biologically related. No rational relation between this classification and the ends specified in statute. Court says the real end/purpose of this statute is to discriminate against hippies. Conceivable ends were argued by government attorneys. Court sounds like heightened scrutiny in response. Court responds to all the ends advanced here with either: illegitimate ends; means not rationally related to ends; or, heightened scrutiny. Romer v. Evans (1996): Court applies minimal scrutiny (seems to imply no suspect/quasi-suspect class). Ends: (1) Scalia: purpose here is simply to eliminate special protections for homos. (2) Court interpreted statute here as eliminating many protections/law (not all protections, but it cut too deeply). (3) Makes it harder for homosexuals to get special rights (have to go through constitutional amendment process). Court says it is illegitimate state end to eliminate protections of the law; rationale: if you discriminate because of animus, it is illegitimate end. *Whenever Court looks at statute involving homosexuals, it will look at animus; if there is animus, it will strike down the law, since animus toward homosexuals is illegitimate state end. (Scalia says this looks like more than mere minimal scrutiny, without being actually heightened scrutiny.) Cleburne (1985): Means: classes here are (1) mentally retarded and (2) not mentally retarded. Ends advanced by state: perhaps valid safety ends; perhaps aesthetic interests of neighborhood; perhaps protection (junior high nearby). Court struck it down anyway. Court evaluates the conceivable ends to see if they were actually viable. This was higher than simple minimal scrutiny, since the Court didnt just acknowledge there were conceivable legitimate ends and leave it there, permitting the state to take step-by-step approach instead of achieving a particular end all at once. Instead, the Court grills the states interests here. Mentally retarded are not suspect or quasi-suspect class.

44

(There appears to be a heightened minimal scrutiny the Court sometimes uses.) (With heightened minimal scrutiny, sometimes it looks as though the burden has shifted from plaintiff to state.) Marshall: there are not simply 3 watertight categories for review; there are various degrees of fundamental and of invidious. There is a continuum, not just 3 categories. *(Court is much more willing to scrutinize personal rights situations more closely; Court doesnt want to give more than very minimal scrutiny to economic cases.) *Tests for suspect class: (1) Immutable (2) History of discrimination (3) Lack of access to political power Plyler v. Doe (1982): Means: classes are (1) children of illegal aliens and (2) children of everyone else. No suspect class or fundamental right here; thus, minimal scrutiny. (Illegal aliens are not a suspect class.) Ends: discourage illegal aliens and save money (solvency). *Standard/review here: rational basis for nexus, but the ends must be substantial. BOP is effectively shifted to state. Court is essentially saying that right to education is more basic than right to welfare. Saving money is not a substantial end. Court responds to the other possible state ends with a balancing methodology. B. Strict Scrutiny and Suspect Classifications: Race and Ethnicity Government constantly discriminates, but is the discrimination wrongful or invidious? Factors for presumptively invidious: (1) immutable traits, (2) history of purposeful unequal treatment, and (3) perennial lack of access to political power. Korematsu (1944): Means: classes are (1) Japanese Americans on W. Coast and (2) others Ends: national security Court balanced government interests (evaluated evidence offered by the Army) and found national interests to be compelling here. Facial discrimination triggered strict scrutiny. Court upheld legislation under strict scrutiny. 1. Purposeful Discrimination Required For a legislative classification to be constitutionally suspect, plaintiff must prove that the classification is intentionally discriminatory, i.e., it was adopted to use the suspect criterion (e.g., race) as the basis for classification. 3 ways to establish this: (1) Facially discriminatory classifications (2) Neutral classifications applied in a discriminatory fashion (plaintiff may prove that the classification is actually applied on a suspect basis)

45

(3) Neutral classifications motivated by discrimination that produce a discriminatory effect Washington v. Davis (1976): Test involved for qualifications for being police officer. Classes here are (1) those who pass the test, and (2) those who fail the test. Ends here are qualifications for police and public safety. There is a disproportionate burden here on blacks taking the test. Question is whether the law unduly burdens a minority group. Plaintiffs are arguing that disproportionate burden itself violates EP. (If this was neither facial nor purposeful discrimination, then if it doesnt violate the Constitution, the law should be upheldend of analysis. However, Court goes on to discuss more.) Once plaintiff makes prima facie case, burden shifts to government to show no discriminatory intent/purpose. *Prima facie case is not met by simply showing disproportionate effect; need something else before burden shifts to government. Plaintiff must make prima facie case that there was discriminatory purpose. If burden shifts to government: if government proves no discriminatory purpose minimal scrutiny; if government fails to prove no discriminatory purposestrict scrutiny (government will lose). (Note: BOP issues not necessary for exam.) Arlington Heights (1977): (Not testing on this detail here, but interesting to look at.) If plaintiff fails to prove race is motivating factorminimal scrutiny If plaintiff proves race is motivating factor, then if government cant prove legislature would have made same decision anywaystrict scrutiny, but if government can prove legislature would have made same decision regardlessminimal scrutiny. 2. Official Racial Segregation 3 Big Cases: Dred Scott (1857): blacks cant become citizens even if they are freed. Plessy v. Ferguson (1896): separate but equal. (Harlans dissent: EP requires color blindness; separate but equal is not okay.) Brown v. Bd. of Education (1954): separate cannot be equal (at least in context of schools), no matter if facilities, teachers, etc. are the same. Brown I (1954): Education: perhaps the most important function of state and local governments. Education not a right, but if state provides it, must provide to all on equal terms. Brown II (1955): Court gives fairly wide discretion to district judges to fashion remedies.

