I. Introduction: The Constitution and the Founding What a Constitution Does Declaration of Independence CT Articles I, II, & XIII of the Articles of Confederation CT 1. Articles of Confederation--Each state retains its sovereignty, freedom, independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the US, in Congress assembled. a. Powers of Congress: Determine peace and war, authority to resolve disputes betw the states, power to regulate federal money, control dealings with the Indians, establish and regulate post offices, appoint naval and other offices in federal service b. Flaws: no general judicial authority, no exec, no power to tax or regulate commerce c. Problems that resulted: interstate jealousy, foreign affairs awry, Congress unable to raise revenue, Social unrest (Shay’s rebellion) Problems with the Articles – No power to tax, regulate commerce, no executive, no national judiciary, retaliatory trade measures which restricted interstate trade. Shay’s rebellion – no central army. Revisionist view – problems were faced primarily by commercial interests. Constitution CB pp. xliii-lix 4. Const. a. We the people—the author of the C and being created by the C itself, the idea of we the people is established by the political process of creating the C b. delegates to the Phily convention gathered together to officially to ∆ the Art of Conf c. Separation of Powers: i. insurance rationale—3 br accountable—declines chances that all are corrupt ii. efficiency—each has a specialty, responsible for one area iii. agency costs—make sure the person writing the law is not enforcing/judging; hobble gov’t make more difficult for things to be accomplished so only the really important things get passed iv. yet want some interdependence: overlapping responsibility c. Values of federalism: (same values for sep of powers) i. insurance: state can tailor policies to ind. Need/fed: greater heterogenity ii. efficiency: state: cut down transaction costs/fed: sees the big picture broad control iii. agency costs: state: more interaction w/ reps /fed gov’t farther away more virtuous iv. voice-externalities state: smaller pool/fed: greater level of tolerance—able to control better relations among states (ex. Pollution) v. states closer to people more responsive/fed guard against factions vi. states laboratories for experimentation d. gov’t of enumerated powers e. subsidiary idea—higher level of gov’t only step in when the lower gov’t fails The Odyssey (excerpt) CT Creating a Constitution that Binds the Future CB pp. 1-8 B. American Innovations: Federalism and The Separation of Powers Articles of Confederation CT The Origins of the U.S. Constitution CB pp. 8-29 (including The Federalist Nos. 10 & 51) 2. Antifederalist Case a. Features of their government i. Classical republicanism ii. model of gov’t town meeting iii. self-rule to select values that ought to control public & private life iv. decentralization—in small communities develop devotion to public good v. desire to avoid extreme disparities in wealth, education, and power b. Reasons for attacking the Const i. inconsistent w/ republicanism ii. removal of the people from the political process iii. creation of a powerful and remote nat’l gov’t iv. new emphasis on commerce 3. Federalist Response a. Federalist #10 (Madison) i. Faction-a number of citizens united and actuated by a common impulse of passion or interest and adverse to the rights of the other citizens or to the interest of the community a. enemy of gov’t—public good disregarded b. method of curing 1) removal of causes a) destroy liberty essential to existence b) create homogeneity-same passions, opinions, interests not feasibledifferent opinions formed c) therefore, causes of factions cannot be removed 2) control its effects through a republic ii. Characteristics of Republic a. delegation of gov’t to a small # of citizens elected by the rest—elect most capable representatives b. greater # of citizens to prevent influence of factions from spreading throughout country: diversity of interests c. heterogeneity prevent factionalism and parochialism—greater variety of parties and interests, less probable that a majority of the whole will have a common motive to invade the rights of other citizens (avoid mob mentality) b. Federalist #51 (Madison) federalism and separation of gov’t i. Checks and balances a. division of branches allows different branches to control each other while controlling themselves (prevent one branch from becoming too powerful) b. divide legislature into different branches 1) political accountibility (House) 2) degree of independence (Senate) ii. guard society against oppression of rulers and oppression of one part of society by another—create will independent of society—prevent faction II. The Constitutional Structure of Government A. The Role of the Supreme Court 1. Judicial Review Note 1 “Background” on Marbury v. Madison CB p. 36-37 Marbury v. Madison (1803) CB pp. 29-36 I. Marbury v. Madison (1803 Marshall) p. 22 1. Background: Marbury had been appointed to the position of justice of the peace by Pres Adams in the final stages of his administration. The Federalist Congress approved the appointees, the commissions of the justices were not delivered. 2. Issues: a. whether Marbury has a right to his commission b. if he has a right and the right has been violated, do the laws afford him a remedy c. if they do afford him a remedy, is it a mandamus issuing from this court? 3. Holdings: a. yes, right issues from the 1801 act of Congress confirming appointment—commission was signed and sealed b. gov’t of the US gives remedies if right has been violated--- Marshall draws a line between the personal rights of people and the acts fo the president which are discretionary and there are no remedies basically political decisions. c. is it a mandamus? i. nature of the writ—§13 of the Judiciary Act purports to authorize the SC to issue writ of Mandamus can be issued for any official under the authority of the ii. power of this court—Marshall views §13 as giving the court original jurisdiction, but issuing mandamus is not in the two areas where the SC has original juris. §13 Judiciary Act unconst The Judiciary Act of 1789 is in conflict with Article 3 because it grants the S.Ct. original jurisdiction in cases where Article 3 grants only appellate jurisdiction. Thus, that part of the Act is invalid. iii. judicial review created 1) justificiations: a) Supremacy clause-const law of the land, any act/statute act of Congress is subordinate b) emphatically the province of the judiciary to say what the law is c) expression unius interp. of art III d) oath argument (but exec and legis take oath too) e) sep of powers and limited gov’t f) written const (Marshall going beyond the word here—irony) 2) establishes all of this power of the judiciary, but it actually doesn’t have to order anyone to do anything (Madison does not challenge—doesn’t have to deliver the commission) iv. no juris, no power to issue the writ and provide relief v. court effectively merges the interest of the individual w/ const interest—doesn’t actually order anyone to do anything—avoids risk of defiance vi. alternate interps of Judiciary Act would have allowed Marshall to avoid ? of JR Views of the holding in Marbury v. Madison: 1. Strong – Supreme Ct. decides what the law is 2. Moderate – Each branch must determine the Constitution for itself (Jefferson) 3. Weak – This case deals only with the concept of the court’s jurisdiction Note on The Judiciary Act and Article III CT Note 3 on The Justifications for Judicial Review CB pp. 39-42 Constitutions, Democracy, & Judicial Rev (Intro & Note 1) CB pp. 42-45 Note on Cooper v. Aaron CB pp. 57-58 4. Cooper v. Aaron (1958) p. 51, 456 a. AK failed to comply w/ DC order requiring deseg. b. H: Brown is supreme law via 14th a, and Art IV sup. makes it binding on the states c. takes Marbury further—asserting judicial power: a. Marbury: each branch, acting w/in own power, may interp. the const b. Cooper: SC suggests that the courts have a special duty to interpret the const, other branches should look to the courts interpretation as authoritative d. contrast w/ Jackson’s veto message on the Bank e. contrast w/ Jefferson—making SCs interp. binding on other br.-->SC despotic (br should check each other) Note 1 on The View from the Presidency CB pp. 58-60 2. Controlling the Court Ex Parte McCardle (1869) CB pp. 83-84 a. Ex Parte McCardle (1869) p. 78 i. Reconstruction: P wrote article, arrested → habeas corpus (petition for hearing to determine if detention is lawful) challenged Cong’s auth to estb military G in states ii. cong enacted statute repealing provision of habeas corpus act P had invoked iii. may Cong withdraw juris where it had previously granted it? iv. H: yes, no C constraints on app juris– conferred by C but “w/ exceptions and under such reg’s as Cong shall make” Reasoning: Congress is allowed to make exceptions to the Supreme Court’s appellate jurisdiction (Art. III, Sect. 2, part 2) and the Court can’t question the legislature’s motives. --Power of congress has the ability to limit appellate review by the S.ct, has a strong tool to check the court --The essential functions hypothesis-- the power of congress to de facto limit the court is constrained by the fact that the court has to plan an essential role in limit the congress and the executive. -Marbury and Federal 78 rest on the broader proposition that the S.ct has the role of guaranteeing the right sin the constitution against encroachment by the legislature and or executive. Introduction to Note on Political Control over Jurisdiction CB pp. 84-85 Note 5 on United States v. Klein (1872) CB pp. 87-88 b. US v. Klein (1872) p. 82 i. P sued for property confiscated during Civil War, showed he was loyal to US by pres pardon to get it back ii. statute enacted—pardon proof of disloyalty, cts dismiss such suits for want of juris iii. H: statute unC—Cong not allowed to prescribe rules for SC on how to hold on particular facts iv. Cong cannot limit SC app. juris in a manner that is in conflict w/other C provisions. The Supreme Court invalidated the statute because Congress was deciding the cases rather than merely limiting the court’s jurisdiction. C.. ways to control SC: limit or strip app juris, statute, impeach, court pack, nomination, appointment, amend C, dec # of justices, rebring case d. limits on Cong power: can’t touch original juris, put appellate in lower fed ct, can’t prescribe rule on how to hold, can’t violate independent provision of the const. Ex parte McCardle & Klein – Both cases look into the motives of Congress. McCardle says that the Court can’t look into legislative motives. Klein also says the Court can’t, but Congress can’t step onto judicial turf. Additionally, congress as telling the court how to rule on a specific case on this section and that was no permissible. Klein – Limits on Congressional Exceptions to Supreme Court Jurisdiction Congress can’t ascribe a rule of decision in a case Congress can’t limit jurisdiction in cases listed as “all cases” (Art 3, Sect 2) Congress can’t violate another independent provision of the Constitution Congress can’t violate the Supreme Court’s basic right to decide cases 3. Judicial (Self)Restraint: The Political Question Doctrine Baker v. Carr (1962) CB pp. 119-124 ---sets test for Political questions b. Baker v. Carr (1962 Brennan) p. 112 i. TN voters challenged failure to redo voting district lines as violation of 14 amendment ii. case deals w/ EPC mattersjusticiable (not under Guarantee Cl—Luther v. Borden) iii. Merely seeking protection of political rights does not make this a political question. Formula for a political question: 1) Textually demonstrable Constituional commitment to another branch of gov’t 2) Lack of jud discoverable/manageable standards for resolving 3) Impossible to decide w/o non-judiciable policy issue first 4) Impossible to decide w/o expressing lack of respect for other branch 5) Unusual need to adhere to political decision already made (political finality) 6) Potential emabrassment form more the once ovice on the issue—foreign policy issue—avoid embarassment. -there is also a political capital issue here that the court though independent of the political process is still tied to it in their legitimacy. Holding: This case does not rest on the Guaranty Clause (guarantee of a republican form of government) which has been determined to be non-justiciable (Luther v. Borden, a case in which the tried to say the govt in RI was not constitutional –1849). But, they can be heard on an equal protection claim. Guaranty Clause: (Article 4, Section 4) – The Supreme Court has largely rendered it a ‘dead letter’ as far as judicial review (See Luther v. Borden – 1849). The right is given to Congress. See also Pacific Telephone v. Oregon (1912) iv. dissent: Frankfurter: political thicket—avoid getting tangled up in matters for legislature 1. Concerning foreign affairs. 2. Structure of political institutions of the states. 3. Abstract questions – because the challenging litigant must claim infringement of an interest peculiar to himself. Guaranty Clause (Art. 4, Sect. 4) not enforceable through the courts. This is a Guaranty Clause case, not a 14th Amdt. case. Tribe--- The court is not restrained by the fact that the congress and exec have provisions to act upon. The court can still analyze the constitutionality of those provisions and whether they grant constitutional authority and to what extent, and if it cuts into other limitations. Courts can apply the concept of rights to these decisions by the other branches. Tribe thinks that as Brennan said " where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department." that is where the Constitution is in need of interpretation, "it is emphatically the province and duty of the judicial department to say what the law is." the doctrine should not allow for judgment decision on foreign policy issues" yet, it should be allowed for the antecedent questions, which is whether a particular branch has been constituting designated at the repository of political decisions making power. But ultimately the political question inquiry turns as much on the courts conception of judicial competence as on the constitutional text. Thus, the political question doctrine, like other justiciability doctrines, at bottom reflects the mix of constitutional interpretation and judicial discretion which is an inevitable by-product of the efforts of the federal courts to define their own limitations. Notes on Political Questions CB pp. 124-136 a. Luther v. Borden (1849) p. 128 i. rightful gov’t of RI? Does SC have authority to review? ii. H: political question—Cong has the authority to determine/provide repub. form of gov’t (guarantee clause Art IV)—SC not allowed to decide iii. SC renders Guaranty clause of Art IV: “the US shall guarantee every state in union a republican form of G” dead due to Political ? doctrine There has never been a S.ct ruling or state action to violate the republican form of govt. clause c. Nixon v. US (1993 Rehnquist) p. 121 i. judge convicted of perjury, claimed Senate failed to “try” him as required by Art I impeachment clause—Senate committee voted to impeach ii. H: Nonjusticiable Political Question—textual commitment to the legislative branch Art I §3 cl 6—“Senate shall have the sole power to try all Impeachments” 1) only reqs: members are under oath, a 2/3 vote for conviction, Chief Justice presides when the Pres is tried 2) expressio unius—no other limits iii. jud br. no role in impeachment—ONLY check on jud’l br, leaves open the ? whether all challenges to impeachment are nonjusticiale pol ? Also there is a broad interpretation of broad, which is not really means in normal court. iv. Souter concur: may be some circumstances when jud’l intrusion is necessary, when the senate does not act with integrity and is beyond the scope of the constitution. White concurring-the constitution allows this to happen, because the judiciary should be able to ensure that the Senate follows acceptable procedural standards. Nixon v U.S(93) a judge is tried in the senate and impeached the judge goes to the S.C. asking for relief because he did not get a "formal" trial in front of the whole senate. The Senate alone has this right, and the Court cannot usurp it because it is the only check the legislature has on the senate. The Concurring position by Souter states that there are exceptions for court intervention when it is a case that is blatantly out of line. Powell v McCormack, in this case a House Rep that met all the objective standards set out in the Constitution was not allowed to take his seat, because he allegedly