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Constitutional Law Prof H


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Commerce Clause 1890s-1937
Focus is on the activity being regulated, not the effect of that activity. Commerce does not equal manufacturing or production because manufacturing has only an incidental and indirect effect on commerce. (E.C. Knight) (Carter Coal) (Schecter) (Hammer) Shreveport cases tell us that commerce does include transportation and instruments of transportation. The Feds want to limit interstate discrimination. In terms of the 10th Amendment, it reserves a separate and distinct zone of power for the states that encompasses matters: local in character, mining, manufacturing, crop growth, and police regulation relating to internal trade and state affairs.
United States v. E.C. Knight
The Court held that the Sherman Antitrust Act could not be used to stop a monopoly in the sugar refining industry because the Constitution did not allow Congress to regulate manufacturing. The Court held that federal law could not be applied because the monopoly was in the production of sugar, not in its commerce.
Carter v. Carter Coal Co.
The Court declared unconstitutional the Bituminous Coal Conservation Act of 1935. The law contained detailed findings as to the relationship between coal and the national economy and declared that the production of coal directly affected interstate commerce. The Supreme Court declared the law unconstitutional. The Court focused on the unconstitutionality of federal regulation of wages and hours. The Court takes away the "incidental-and-indirect" test and looks at "local evils" and "secondary-and-indirect" effects.
A.L.A. Schecter Poultry Corp. v. United States
The Supreme Court declared the Code unconstitutional because there was not a sufficiently "direct" relationship to interstate commerce. Although the Court acknowledged that virtually all of the poultry in NY was shipped from other states, the Court said that the code was not regulating the interstate transactions; rather, the code concerned the operation of businesses within NY. The Court emphasized that Congress only could regulate when there was a direct effect on interstate commerce.
Hammer v. Dagenhart
Although the law only regulated transportation of goods in interstate commerce, the Court declared it unconstitutional because it controlled production.
Commerce Clause 1937-1990s
(NLRB v. Jones & Laughlin Steel) (Darby) (Wickard) (Heart of Atlanta Motel) (Hodel)
Commerce Clause 1937-1990s -- Emphasis on Criminal Laws
(Perez) (Lopez) (Morrison) (Gonzalez v. Raich)
NLRB v. Jones & Laughlin Steel
Two theoretical bases for upholding the statute: (1) Congress's authority extends to the regulation of activities that burden or obstruct the free flow of interstate commerce. (2) The fact that the burden or obstruction occurs at the production phase is immaterial -- the issue is whether activities affects the free flow of interstate commerce. When addressing burdens on or obstructions of interstate commerce, Congress's authority is not limited to activities "essential" to the flow of interstate commerce -- overturning E.C. Knight, Carter Coal, Schecter, and Shreveport cases.
NLRB: Burden or Obstructions raises two questions
(1) How much of a burden or obstruction is required to trigger congressional authority? (2) Once Congress's authority is triggered: (a) What kind of regulation is permitted? (b) What kind of activities can be regulated?
Commerce Clause 1937-1990s -- Regulation of Production
"Stream of Commerce" is not a restrictive concept (i.e., one that leaves production beyond federal power) Instead, the test is whether the effect of the activity sought to be regulated is to burden or obstruct the stream of commerce. It is NOT whether the object of the regulation is itself part of the stream of commerce. "Stream of Commerce" is thrown out of the window -- focus is now on what activity is being regulated.
United States v. Darby
State power is going to be defined by the absence of federal power. 10th Amendment is a "truism" and "nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between national and state governments . . ."
Wickard v. Filburn
(1) What type of effect and/or severity of effect is required to trigger Congressional authority? Old rule: direct effect v. indirect effect What kind and/or how much of a burden or obstruction? New rule: "substantial economic effect" Court makes subtle distinction between commerce and economic, thus allowing court to effectuate purpose even if it does not exactly fall within "commerce"
Wickard -- Aggregation Principle
By looking at the aggregation of the economic effects of several people, as opposed to just one, the Feds are able to regulate based on the "substantial economic effect"
Heart of Atlanta Motel, Inc. v. United States
(1) Look at whether the activity being regulated has a "substantial economic effect" on interstate commerce (a) "effect" = a burden or obstruction to the free-flow of commerce (2) Racial discrimination has a substantial effect on interstate travel -- burdening interstate travel for blacks (3) Court's response to "purely local activity" argument is the use of the aggregation principle (a) "Purely local activity" now only applies if aggregation principle does not apply
Commerce Clause helps Congress reach three categories:
(1) The use of channels of interstate or foreign commerce (Heart of Atlanta) (Darby) (2) Protection of the instrumentalities of interstate commerce; this includes the power to regulate persons and things in interstate commerce (Shreveport cases) (3) Those activities affecting commerce (NLRB)
United States v. Lopez
The regulation of firearms does not fit within the third category because it fails to show a connection to interstate commerce. The activity being regulated is criminal, not economic; there was no expressed jurisdictional element; there was no legislative findings to support a link between the regulated activity and a substantial effect on interstate commerce; any link between the activity being regulated and a substantial effect was too tenuous.
Gonzalez v. Raich
Court says Congress can regulate commercial ("produced for sale") activities If Congress concludes that the failure to regulate marijuana in California undercuts the power to regulate marijuana in the country, then Congress has the power to regulate marijuana in CA Under Wickard, purely local non-commercial activity can be regulated; noncommercial/commercial activities can be aggregated Under Raich, purely local activities must be economic to be aggregated as a class of activities; only economic (not non-economic activities) can be aggregated
National League of Cities v. Usery
FLSA: minimum wage/overtime 10th Amendment equals protection of sovereign state activities (a) sovereign state activities: attributes of sovereignty (i) Standard: "functions essential to separate and independent activities" -- specifically: integral operations; traditional government functions Standard become too difficult to apply -> overruled by Garcia
United States v. Morrison Part II (Congress regulating private conduct)
I. Plaintiff argues that there is a "pervasive wrong" and that the States are not acting to remedy it. Thus, § 5 of the 14th Amendment should enable Congress to enforce the amendment by passing the Violence Against Women Act. II. Court reasons that the 14th Amendment controls state and local government not private conduct.