46

Court says the judges may have to change the state and local laws! Courts thus exercising legislative function. Supervision for years: courts acting executively, sending out injunctions regularly. Courts also have to act as school board (running the household of the school). (Note: there must be intentional racial discrimination before courts can give any remedy.) Problem in these cases is in coming up with a remedy. Court essentially owns the school districts (receivership idea); court runs the district as the effective superintendentfor 15 or 20 yrs perhaps. This changes the whole role of a court as remedy-provider. Courts should simply provide final, appealable decisions. Essence of the problem in Brown: courts trying to act as political bodies. Compare to traditional lawsuit: (1) Particular plaintiff (victim) and particular defendant (wrongdoer). However, in Brown and following note cases, (cf. Bakke), generalized class of victims/plaintiffs. Group, not individuals. (2) Facts are backward looking: who did what wrong and cause what harm to whom? However, here the focus is forward looking. (3) Remedy to make plaintiff whole; defendant is to make whole. However, remedy here is to deal with group wrongs, not individual wrongs. Remedy: when are the vestiges of discrimination eliminated? Probably when the school board takes the right attitude and tries to do things right. Court typically settles a case by giving damages and then making the case final and appealable. Here, however, courts retain jurisdiction for years and years, not coming to final and appealable decision for a long time. Fundamental problem in these cases: education is illegitimate state power! 3. Affirmative Action Bakke (1978; med school set aside 16 minority places in each 100-person entering class): Means: classes are (1) white majority and (2) several non-white minorities Strict scrutiny applied here. Suspectness of class is triggered by (Powells view, followed by most courts) any racebased classification. No benign classification here, since discriminating in favor of the minority can stereotype/stigmatize the minority. Strict scrutiny to discrimination both against majority and against minority. *If general societal wrong government is trying to remediate by affirmative action programthis is not compelling state interest; government may not do this. *If government itself has engaged in racial discrimination in the past, then government providing a remedial end can be compelling. Powell finds compelling interests here (diversity in student body), but says nexus doesnt pass test of necessary to accomplish ends. Why not necessary / narrowly tailored to achieving diversity?You can have multiple factors including race, but not quotas based simply on race. City of Richmond v. J.A. Croson Co. (1989):

47

Means: classes are (1) Minority Business Enterprises (30%) and (2) majority-owned Majority takes Powells approach: cant discriminate based on race at all. Dissent still tries to bring in idea of benign purpose in discrimination in favor of minority. Strict scrutiny here. State can only remedy governmental discrimination (identify the wrongdoer). Why states and fed differ under 14th A: 5: Congress has been granted greater power to devise remedies for violation of 1 (which limits and restricts the states). Court says that with states, remedy must be narrowly tailored to right a particular remedy against identifiable plaintiff(s). City couldnt show this here. *With race-based classification, the end must be compelling state interest: (1) Diversity in education (2) Remedial (3) Emergencies (e.g., prison race riot) (Explain these 3 possibilities in a rule explanation under answer on exam EP race question.) To achieve one of these 3 compelling ends with race-based classification, the nexus must be necessary or narrowly tailored. (Note: Strict scrutiny: is it necessary means here to accomplish the compelling government end? Necessary here means absolute necessity; thus different from Marshalls understanding of necessary in necessary and proper clause.) Quotas are automatically wrong; cant have quotas. Court will usually analyze this under the nexus issue. You can take race into account as one of many factors. Diversity not limited to racial diversity. Court generally will not make distinction between benign and invidious purpose/intention for racial classification. Even benign intention still stigmatizes and makes racial tensions worse. Important to consider: individual rights or group rights? Adarand Constructors, Inc. v. Pena (1995): Means: classes are (1) non-economically deprived and (2) economically deprived with presumption that certain minorities are economically deprived. (Without the presumption, it would have been mere minimal scrutiny for economic classification.) EP under 5th Amendment is the same as EP under 14th Amendment (same requirements for states and fed). *All racial classifications, imposed by any governmental actor, must be analyzed under strict scrutiny. Grutter v. Bollinger (2003; MI law school): Court treats diverse student body as the end, which it says is a compelling state interest. However, it seems as though diversity is a means to the end of education, which is means to the end of leadership, which is means to the end of general welfare. (Court would probably reject remedial end as compelling in this case, since there is no evidence that MI Law School had discriminated against minorities in the past.) Court held diverse student body is compelling state interest because having critical mass of minority students encourages them to speak up and enhances classroom discussions.