misdirected house funds. The court ruled in favor the accused House member. It stated: If examination of article 1 section 5 gave the house the power to set unreviewable powers than it could be held that, it was a political question--but it is not because .The House is not with the authority to exclude any person If they meet all the requirement duly set out in the Constitution . The Political Question doctrine and foreign affair- Goldwater v Carter-Carter pulls out of a treaty, foreign relations, con-equal branches have the resources to protect their own interests The Justice Brennan goes on to state that he disagrees that this is totally nonjusticiable decision, he states that this question is one that could be reached by previous cases which give the president the power to decide these cases The Peculiar case of the Republican forms of Government clause-the clause in the constitution which entitles every state with a republican form of government is considered a dead letter by SCOTUS. Luther v Borden--rebellion in R.I, Dorr rebellion - involved the republican form of govt. clause, claiming that the people have the ultimate power of sovereignty and that if the govt. was to be free, they must have a right to change their constitution. The court held that - It rests with the congress to decide what govt. is the established one. The right is placed on congress not in the SCOTUS. Pacific States Telephone & Telephone Co v Oregon--the court held that Accordingly the court concluded, to recognize federal judicial power under the Guaranty Clause would be to recognize a judicial power so great as to "obliterate the division between judicial authority and legislative power." Tribe thinks that as Brennan said " where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department." that is where the Constitution is in need of interpretation, "it is emphatically the province and duty of the judicial department to say what the law is." the doctrine should not allow for judgment decision on foreign policy issues" yet, it should be allowed for the antecedent questions, which is whether a particular branch has been constituting designated at the repository of political decisions making power. But ultimately the political question inquiry turns as much on the courts conception of judicial competence as on the constitutional text. Thus, the political question doctrine, like other justiciability doctrines, at bottom reflects the mix of constitutional interpretation and judicial discretion which is an inevitable by-product of the efforts of the federal courts to define their own limitations. Davis v. Bandemer (1986) CB pp. 136-137 ---sets looking into Gerry manderign SYLLABUS: The Indiana Legislature consists of a 100-member House of Representatives and a 50-member Senate. Representatives serve 2-year terms, with elections for all seats every two years. Errymandered according to political disposition to disadvantage the democrats. Held: The judgment is reversed. JUSTICE WHITE delivered the opinion of the Court with respect to Part II, concluding that political gerrymandering, such as occurred in this case, is properly justiciable under the Equal Protection Clause. Here, none of the identifying characteristics of a nonjusticiable political question are present. Disposition of the case does not involve this Court in a matter more properly decided by a coequal branch of the Government. There is no risk of foreign or domestic disturbance. Nor is this Court persuaded that there are no judicially discernible and manageable standards by which political gerrymandering cases are to be decided. The mere fact that there is no likely arithmetic presumption, such as the "one person, one vote" rule, in the present context does not compel a conclusion that the claims presented here are nonjusticiable.. JUSTICE WHITE, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concluded in Parts III and IV that the District Court erred in holding that appellees had alleged and proved a violation of the Equal Protection Clause. (a) A threshold showing of discriminatory vote dilution is required for a prima facie case of an equal protection violation. The District Court's findings of an adverse effect on appellees do not surmount this threshold requirement. The mere fact that an apportionment scheme makes it more difficult for a particular group in a particular district to elect representatives of its choice does not render that scheme unconstitutional. A group's electoral power is not unconstitutionally diminished by the fact that an apportionment scheme makes winning elections more difficult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause. As with individual districts, where unconstitutional vote dilution is alleged in the form of statewide political gerrymandering, as here, the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination. Without specific supporting evidence, a court cannot presume in such a case that those who are elected will disregard the disproportionally underrepresented group. Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole. (b) Relying on a single election to prove unconstitutional discrimination, as the District Court did, is unsatisfactory (c) The view that intentional drawing of district boundaries for partisan ends and for no other reason violates the Equal Protection Clause would allow a constitutional violation to be found where the only proven effect on a political party's electoral power was disproportionate results in one election (possibly two elections). As noted, a mere lack of proportionate results in one election cannot suffice in this regard. There needs to be a consistent showing of a violation through multiple elections. JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE and JUSTICE REHNQUIST, concluding that the partisan gerrymandering claims of major political parties raise a nonjusticiable political question, would reverse the District Court's judgment on the grounds that appellees' claim is nonjusticiable. The Equal Protection Vieth v. Jubelirer (US 2004) (Supp. p.159) SC took up again the Davis question of partisan gerrymandering – highly divided ct plurality: no justiciable standard, cts should stay out of this question of partisan Gerry mandering would be a nightmare for courts to get involved in such questions dissent: this is unconst; brings out three different sets of possible standards. The only principle that is held is one man one vote., is necessary in the voting, each congressional district must be created so that there are the same number of voters. Kennedy (concur): uncomfortable with ct’s holding, but sees no standard yet in existence(taking the moderate route) plurality rationale, for upholding this partisan districting plan partisanship has always been a part of districting, unavoidable necessary evil political process arg – Const specifically provides mechanism for remedy of election claims, via Cong; would be particularly inappropriate for cts to interfere SC rejected this arg in Baker context – self-interest problem… resurrection of political question doctrine – must be resolved by legislature underenforcement – seems that all Justices believe that this is a problem; plurality just doesn’t think there’s a justiciable standard to enable cts to step in there aren’t enough fixed qualities to a person’s partisan political voting behavior to provide a foundation against which these kinds of claims would be assessed just b/c you registered one way doesn’t mean you’ll vote that way theoretical note: possibility that political affiliation isn’t as meaningful as race most Justices in dissent argue against this, framing the problem in the EPC context (Dems in a Rep district as a discrete and insular minority, individual rights problem) Breyer, though, argues that partisan Gerry Mandering causes a systemic harm – ct’s role to protect design of democratic institutions from such harm question of justiciable standards Breyer – concern re democratic harm involved; “unjustified entrenchment” as minority power solely through partisan manipulation principle of majority rule – not so much concerned about a precise ratio of votes to seats, but about fundamental harm to system when a minority ends up with majority of seats on a statewide basis RP: Breyer seems to miss the point, single out the least impt risk involved in problem of partisan gerrymander Stevens – excessive partisanship where partisanship is the sole motivation πs can challenge a specific district, alleging representational injury – claim that official will see his duty as just to represent group that put him in power application of rationale of racial gm cases to partisan gm’s many stds could be applied, ct just has to pick one Souter – five-part prima facie test of an “extremity of unfairness” five elements to π’s prima facie test π belongs to a cohesive, identifiable political group district paid no heed to neutral districting principles (contiguity, etc.) specific correlations between districting principlesin B and the distribution of pop of π’s group hypothetical district with less packing/cracking which also deviates less from neutral principles has been asserted Δ acted intentionally to manipulate shape of district in order to pack/crack π’s group burden then shifts to Δ to justify plan by objectives other than partisan ones (e.g., avoiding race dilution, proportional representation, etc.) Notes on case from class-but things are different now (increase in tech, smaller margin of power as between the two major parties) – should think more about this problem. But the whole practice of partisan gm is based on belief in effectiveness of partisan manipulation based on registration records – that’s the whole problem History of territorial districting (p.1156) at time of Const, everyone assumed districted elections would be used, left it to each state to choose its own method of selection large states used districted elections – representation seen in demographic terms small states used at-large elections – representation as geographic at-large elections resulted in more cohesive delegations; small states were therefore more effective in the House large states started talking about shifting back to at-large elections – small states feared that large states would then dominate by sheer force of numbers enough small states felt that districted elections would be better than universal use of at-large elections to lead to 1842 Reapportionment Act 1842 Reapportionment Act – req’t of contiguous single-member geographic districts 1901 – Cong added compactness requirement 1929 – Census data as permanent method for apportioning House seats 1932 – SC held that all previous req’ts had lapsed with the 1929 Act 1967 – new req’t of single-member districts – and now all states comply B. Federalism and The Powers of Congress 1. The Controversy over the Bank McCulloch v. Maryland (1819) CB pp. 61-70 b. McCulloch v. Maryland (1819 Marshall) p 55 Issue: whether Maryland could collect tax from Bank of United States Basic point: federal gov’t is supreme over states. Marshall asks 2 questions i. Q1: does Cong have the power to enact a bank? 1) Yes: construe Constitution broadly: “…it is a Constitution that we are expounding”. a) its nature, therefore, requires, that only its great outlines should be marked, its important objectives designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves b. Constitution has enumerated but also IMPLIED powers 2) Nec and Proper Clause of Art 1 § 8 cl 18: a) necessary --convenient, useful or essential—elastic to account for ∆ b) Structurally clause among the powers of Congress not limitations c) Historical argument—in Art of Conf had the word “expressly” (not here), thus a more broad application here . As long as the end is legitimate and within the scope of the Constitution, any means which are appropriate, which are plainly adapted to that end, and which are not prohibited by the Constitution, but are consistent with its spirit, are constitutional. d) Congress ultimately decide what is Necassary and Proper e) earliest formulation of Rationale Basis test (p. 146): Let the end be legit, w/in scope of C, means appropriately adapted to the end ii. Q2: does MD (state) have the power to tax it? 1) NO: power to tax = power to destroy 2) REPRESENTATION REINFORCEMENT: SC steps in when pol. process fails Structure- if MD imposes tax, imposes tax on whole country who didn’t vote for tax—not represented in political process Textual- Article 6, Supremacy clause (federal law trumps state law) SC acts for other states virtual representation Policy-one state can’t destroy if all of the country created In perhaps the most significant part of the opinion, he rejected the contention that "necessary" meant "absolutely necessary" or "indispensable", and instead said it was what could be done. -The federal immunity from state regulation, like federal immunity from state taxation, derives from McCulloch v maryland. The theory is that a govt, may no control those whom it does not represent, thus a state may not control the entire nation. -The contrary view to the proper and necessary clause is that it only means that which is needed. …Marhsall thinks in this case that is neassary in this context is that which means essential to achieve the goal. -McCulloch v Maryland- rejected compact federalism, The court expansively defines the scope of congress's authority The court limits the ability of stets to interfere with federal activity. -Marshall's justification that the states are not sovereign can be questionable because article 7 of the constitution states that the states had to ratify the constitution not the people. -You could the land of the bank, the employees but not the bank on its own…. -Marshall decided all that needed to be is that the end be legitimate and l all means which are appropriate. Andrew Jackson’s Veto Message (1832) CT Andrew Jackson’s Veto Message (1832) cp 108 i. S.Ct not sole interpreter of Constitution—legislature + executive also take oath to uphold Constitution ii. Congress ability to decide Necassary+Proper, if not Necessary+Proper, then unconstitutional, also the power to faithfully execute the law give the executive power. iii. the president as an independent constitutional actor he cannot puruse things that are not unconstitutional. Giving it back to the congress. Needs to faithfully execute the laws. iv. also if congress finds constitutional does not need to sign it. v.also does not need to execute the bill, does not need to execute d. Dellinger Memo cp 110 i. implicitly: pres must subordinate own views of Constitution to that of the Supreme Court ii. if thinks un Congress—look to Cong to change the law, then look to SCt to review 3. Interstate Commerce 2. Regulation of Interstate Commerce Commerce Clause: A1:8 – “Congress shall have power . . . to regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes . . .” Madison – Congress was limited to taxing and spending to carry out enumerated powers of Article 1 Hamilton – Congress can tax and spend for any purpose that serves general welfare, so long as Congress doesn’t violate another constitutional provision. Madison’s Speech in the House of Rep a. Madison’s Speech in House of Rep (1791) cp 86 i. literal and NARROW reading of C—no explicit power to charter bank ii. makes and dismisses precedent argument: Conf had bank only b/c REALLY necceassary iii. to allow bank would allow Congress to do whatever they wanted vi. Necessary and Proper only if really Necessary ---bankdid not meet criteria as it was only convenient Memorandum of Walter Dellinger to Abner Mikva, “Presidential Authority to Decline to Execute d. Dellinger Memo cp 110 i. implicitly: pres must subordinate own views of Constitution to that of the Supreme Court ii. if thinks un Congress—look to Cong to change the law, then look to SCt to review Unconstitutional Statutes” (1994) CT 2. Regulating Interstate Commerce a. From Origins into the New Deal Gibbons v. Ogden (1824) CB pp. 170-172 i. Gibbons v. Ogden (1824 Marshall) p. 143 1) NY gave a company exclusive right to navigate NY waters licensed Ogden Gibbons competing ferry under Fed law 2) definition of commerce includes traffic AND intercourse: a) “commerce, undoubtedly, is traffic, but it is something more: it is intercourse.” b) “commerce among the States, cannot stop at the boundary line of each state, but may be introduced into the interior. If it is impacting other states 3) Art I §8 cl 13: cong power to regulate interstate commerce “among the states” What is among the states, If it has impact on more than 1 state it can be regulated by Feds. No clear line. 10th amendment, 4) remainder theory: (contrast 