10th Amendment Commandeering (Hi-jacking State Sovereignty) Cases
(New York v. United States) (Printz v. United States) (Reno v. Condon)
New York v. United States -- 10th Amendment Commandeering
Holding/Rule: the federal government may not compel the States to enact or administer a federal regulatory program Alternative #1: State can comply with federal regulation or Feds will pass a law by the power of the Commerce Clause Alternative #2: Under the Spending Power, Feds can pass restrictions on money given to States
Printz v. United States -- 10th Amendment Commandeering
Holding/Rule: Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Fed. Gov. may either issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program
Reno v. Condon
New York and Printz do not apply because those were affirmative actions, cases interpreted narrowly; Reno relates to prohibitive actions
Post Civil War Amendments -- 13th Amendment
Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction Section 2: Congress shall have power to enforce this article by appropriate legislation
Post Civil War Amendments -- 14th Amendment
Section 1: (a) All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside (b) No state shall: (i) Make or enforce any law which shall abridge the privileges of immunities of citizens of the United States; (ii) Nor shall any state deprive any person of life, liberty, or property, without due process of law (CITIZENS not used) (iii) Nor deny to any person within its jurisdiction the equal protection of the laws (CITIZENS NOT USED) Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Post Civil War Amendments -- 15th Amendment
Section 1: The right of citizens of the U.S. to vote shall not be denied or abridged by the U.S. or by any state on account of race, color, or previous condition of servitude. Section 2: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Katzenback v. Morgan (Congress regulating private conduct)
I. State and federal laws in conflict (1) If a state has a constitutional statute in place, can the Feds nonetheless come in and restrict that statute? II. Can Congress use § 5 enforcement powers to go beyond the 14th Amendment to regulate a law outside the substantive zone? (1) Court says yes. (2) Two-part analysis: (i) When Congress is enforcing the 14th Amendment, Congress is allowed to act in the same way it could under the Necessary and Proper Clause - very broadly. (ii) Is statute plainly adapted to the ends of the Constitution? Can be very broadly or loosely related. III. Congress's power to enforce the 14th Amendment is larger than the substantive core of the amendment.
City of Boerne v. Flores
I. RFRA struck down as it applies to the States II. Congress CAN "legislation which deters or remedies constitutional violations can fall within the sweep of Congress's enforcement power even if in the process it prohibits conduct which is not itself unconstitutional ...." III. Congress CANNOT enforce a right by changing what the right is. IV. Test for defining what falls under which one: (1) There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. (a) Statute is congruent and proportional -> CAN (b) Statute is not congruent and proportional -> CANNOT
Youngstown Sheet & Tube Co. v. Sawyer
Facts: Steelworkers Union announced a planned nationwide strike as a result of a labor-management dispute. A few hours before the strike was to begin, President Truman issued an executive order which directed the secretary of commerce to take possession of the steel mills and to keep them running. Truman believed that the steel strike could endanger the national defense and the war effort in Korea because steel was indispensable for all weapons. Issue: Whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. Holding: The Court declared the seizure of the steel mills unconstitutional. Holland's fav quote: The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. NOTE: extra flashcard with Justice Jackson's three zones of Presidential power
Youngstown Sheet (Justice Jackson's three zones of Presidential power)
1. When the President acts pursuant to an express or implied authorization by Congress, his authority is at its maximum, for it includes all that he possess in his own right plus all that Congress can delegate. (Executive Power + Delegated Legislative Power = Presidential Power Max.) 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers. (Executive Power + Nothing = Inconclusive) 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb. (Executive Power - Legislative Power = Presidential Power minimum)
United States v. Nixon (Executive Powers)
Argument #1 - Justiciability: Nixon argues that court has no jurisdiction over the dispute because it rests within the executive branch, apart from the judicial branch. Argument fails. Argument #2 - Privilege: Nixon claims absolute privilege under Separation of Powers, and conditional claim of privilege under need for confidentiality of high-level communications. No absolute privilege. I. Court uses balancing test on conditional privilege: (a) Strength of privilege claim vs. need for subpoena duces tecum (b) Privilege claim: strongest when needed to protect military, diplomatic or national security; weakest in undifferentiated claim (i.e., no national security) (c) Subpoena: ensure defendant's rights of due process, confrontation clause, right to present witness II. Balancing test results in no privilege in case
Clinton v. City of New York (Executive Powers)
I. Line-Item Veto Act: (1) Identify item for cancellation; (2) determine that cancellation will (a) reduce deficit, (b) not harm essential government services, (c) not harm national interest; (3) transmit within 5 days via special message to Congress; (4) Congress considers - disapproval (expedited) II. Holding: The Court declared this statutory increase in presidential power unconstitutional. The president, by exercising the line-item veto, was changing a law adopted by Congress; the final version of the law is different after the veto than what Congress passed. The Court concluded that the Constitution does not allow such presidential authority. III. President's powers restricted to approving laws or vetoing them.
Non-Delegation Doctrine
I. Congress cannot delegate its legislative power II. 2 cases establishing the non-delegation doctrine, both on the cusp of change in commerce power: Schecter v. United States (1935), Panama Refining v. Ryan (1935) III. Schecter and Panama implicitly overturned. Since 1935, not a single federal law has been found to be an unconstitutional delegation of legislative power. NOTE: As a result of the demise of the non-delegation doctrine and the legislative veto, removal power and appointment power have become the primary ways to control an agency.