48

(Court defers to the universities! This looks like a lower standard of review than strict scrutiny should be.) On nexus issue (is it narrowly tailored?): Is there any other race-neutral way of insuring diversity? Court says that the alternatives are too costly here (it would give up the schools elite status). Narrowly tailored requires no undue burden. Court held no undue burden here on nonminority individuals. Court gives 25 yrs to fix the problem. (This makes the problem look somewhat remedial in nature than simply concerned with diversity. Court, however, treats this as a diversity state interest case.) (It really looks as if the school here is not being honest. Ginsburg says be more honest: this is remedial and such is ok.) Gratz v. Bollinger (2003; University of MI): Held: policy of automatically giving 20 extra points to every underrepresented minority applicant solely because of race is not narrowly tailored to achieve interest in educational diversity. C. Intermediate Scrutiny: Sex and Illegitimacy Reed v. Reed (1971): Law that men are preferred as administrators of estate struck down as irrational under minimal scrutiny. Court does recognize there are differences between men and women. Weisenfeld (1975): only widows get certain SS benefits; widowers dontCourt voided. Kahn (1974): property tax exemption for widows, but not widowersCourt upheld. Remedial purpose sometimes okay: see Ballard (Navy promotion rule gave women longer time). Note: any time we differentiate between men and women, we will consider it an invidious classification. Look at it as classification on basis of gender, not as discrimination against minority. Use heightened scrutiny with any classification on basis of gender, even if no discrimination against minority involved. Remember, with heightened scrutiny, state has BOP. Craig v. Boren (1976): Law discriminated against 18-20 yr old men; only women of that age could buy 3.2% beer. *Standard (classic formulation for intermediate scrutiny): classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Ends: safety (important state interest) Nexus: has to be substantial, which it is not here. *Views of differences between men and women are invalid if they are archaic, outdated, overbroad, and evince misconceived roles of men and women.

49

Plaintiff in sex discrimination suit must prove that the sex classification is intentional. Disparate impact by itself is not sufficient; must prove that the facially neutral law was adopted because of its sexually discriminatory impact. Court requires actual purpose, not conceivable post hoc purpose. Issue: is the sex classification based on real differences or archaic generalizations? Michael M. (1981): CAs statutory rape law made only men criminally liable. End: preventing illegitimate teen pregnancy (important). (Probably the real reason this law was adopted by CA was to protect chastity of more nave young women against older promiscuous men.) Nexus: sufficiently related to states objectives to pass constitutional muster. Natural sanctions (pregnancy) deter females, but this law roughly equalizes the deterrents on males and females by providing special deterrent to males. Court said a gender-neutral statute here would frustrate the states interest in effective enforcement, since a female would be less likely to report violations if she would be subject to prosecution herself. Rostker v. Goldberg (1981; Selective Service Act authorized President to require registration of males and not females): Means: classes of young men and young women. Ends: national defense, or raise an army in time of emergency (this is not only important but compelling state interest). Nexus: substantially related. Typically, no deference to legislature with heightened scrutiny. However, Court defers here in national defense and military affairs. Court essentially says this law is okay since women by law cant go into combat, but this begs the question; the real issue here is can women serve in combat? U.S. v. Virginia (1996; VMI case): Means: classes are (1) male students and (2) female students Ends: citizen-soldiers; diversity within state school system Court said alleged diversity interest was not historically grounded, but was just made up for purposes of this litigation; wasnt in writing or in mind when VMI was founded. Only one plaintiff here. (Court inconsistently deferred to state in MI education case, but not in VA military case.) Exceedingly persuasive justification probably applies to both ends and nexus. Court seems to be applying higher scrutiny than simple intermediate scrutiny; something between intermediate and strict. Note: EP clause itself doesnt mention gender. Voting rights under 15th Amendment could be based on gender. Thus, EP clause in 14th Amendment wasnt intended to prohibit men/women distinction. What if Congress passed law saying that women have to be allowed in all combat positions? Then women couldnt oppose being drafted! Men also couldnt oppose women in combat, since Court would have no reason to mandate discrimination/distinction.