10th a state sovereignty and Lopez & Morrison) Constitution says nothing about intrastatenot enumerated = state 5) when fed and state conflict, fed trumps state (SUP CL)—here NY law is unC 6) cong power PLENARY in interstate commerce 7)Interstate Commerce power does not apply “to those which are completely w/in a particular State, which do not affect other States, and with which it is not necessary to interfere.”Cong able to reg intrastate if impacts IC 8) Supremacy Clause at work – not notion of exclusivity. Even if states have some powers to regulate commerce, doesn’t matter because of Supremacy- fed gov’t is trump ii. Dual Federalism –fed and state have separate zones of authority, jud’l role to protect the states to protect the zones of activities 1) narrow def of commerce: distinct from mining, mfg or production—only commerce able to be regulated by the states 2) “among the states” allows Cong to regulate only when there is a substantial effect on IC 3) 10th a push back theory—reserves zone of activities to the states iii. Methods of review by SC 1) Formal approach a) examine statute and the regulated activity to determine whether certain objective criteria are satisfied. b) ignores actual econ effects and actual legis. motivation 2) Realist approach a) looks at actual economic IMPACT/EFFECT and legis motivation b) statute more likely to get struck down by Marshall’s RB test Note: Gibbons v. Ogden CB pp. 172-173 The commerce clause could be limited in two ways Internal- the clause might define a specific subject matter, such that congress could not regulate anything but interstate and foreign commerce. The subject could just protect the values of federalism External-the power might allow for anything regarded as interstate or foreign commerce, but other provisions of the Constitution, such as the first amendment, might bar the exercise of a power concededly granted United States v. E.C. Knight Co. (1895) CB pp. 187-188 iii. US v. EC Knight Co (1895 Fuller) p. 161 1) EC Knight acquired bulk of sugar refining, US sued constituted a monopoly in violation of Sherman Antitrust Act 2) H: Does constitute a monopoly, but Sherman Act can’t reach—Cong no authority to control mfg (local act left to state control) 3) formalist arg—not yet in stream of commerce, manufacuturing is not one 4) advances dual fed—effect on commerce indirect, outside scope of fed power(twin circles of commerce) 5)eventual introduction to interstate commerce does not mean that it is interstate commerce Stafford v Wallace Stafford v Wallace, the secretary of Commerce was allowed to regulate interstate cattle shipments. In the case at hand the court held that the stockyards were part of the stream of commerce, thus it was able to be regulated. Yet, how do we know where the stream end or where it ends, are there multiple streams starting and ending. Started Stream of commerce. Note :Direct, Indirect, and Stream of Commerce Tests CB pp. 188-189 Stafford v Wallace Stafford v Wallace, the secretary of Commerce was allowed to regulate interstate cattle shipments. In the case at hand the court held that the stockyards were part of the stream of commerce, thus it was able to be regulated. Yet, how do we know where the stream end or where it ends, are there multiple streams starting and ending. Started Stream of commerce. The Shreveport Rate Cases--allowed for the regulation of train rates within one state if they traveled on interstate routes because, it allowed it because it had a close and substantial relation to interstate traffic that control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service and to the maintained of conditions under which interest commerce may be conducted upon fair terms and without molestation or hindrance. Yet this was an exception to the rule. Champion v. Ames (1903) CB pp. 190-191 iv. Champion v. Ames (1903 Harlan) p. 164 1) Fed Lottery Act prohibited interstate transport of foreign lottery tickets 2) Act is Constitutional: Regulation of lottery transportation IS interstate commerce (IC)—carry things from one place to another 3) cong power to reg commerce is PLENARY, but not ARBITRARY (subject to Constitutional limits)—still regulating the thing that is traveling 4) Dissent: (Fuller) a) POLICE POWER: fed attempt to regulate traditional state area: health, welfare, safety and morals b) under majority holding: everything considered commerce Champion v Ames, and in this case the court ruled that it was under the Commerce Act, because it was regulating the interstate shipment of these good, additionally though it was couched as evil thing. Also the state and the federal government were working in concert. Hammer v. Dagenhart (1918) CB pp. 173-175 . Hammer v. Dagenhart (1918 Day) p. 147 1) Child Labor act prohibited transport in Interstate Commerce of goods produced in factories w/ child labor 2) H: Act is unconstitutional—beyond scope of fed power + infringes on state power (implies sphere of state power—push back) 3) EFFECT of act is to regulate child labor, not Interstate Commerce S.Ct. looks at MOTIVES (product/outcome itself is evil)—REALIST—what Cong is really trying to do 4) Cong no power to require states to exercise police power 5) Commerce Clause enable Congress—not able to prohibit 6) Holmes dissent: FORMALIST a) is IS Interstate Commerce (transporting across state lines) cong can regulate (matter of practical politics) b) ends are OK (contrast w/ EC Knight) c) does not intrude on state affairs d) able to regulate if EFFECT on Interstate Commerce 7) reconciling Champion and Hammer—SC economically conservative (striking down econ reg) and morally conservative (deferential to laws directed to “sin”). Additionally, in Champion, the lottery tickets themselves as they were , were what was being regulted. In hammer, the goods produced are not materially different whether it is produced by kids or adults. Child labor is process, cannot regulate, lotto tickets are the product itself. b. The Taxing and Spending Powers: Closing the Back Door Note on Taxing Power & Bailey v. Drexel Furniture (1922) CB pp. 280-283 a. Bailey v. Drexel Furniture (1922) p. 207—was a response to Dagenhart i. Child Labor Act--Req anyone who employed child labor to pay an excise tax equivalent to 10% of their entire net profits—response to Hammer being ruled unconstitutional an arena reserved to the states (not good law anymore). ii. H: Child Labor Act un Constitutional: prohibitory and regulatory effect not authorized by Congress—would wipe out enumerations and limitations, could get to anything like this---looking at purpose iii. power to tax ≠ power to regulate 1) purpose of tax is to change behavior (attempt to control prod’n) → bad (opp. Brit) 2) “To give such magic to the word ‘tax’ would be to break down all constitutional limitation of the powers of Cong & completely wipe out the sov’ty of the States. Doremous---tax on narcotics, taxing it, because the prohibition power to get rid of it. Congress also began to tax people that sold drugs, which was before a state issue under the Harrison Act, the Supreme Court, in turn upheld it because the Congress has the power to tax, and it does not matter what the effects of it are, as long as it does not intrude on any other taxes. --U,.S v Dormeus But in Bailey v Drexel, the S.ct struck down the Child Labor At, buy looking at the tax, and stating that if the question was whether the effect was incidental or if it was the main purpose. The court stated that the child labor issue was a state issue not a national one.--the tax in this case impked a large tax 10 % on the entire net profits of the whole institution. ---they struck it dow United States v. Butler (1936) CB pp. 283-288 c. US v. Butler (1936 Roberts) p. 209 i. Agriculture Adjustment Act attempted to control agriculture by imposing tax to farmers who promised to reduce their acerage ii. H: 10th a: AAA regulates agri—area reserved to the states: Push back (this aspect not really followed) iii. can’t do it directly—can’t do it indirectly (looks at PURPOSE) iv. Art I §8 “to provide for the general welfare” 1) Hamilton view: broad interp—can regulate indirectly as long as don’t violate other Congressional provisions—10th amendment 2) Madison: limiting tax/spending to things that are enumerated ALSO THIS IS ECONOMIC COERCION WHICH IS NOT ACCEPTABLE 3) SC says that accepts Hs view, but it strikes it down because it attempted to regulate and control production, an arena reserved to the states (not goo law anymore) v. dissent (Stone): Only restraints to taxation and spending power are: 1) purpose must be nat’l 2) may not be used to coerce action left to state control 3) subject to the conscience of Cong and the executive IN Maryland v McCulloch—the ends are legitimate then the means are ok. Here it’s the opposite. c. New Deal Demands Note on the New Deal Crisis CB pp. 192-193 b. Commerce Clause emerging from New Deal i. FDR frustrated at SC for striking down legis.—proposed ct packing plan ii. Roberts: “the switch in time that Saved Nine” in Jones and WCH iii. SCt more deferential to Cong—interp Inter state Commerce clause more expansive A.L.A. Schechter Poultry Corp v. U.S. (1935) CB pp. 193-195 vi. Schechter Poultry Corp v. US (1935 Hughes) p. 167 1) National Recovery Act of 1933—empowered Pres to approve codes of fair competition, inc Live Poultry Code establishing 40 hr/wk and minimum wage 2) H: National Recovery Act unConstitutional—10th amendment prevents infringement on state power even in crisis 3) rejects stream of commerce arg: here, the stream is stopped—local 4) IN/DIRECT distinction— here impact on IC is indirect, still localstate, its starts from Shreveport, 5) Cardozo concur: “Activities local in their immediacy do not become interstate and nat’l b/c of distant repercussions”—matter of degree (unlike Marshall-McCulloch), 6)Must directly affect interstate commerce. Indirect transaction remain with state if they are not in the stream of commerce. 6)Must directly affect interstate commerce. Indirect transaction remain with state if they are not in the stream of commerce. b. Commerce Clause emerging from New Deal i. FDR frustrated at SC for striking down legis.—proposed ct packing plan ii. Roberts: “the switch in time that Saved Nine” in Jones and WCH iii. SCt more deferential to Cong—interp Inter state Commerce clause more expansive Carter v. Carter Coal Col. (1936) CB pp. 195-198 --similar to E.C Knight, and hammer v dagenhart, which says that manufacuting is not commerce NARROW DEFINITION OF COMMERCE Chem: Court declared unconstitutional the bituminous coal act of 1935. The law contained detailed findings as to the relationship btw coal and the national economy and declared that its production directly affected interstate commerce. Provided for local “coal boards” to meet and determine prices for coal and determine through collective bargaining wages and hours for workers. A shareholder in the company sued to stop it from complying with the law. S Ct under Sutherland declared the act UNCONSTITUTIONAL, focusing on the federal regulation of wages and hours: “Incidents leading up to and culminating in the mining of coal do not constitute intercourse for the purpose of trade” “Mining brings the subject matter of commerce into existence. Commerce disposes of it” Use Direct test, don't care about magnitude Degree not factored into the equation. Compares to Schechter: there interstate commerce ended by the time power was being asserted, here it is being asserted before the commerce has begun--says these are the same thing. DISSENT: Cardozo - would have upheld the price fixing provisions, finding the labor provisions severable. Addressing direct/indirect, Cardozo seems to feel that it is better to think in terms of "close and intimate and obvious" when assessing directness, which does not subject the word to an unfair or excessive strain. Intrastate sale prices for coal have an inescapable relation to those for interstate coal such that a means of protecting one is necessary to protect the system of regulation for the other. NIRA was set to expire anyway, so the decision in Schechter was not as important for the holding than for approaches that it articulated through Congress. The commerce clause was limited by Schechter to not extend to economic activity once the subject of commerce had been delivered, this helps to solidify the federalist values of non-interference with state powers, while regulating things once they cross a border and are in transit. NIRA and Bituminous Coal Act were designed to set wages and prices such that an oversupply, etc, could not lead to depressed prices and lower profits/wages. Why did current of commerce end when the Chickens reached the slaughterhouse in Schechter? Hours and wages of workers NOT related to interstate commerce? "Directness" - Sutherland treats as a logical category defined in terms of a beginning and an end, while Cardozo thinks of it in terms of proximate cause--according to the purpose the test is trying to achieve. What are the purposes? To try to stem overproduction and price collapse, and allow wages and profits to recover. These problems had choked state to state commerce. Notes 1-5 CB pp. 198-199 d. The Commerce Clause as it Emerged from the New Deal Note 6 on the New Deal Response to the Court CB pp. 199-200 NLRB v. Jones & Laughlin Steel Corp. (1937) CB pp. 200-204 NLRB v. Jones & Laughlin Steel Corp (1937 Hughes) p. 175 1) SC upheld NLR Act--right to collective bargain falls under Inter state Commerce 2) Cong able to regulate: a) activity having a substantial EFFECT on IC b) any activity having a “close and immediate/substantial relation” to IC—even local (REALIST)—It means the same as substantial effect. 3) EFFECTS TEST like Holmes in Ham v. Dag—matter of DEGREE 4) Realist: “The question is necessarily one of degree… the fact that the employees here concerned were engaged in production is not determinative. The Q remains as to the effect upon interstate commerce of the labor practice involved” 5)Manufacturing and commerce are the same thing. 6)Here the congress looks at the effects not the sources. 7)Nationale and Not a matter of formalism Also NLRB was a response in part to FDR’s court packing tests United States v. Darby (1941) CB pp. 204-206 v. United States v. Darby (1941 Stone) p. 179NEED TO FIX!!!!!!!!!!! 1) SCt. upheld the Fair Labor Standards Act—able to regulate unfair competition. 2) overrules Ham v. Dag—takes formalist position of Holmes’ dissent 3)Gets away from pre 1937 doctrine. 4) Remainder Theory: only ask if feds doing an enumerated power, not if intruding on anything reserved to the states a) 10A “states but a truism that all is retained which has not been surrendered.” Rejects notion that 10A can be used by judiciary as a basis of, commerce clause knows no limits, as long as congress reasonably believes that it could reasonably believe would have a substantial effect on an enumerated power. (Rationale basis review, but a little weaker) 5)Must directly affect interstate commerce. Indirect transaction Wickard v. Filburn (1942) CB pp. 175-177 vi. Wickard v. Filburn (1942 Jackson) p. 149 1) Agriculture Adjustment Act—estb. quota, Wickard—homegrown wheat 2) “even if… activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Congress determines what’s substantial. 3) Aggregate effect: single farmer act substantial when consider others similarly situated (degree) 4) Reject direct/indirect effect arguments—simply asks if it is commerce The reason they say aggregation principle that they need it is because this guy grew it and he never let anyone Gets rid of Commodity obsessions. e. The Commerce Clause in the Service of Civil Rights Heart of Atlanta Motel v. United States (1964) CB pp. 208 i. Heart of Atlanta Motel v. US (1964) p. 183 1) SC upheld Title II of 1964 Civil Rights Act as valid exercise of Art. I §8 2) doesn’t use 14a due to Civil Rights Cases and Slaughterhouse---privileges or immunities, and not state shall was not extended to private action 3) motive and purpose irrelevant: affirms Jones—able to regulate if substantial and harmful effect on IC 4)Discrimination prevents African American from traveling U.S. -it also discourages African Americans from relocating -discourages African American from spending money 4) “It is subject only to one caveat—that the means chosen by it must be reasonably adapted to the end permitted by the Constitution”—tailoring limitation, getting more to the real rationale basis, Marshall—though that it was ridiculous they were not doing it through the 14th but through the commerce clause Katzenbach v. McClung (1964) CB pp. 209-210 ii. Katzenbach v. McClung (1964 Clark) p. 184—companion case to Heart of Atlanta—Ollie’s BBQ 1) Title II applies to restaurants 2) “RATIONAL BASIS for finding that racial disc. in restaurants had a direct and adverse effect on the free flow of I.C.”