Legislative Veto
I. Without a legislative veto, the only way for Congress to overturn agency rules is to enact a law specifically for that purpose -- very cumbersome. II. The legislative veto is a statutory mechanism, usually included in the original delegation of legislative power from Congress to the administrative agency. Congress created the legislative veto as a check on the actions of administrative agencies. III. Common forms: (1) Resolution of one house of Congress, (2) Resolution of both houses, (3) Action of a Congressional committee NOTE: As a result of the demise of the non-delegation doctrine and the legislative veto, removal power and appointment power have become the primary ways to control an agency.
INS v. Chadha (Legislative Veto)
Facts: Chadha was an East Indian who had a British passport. After his visa expired, Chadha was ordered to show cause as to why he should be allowed to remain in the U.S. An immigration judge ruled in favor of Chadha and ordered that his deportation be stayed. The House of Reps adopted a resolution overturning this decision and thereby ordering Chadha's deportation. Holding: The Court's opinion recited the constitutional provisions requiring bicameralism and presentment and quoted from the Federalist Papers as the importance of these procedural requirements. The Court concluded that it was legislation and that it did not fit into any of the limited situations under the Constitution where one branch of Congress can act alone.
Appointment Power
Appointments Clause of Article II: (1) President may appoint Ambassadors and Officers of the U.S. (2) Congress may vest appointment power in the President, in the Courts of Law, or in the Heads of Departments (inferior officers)
Morrison v. Olson (Appointment Power)
I. If officer was appointed with advice and consent of the Senate, then principle/inferior officer does not matter II. If officer was not appointed with advice and consent of the Senate, then officer must be inferior for legislative branch to appoint III. Four factors to decide inferior/principle officer: (1) Is person subject to removal by a higher Executive Branch official? (2) Is person empowered by the Act to perform only certain, limited duties? (3) Is person's office limited in jurisdiction? (4) Is person's office limited in tenure? NOTE: Yes answers favor an inferior officer determination.
Removal Power
I. In general, the President may remove executive officials unless removal is limited by statute. Congress, by statute, may limit removal both if it is an office where: (1) independence from the president is desirable, and if the law does not prohibit removal but, rather, limits removal to instances where (2) good cause is shown. II. The judiciary can limit the president's power is some instances with a statute in place, but those instances have yet to be determined.
Privileges & Immunities Clause: Distinctions between the DCC and P&I Clause
I. P&I is only applicable to discrimination against out-of-staters. There is no "burden" component. II. Corporations and aliens can sue the state for violating the DCC, but not for violating their rights under the P&I Clause. III. The two exceptions to the DCC do NOT apply to the P&I Clause: (1) Congressional approval (2) The market participant exception
Privileges & Immunities Clause
I. Who can claim P&I protection? A: U.S. Citizens; not corporations or aliens II. Analysis: (a) Two basic questions: (1) Has the state discriminated against out-of-staters with regards to the P&I it accords its citizens? (i) What constitutes "discrimination?" (ii) What are the "privileges and immunities" protected by the P&I Clause? (2) If there is such discrimination, is there sufficient justification for it? (i) Is there a substantial reason for the restriction? (ii) Does the discrimination practiced against out-of-staters bear a substantial relationship to the state's objective? Do out-of-staters constitute a peculiar source of evil?
United States v. Curtiss-Wright Export Corp. (Separation of Power and Foreign Policy)
I. Issue: Could the President have done this - prohibit the sale of munitions to Bolivia and Paraguay - on his own, without Congress? II. Where do the federal government's foreign policy power come from? A: The Crown -> The Continental Congress -> The United Colonies -> The Federal Gov. III. Where in the federal government do those powers reside, i.e., in what branch? A: The executive branch, "the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."
Treaties vs. Executive Agreements
I. Treaties require the advice and consent of the Senate; Executive agreements do not II. Unlike treaties, executive agreements are not mentioned in the Constitution
Treaties (& Executive Agreements)
Permitted unless they violate the Constitution II. Generally do not violate the 10th Amendment III. RULE OF CONSTITUTIONAL AVOIDANCE: (1) Conflicts between statutes and treaties; (a) if the court can interpret the treaty and statute such that both should be followed, then it should do so; (b) if it is not possible to avoid conflict, the most recent controls; (2) Unilateral rescission by the President; (a) in terms of unilateral rescission by the President = unknown
Executive Agreements (& Treaties)
I. Agreements should be made by the President alone II. No executive agreements have ever been ruled unconstitutional III. But, the only executive agreements contested in Supreme Court had already been consented to either explicitly or impliedly by Congress IV. If Congress were to strongly oppose the executive agreement, the Supreme Court may overturn the exec. agreement
Ex Parte Quirin (Executive Powers)
I. Lawful combatants v. unlawful combatants (1) Lawful combatants are subject to capture and detention as a prisoner of war (Geneva conventions apply) (2) Unlawful combatants are also subject to trial and punishment by military tribunals
Ex Parte Milligan (Executive Powers)
I. Lawful combatants v. unlawful combatants v. US citizens (1) US citizens tried for treason in a regular court; except in instances of martial law, courts closed, or theater of war
Hamdi v. Rumsfeld (Executive Powers)
Facts: Yaser Hamdi is an American citizen who was apprehended in Afghanistan and brought to Gitmo. The Northern Alliance claimed him to be an enemy combatant, though the NA themselves were sketchy at best. (From this accusation by this faulty military group, Hamdi's lawyer claims that all the evidence from the time of his capture should be presented.) There it was discovered that he is an American citizen and he was taken to a military prison in South Carolina. He has been held as an enemy combatant and never has been charged with any crime. Issue #1: Does the Executive have the authority to detain citizens who qualify as "enemy combatants?" Holding #1: Yes Issue #2: What process is due an American citizen who disputes his enemy combatant status? I. Due Process Balancing Test: (1) Private interests affected by the government action (interests of the erroneously deprived individual) VS (2) Government's interests + burden incurred by providing more process Holding #2: "A citizen detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decision maker."