50

Statutes that classify on the basis of illegitimate birth are subjected to intermediate scrutiny. D. Fundamental Rights: Strict Scrutiny Redux Framework: (1) ep + fr = strict srutiny (a) every statute has some categorization (ep implications: rational basis default) (b) every statute impacts life/liberty/property (c) another kind of fundamental right / invidious discrimination (2) Big 3 Winners (a) Voting (strict scrutinynote cases; minimal scrutinyScalia in Burdick, Crawford; didnt sayHarper; balancing testAnderson, Crawford) (b) Criminal justice (on appeal: right to transcript and right to counsel) (c) Travel (interstate migration) (possible overlap with P&I and/or commerce clause) (3) Little 2 Losers (a) Education (i) Rodriguez (ii) Plyler (b) Welfare (Court drew the line at education and welfare, saying that these were legislatively created rights, and thus not FRs. However, it makes more sense to view the line as being drawn at benefit rights (since voting and criminal justice are also legislatively created rights). Little 2 are benefit rights; Big 3 are more natural liberty type rights.) Under equal protection, fr either (1) is an independently protected Constitutional liberty (e.g., free speech), or (2) has been identified as fundamental for equal protection purposes even though it is not independently protected by the Constitution. Senior FR is based implicitly or explicitly in Constitution (think Bill of Rights and incorporation, esp. 1st Amendment). For this class, think of what comes out of DP in 14th Amendment: abortion, marriage, sexual conduct. Strict scrutinyusually; cf. Casey: undue burden; Lawrence: rational basis. Junior fr. Any law will affect life, liberty, or propertydue process. Any law will discriminate against groupsequal protection. Every law has potential of becoming fr + ep, which would make everything strict scrutiny. Court recognized this in the 70s and drew the line. The only strict scrutiny under fr + ep analysis now is travel, voting, appeal rights (at least criminal; also civil?). How distinguish fr from implicit rights in Constitution? Voting, e.g., or right to criminal appeals, seems to be implicit in our Constitutional system. There is simply some overlap between FR and fr in terms of being implicit in Constitution. Rodriguez (1973): Means: ep classes are poor school districts and rich school districts. Court said it was not invidious discrimination to classify on basis of wealth.

51

Plus fr: education. Court drew the line at education (Court not competent to run school system). Minimal scrutiny here, not strict. (This case signaled a practical end to the possibility of finding new fundamental rights in equal protection itself.) 1. Voting The key, major issues in the voting cases (things to think about): (1) What is the fr? And what is the ep? Identify. (This fr and ep underlie all the cases even when they arent clearly discussed by the Court.) (2) What is the standard of review? Default with fr + ep is strict scrutiny. Even with voting, however, courts apply strict, intermediate, minimal, or balancing. (3) Individual rights (youre vote is being heard; one-person, one-vote idea) vs. group rights (apportionment cases re voting) (4) Washington v. Davis problem: purpose and/or effects. Washington was only a purpose test. Later cases on voting have added effects test. (5) Political question doctrine (4 justices say this whole issue shouldnt be in the courts, unless racial discrimination). The broad issue is talked about in terms of justiciability, although the focus is probably on the PQD in particular. (6) Are rights absolute? Court has said no rights, even FR, are absolute. Strict scrutiny is close to absolute right, but it is not absolute right. (7) Party-based? Race-based? Other (1st Amendment)? Different standard for partybased than for race-based (strict scrutiny for race-based). Sometimes Court uses balancing test (e.g., Crawford, where fraud was involved rather than simple apportionment). Reynolds v. Sims (1964): (In Baker v. Carr, TN was not following its own law; here, there was no specific state law mandating equal representation.) Means: ep classes are fairly treated and unfairly treated (votes are worth less); fr voting (bedrock of political system; tied to 1st Amendment and political process participation). Ends: electing a government (evidently compelling interest) Court appears to use strict scrutiny here: carefully and meticulously scrutinized Court sounds like it is treating equality of votes as natural law right that was compromised by the Fed Constitutional Convention. Harper (1966): Means: eprich and poor classes; frvoting Struck down poll tax here: no rational connection to purported possible ends. This case has been interpreted later by the Court to use strict scrutiny. (Note: 24th Amendment didnt eliminate state poll taxes, only federal poll taxes.) Court has applied minimal scrutiny in upholding property qualifications for voting in special-purpose elections for limited-purpose government units whose functions primarily affect the property-qualified electors. (Example: water storage districts.) However, this special