—Rational basis review -Also people don’t motve to communities like that because of the discrimination. Thus it effects IC. 3) Black concur: no case-by-case basis—cumulative effect (like Wickard) 4)in this case the Katzenbach was a much more insular area, but the importation of meat came from out of state 5)in this case there was 48 percent of the meat came from out of state 6)they could regulate from the two ways the direct and adverse effect and also the meat imports from out of state. Note on Federalism and Congressional Motivation CB pp. 210-211 f. The Recent Revival of Commerce Clause Limitations United States v. Lopez (1995) CB pp. 211-222 i. US v. Lopez (1995 Rehnquist) p. 186 1) Gun-Free School Act—no guns 1000 ft of school 2) H: exceeds the authority of Congress: “neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to IC” Supreme Ct. affirmed, but stating that it wasn’t just based on Congress’ findings, but because the law was (in itself) not substantially related to interstate commerce 3) Cong can reg 3 things under Commerce Clause: a) Reg use of channels of IC (rivers, interstate highways) b) Reg and protect instrumentalities, persons or things of/in IC (even if threat comes only from intrastate activities) c) Req activities having a substantial relation to IC (like SS for commerce, there going to like at the reasons and findings of congress to legimize. ) a+b still get RB)--Proper test is “substantially affect,” –transformed into a subjective test—comes from Jones&Laughlin 4) Slippery Slope arg: if able to regulate crime if found to IC—could regulate act traditionally for the state inc family law, marriage, divorce, child custody, crime, education 5)Concur: Kennedy-Federalist (upsets balance betw. state and fed, this power here is the power of the state not the federal, Kennedy concurrence is that if there is a commercial activity there should be a presumption that it has a substantial aggregate effect on commerce), Thomas-Formalist (Interstate Commerce swallowed up other Congressional powers) 6) Dissent: Stevens-Realist (guns DO have an effect on IC), also they travel in commerce; Souter-Formalist (non/economic looks like old distinction between in/direct); Breyer-realist (C must ∆ w/ ∆ing circumstances, generates data) also 60 years of precedent The gun act afterwards was passed with the qualification that they regulated the instrumentalities, because they travel in interstate commerce. United States v. Morrison (2000) CB pp. 222-224 ii. US v. Morrison (2000 Rehnquist) p. 197 VAWA civil remedy gender violence 1) Neither CC (nor 14a) give Cong authority to enact civil remedy provision b/c it doesn’t reg activity that substantially affects Interstate Commerce (despite lengthy legis findings). 2) Goes further than Lopez, Cong can’t reg a noneconomic activity by finding that it has a cumulative effect 3) “gender-motivated crimes of violence are not an economic activity” 4) limits substantial relations test—the regulated activity must be economic (v. non-economic)—this distinction is relevant for aggregation: Aggregate small economic activities to create the substantial effect for economic—can’t aggregate non-economic activity to create a substantial effect----usually determinitve Tehrefore this limits the case of Wickard v Filburn 5) dissent: Souter: jud br not the shield against commerce power—political process is (Madisonian theory), majority bases decision on federalism , and also defer to the congressional findings 6) PUSH BACK: non-econ things for the states (police power) “inherently local” Notes on Gonzales v. Raich (2005) Legal briefs were filed and oral argument occurred on November 29, 2004 (transcript). The 6-3 decision, written by Justice Stevens, was issued on June 6, 2005. It upheld the validity of Controlled Substances Act as an exercise of federal power because Congress "could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial." The majority did not address the substantive due process claims raised by the respondents. The Commerce Clause was the main issue. Congress' power to regulate interstate commerce includes power to regulate: channels of interstate commerce. instrumentalities of interstate commerce. activities that substantially affect interstate commerce. The last of the three was relevant to the issue at hand. The relevant precedents for it are Wickard v. Filburn (1942), United States v. Lopez (1995) and United States v. Morrison (2000). Stevens' opinion for the Court for the Raich decision said that Lopez and Morrison don't apply, since marijuana is a popular part of commerce, and that the Commerce Clause applies whether the commerce is legal or not. According to Stevens, Wickard was the correct precedent by which to go. During the American Great Depression, the Agricultural Adjustment Act of 1938 imposed quotas on crops including wheat. The farmer Roscoe Filburn produced wheat in excess of the quota, but said the excess wheat was for his own personal consumption and therefore had no effect on interstate commerce. The Court ruled that a farmer's growing "his own wheat" is "commerce" because if he had not grown and consumed it, he would have had to buy it from someone. Hence, in the aggregate, if farmers were allowed to consume their own wheat it would affect the interstate market in wheat. This case marked what may be the high water mark of the commerce power. For sixty years—until the Lopez decision—the Supreme Court struck down no law as exceeding the power of Congress under the Commerce Clause. Like Filburn, Raich and Monson said that their marijuana was only for personal use, and therefore not part of commerce. Stevens said that since the Wickard aggregation principle was valid, the Supremacy Clause of the Constitution allowed federal law to override state law. Congress' power under the Commerce Clause was used for many important pieces of legislation, including the landmark Civil Rights Act of 1964. The Court had already reaffirmed some precedents and created others that limit the power of Congress over the states, and increased the power of the Court over Congress. With Raich, the Court declined to go further in that direction. Justice Scalia wrote a separate concurrence that aimed to differentiate the decision from the more recent results of United States v. Lopez and United States v. Morrison. Although Scalia voted in favor of limits on the Commerce Clause in the Lopez and Morrison decisions, he said that his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich for the following reason: Intrastate can be gotten at if it. The current state— If economic nature, it is in, even if just intrastate then you can use the aggregation principle then it is in. If it is non economic---it has to have a substantial effect, One questions from these cases is "what is a substantial effect on interstate commerce How is the line between economic and noneconomic activities draw in Morrison to be designed. There fore it is a question of 1) what is substantial 2)What is economic and noneconomic CBS pp. 19-22 ------------------ NEED NOTES 3. Taxing and Spending Revisited United States v. Kahringer (1953) CT . US v. Kahringer (1953 Reed) cp 112 i. SC upheld Revenue Act--imposed an occupational tax businesses that accepted wagersact not invalid merely b/c it deters the activities being taxed ii. test on taxing is “no penalties extraneous to any tax need” just because a federal tax has a regulatory effect or has negligible revenue does not make it invalid. If there are provisions extraneous to a tax need then it is not good. iii. dissent: (Frankfurter) act is un Constitutional b/c it is “an attempt to control conduct which the Constitutional left to the responsibility of the States” (in this case gambling) iv. as long as the power can be taxed, then there is no limits. Doremous—just because a tax’s intent is one thing it does not matter . US v. Butler (1936 Roberts) p. 209 i. Agriculture Adjustment Act attempted to control agriculture by imposing tax to farmers who promised to reduce their acerage ii. H: 10th a: AAA regulates agri—area reserved to the states: Push back (this aspect not really followed) iii. can’t do it directly—can’t do it indirectly (looks at PURPOSE) iv. Art I §8 “to provide for the general welfare” 1) Hamilton view: broad interp—can regulate indirectly as long as don’t violate other Congressional provisions—10th amendment 2) Madison: limiting tax/spending to things that are enumerated ALSO THIS IS ECONOMIC COERCION WHICH IS NOT ACCEPTABLE 3) SC says that accepts Hs view, but it strikes it down because it attempted to regulate and control production, an arena reserved to the states (not goo law anymore) v. dissent (Stone): Only restraints to taxation and spending power are: 1) purpose must be nat’l 2) may not be used to coerce action left to state control 3) subject to the conscience of Cong and the executive IN Maryland v McCulloch—the ends are legitimate then the means are ok. Here it’s the opposite. Steward Machine Co. v. Davis (1937) CB pp. 288-291 StC upheld a fed unemployment compensation system—employers paid tax to US treasury, if they made contributions to state unemployment fundreceived credit up to 90%. The states asked for this as well. ii. majority adopts the position of Butler dissent: 1) here the purpose is nat’l 2) states working w/fed gov’t—couldn’t do it alone for fear of race to the bottomnot coercion in violation of 10th a 3) Cong should be given some discretion—not overstepping bounds here 4)not coercive, This case affirms the broad authority of congress to tax and spend Three part balancing 1) not coercive on state 2) purpose in scope of national policy and power=enumerated 3)not trespassing on the 10th. South Dakota v. Dole (1987) CT i. Cong passed 20 USC § 158 w/withheld 5% of transportation funds to states that did not fix the state drinking age at 21 SC upheld as valid exercise of spending power ii. SC upholds policy that Cong CAN do INDIRECTLY what it can’t do DIRECTLY iii limitations to spending power: 1) in pursuit of the general welfare (ct defer to Cong) 2) clear conditions (must enable the States to exercise their choice knowingly) 3) reasonably related to the purpose of the expenditure 4) no independent prohibition (ask the states to do something unconst—discriminating on basis of race, or issuing a free speech prohibition) 5) non-coercive iv. here the drinking age is related to highway fundingsafe interstate travel v. 21st a (repeal of prohibition) is not a bar to the Act (just can’t do it directly) vi. dissent (O’Connor): establishment of drinking age is not sufficiently related to highway funding, not narrowly tailored enoughlooks like Cong is legislating morals 1) overinclusive—stops teens from drinking when they have no intention to drive on interstate highways 2) underinclusive—fails to acknowledge that teenagers compose only a small part of the overall drunk driving problem Congress cant do indirectly what it cant do directly. 3) Cong power to spend for the general welfare but power to legislate only for delegated purposes. 4. Making Treaties Missouri v. Holland (1920) CB pp. 330-332 i. Cong passed law limiting # of birds able to be killed—act declared un-Constitutional—Pres signed treaty w/Canada—Cong passed treaty ii. SC upheld the treaty: Art II gives pres the power to make treaties-does not have to be in pursuance to const—becomes the supreme law of the land anyway iii. 10th amendment does not reserve the power to supersede federal law that is made in pursuance to the Constitution, in areas of treaties, because the constitution gave the power to congress iv. collective action prob—NY can’t do anything if MO doesn’t abide by it: SUBSIDIARITY—feds step in when the states don’t do it well—nat’l interest involved v. limitation on treaty making power: can’t conflict w/other C provision,also when it is overriding a statute, vi. Holmes – "The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved... Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action... It is not sufficient to rely upon the States” vii. if treaty and fed statute conflict—one adopted last in time controls viii. “Acts of Cong are the supreme law of the land only when made in pursuance to the Constitutional, while treaties are declared to be so when made under the authority of the US” ix. not justiciable political ? whether pres may rescind a treaty x. Needs to be self executing, in order to take automatic effect within the United States, if it is not it needs to hav internal legislation passed Similar argument as Stewart Machine co. ---this is some thing that the nation as a whole must address. Note : Federalism and the Treaty Power CB pp. 332-333 The 10th amendment is not a bar on the treaty power because it is a plenary power to congress. Limits of the treaty power by Constitution— This was seen in the case of Reid v Covert---where it was held that the depends of us military personal living abroad were entitled to civilian courts , because otherwise it would violate substantive and procedural due process. Executive Agreements as alternatives to treaties- -this is said by the president to allow him to negotiate agreements and enforce them without senatorial agreement -yet they cannot override an act of congress but outside of that they can have the same force as a statute -in US v Belmont, for exec agreements it was held that the states cannot limit these agreements Although there is a claim that this power does not exist in the constitution Tribe thinks he finds it in, "the executive power shall be vested in a President---and this is limited by article 1 article 2 and other constitutional provisions. -there is an agreement widespread the president can make some sort of agreement that does not reach the power of the treaty power. The Congressional Executive agreement as a final alternative This is an agreement that comes with a simple bicameral majority vote--this has come to be treated as the equivalent of the treaty form with respect to supremacy over state or prior federal law. -this has been used for many things such as the WTO or NAFTA -this is problematic to start off with because of the treaties requirement for a 2/3 votes -yet this bicameral majority vote is rationalized by article 1 section 8 the power of congress over the commerce as well as necessary and proper From Here Note 1 on Treaties CB pp. 403-404 5. Regulating State Governments a. “Traditional State Functions” National League of Cities v. Usery (1976) CT . Nat’l League of Cities v. Usery (1976) p. 233 i. Commerce Clause does not empower Cong to enforce minimum wage and overtime provisions of Fair Labor Standards Act against the state “in areas of traditional gov’t functions.”—wanted to plac this floor on the state employees. ii. Cong violates 10th a when interferes w/traditional state/local functions ii. wages & hours affect Interstate Commerce but not allowed to apply to state and local employees, because of this 10th amendment bar overruled by Garcia---part of the problem here is that it is ambigious Note: The Modern Revival of 10A-Based Restraints CB pp. 333-334 Hodel v Virginia Surface Mining Association- saying that regulations of strip mining was not something that effected the "state as states"---limited NLC, the regulaiton if it meets one of these fails. 1)statutes regulates states as states 2)addresses matters that are parts of state sovereignty 3)compliance, greatly would limit their structure integral operation of traditional government. Union v Long island Railroad-- The court upheld that it could regulate the state owned railroads, consider that the state owned railroads were as crucial for the state as the employment wages in National League of Cities v Usery (doesn’t it fall under the commerce clause) Garcia v. San Antonio Metropolitan Transit Authority (1985)CB pp. 334-336 i. “traditional government function test is unworkable” ii. “Principal means chosen by the Framers to ensure that the role of the States in the fed system lies in the structure of the Fed Gov’t itself. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the fed system than by judicially created limitations on federal power.” Note 3 on Gregory v. Ashcroft (1991) CB p. 337 i. H: Age Discrimination in Employment Act (ADEA) did not apply to state’s mandatory retirement provisions affecting appointed state judges. ii. Congress can SOMETIMES regulate overlapping areas of state and fedmust be a CLEAR STATEMENT of what they are actually doing—must be arrived at by the proper democratic process (maybe an example of shared would be highway) Cong cannot displace satet decisions in an area fundamental to the state sovereignty This is an example of the S.ct interpretating something constitutionally. Note: Political Constraints v. Judicial Enforcement CB pp. 177-185 b. Commandeering the State Legislature New York v. United States (1992) CB pp. 337-348 (1992 O’Connor) p. 237(radioactive waste) Cong power to encourage st’s to provide for the disposal of radioactive waste w/in borders, the Constitution doesn’t give Congthe power to commandeer them—coerceive ” (rule comes from Hodel v. VA Surface Mining) i. H: take-title provision is unConstitutional—“choice” of accepting ownership of waste (take title) or regulating according to the instructions of Cong is not really a choice, the congres does not have the power to mandate take title by the states This is not an incentive as in (Sd V Dole), instead it was forcing 2 unplatable choices to the states ii. monetary incentives are Constitutional (SD v. Dole) ---as long as not coercive iii. access provision (allows a state to discriminate on the waste of another state) Constitutional if it comes from congress iv. “Constitution protects us from our own best intentions: It divides power among sovereigns and among brs of gov’t precisely so that we may resist the temptation to [power] in one location as an expedient sol’t to the crisis of the day” Accountability issue: “Where the Fed gov’t directs the states to regulate, it may be state officials who will bear the brunt of public disapproval, while the fed officials who devised the regulatory program may remain insulated from the electoral ramifications of their election. Feds can prohibit acts of states, but can’t force them to act (Anti-Commandeering Rule). To force them to act blurs separation between the two. It also forces states to spend $ on things they don’t want to. Here youcanhave the act. v. dissent: (White)—act is cooperative federalism, states bargained to reach compromise enacted. vi. How can Cong regulate the states after NY? 1) conditional spending--regulate this way and you will get $ 2) conditional preemption—cong intent--regulate this way or else we will preempt you (kick you out of regulating this area of the law 3) regulate states along with private parties (Reno v. Condon) 4) negative commands ok, but positive commands are not vi. anticommandeering rule prohibits BOTH funded and unfunded mandates (it does not rally matter whether it comes from the 10th or the 1st section although it seems tha tit does not matter, but the authority fo the 10 the comes from the limitations et out in the 1st section) tribe- -the provision was a threat to state sovereignty because it unlike encouragement in the form of the receipt of federal fund or threatened preemption, the direct compulsion not pass regulations or otherwise exert severing lawmaking authority could confuse the electorate ---as is the basis for the check in the case of Garcia, which overrode National League of cities. c. Commandeering the State Executive Printz v. United States CB pp. 348-351 The Brady act required the Attorney General to establish a national instant background. Until then it was a question of if the Chief Legal Enforcement Officer wanted to enforce a rule telling the seller that the buyer was ineligible. The court of appeals upheld he act the S.Ct in an opinion by Scalia overturned it. Noting the there was no constitutional preceded the court found its answer in historical understanding an proactive. -the court agreed that until now the compelled enlistment of state executive offices for the administration of federal program is unprecedented. -the court found that on the other hand state judges were bound to the supremacy clause -yet, the act also transferred the responsibility of the executive to thousands of CLEOS in 50 states who were left to implement the program without meaningful presidential control -The court using New York found this to be in proper. It analogized the at comdnering the state legislature and the executive was the same thing. The act is guiding to much the policy of the states and it is necessary for the state to be able t gauge how best to use its time. The government also maintain is that requiring state officer to perform discrete ministerial tasks specified by Congress does not violate the principle of New York, because it does not diminish accountability. ---but it fails according to the court because the state absorbs the costs. Even if there were not cost still unconstitutional because IT is the CLEO that also faces the burden of mistakes in this case. (It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect. Displaces state sovereignty even if de minimus.) Justice Thomas Concurred suggesting the second amendment barred congress from regulating interstate arms sales Justice Stevens, Souter, Ginsburg and Breyer dissented -when congress exercise its power it can affirm obligations on stet official like on citizens. -the founders intended to the Fed to be able to compel state officials to compel local citizens Stevens states that he believes with the state having representation through the senate and therefore being able to voice their opinion. The backlash argument to the local officials is overstated because it will be told back to the local voters that it was the Fed. Also argues that this will lead to more fed bureaucracy in order to implement these tasks. ALSO ARGUES THAT IF WE ALLOW THIS THAT DOING THIS THE PEOPLE CANT HOLD THE STATE ACOUNTABLE -- This is different, than the New York case because it refers to the executive commandeering and not legislative like in NY analysis is just about the same thing The govt wanted to create a background system, but it wanted to make them a This is different, than the New York case because it refers to the executive commandeering and not legislative like in NY analysis is just about the same thing Note 1 on Reno v. Condon (2000) CB pp. 351-352 Reno v. Condon i. SC upheld the fed Driver’s Privacy Protection Act (DPPA)-reg disclosure of personal info in the records of state DMV-- even though req time/effort of st employees….cant commandeer the executive, here the executive could do it. ii. not violating anticommandeering principle—reg the state as owners of databases iii. not reg states in their sovereign capacities prohibition of conduct—not an affirmative mandate as barred in NY v. US Distinction from New York and rENO: Negative vs. affirmative command Regulated states alongside private parties Told states what they cannot do for DMV information. State as market participant not as a state actor. Testa v Katt--compels courts, but this does not fall outside of the commandeering principle--- Note: The “Anti-Commandeering Principle” CB pp. 352-355 C. The Dormant Commerce Clause Introduction and Note 1 on The Vices of Protectionism CB pp. 229 Note 1 General Theories CB pp. 231-232 If the law is not discriminatory against out of states then a simple balancing test is used. The court balances the laws burden on interstate commerce against its benefits. -it articulated this in Pike v Bruce Church Inc. Where the statute regulated even handedly to effectuate a legitimate local public interest and its effect on interstate commerce, are only incidental it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Presumption against constitutionality if the state law is discriminatory -if it is found to be discriminatory there is a presumption against discriminatory laws that burden interstate commerce. -the court has declared that a discriminatory law invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives. -as to the ends the court has said that it will be upheld if it is necessary to achieve a legitimate purpose . Yet this is puzzling phrasing. Requiring only a legitimate purpose is characteristic of highly deferential rational basis review and not of the strictest scrutiny. But in reality the cases, require more than a legitimate purpose a discriminatory state or local law must serve an important purpose in order to be upheld, a compelling state interest. There are two exceptions where the government will allow the laws that otherwise violate the dormant commerce clause. 1)if it is allowed by congress 2)The market participant exception a state may fanvor its own citizes in receiving benefits from government program or in dealing with government owned businesses. TEST: (P. 237, from Pike v. Bruce Church) Is it directed to a legitimate local concern/interest and its affects on interstate commerce are incidental? If a legitimate local interest is found, the question is one of degree and whether there is another means available to promote the interest that doesn’t affect interstate commerce. NOTE that Pike approach is more of a balancing approach than the court’s test. 1) Balancing v. 2) (anti)protectionism Pike test contains more than the court’s: this court leaves out the second part where the actual burden (degree) on interstate commerce is considered; leaves out a non-protectionist measure and just looks at intent. ACTUAL TEST HERE: Not really clear on whether they use both steps of the Pike test. How do you figure out if there is a protectionist measure? Geographic term expressly discriminating against out of state If there is unnecessary discrimination If it doesn’t regulate evenhandedly KEY: Use the balancing (compare burden to benefit) to decide if protectionism is involved. If its so out of whack, there is obviously something else going on. (So balancing can be used 2 ways: just to balance or to see if there’s protectionism going on.) In reality, Court never really does “balancing to balance,” just uses balancing to determine if statute is protectionist. What are we trying to protect? Idea of the Union and cooperation Prevention of resentment and retaliation Free Trade/ Comparative Advantage/ Economic Efficiency Note: General Considerations CB pp. 235-236 Philadelphia v. New Jersey (1978) CB pp. 236-238 i. NJ enacted law prohibiting the importation of out-of-state waste ii. H: NJ law protectionistun Constititutional, interstate movement of waste can be considered Interstate Commerce iii. “whether statute is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legit local concerns, with effects upon IC that are only incidental.”—What effect on IC? iv. two pronged test: antiprotectionist—balancing 1) A: idea of union, more efficient, prevent resentment among states (EFFECTS) 2) balancing: two kinds a) pure balancing—weigh purposes v. burden of legislation(apple v organses though) b) also smoke out illegitimate discrimination (is what’s really going on here really to discriminate?—O’Connor uses this in SD v. Dole) control neg effects on IC, representation reinforcement (McCulloch) v. dissent: (Rehnquist)—law is a safety measure (much like germ-rags and diseased meat)ok , such as a quarantine Argument Against This Balancing: 1. Allows Supreme Court to basically legislate. 2. All regulation would be the same – states would be afraid to do anything that might get struck down, even though not protectionist (this would limit federalism). Note 5 on Permissible Discrimination CB p. 240 Maine v. Taylor: Statute that prohibited importation of live baitfish was upheld. Was a legitimate local interest, Maine is special. This met the strict scrutiny standard, because the aims were to protect the fish of Maine West Lynn Creamery, Inc. v. Healy CB pp. 247-249 Mass taxed all milk sales in the states, and then took both import and domestic taxes to subsidize the local producers. The court found the program unconstitutional. -The program her violates the principle unitary national market by handicapping out-of -state competitors, even when the goods could be produced at a lower cost in other states. The purpose of the Mass statute is to help the mass farmers compete with the out of state farmers. Basically, this is like a tax imposed on out of state farmers since the Mass farmers get the benefits of the subsidy to offset their tax. The D says that they can do this ,because subsidies are ok, and the origin of the funds should not matter The legislation helps Mass farmers at the expense of the local carmers. Scalia and Thomas concurring---there are four ways a state could get the same effect---1) a discrimintory tax, A non discrimonatory tax, that exempts local producers A nondiscriminatory tax, whose funds and then distributed as "rebates" A subsidy from the general fund It has long been held the first is unconstitutional. The second a is a well. The fourth is ok The third is not because the third assists in state but also, Rehnquist dissenting and Blackman-- There is flaw in the discussion of the majority because there is still people lobbying against this. "Analysis of interest group participation in the political process may serve many useful purposes, but serving as a basis for interpreting the dormant Commerce Clause is not one of them. Note 1(a) Contours of the Market Participant Doctrine CB p. 250 . Market Participant doctrine: (p. 288) i. State may discriminate when acts as participants in market but not when regulate---if it is state owned then it is ok.---Yet it is not ok if it has a substantial effect on other state, if you use your law making power you cannot do so. ii. ex: NJ should be able to spend more $ in NJ than in CA iii. South-Central Timber Development v. Wunnicke (1984) 1) Alaska’s req that purchasers of state-owned timber process it within the state before being shipped out is unC 2) limit on Market Participant doctrine: state cannot impose conditions that have a substantial reg effect outside of that particular market—restricts post-purchase activity Scalia and Thomas say the dormant clause is not existent, but those article 1 and decision 10 as applying which is the import export clause---yet, they don’t apply to most people because it refers to foreign D. Separation of Powers at the National Level of Government 1. Domestic Matters a. The President, Congress, and the Rise of Administrative Agencies Notes 1-3 on Administrative Agencies, Myers v. United States (1926) 1) statute provided that postmasters “shall be appointed and may be removed by the Pres w/ the advice and consent of Senate”—Pres Wilson removed Postmaster General without advice and consent of Senate 2) H: removal was lawful because the attempted limitation on Pres removal power was un-Constitutional under Art II: act of removal is exeutive “take care clause”, “take care that laws are faithfully executed”, Art II vests executive power in pres not subordinate officials 3) Cong limits on removal power are unC (power to remove flows from power to appoint) -“Myers stands for the broad proposition that any congressional limits on the removal power are unconstitutional”. (Chemerinsky) Tribe-in Myers v United states. The court struck down a congressional porvision that certain postmasters, appointed by the President with the approval of the Senate could not be removed by the president without Senate consent. It is the source of the modern theory of removal. Taft concluded that the power of removal of executive officers is incident to the power of appointment and therefore the President has the exclusive power of removing executive officers of the U.s who he has appointed by and with the advice and consent of the Senate -Myers can be understood to mean that Congress may not place any limits on the Presidents power to remove executive officer Or it could be read as embodying the proposition that, whatever the limits of presidential power, Congress could not cede to itself any role in removing governmental officials. Humphrey’s Executor v. United States (1935) CB pp. 429-431 Humphrey’s Executor v. US (1935) (FTC) 1) statute provided that members of the FTC could be “removed by the pres for inefficiency, neglect of duty, or malfeasance in office.” 