There are two possibilities when considering whether a state or local law is invalidated because of limits on state power. One situation is where Congress has acted. If Congress has passed a law and it is a lawful exercise of Congressional power, the question is whether the federal law preempts state or local law.
Types of Preemption
I. Express Preemption (explicit preemptive language; Lorillard Tobacco) (a) Approach: (i) State law at issue? (ii) Federal law that allegedly preempts? (iii) "Domain" expressly preempted by the statute? (iv) Rule: once the preempted domain is defined, it is reasonable to infer that Congress did not intend to preempt other matters (v) Does the state statute fall within the domain of preemption? II. Implied Preemption (clear congressional intent) (a) Field preemption (i) "Occurs when the scheme of federal law and regulation is so pervasive as to make a reasonable inference that Congress has left no room for the state to supplement it" i.e., immigration law (Hines) (ii) Rule: preemption exists where there is clear congressional intent to have federal law occupy a particular area of law (iii) No clear rules as to when the court will find "field preemption" (iv) Four Factor test -- different card (b) Conflict Preemption (i) Physical impossibility (mutual exclusivity; Florida Lime) (ii) Impeding a federal objective (Pacific Gas)
Preemption -> Implied Preemption -> Field Preemption: Four Factors
1. Is it an area where the federal government has traditionally played a unique role? (Think Commerce Clause) 2. Has Congress expressed an intent in the text of the law and/or the legislative history to have federal law be exclusive in the area? 3. Would allowing state or local law in the area risk interfering with comprehensive federal regulatory efforts? (potential Red Herring) 4. Is there an important traditional state or local interest served by the law being challenged? (Think Commerce Clause)
Preemption Types
I. Express Preemption (explicit preemptive language; Lorillard Tobacco) (a) Approach: (i) State law at issue? (ii) Federal law that allegedly preempts? (iii) "Domain" expressly preempted by the statute? (iv) Rule: once the preempted domain is defined, it is reasonable to infer that Congress did not intend to preempt other matters (v) Does the state statute fall within the domain of preemption? II. Implied Preemption (clear congressional intent) (a) Field preemption (i) "Occurs when the scheme of federal law and regulation is so pervasive as to make a reasonable inference that Congress has left no room for the state to supplement it" i.e., immigration law (Hines) (ii) Rule: preemption exists where there is clear congressional intent to have federal law occupy a particular area of law (iii) No clear rules as to when the court will find "field preemption" (iv) Four Factor test -- different card (b) Conflict Preemption (i) Physical impossibility (mutual exclusivity; Florida Lime) (ii) Impeding a federal objective (Pacific Gas)
Preemption Analysis
I. Has Congress acted to regulate activity? (a) Yes; Doctrine of Preemption; is the state or local law preempted? (i) Yes; unconstitutional (ii) No, DCC or PIC (b) No; does the state or local law excessively burden commerce in violation of either DCC or PIC? (i) Yes; unconstitutional (ii) No; constitutional
Dormant Commerce Clause
I. Definition: the principle that state and local laws are unconstitutional if they place undue burden on interstate commerce. The Supreme Court has inferred this from the grant of power to Congress in Art. I, §8, to regulate commerce among the states. II. The key question in dormant commerce clause analysis is whether the state or local law discriminates against out-of-staters or whether it treats in-staters and out-of-staters alike. III. Arguments for: (1) First, there is an economic justification for the DCC -- the economy is better off if state and local laws impeding interstate commerce are invalidated. (2) Second, there is a political justification for the DCC -- States and their citizens should not be harmed by laws in other states where they lack political respresentation.
Dormant Commerce Clause: Contemporary "Balancing" Approach
1. Does the law discriminate against out-of-staters or ISC generally? (a) Is the law facially discriminatory? (b) Is the law facially neutral, but with a (i) discriminatory purpose/intent (ii) discriminatory impact 2. If yes (law discriminates), this triggers a strong presumption that the law violates the DCC (a) upheld only if it survives the "strictest scrutiny" (b) Must be: (i) Necessary -- least restrictive alternative & least burden on ISC (ii) to achieve a legitimate, non-protectionist, important purpose 3. If no, there is a slight presumption in favor of upholding the law (a) invalidated only if the law's burden on ISC outweighs its benefits (b) Any exceptions?
(Dormant Commerce Clause) Hunt v. Washington State Apple Advertising Comm.
I. The impact of the burdens and benefits are what weighed in the Pike balancing test. II. The Court found discrimination based on the disparate impact of a law against out-of-staters. A North Carolina law required that all closed containers of apples sold or shipped into the state bear "no grade other than the applicable US grade or standard." The law was facially neutral in that all applies sold in the state had to comply with this rule. III. Nonetheless, the Court found that the law should be treated as discriminatory because of its effect on the sale of Washington apples. Washington had a system of grading apples that was different from and more stringent than the federal standard.
(Dormant Commerce Clause) Dean Milk Co. v. City of Madison
The Court declared unconstitutional Madison, WI's requirement that milk sold there had to be pasteurized within five miles of the city. The Court found that the law discriminated against milk from other states, notably Illinois, and explained that Madison could achieve its goal of ensuring safe milk by less discriminatory alternatives such as by sending its inspectors to importing producers or by relying on inspections by federal authorities.
(Dormant Commerce Clause) Bibb v. Navajo Freigh Lines
I. The Court declared unconstitutional a state law that required that all trucks in the state use curved mudguards to prevent spatter and enhance road safety. The Court found that the law put a substantial burden on interstate commerce because straight mudguards were legal in 45 other states and curved mudguards were illegal in one other state. II. The trial court found that curved mudguards have "no safety" benefits over straight ones and actually create "hazards previously unknown" by increasing the heat around the truck's tires.
Exceptions to the DCC: Congressional Approval
The Supreme Court consistently has held that the Constitution empowers Congress to regulate commerce among the states and that therefore state laws burdening commerce were permissible, even when they otherwise would violate the DCC, if they have been approved by Congress.