52

purpose exemption does not apply where the voter eligibility line is drawn along racial/ethnic lines. Crawford (2008): 1% of the people dont have the requisite ID cards to vote, but they can easily get them. Balancing test (not strict scrutiny; not decide whether there is invidious discrimination or whether fundamental right has been violated). Distinguish from Harper: ends here are preventing voter fraud. Will we balance the states interest against (a) all voters interests, or (b) interests of the 1% group, or (c) individuals voting rights? Court leaves open possibility of bringing as applied challenges under (c). Court says plaintiffs may have won if they would have plead and made a case for (b), but they didnt. (Note: Scalia looks at (a), not in order to do balancing test, but in order to know which standard of review to apply; he applies rational basis here.) Emphasis shifted away from purpose (Washington focus/rule) to burdens. Defers to legislative judgment of state (unusual for balancing test). (Easy for state to prove that its interests outweigh burdens on 1% of population.) Bush v. Gore (2000): Voting for President is fr (created by state legislature, not by Constitution). Classes for ep here (stretch!): those whose votes are counted fairly and those whose votes are not. Standard here is not actually strict scrutiny, even though we have fr + ep. Rather, standard is arbitrary. Rationale: different counties do things differently; no uniform standard for counting votes. This is unequal. When a state court orders a statewide remedy (recount here), there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. Here, the procedural safeguards are just too minimal. (Implications of this case: Court doesnt want to get into the kind of monitoring strict scrutiny would require if they applied strict scrutiny here to the fr + ep in this context. What about other contexts?) 2. Voting: Gerrymanders Davis v. Bandemer (1986): Voting is fr; ep here is Democrats and Republicans. Majority: this claim is justiciable. Rule (2 elements): there must be (1) intentional discrimination against identifiable political group, and (2) there must also be an actual discriminatory effect. (Shift to group rights instead of individual rights now.) Held: here, there was intent (easily met), but no sufficiently adverse effect. Some kind of heightened scrutiny here. (Note: the nature of the political process itself protects against abusive gerrymandering.) OConnor: not justiciable, since no judicially manageable standards. Vieth (2004):

53

Plurality: not justiciable, since no judicially manageable standards for gerrymandering claims. For discriminatory intent: cant figure out predominant intent of legislature. For discriminatory effect: people switch parties; gerrymandering may not work very well. Kennedy (concurring): this case is not justiciable, but voting cases might be justiciable; we just havent figured out a good standard yet, but there might be one. Maybe new standard will focus on discriminating against people because of particular beliefs (1st Amendment). (Plurality was ready to overrule Bandemer and declare gerrymanders a non-justiciable political question.) Perry (2006): Majority assumed without analysis that this was justiciable. Plaintiffs argued violation of 1st Amendment right (FR). Plaintiffs also argued equal protection. (1) Intent: they argued sole partisan motivation, based on evidence of mid-decade redistricting, but court didnt buy this argument. (2) Discriminatory effect: Court didnt buy this either, since the representation was more proportional to the voters (Dem/Rep ratio) after the redistricting than it was before. Plaintiffs 2nd theory of gerrymandering: mid-decade redistricting violates 1-person, 1vote rule. Court didnt buy this argument, because of the legal fiction that lines drawn after a census are okay, but not necessary, to use for the next 10 yrs until the next census; this wont violate one-person, one-vote rule. *With race-based discrimination (Voting Rights Act), the Court will strike it down on either intent or effect. Shaw v. Reno (1993): Redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race demands the same close scrutiny that the Court gives other state laws that classify citizens by race. It is okay to take race into consideration when drawing district lines, but you cant depart from traditional contiguousness with race-based districting, unless you can then prove compelling state interest. *With party-based districting, it is only stricken if the sole motivation was partisanship. *With race-based districting, it is stricken if race was the predominant basis. Race-based districting is clearly a strict scrutiny standard of review. Exam (FR and EP essay): Use Lawrence (OConnor and Scalia) and Romer for homosexual issues. Right to marriage cases. Right of parents to raise their children. Right to privacy cases (Griswold, Roe, Casey) *Talk about generals down to particulars with these issues/cases. Identify the 2 classes. If suspect class (race or nationality), strict scrutiny. If gender, intermediate. If anything else (esp economic rights), minimal.

54

Nexus: strictnecessary, (no other way to achieve the end) least restrictive, or most narrowly tailored means; intermediatesubstantial relationship; minimalrational relationship. Note: court has jazzed up versions of minimal scrutiny with rational relationship. Sometimes, instead of merely accepting conceivable nexus, Court wants to see something on the record; maybe Court will hold state to what is on the record.

55