2) SC distinguished from Myers: in Myers, officer is in exec dept—subject to exclusive and illimitable power of removal by pres, but FTC is not an arm of the exec branch—quasi-legislatively and quasi-judiciary -Court distinguished between “purely-executive officers” (Myers) & “quasi-legislative” & “quasi-judicial” positions. -The practical effect is to draw a line between cabinet officials & those who are in independent regulatory agencies -the court drastically narrowed the application fo the Myers rule, -the court stated that the President at his pleasure could not remove some officer, such as the Federal Trade Commissioner, where Congress has sought to deny such discretion to the President. -the ct. reasoned that the necessary and proper clause endowed the congress the power to create federal officers independent of the President in order to implement congressional statutes and to safeguard that independ by insulting holder of such officers form the dismissal at the caprice of the president -the Myers proposition was explicitly limited, it was held to apply only to the removal of "purely executive officers. In comparing the two the emphasis in Myers was identical to that of the appointment power. In Humphreys executor, the character of the office rather than the locus of its appointment determined whether the President was to enjoy unrestricted removal power. In this one could only get rid for just cause. The Nondelegation Doctrine, Notes 1-3 CB pp. 418-420 The conventional thinking that the congress is the exclusive law maker is not longer really applicable. -administrative agencies have been given law making power---these are part of the exectuive--t comes in the form of regulatory power. -there are very few if any constraints on Congress's power to give power to delegate -yet, there are constraints, and the test is, the applicable trest is whether Congress has laid " dowm bu legislative act an intelleigible principle to which the person or body authorized to take action id directed to conform" J.W Hampton v U.S (1921) -the court has implemented the non delegation doctrine, in which they have not allowed the congress to delegate certain activities, such as in the case of Panama Refeining, in which the court invalidated a statute that allowed the president to stop interstate commerce of oil, the statute was struck down because it did not tell the president what standards to be used. In Schecter, the court ruled that, the congress could not delegate the power to fix prices to the industry reps, that was inconsistent with the constitutional prerogatives and duties of Conrgess. The purported demise of the nondelegation doctrine-- the nondelegation doctrine has all but disappeared as a constraint on the delegation of authority to administrative agencies. Indeed Panama and Schechter are the only to decisions t invalidate fed stat on nondelegation grounds. The court upehld Amalgamted Meat Cutter v Connally- when it stated that the President could delegate meat prices and that the statute was good, with the constraints of -the president could not discriminate unreasonably -an implicit requirement that the President come up with standards to limit his own discretion Note 4d on Clinton v. New York (1998) CB pp. 421-422 Clinton v City of New York. In this case the presidents had the Line Item Veto taken, which authorized the president to "cancel in whole" any items of new spending or any limited tax benefit. At issues were two exercise of the Line Item Veto’s Act's cancellation power by Clinton. -at issues were a cancellation of a provision that waived the governments right to recoup taxes that the state of NY had levied against Medicaid providers -the second war a limited tax benefit As Justice Stevens aid, a cancellation under the act, by preventing one provision of a duly enacted statute from having legal gorce or effect while leaving the rest of the statute intact permitted the president in both legal and practical terms to amend Acts of Congress b repealing portions of them. -Stevens said that the presentment clause return an entire bull to congress, not to reurn a part of a bill. -and further Article 1 require the president to return a part of a bill and firther article I requires the president to return a bill before it becomes law not after as under the Line Item veto Act. Also that it wrecks the political check, the political horse trading that goes on in congress. Scalia- The dissent it was just executive cancellation of expenditures, something that had long been deemed permissible. –where is the limit of where we go, INS v. Chadha (1983) CB pp. 423-429 i. Chadha visa expired, deportation ordered suspended by INS unless one house vetoed ii. H: legis veto of one house is un Constitutional—violates presentment clause Art I §7 cl 2 and bicameral legis req iii. legislative character of veto—absent veto only way to deport was by legislation Congress has before made a deliberate choice to delegate to the Executive Branch, the authority to deport aliens in this country in certain specified circumstances. By congress allowing this the only way to force the deportation of Chadha, would have been through the bicmaeral passage followed by presentment to the President Congress must abide by its delegated of before. 1) ∆ Chadha’s rights outside leg branch 2) Cong allowed to make/∆ own rules INSIDE their branch iv. only 4 instances house allowed to act alone: 1) house’s power to initiate impeachments, 2,3,4)Senate’s-- power to conduct trials following impeachment, approve presidential appointments, and ratify treaties (expressio unius) v. dissent (White--functional): 1) historical: gloss, its always been done this way so why ∆ it? 2) Cong must delegate out of necessity—too many duties check on agency 3) not an attempt to aggrandize self—not trying to extend powers 4) does not infringe on C duties of other brances In Chadha, the footnote 16, the court admitted that agencies and executive officers commonly wield "quasi legislative power, without the safeguards of presentment and bicamerality. Rule making and law making if delegated is ok, but at the same time, Note 1: Chadha in context CB p. 429 d. Separation Powers Doctrine ?s (only need satisfy one for a violation) i. formal inquiry—specific textual provisions in C that show how to handle issue ii. not an attempt to aggrandize self iii. does not infringe on the Constitutional obligations of another branch e. Legislative Control after Chadha i. pass a new law ii. alter the agency’s budget iii. appropriations rider—part of a new law attached to budget saying that there are something you cannot do with the $ iv. oversight committee—stir up public opinion (when infringe on other branch authority?) v. Pass sunset legislation—time limit on your power (survive only if you do a good job) vi. control appointments vii. report and wait provisions 1) we give you authority to write legis but it will not go into affect until 60 days after you have reported the new legis to Cong 2) gives Cong time to pass new law to supersede if Cong doesn’t like it b. Who Checks the President? United States v. Nixon (1974) CB pp. 405-409 i. Nixon tried to quash subpoena that req that he issue tapes—SC upheld subpoena ii. “Under the authority of Art II, §2, Cong has vested in the AG the power to conduct the criminal litigation of the US Gov’t. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of duties”—delegated power to Special Prosecutor—Ex Branch bound by it iii. does not violate ex privilege—privilege not absolute!!! 1) branch are not completely independent 2) no specific C provision authorizing privilege (although ex privilegef is inherent power) 3) absent a claim of a need to protect military, diplomatic, or sensitive national security secrets—there appears to be no reason for confidentiality 4) allowing priv here would impair functions of cts and threaten DP of law 2 contentions Absolute privilege–Separation of powers precludes judicial review of President’s claim of privilege–court rejected because it is for court to say what the law is Qualified or limited privilege–Privilege prevails over subpoena duces tecum Court: Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. Need some deference from courts so that President can get objective advice from advisors. Courts show most deference in areas of military or diplomatic secrets–Nixon did not base claim of privilege on this ground But must balance with other values (e.g., ability of judicial branch to carry out criminal prosecutions) Court’s statement of Issue: In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President’s responsibilities against the inroads of such privilege on the fair administration of criminal justice (as opposed to civil litigation or Congressional requests for info). Analysis Reasons for no absolute privilege Advisors will not be less candid out of fear that conversations will be called for in criminal prosecution. However, withholding of info would gravely impair function of courts. Proper procedure for invoking privilege President can invoke claim of privilege on return of subpoena Special prosecutor must then demonstrate that Presidential material is “essential to the justice of the case.” Here, District Court did not err in ordering inspection of evidence In camera inspection–private examination of evidence by trial judge Can only involve evidence that met the test of admissibility (i.e., failed the test of privilege) Must prevent release or publication of any evidence not admissible and relevant to trial. Note on Presidential Immunity and Clinton v. Jones (1997) CB pp. 410-413 358 (Paula Jones sexual harassment suit) i. Must a civil suit against the Pres, unrelated to his position in office, be delayed until term is over—impose a burden on the service/duties? ii. H: no, litigation must not be delayed—no violation of sep powers (unrelated to official conduct, unlikely that it would take up a large chunk of time to impair duties) immunity does not extend beyond official duties The court in the case of Nixon v Fitzgerald held that the president was immune from an action for damages. The reason being that the uniqueness of the presidents role made it so the president could be impaired by private lawsuits for damages for being discharged. Harlow Fitzgerald—this dealt with official immunity. Cheney v United States District Court in which the VP was able to block the release of attendance of members in the case of the Energy task force. The courts upheld that they did under the guise of Nixon v U.S. In contrast the S.ct disagreed stating that there is a distinction between the civil and the criminal. And the safegurads of the criminal process are not there to protect the bad cases from coming up, there needs to be a limit on discovery in criminal which does not exist in civil cases. For cases in which damages could be warranted, the court states that there are checks in the impeachment process, the re-election process and the need for presidential prestige. Morrison v. Olson (1988) CB pp. 435-442 i. Ethics in Gov’t Act allowed Attorney General to appoint t Ind. Counsel to investigate high ranking gov’t officials. Can be removed only by impeachment or by personal action of the AG for good cause,(some other positions will just say cause, it might be a different standard) physical disability, mental incapacity, or any other condition that substantially impairs the performance of the IC’s duties. ii. H: Act is Constitutional—does not violate app’ts cl (Art 2 §2), removal power, nor sep powers iii. does not violate app’ts cl: Congress may by Law vest the Appointment of such inferior officers, as they think proper, in the pres alone, in the courts of law, or in the Heads of Department” IC is an inferior officer because: 1) subject to removal by AG 2) performs a limited duty 3) office is limited in jurisdiction and tenure iv. not inconsistent w/ Art III—Interstate Commerce powers are ministerial or passive v. not invalid under sep powers: 1) not an attempt of Cong to increase powers at expense of Exec—aggrandize itself as in the case of ( as contended about congress by White in His dissent in Chadha) 2) not a judicial usurpation of ex powers because they are inferior 3) does not disrupt proper balance between 3 branches exec retains control through the A vi. dissent: (Scalia)—does violate Sep Powers—ex power means ALL ex power 1) violates sep powers when questions answered affirmatively: a) Is the conduct of a criminal prosecution the exercise of purely ex power? (YES) b) Does the statute deprive the Pres of exclusive control over that exercise of power? (YES) c)also the position has almost unlimited power no an inferior officer 2) political accountability necessary—people should be able to remove prosecutor through pres whom they have elected (FTC and FCC are different—not purely exec.) Distributing the power to appoint inferior officer the case of the independent counsel -the question of how far congress may go in distributing the power to appoint inferior officers without unconstitutionally impairing the presidential duty to execute the laws was the subject of the courts decision in Morrison v Olson. -which upheld against separation of powers attack the independent counsel provisions of the Ethics in government act of 1978, rejecting the claim that Congress cannot authorize members of the judicial branch to appoint special prosecutors--even though the court assumed that any such prosecutor is a species of executive officer. -th act allowed for the appointment of an independent counsel to investigate and if appropriate the prosecute certain high ranking federal officers including among others the president vice president and the members of the cabinet. -When the A.G determines that such investigation is needed she triggers the appointment of an independent counsel by a Special division of the Court of Appeals for the District of Columbia Circuit. The independent counsel is removable by the A.G. --- -if the independent counsel were a principal officer of the U.S. then this method of appointment would plainly be unconstitutional since those officers must be appointed by the President with the advice and consent of the Senate. Where as Congress is agreed to appoint inferior officers. -the court in Morrison, declines to set forth a definitive test of inferiority and contended itself with considering several factors relating to the ides of tenure duration and duties of the independent counsel. -they were an inferior officers because 1) subject to removal by a higher executive officer, the A.G 2) had certain limited duties 3) had limited jurisdiction 4 )limited in tenure (the majority wants some kind of political insulation) Scalia, noted that inferior was not an accurate assertion because 1)only removable for good cause 2)more difficult to move than principal officer. 3)the power are not that limited since they can investigate using all the power of the executive 4)could serve for a very long time The proper way to have decided Morrision, according to tribe would have been for the court to have decided that it was unconstitutional because they were not an inferior officer because of all of the power they have. -the Kenneth Starr debacle, has demonstrated how troubling the lack of political accountability is when we have an independent counsel. -thus all that is left is the re-evaluation of the statute that establishes the independent counsel. Note: The Politics of Impeachment CB pp. 413-414 Note: The Law of Impeachment CB pp. 414-417 2. Foreign Affairs Exceptionalism? a. “Curtiss Wright So I’m Right” Introductory note on Foreign Affairs CB pp. 375-376 United States v. Curtiss-Wright Corp. (1936) CB pp. 376-378 founds sovereignty in extra-constitutional power (comes straight from UK) yes we rely on pre-defined elements in construction of constitution, but this seems pretty extreme to say origin of power comes form completely extra-constitutional. The constitution does not give the president all the authority of the constitution but it is implied to be in there. Holding: Congess can give President the right to prohitib arm sales, congess and president agreed----similar to zone 1 in Youngstown Sheet v Sawyer Broader principal that the president had the power over foreign relations. b. The Gold Standard Youngstown Sheet & Tube Co. v. Sawyer (1952) CB pp. 361-370 –difference from Curtiss Wright is that it is domestic, although relating to foreign policy. i. Steel Seizure case: Truman ordered seizure to prevent strike during Korean War, he seized steel mills ii. H: Pres acted unconstitutionally—authority must come from C or Cong (no inherent pres power) 1) Cong rejected to give the president the power to seize under the Taft-hartley Act 2) no special emergency powers 3) seizing of mill is a legis powernot authorized by take care clause--- (does it matter that congress did not act to his letter to them) iii. concur: (Frankfurter) “It is an inadmissibly narrow conception of Am. Constitution law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them”—may take action not prohibited by Constitution or statute iv. concur: (Jackson)—Tripartite approach to solving problem in future: 1) Pres acting pursuant to an express or implied authorization by Cong Great deference – given wide latitude by judiciary, most power 2) Pres acts in absence of a Cong grant a) may be a zone of “twilight”—concurrent authority b) Actual test will likely depend on circumstances of the occurence 3) Pres takes measures inconsistent with expressed or implied will of Cong a) pres power at lowest--must be scrutinized to avoid imbalance in power b) “emergency powers would tend to kindle emergencies” This case is in the 3rd section does not meet the test at hand concur (Douglas)—seizure of prop limited by 5th amendment takings clause—if allowed here would violate checks+balance pres allowed to act w/out express statutory or Congrss authority as long as not infringing on powers of other br of gov’t. Here need congress to pay for this and approve it Concurred-Frankfurter-congress had decided to not give the president this power in the Taft Hartley act. vi. dissent (Vinson): policy—flexibilty is nec, precedent of Lincoln—Pres did notify Cong—hard to infer anything from their silence due to procedural issues (Pres can act much faster)— c. The Current Battle Note: The Allocation of Warmaking Authority CB pp. 378-383 Hamdi v. Rumsfeld (2004) CB pp. 383-394 Taliban and Alqaeda still fighting enemy combatant, authority doesn’t deal with plenary power b/c congressional authority never decidies if this is an article II power. AUMF all necessary pforce, detention of “enemy combatants ok” citizens can be detained (ex Parte Quirin) as log as take up arms against the U.S.