Exceptions to the DCC: Congressional Approval: Western & Southern Life Ins. v. State Board
The Court said that a state law imposing a discriminatory and retaliatory tax on out-of-state insurance companies was permissible because the McCarran-Ferguson Act removes entirely any commerce clause restriction on a state's power to tax the insurance business.
Exceptions to the DCC: The Market Participant Exception
If the state is literally a participant in the market, such as with a state-owned business, and not a regulator, the DCC does not apply. Discrimination against out-of-staters is allowed that otherwise would be impermissible. A state can discriminate if its citizens are dealings with a government-owned business or the citizens are receiving government benefits.
Exceptions to the DCC: The Market Participant Exception: Reeves, Inc. v. Stake
I. The Court upheld a cement company owned by South Dakota charging less to in-state purchasers and more to out-of-state purchasers. The Court said the "basic distinction ... between States as market participants and States as market regulators makes good sense and sound law." II. The Court said that South Dakota, as the seller of cement, was clearly a market participant and thus was able to favor in-state purchasers over those from out of the state.
Exceptions to the DCC: The Market Participant Exception: South-Central Timber Dev. v. Wunnicke
I. Limit on exception: no conditions imposed by state/local can have a substantial effect outside that market II. The Court declared unconstitutional an Alaska law that required that purchasers of state-owned timber have the timber processed in Alaska before it is shipped out of state. III. The Court drew a distinction between the ability of a state to prefer its own citizens in the "initial disposition of goods when it is a market participant" and a "State's attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands."
I. Primary Source of individual rights: Bill of Rights II. Content of incorporated rights: (a) Generally the same (b) Exceptions: right to a jury trial in criminal cases; 12-man unanimous verdict at federal level; no unanimous jury requirement unless at 6 juror minimum III. ON FINAL: If issue is about if constitutional right has been violated, ask first whether the violator is a state/government entity (before asking "is there a right/violation?")
Incorporation: Marsh v. Alabama
Facts: A Jehovah's Witness attempted to distribute literature in a company town, Chickasaw, Alabama, which was owned by a corporation. The company ran all aspects of the town and refused to allow solicitation without prior written permission. Holding: The Supreme Court ruled that running a city is a public function, and therefore it must be done in compliance with the Constitution, whether by the government or a private entity. This suggests that the determination of state action is a balancing test where the court weighs the interests of the private property owner and the constitutional rights involved.
Incorporation: Evans v. Newton
I. The Supreme Court held that a city could not avoid desegragating a park by turning its control over to a private entity. The park had been created in Mason, Georgia, by a testamentary trust, which required that it be used only by white persons. Rather than desgregate the park, the city resigned as trustee and sought to turn the park over to private control. II. The Supreme Court held that running the park was a public function and that it had to comply with the Constitution even if managed by a private entity.
Incorporation: Hudgens v. National Labor Relations Board
The Supreme Court expressly overruled Logan Valley. The Court said that "the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan Valley." The Court explained that if the 1st Amendment applies to privately owned shopping centers, then the law cannot permit a distinction based on the content of the speech. The Court concluded that the proper conclusion was that the 1st Amendment does not apply to privately owned shopping centers regardless of the content of the speech.
Entanglement Exception: Shelley v. Kraemer
I. Facts: In 1911, buyers and sellers make a restrictive racial covenant as to parcels of land. In 1945, owners breach the contract selling to a non-caucasian family. The owners of nearby property seek to enjoin the sale as a remedy. II. Court: Because the state court has to determine the remedy, it becomes a state action whether to enforce the racial covenant or not.
Entanglement Exception: State Action Doctrine, Finals Tip
When discussing the State Action Doctrine, start with the Civil Rights Cases as the original public function exception, then go on to the current cases of the public function exception; if the party is obviously a state actor, then entanglement-exception analysis is not needed; if the party is not clearly a state actor, then entanglement-exception analysis needs to be included
Entanglement Exception: Case Overview
I. Judicial and Law Enforcement Actions: Shelley v. Kramer II. Government Regulation: Burton v. Wilmington Parking Authority; Moose Lodge No. 107 v. Irvis III. Government Subsidies: Norwood v. Harrison; Gilmore v. City of Montgomery; Rendell-Baker v. Kohn; Blum v. Yaretsky IV. Initiatives Encouraging Violations of Rights: Reitman v. Mulkey V. Entwinement: Brentwood Academy v. Tennessee Secondary Sch. Athletic
Entanglement Exception: Burton v. Wilmington Parking Authority
I. Facts: Mutually beneficial relationship between coffee shop and gov. bldg.; "profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a gov. agency." II. Court: "By its inaction, the Authority, and through it the State, has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination." i. Inaction ii. Interdependence iii. Joint Participation (this type of symbiotic relationship creates a "state action"; symbiotic relationship is not complete unless the state is relying on the private entity)
Entanglement Exception: Moose Lodge No. 107 v. Irvis
I. Rule: Mere provision of government of services or exposure to government regulation does NOT equal "state action" II. Distinguishing from Burton is the "publicness" vs. "privateness"
Entanglement Exception: Norwood v. Harrison
I. Facts: Government is issuing books to both public and private schools; plaintiffs bring injunction suit to stop state from issuing books to discriminating private schools II. Court: "Racial discrimination in state-operated schools is barred by the Constitution and it is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish."
Entanglement Exception: Blum v. Yaretsky
I. Facts: Plaintiffs represent a class of Medicaid patients challenging decisions by the nursing homes in which they reside to discharge or transfer patients without notice or an opportunity for a hearing. II. Court, to find state action: 1. "The complaining party must show that there is a sufficiently CLOSE NEXUS between the State and the challenged cause of action." 2. When the State has "exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." 3. "The required nexus may be present if the private entity has exercised powers that are traditionally the exclusive prerogative of the State."