-->AUMF allowed this b/c it is necessary part of war -indefinite detention for reasons of interrogations is not ok -gets haebaes corpus rights though Due Process for enemy combatant receive notice of charges, factual basis for contention, four opposrutnity to rebut the govts factual assertion relaxed standard of evidece. /at the time it is aloso possible that it applies to military commission but for now will Hamdan this is the overall due process standard Souter concurrence AUMF war by standards law of wargovt says Geneva convention applies to Talibanhamdi therefore gets POW status which is military tribunal Hamdi v. Rumsfeld (US 2004) (O’Connor, but highly fractured opinion) Hamdi a U.S. Citizen detained on US soil as an enemy combatant (caught w/ the Taliban, sole evidence is Mobbs Declaration Government argues only at discretion of US government) due process requires that a citizen held as an enemy combatant be given a meaningful opportunity to contest the factual basis of their detention need not decide the Article II question, because Congress authorized this detention through “Use of Military Force Resolution”, displacing §4001 Congress authorization is only for the “duration of the relevant conflict”, but since still conflict with Taliban elements, still authorized Quirin postdates and clarifies Milligan BUT some process is required for citizens: definition of enemy combatant requires that have engaged in armed conflict, a factual question employ Mathews v. Eldridge test on how much process due = private interest, government interest, risk of erroneous deprivation clearly highest interests on both sides, but also a very real risk of erroneous deprivation of liberty, but practical difficulties with trial therefore notice and hearing, fair and neutral decision maker, notice of reasons for classification but hearsay admissible and a presumption that government is correct (though next sentence says that Government must put forth credible evidence, then shift) Souter and Ginsburg concurring/dissenting: believes that not being held within AUMF (need clear statement b/c Executive is concerned with security, not liberty), thus Non=Detention Act (§4001(a)) overrides, and President’s power at its lowest ebb since against Congress (Jackson, Youngstown) – but join due process since no one agrees Scalia dissenting: Should reverse 4th Circuit, but because Government has not taken one of its 2 options: (1) prosecute for treason, or (2) suspend habeas corpus these are only options given by Constitution Whole point of separated powers is to prevent indefinite imprisonment by the Executive While O’Connor is correct that in past prisoners have been held and then released after cessation of hostilities, this applied only to enemy aliens, not citizens As usual, Court is improvising with Constitution in way that increases power of the Court - Plurality has found an authorization for detaining citizens where none clearly exists Cannot play Mr. Fix-It when Executive AND Congress have failed to their jobs Thomas dissent: Executive determines who is an enemy combatant President probably has inherent authority to do this, but here Congressional authorization And Scalia wrong on suspending the writ, because the detentions would still be unconstitutional, the remedy would just be eliminated Arguments in favor of O’Connor: middle ground, deals with Quirin, what happens to an enemy combatant and how to determine who they are Arguments in favor of Scalia: due process is due process for everyone, no intermediaries for different standard Argument for Thomas: Executive only one that can really determine who is in fact an enemy, they are best situated to act and abide by the Constitution U.S. citizen held under the Authorization Use of Military Force, which allowed the president to use military force, was caught with arms as a member of the Taliban. The non-detention act says no U.S. citizen can be detained or imprisoned except through the laws of Congress. -the power of the president is not a blank check to do whatever he wants in a state of war as held in Youngstown sheet & tube. -hamdi states that the detention is forbidden under 18 U.S.C 4001, which states that no one may be imprisoned or detained unless pursuant to an act of congress. the government retorts that AUMF does allow this. O’Connor and the plurality agree that AUMF was sufficient to apprehend a U.S. citizen as an enemy combatant, but he uist be afforded D.P. -he has a diluted version though, because it is that they can use hersay during the trial. (the holding is basically, the president gets the power to detain under the AUMF, yet the person needs to get due process) O’Connor says either congressional statute, or in the constitution is only way to detain U.S. Citizens as enemy combatants. O’Connor does not answer the question whether the president can detain U.S. citizens as enemy combatants w/o cong. Act. -Scalia and Stevens’ Dissent: Cannot hold U.S. citizen without a trial, unless the congress explicitly revokes the writ of habeus corpus. -Souter & RBG: Violates the NDA, AUMF not express enough. We explicitly prohibited it, therefore we cannot implicitly authorize it.. Also falls under the Geneva convention asn we need to give the person the power to -Only Thomas’s concurrence cites the President’s inherent power as commander-in-chief as sufficient justification for detaining American citizens as enemy combatants. ----- Unanswered Questions – Notes 1-4 CB pp. 394-397 Hamdan v Rumsfeld –Haebus Corpus was sked for---alleges that military commison lacked authority b/c conspiracy not a triable offense and also military commission is not in accoradnace with procedures such as a right to see evidence -Exec order ot try by military commission Quirin does not give authority to have military commission just at presidents will Nothing in AUMF says can have military commission therefore does the power come from somewhere else? The question is if it is justified Guantanamo not in war zone, is subject ot he law of war, therefore the type fo military commissions being used is not acceptable, UCMJUCMJ 21geneva conventioncommon article 3 he has to be tried by a regularly constituted court afford all jducial gurantees which are recognized as indispensible. Hamdan v. Rumsfeld (2006) CBS pp. 44-67 iii. Hamadan v. Rumsfeld: Al Qaeda bodyguard was seized by U.S. forces. Pres. Bush passed an Exec Order which allowed him the power to mark one person a terrorist or Al Qaeda op and be tried in a “military commission.” Commissions were pro-govt, didn’t allow the detainees to know what evidence the govt had agst them and allowed the govt to use hearsay evidence and evd. through coercion agst them . UCMJ was a fed. statute that prohibited the use of commissions, unless they followed the governing procedures of Courts Martial. Pres. said he had the power to establish the commissions through the AUMF and even if the congress did not pass it, he had the power via his C in C powers. -5-3 majority holds against the president, and says that the UCMJ explicitly imposed uniformity on all military commissions with certain rules, and the AUMF did not overrule these explicit authorizations. Majority also took a very narrow ciew of the pres’s wartime powers. -Kennedy’s Concurrence: Kennedy says that we are in Y’gstown 3, and the president’s power is at its lowest ebb. Invited the president to go back to Congress and request that UCMJ’s uniformity provisions be explicitly repealed. -Thomas’s Dissent: Y’gstown 1! President was using his commander-in-chief power w/ the full authority of Congress. AUMF authorized these commissions! iv. Other Cases -Rumsfeld v. Padilla: U.S. citizen arrested in O’Hare airport for planning to make a dirty bomb. The pres. claimed he was an enemy combatant and put him under military control in S.C. Court refused to hear is claim b/c filed in NY instead of S.C.; Dissent was pissed b/c he was arrested and held for two years and denied habeus. -Rasul v. Bush: Constitution extended to detainees at Gitmo. Were allowed to make habeas petitions, but did not specify what kind of trial they are to be afforded. -Ex. Parte Miligan: Convicted citizen of conspiracy someone under military commission in IN, which was established during civil war. Ct said that could not be held in military court when the civilian courts were open. -Ex. Parte Quirin: FDR issued an E.O. which gave the pres. power to hold 8 Nazis, including 1 U.S. citizen on trial b/f a military commission. Distinguished between lawful combatants, and unlawful combatants, and that the latter can be held in military tribunals. -Bush Administration has cited this to justify their holding of terrorists in certain military tribunals. Note on Detainee Treatment and Military Commission Acts CBS pp. 67-70 III. The Constitutional Rights to Liberty and Equality A. The Antebellum Constitution & Slavery Calder v. Bull (1798) CB pp. 74-75 a. Chase: relied on natural law being vital to C interpretation—this law did not impair a vested right, “an act of the legislature contrary to the great first principles in the social compact cannot be considered a rightful exercise of legislative authority.”(this relates to out notion of the due process clause, and how we get at it) b. Irdell: advocates textualism and a fixed standard--natural law too abstract and subjective—gives the jud’l br too much power over what is “fundamental and natural” act only unC if it violate express textual provisions of the Cenumerated rights are protected -If you let judges decide according to natural law it would be indeterminate. In Calder & Fletcher the Supreme Court expressed the view that natural rights concerning property limited government actions. (Chemerinsky) Ex post facto clauses apply only in the criminal context. Laws without criminal consequences can’t be challeneged under this, but instead must be challenged as denying due process. (Chemerinsky Note: Natural Law, Moral Argument, and the S.ct. CB pp. 75-77 The problem with Justice Chase and Perry is that there needs to be an existence of right answers Even if there are right answers how can we choose judges to pick what those right answers are. IT is hard to set that standard. ---learned Hand. Barron v. Baltimore (1833) CB pp. 734-735 (1833)—Court refused to apply first 8 amend of Bill of Rights to the states---takings clause did not apply to the states ii. Framers view: most serious threat to individual liberty -- fed. gov’t (Federalist #28) States thought to provide security against invasions of liberty by fed government Had the framers of the amendments intended them to be limitations on the powers of the state government, they would have imitated the framers of the original constituent and have expressed that intention. After Civil War—people came to see Constitution rights as a basis for the assertion of fed power to protect individuals against state interference. Note on Prigg v. Pennsylvania (1842) CB p. 453 a. H: PA statute prohibiting any person from removing blacks from the state by force or violence with the intention of detaining them as slaves is un Constitutional b. Art IV §2 provides the right of an owner over his property the slave—no state law or regulation can “qualify, regulate, or restrain” c. if state law and fed law conflict—fed law trumps (supremacy clause) d.. Effects: intensified slavery on a national level i. Prigg left intact the power of both free states and the national government to limit the growth of slavery by freeing slaves brought into free areas. ii. Although interaction by court was to invalidate political arrangements that tended to limit slavery—problem became more heated. affirm the right of the slave owner to come and get his slave Priggs immediate effect was proslavery but its legacy was ambiguous, it left intact the power of both the free states and that national government to limit the growth of slavery by freeing slaves brought into free areas Because if they went with their master they could be freed by the state as they were not fugitives. Therefore, as long as not escaping from master it was ok. Dred Scott v. Sandford (1857) CB pp. 453-456 a. originalist: slaves are not considered citizens—not entitled to priviliges and immunities, Dredd Scott not allowed to sue in Fed Court. They don’t have standing b. MO compromise is unconstitutional—Act of Cong that deprives person of liberty or property is a violation of Due Process of law (Dredd Scott was not made free from being taken there) c. after Dred Scott—Cong can regulate movement of slaves under Interstate Commerce but can’t free unless compensate (5th a), SC tried to take issue out of politics—made it worse d. Parallel to Defense of Marriage Act (DOMA) take legal marriage status with you? e. The court says that there is substantive and procedural. -the due process of law in the protection of property. -In this case it was bringing in jsutice Chases notion of natrual law. Frederick Douglass, The Constitution of the United States: a. textualist: “the text, and only the text, and not any commentaries or creeds written by those who wished to give the text a meaning apart from its plain reading, was adopted as the Constitution of the US.” b. The constitutionality of slavery can be made out only by disregarding the plain and common-sense reading of the Constitution itself i. “no person shall be deprived of life, liberty, or property w/o Due Process” - when laws intend to merge 2 distinct concepts such as “person” and “property,” it must be clearly expressed, not left to inference. ii. Preamble: “we the people,” not “we the white people” or even “we the citizens”… iii. “Where a law is susceptible of two meanings, the one making it accomplish an innocent Purpose, and the other making it accomplish a wicked Purpose, we must in all cases adopt that which makes it accomplish an innocent Purpose.” -The Constitution does not guarantee the right to hold property in people. -“Slaveholding provisions” (Art 1, §§2,8,9; Art. 4§2) are often used to falsely justify slavery. Not so. -3/5 Clause (Art.1§2) merely limits 2/5 of the slave states’ rightful representation -1808 Slave Trade ends (Art.1§9) – Framers felt that the end of the slave trade would kill slavery. -Fugitive slave provision (Art.4§2) meant to deal with indentured servants from Ireland. A slave was merely considered property. Is it Pro-Slavery or Anti-Slavery? (1860) CT Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution (1987) CT -The meaning of the Constitution was not forever fixed at Philadelphia, nor was the wisdom of the framers profound -“We the People” meant something different (no women, blacks) -Southern states agreed with New England to give Congress the power to regulate commerce in exchange for the right to continue the slave trade. -It took a bloody Civil War before the 13th Amdt. abolished slavery -Credit doesn’t belong to the framers but to those who refused to acquiesce to their notions of liberty, justice & equality that existed before. Robin West, Constitutional Scepticism (1992) CT 2 Views of the Meaning of the Constitution: 1. “constitutional faithful” – meaning can be determinately affixed to Constitutional. Clauses 2. “constitutional skeptics” – possibility of multiple meanings & outcomes -These view ignore the big question, “Is the Constitution desirable?” (e.g. rather than discuss whether the 1st Amdt. is a good idea, people discuss what it means) -Thus, people are reluctant to see constitutional provisions as at odds with our political or moral ideals. The Constitution tends to be viewed as above criticism. Progressives v. Liberals: Liberals focus on the dangers of an over-oppressive state. Progressives focus on concentrations of private power. -Progressives see a problem as the Constitution doesn’t prohibit the abuse of private power. Rather, it protects individual freedom to hate, produce patterns of racism -The Constitution focuses on “negative liberty” of the individual (e.g. to produce hate speech) as opposed to the positive freedom of groups (e.g. women, minorities) -14th Amdt. treats all equally. This ignores the reality of discrimination. It forbids state intervention into private spheres that produce inequality. - The Constitution also constrains moral views not its own. Relegates them to the “merely political”. B. The Civil War Amendments: A New Beginning? 