Entanglement Exception: Reitman v. Mulkey
I. Facts: California statute allows people selling real estate to discriminate in who they sell to on any basis II. Court: "The provision would involve the State in private racial discriminations to an unconstitutional degree."
Entanglement Exception: Brentwood Academy v. Tennessee Secondary School
I. Facts: Brentwood sued the Association claiming that enforcement of the undue-influence rule was state action and a violation of the 1st and 14th Amendments II. The governing body of the Association was made up 84% with public schools III. Court: "The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it."
Equal Protection: Final's Analysis
1. Burden of proof on? 2. Test 3. 3-part Analysis i. What is the nature of the classification at issue? (facial vs. non-facial) ii. What level of scrutiny should be applied to the classification? (strict scrutiny (BOP gov), intermediate (BOP gov), rational basis (BOP challenger)) iii. Does the particular government action (classification) at issue satisfy the applicable level of scrutiny?
Equal Protection: Romer v. Evans
I. Facts: Colorado passed law repealing past statutes based on gay or lesbian rights and forbid all future laws and causes of action based on gay or lesbian rights. II. Court applies rational basis test III. CO law fails under RB because it does not fit a legitimate gov. purpose
Equal Protection: U.S. Dept. of Agriculture v. Moreno
The Court declared unconstitutional a federal law that excluded from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household. The Court explained that the express congressional purpose of discriminating against "hippies" could not constitute a legitimate purpose.
Equal Protection: City of Cleburne, TX v. Cleburne Living Center, Inc.
The Supreme Court declared unconstitutional a city ordinance that required a special permit for the operation of a group home for the mentally disabled. The Court expressly held that rational basis review was the appropriate standard for evaluating gov. actions discriminating against the mentally disabled. The Court nevertheless declared the ordinance unconstitutional.
Equal Protection: U.S. Railroad Retirement Board v. Fritz
I. Facts: Railroad Retirement Act of 1974 classified groups of people previously receiving windfall benefits of both railroad retirement and social security II. Court: "This Court has never insisted that a legislative body articulate its reasons for enacting a statute." Legislature does not need to have proof of a specific legitimate purpose that is reasonably related. Burden of proof falls on challenger, so the challenger must negate every conceivable legitimate purpose.
Equal Protection, Protecting Slavery: Dred Scott v. Sandford
Two separate issues: 1. Is Dred Scott a citizen of MO for the purposes of diversity jurisdiction? No. Neither slaves nor their descendants -- even those who are emancipated -- are citizens of a state, in the sense in which the word citizen is used in the US Constitution. 2. Is the Missouri Compromise constitutional? No. Slaves are property. The prohibition of slavery in the Northern territories constitutes an unconstitutional taking of property.
Equal Protection, Recognition of Strict Scrutiny: Korematsu v. United States
Court's strict scrutiny analysis: I. The race-based classification must be necessary to achieve a compelling government purpose II. Purpose: military authorities concluded that individuals of Japanese ancestry constituted a "gravest imminent danger to the public safety" (compelling) III. Means: "exclusion from the threatened area ... has a definite and close relationship to the prevention of espionage and sabotage" (necessary)
Equal Protection, Racial Classifications Burdening Both Whites and Minorities: Loving v. Virginia
The Supreme Court declared unconstitutional a state's miscegenation statute that made it a crime for a white person to marry outside the Caucasian race. The Court expressly repudiated the state's argument that the law was permissible because it burdened both whites and minorities. The Court said that "we reject the notion that the mere equal application of a statute concerning racial classifications is enough to remove the classifications from the 14th Amendment's proscription of all invidious racial discriminations." The very purpose of this law is hostility towards blacks.
Equal Protection, Laws Requiring Separation of the Races: Plessy v. Ferguson
The Supreme Court concluded that laws requiring "separate, but equal" facilities are constitutional and declared: "we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the 14th Amendment that the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned or the corresponding acts of state legislatures."
Equal Protection, Separation of the Races: Brown v. Board of Education
I. Court: We cannot rely on the history and/or intent of the 14th Amendment, or on the rationale of Plessy, because comparatively the current system of public education is totally different than the educational system that existed in the late 1800s. II. Impact of segregated education on the child III. Importance of education IV. The Court on one hand gives education-specific facts to limit the holding of "separate, but equal" to education, but then proceeds in future cases to strike down "separate, but equal" by referring to Brown broadly
Equal Protection: Washington v. Davis
I. This case involves the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia II. Court: "A statute, otherwise neutral on its face, must not be applied so as to invidiously discriminate on the basis of race." Before Court can determine standard of review to apply, plaintiff must show more than discriminatory impact, must show discriminatory purpose. However, discriminatory impact could be so great that discriminatory purpose could be implied.
Equal Protection, 3 Categories of evidence of "purpose": Village of Arlington Heights v. Metro Housing Development Corp.
3 Categories of evidence of "purpose": 1. Statistical evidence of purpose 2. Historical background 3. Legislative history/administrative history
Affirmative Action, Approach
1. Carefully identify the discrimination 2. Look carefully at the remedy proposed to fix it: i. Appropriate measures against those who discriminate, even in extreme cases narrowly tailored racial preference to break down patterns of discrimination ii. In extreme cases, an unyielding racial quota may be appropriate iii. Evidence of statistical disparity between groups may be used
Affirmative Action: Grutter v. Bollinger (Michigan law school)
I. School's goal: diversity in education -> "critical mass" of minority students -> race as one factor among many II. Court: what is NOT narrowly tailored: i. Quotas (in most situations ii. No separate admissions tracks iii. Cannot insulate applicants from competition III. Court's holding, four main areas of consideration (do not necessarily match up with strict scrutiny): i. Not a quota system ii. Adequate consideration of race -- neutral alternatives iii. No undue burden on others iv. Limited duration
Affirmative Action: Gratz v. Bollinger (Michigan undergrad)
I. In order to promote consistency in the review of these applications, the admissions office uses written guidelines and a scoring system II. Court: 20 points (or 1/5 of automatic acceptance) given to minority-race status is not narrowly tailored; fails to account for individualized consideration; race can be considered in addition to other factors, but by giving 20 points for race, it becomes a decisive factor
Gender Classifications: Reed v. Reed (1971), rational basis
I. The first time the S. Ct. invalidated a gender classification II. Law: Idaho statute specified the heirarchy of persons to be appointed as administrators of an estate when a person dies intestate; if the court encountered a case in which two competing applicants fell into the same category, a male would get preference over a woman III. Court: administered rational basis standard
Gender Classifications: Frontiero v. Richardson (1973), strict scrutiny
I. Law: members of the armed forces may be able to obtain increased quarters allowances and medical and dental benefits for their spouses, if the spouse is a "dependent" II. Facts: petitioner, a female, was denied these additional benefits because she failed to demonstrate that her husband was in fact dependent on her III. Court: plurality of four -- four votes for strict scrutiny
Gender Classifications: Craig v. Boren (1976), intermediate scrutiny
I. Law: Oklahoma statute prohibits the sale of "non-intoxicating" 3.2% beer to males under the age of 21, and to female under the age of 18 a. Gender classifications allegedly discriminates against males II. Court: intermediate scrutiny applied a. Purpose: important (between compelling and legitimate) -- traffic safety b. Means: substantially related (between necessary and rationally related)
Gender Classifications: United States v. Virginia (1996)
I. Facts: Virginia Military Institute, a state-run school, is only open to male students; it provides pervasive training not available anywhere else in Virginia; VMI has been very successful in producing community leaders II. Analysis, two parts in this opinion: 1. Is the exclusion of women from VMI constitutional? A: No 2. If no, does the remedy instituted by Virginia eliminate the constitutional infirmity? III. Ginsburg raises the intermediate standard to require an "exceeding persuasive justification"
Gender Classifications: How do you determine if a law creates a gender-based classification?
I. Two types of gender-based classification: 1. A classification apparent on the face of the law 2. A facially neutral law that is discriminatory in its purpose and either: a. Discriminatory in its administration, OR b. Discriminatory in its impact, c. If purpose and administration/impact are not met, then it becomes rational basis
Gender Classifications Benefiting Women
Two basic principles: 1. Gender classifications benefiting women based on role stereotypes generally will not be allowed 2. Gender classifications benefiting women designed to remedy past discrimination and differences in opportunity generally are permitted
Gender Classifications Benefiting Women: Orr v. Orr (1979)
I. Law: Alabama alimony statute providing that husbands, but not wives, may be required to pay alimony upon divorce II. Classification: gender as a proxy (stereotype) for need
Gender Classifications Benefiting Women: Mississippi University for Women v. Hogan (1982)
I. The person challenging the statute will not have the BoP II. The state must show "exceedingly persuasive justification" and "important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives"
Gender Classifications Benefiting Women: Michael M. v. Superior Court of Sonoma County (1981)
I. Law: California statutory rape law a. Defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years" b. Statute makes only men criminally liable for the act of consensual, under-aged sexual intercourse II. Court: deterrence of pregnancy to females is not the same deterrent to males, thus the statute serves to equalize -> valid
Characteristics Subject to Rational Basis, Most Common
1. Age 2. Disability 3. Wealth 4. Sexual Orientation
Fundamental Rights Under Due Process and Equal Protection
I. Talking about fundamental rights, not classifications II. The concept of fundamental rights a. the court has recognized certain rights that are considered so fundamental as to trigger strict scrutiny when gov acts to infringe those rights b. distinct from the suspect classifications that trigger strict scrutiny III. Nearly all of these rights are not mentioned in the text of the Constitution IV. Examples: a. Family autonomy: i. Right to marry (Loving v. Virginia; Zablocki v. Redhail) ii. the right to custody of one's children iii. the right to keep the family together iv. the right of parents to control the upbringing of children b. Procreation c. Sexual activity d. Sexual orientation
Fundamental Rights Under Due Process and Equal Protection, Questions/Answers
I. Question: If not found in the text of the Constitution, what constitutional basis does the court employ to recognize these fundamental rights? A: the Due Process Clause (5th and 14th) and/or the Equal Protection Clause (14th) Question: Is there any real distinction? A: The phrasing of the constitutional argument 1. Due Process: the issue is whether the gov's interference is justified by a sufficient purpose 2. Equal Protection: the issue is whether the gov's discrimination as to who can exercise the right is justified by a sufficient purpose
Fundamental Rights Under Due Process and Equal Protection, 4 Basic Questions
1. Is there a fundamental right? A: Theories -- originalism, non-originalism, history and tradition, political representation, moral consensus 2. Is the right infringed? A: The exercise of the fundamental right is prohibited by law or the law interferes with or burdens the exercise of a fundamental right 3. Is the gov's action justified, do they have sufficient purpose? A: Must be a truly vital interest and the gov has the burden of persuasion 4. Are the means sufficiently related to the goal sought? A: The gov's action must be necessary to achieve a compelling purpose; the gov must not be able to attain the objective through any means less restrictive of the fundamental right I. Questions 3 and 4 only follow if questions 1 and 2 show infringement
Fundamental Rights Under Due Process and Equal Protection: Loving v. Virginia
I. Ban on interracial marriages II. Prior reading: the Supreme Court struck down the law as a violation of the EP Clause III. Court: law deprives the Lovings of liberty as a violation of the EP Clause; "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness of free men."
Fundamental Rights Under Due Process and Equal Protection: Zablocki v. Redhail
I. Wisconsin statute restricting the right of a certain class of citizens to marry without first obtaining a court order a. Class: Wisconsin resident having non-custodial children which he is obligated to support b. Limitaions on ability to marry: must submit proof of compliance with support obligation; must demonstrate that non-custodial children are not now and not likely to become wards of the state II. Facts: For a period of two years, petitioner was indigent and unable to make payments; his application for a marriage license was denied on the sole ground that he had not obtained a required court order III. Court: 1. EP analysis a. Marriage as a fundamental right: history and natural law; right of privacy implicit in the DP Clause b. This statute as an infringement of that right c. Application of the strict scrutiny standard: compelling gov purpose; narrowly tailored (least restrictive alternative) 2. Summary: "The decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships."
Fundamental Rights Under Due Process and Equal Protection: Skinner v. Oklahoma
I. Law at issue: Oklahoma's Habitual Criminal Sterilization Act: authorizes the sterilization of habitual offenders; exempts embezzlement, political offenses, and revenue act violations II. Question: Is there a fundamental right to procreate?
Fundamental Rights Under Due Process and Equal Protection: Griswold v. Connecticut
I. Law at issue: Connecticut statute making the "use" of contraceptives, or the abetting (counseling) of another in the use of contraceptives, illegal II. Finding the right of privacy: a. 9th Amendment b. Penumbras of the enumerated rights (unspecified rights stemming from specified rights) c. Zones of privacy = enumerated rights + penumbras i. 1st Amendment ii. 3rd Amendment iii. 4th Amendment iv. 5th Amendment
Abortion Law: Carrie v. Population Services (1977)
I. Law at issue: a. Crime to sell contraceptives to minors b. Crime for anyone other than a licensed pharmacist to distribute contraceptives to anyone c. Crime to advertise or display contraceptives II. Summarizes the fundamental right emerging from Skinner, Griswold and Eisenstadt a. Individual private rights (not limited to marriage) b. The right to "reproductive autonomy" c. Constitutional protection for individual decisions in matters of childbearing i. The decision "whether to bear or beget a child"
Abortion Law: Roe v. Wade (1973)
I. Law at issue: makes it a crime to procure an abortion except to save the life of the mother II. 3 interests at issue: woman, state, fetus III. Is the fundamental right to privacy broad enough to include the right to terminate a pregnancy? A: Yes. i. Step One: the right to privacy has been extended to procreation (Loving), contraception (Eisenstadt) ii. Step Two: the right to privacy includes the right to terminate a pregnancy IV. What limitations are there on that right? i. The state has certain legitimate interests implicated by the termination of the pregnancy ii. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulations related to the exercise of the fundamental right to terminate a pregnancy
Abortion Law: Planned Parenthood v. Casey (Part I)
I. Court: referring to Roe, "a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State." II. Four holdings: 1. Roe is reaffirmed 2. State's interest is profound 3. Undue burden or substantial obstacle test (sounds like strict scrutiny) 4. The rigid trimester framework is rejected
Abortion Law: Stenberg v. Carhart (2000)
I. Abortion provider prevails on two related grounds: 1. No exception for the "health" of the mother 2. This statute creates an "undue burden" on a woman's right to choose this procedure, and thus an "undue burden" on that woman's right to an abortion generally
Abortion Law: Gonzalez v. Carhart (2007)
I. Statute designed to cover intact D&Es (less common); doctor was performing D&Es (more common) II. Abortion provider prevails on two reasons: 1. No exception for the health of the mother, D&E was sometimes necessary for the health of the mother 2. Statute created an undue burden on a woman's decision on the procedure, and thus an undue burden on a woman's right to an abortion III. Court's analysis, for the purposes of this decision, concedes: a. One aspect of Roe v. Wade ... "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy" b. One aspect of Planned Parenthood v. Casey ... A state may not impose a regulation or limitation on that right, the "purpose or effect of which is to place a substantial obstacle in the path of a woman seeking a constitutional abortion." IV. Court's analysis: a. Begins with reference to: respect for the dignity of human life; the power to devalue human life b. Suggestion that this procedure has a negative impact on the integrity and ethics of the medical profession c. Reference to the negative effects of abortion on some women d. Suggestion that the law's reference to the brutality of the procedure might well discourage some women from having an abortion (a legitimate state interest)
Abortion Law: Planned Parenthood v. Casey (Part II) (1992)
I. Facts: statutory requirements/limitations; 1. "informed consent" - doctor must provide information about potential health risks and complications 2. "spousal notification" - women must give prior notice to their husbands 3. "parental consent" - minors must get consent from parent or guardian 4. "24-hour waiting period" 5. "reporting requirements" - applicable to facilities II. Holdings: a. All notifications upheld except one, spousal notification: i. Threat to woman's safety ii. Woman's interest outweighs husband's prior to birth iii. Application to married women only implies that women lose constitutional rights when they marry
Abortion Law: Maher v. Roe (1977)
I. Issue: Can a state limit the use of Medicaid benefits to pay the first trimester abortions without prior authorization that the abortion is "medically necessary?" II. Held: a. Roe v. Wade did not recognize an unqualified right to an abortion b. Instead, right is against "unduly burdensome interference" with that decision c. Mere encouragement of alternative, upheld under rational basis
Abortion Law: Belloti v. Baird (1979)
I. Facts: A Massachusetts law required minors to gain parental consent before having an abortion II. Holding: a. The Court found the statute unconstitutional for two reasons: 1. It allowed judicial authorization for an abortion to be withheld from a minor who is mature and competent enough to make the decision independently 2. It required parental notification in all cases (parents were required to be notified if their daughter initiated proceedings in superior court) without allowing a minor to seek an independent judicial assessment of her competence
Right to Privacy: Lawrence v. Texas (2003)
I. Facts: TX statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct (sodomy) II. Holding: a. Expressly overrules Bowers v. Hardwick b. Reaffirms the constitutional right to privacy c. Extends the right of privacy to private, consensual homosexual activity

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