13th Amendment (1865) – Prohibits slavery & involuntary servitude throughout the US. -After this the southern states implemented the “Black Codes” that kept African-Americans from exercising basic civil rights like owning property Civil Rights Act of 1866 – passed pursuant to the 13th Amendment. There was debate about whether the 13th Amendment allowed this, so they passed the 14th Amendment 14th Amendment (1868) – §1: “All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US, nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” §5: “The congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Note: During the debate over this amendment, Congressmen said that it was meant to protect basic rights (Bill of Rights) from state interference. (Section 1 deals with citizenship, privileges or immunities, life , liberty & property w/o due process of law & equal protection of the laws. Section 5 gives Congress the power to enforce.) The Fifteenth Amendment (1870) 15th Amendment (1870) – Prohibited both the US and any state from denying or abridging the right to vote on account of race or previous condition of servitude. The amendment granted Congress the power to enforce this provision with appropriate legislation. -In 1870 Congress re-enacted the 1866 Civil Rights Act which added criminal penalties for deprivation of rights under the law. -1870: Enforcement Act – attached criminal penalties to interference with the right to vote. -1871: Ku Klux Klan Act – Criminally punished conspiracies to deprive a class of persons of equal protection of the laws. Note on the Work of the Reconstruction Congress CB pp. 458-460 The Unusual Procedural History of the 14th Amendment CT C. The Rapid Demise of National Privileges and Immunities The Slaughter-House Cases (1873) CT Slaughter-House Cases (1873 Miller) p. 693 (priviliges + immunity no general federal protection for citizens) The LA legislature had given a slaughterhouse monopoly to one group. The law required that the company allow others to use their facilities at a set price. Other butchers brought suit claiming that the law violated their right to practice their trade. They claimed that it: 1. Created involuntary servitude 2. Abridges the privileges & immunities of citizens of the US 3. Denies them equal protection of the laws 4. Deprives them of their property without due process of law. H: 14th a protects from the hostile legislature of the States the privileges or immunity of citizens of the United States (arise out of the nature and character of the nat’l gov’t), as distinguished from the privilege or immunities of citizens of the States. \ Framers did not intend to transfer the general responsibility for protection of civil rights from the states to the fed gov’t—would “radically ∆ the whole theory of the relations of the State and Fed gov’t…” (states 1° protectors of individual rights)(would upset federalism give the federal government too much more) The Court stated that the purpose of the 13th & 14th Amendments was solely to protect former slaves. This case is not involuntary servitude. c. effect: privileges or immunities clause basically a nullity—only takes into acct the privileges or immunities that existed before 14amendmant adopted c. Suggest a two-tiered approach to 14th a: i. When racial discrimination is the issue (newly freed slaves)—amendment interpreted expansively to provide comprehensive fed protection ii. When issue not one of racial discrimination—amend interpreted narrowly and state gov’t remains primary recourse for protection of his rights Dissent (Field) – 14th Amendment. does protect citizens of the US against the deprivation of their rights by the states. This, in fact, was the whole point of the 14th Amendment. One right is protection from legislatures granting exclusive privileges to monopolies. Dissent (Bradley) – To not allow a person to follow his trade deprives them of “liberty as well as property without due process of law”. (Irons) We can look at history to determine what fundamental rights are Tribe--the ruling in the Slaughter House cases had virtually emptied the Privileges or Immunities Clause of content, rendering it completely nugatory and useless. In other words of dissenting Justice Field, the majority construction had reduced the clause to a valid and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. --the court said that the privileges and immunities clause provided federal protection only for the rights of national citizenship. --this cements the 19th century notion of two sphere that of the federal power and that of the state power, that must exist independently. -the majority also thought that this would give too much power to the federal government, and it would be able to censor the state legislation. Note: The Demise of the Privileges or Immunities Clause CB pp. 730-733 a. Barron v. Balitmore (1833 Marshall) p. 702 (rerouting of river—wharf unusable) it it a taking by the state? i. Bill of Rights only applies to the fed gov’t, not the states ii. rightly decided for time—until 14th altered fed-state relations b. Murray v. Hoboken Land & Improvement Co (1856 Curtis) p. 703 i. pre-14A perspective on Due Process: intended to convey the same meaning as “by the law of the land” in the Magna Charta – look to common law of Gr.Br at founding of US ii. The clause of due process does not speak solely of due process but rather of due process of law and it is argued that an action is not in accord with the law of the land if it violates the substantive guarantees of the constitution. Twining v. New Jersey (1908) p. 704 THIS WAS OVERRULED The court rejected a claim that a defendant’s constitutional rights were violated in giving jury instructions that said that negative inferences could be made from the defendant’s not testifying. BUT, the court recognized the possibility that provisions of the Bill of Rights might apply to the states. In it is possible that some safeguards from the first 8 amendments safeguard against something like this but if they do in a state action they come not from the amendments but from the due process clause. Non of the great documents such as the magna carta and the petition of right mention the issue of being able to no self incriminate Additionally the right no to incriminate and the due process are in different parts of the constitution thus the framers did not thing they equated The meaning of due process does not include the right to not testify against oneself Selective Incorporationists (e.g. Frankfurter, Cardozo) – Felt that only some of the Bill of Rights provisions were fundamental enough to apply to the state & local govts. On the other hand Justice Black in his dissent said that it should apply to everything Black in this case of Adamson thinks that the 14th's main purpose was to apply it to the states and therefore there should be a total incorporation. In turn people such as Charles Fairman say it was never meant to apply because the people ratifying never meant to apply it. 3 Issues they debated about: 1. History – What did the framers of the 14th Amdt. think? (e.g. in Adamson v. CA Justice Black dissent stated that the framers of the 14th Amdt. meant it to apply to the states. 2. Federalism – Supporters of selective incorporation said that the states can protect individual rights. (e.g. Justice Frankfurter concurrence in Adamson v. CA) Holders of the other view cited examples of where states did not do this. 3. Judicial Role – Supporters of total incorporation felt that the other view gave judges too much leeway in determining what is “fundamental”. Selective incorporationists felt that total incorporation meant too much judicial control over state actions, thereby lessening democracy. Duncan v. LA (1968) – The Court summarized the formulations for deciding whether a provision of the Bill of Rights is incorporated. White: The test is whether something is “fundamental to the American scheme of justice.” Currently: Most of the Bill of Rights has been incorporated into the Due Process Clause of the 14th Amdt. What have not been incorporated are the 2nd (arms), 3rd (quartering soldiers), 7th (trial by jury), and parts of the 5th Amdt. (requiring grand jury indictment). Palko v. Connecticut (1937 Cardozo) p. 704 fundamental fairness Concerned the constitutionality of a Connecticut state permitting the state to appeal in criminal cases i. advocates selective incorporation ii. two-tiered approach to incorporation: essential to concept of ordered liberty -the court assumed the statute would violate the double jeopardy clause, but that it would not violate due process of the law under the 14th amendment. 2) principle of justice rooted in history + traditions = fundamental e. Adamson v. California (1947) p. 705 In a state prosecution the prosecution was permitted to comment on the failure of the D to take the stand. 14th a did not incorporate privilege against self incrimination---something else brought it in it comes from what the natural law Frankfurter in his majority opinion states that the Due Process clause would fasten fetters of unreason upon the state i. Black (total incorporation) v. Frankfurter (selective incorporation) ii. dissent (Black)—framers of 14th intended to overturn Barron and apply BoR to states, avoid subjectivity of SC, rejects natural law theory of Twining, Cardozo in his opinion states that The 14th amendment is not trying to apply all the rights of the 1st-8th amendment, just the right to a jury trial, to no incriminate etc.etc… -Due Process clause must move within the limits of accepted notions of justice and is not be based upon personal judgment. In turn people such as Charles Fairman say it was never meant to apply because the people ratifying never meant to apply it. Defendants of total incorporation think that although federalism is important it is not sufficient reason for tolerating violations of fundamental liberties. Total incorporation: black through the 14th amendment did a total incorporation unlike Cardozo and that they has never held a majority of the Court Fundamental fairness For 15 years after Admanson the court applied the fundamental fairness approach. Frankfurter tried to approach it so it did not apply the idiosyncrasies of the court. According to Kadish this has taken two approaches A respectful deference to the state Based conclusions on outside evidence in an objective manner, the sources of evidence have been The opinion of the architects of American Institutions The implicit opinions of the policymaking organs of state government The explicitly opinions of other American courts that have evaluated the issue of fundamental rights The opinions of other Anglo-American countries The demise "fundamental fairness"-the warren court changed the methodology of the process, it 'selectively incorporated more and more guarantees into the 14th amendments f. Duncan v. Louisiana (1968) p. 707 i. SC abandons Fundamental Fairness to some extent, incorporates selectively 1) prior to 1960’s, SC suggested that even if a specific guarantee of the Bill of Rights was incorporated in the due process clause of the 14th a it did not necessarily apply to the states in the same manner as it applied to the fed gov’t 2) by the 1960’s the court reached the conclusion that the guarantees of the Bill of Rights that were “selectively” incorporated in the Due Process Clause of the 14th a should apply in the same manner as they apply to the fed gov’t ii. H: 6th Amendment right to jury trial applicable to states via 14th due process clause-- jury trial is fundamental to the Am scheme of justice. (1, 4, most 5, 6, 8) g. currently incorporated: 1, 4, 5 (double jeopardy overruling Palko), 8 h. not incorporated: 2, 3, 5 (grand jury indictment), 7 (right to jury trial in civil cases) Evaluation--selective incorporation revisited--- the state incorporation opinions have referred to 5 concerns 1)adhering to language of the amendments and the intention of the framers 2)avoiding vague standards 3)providing broad protection against state systems that would be too willing to sacrifice those standards 4)providing sufficient direction to state courts to gain consistent application of federal con standards. 5)giving appropriate deference to the federal system--which is the most important -------------------------------------------- 2. Economic Liberty and Substantive Due Process -Article 1§10 – “no state shall pass any law impairing the obligation of contracts”. What is “Life, Liberty or Property” – different views: Originalist – What did the drafters of the 14th Amendment think? History – What our traditions are Morality – Philosophy, ethics Political – What is a good idea to have in a constitutional clause? Natural Law – Are these naturally endowed rights? Positive – Whatever the legislature deems it is. -One idea is that life, liberty & property aren’t 3 distinct things, but a collective fundamental right. Due Process Can Be: (Equal Protection Too) 1. Procedural- such as that the government has to follow a very specific procedure 2. Substantive – Idea: Govt. can’t take away x from you. Period. This is rarely absolutely true (e.g. death penalty). Usually, focus is on govt. having a good reason to do something. Focus on: 1. Importance of the reason (legit., important or compelling) 2. Means fit with ends (rational, substantial or necessary) 3. Absolute right (under all circumstances) Arguments About Substantive Due Process (options): 1. None of this applies – govt. can do what it wants 2. Just need minimal plausibility 3. Need a very good reason 4. You just can’t do this. Economic Substantive Due Process – Attempts to use the due process clause to protect economic rights from govt. interference (Chem.) D. Vestiges of the “Privileges or Immunities” Clause? The Incorporation Controversy CB pp. 702-741 E. The Guarantee of ”Equal Protection of the Laws” 1. Race a. Absolute Exclusion and Early Reconstruction Decisions Strauder v. West Virginia (1880) CB pp. 524-525 Facts: A black man was convicted of murder, before an all whit jury. A W. VA statute limited jury duty to white males. Strauder claimed that his conviction by a jury chose pursuant to this provision violated the fourteenth amendment. 1) SC struck down WV law restricting jury service just to white males 2) Purpose of 14a—assure blacks get the same rights and privileges of citizenship as whites—prevent discrimination based on color The blacks were subject to a condition where they needed protection from the states, and the purpose of this was through the 14th amendment. It was designed to asure ot the colored race the enjoyment of all the civil rights that under the law are enjoined by white people. It denied the power of the states to not allow equal protection under the law Additionally it also authorized congress to enforce its provision by appropriate legislation 3) Able to have other qualifications: restrict to males, certain ages, or education requirements (right to a jury trial not yet incorporated against the states—Barron) -Defendant had 3rd party standing on behalf of potential jurors because each individual juror has little interest in upholding their right to a jury (but the cumulative effect is significant). Also, he has the right to a jury of his peers. 4) Prohibitory: “State shall make no law…” also positive right: “right to exemption from unfriendly legis against them distinctively as colored” 5) Yet this is not a law that just gives the right to always haver black people on the jury Concept: Participatory Rights (positive liberty – Strauder) v. Autonomy Rights (negative liberty – Griswold) Yick Wo v. Hopkins (1886) CT 1) Chinese laundry case— statute that says that must be in stone or brick building unless have permit from a baord 2) SC strikes law ↓—facially neutral, but administered discrim.: “so unequal and oppressive as to amount to a practical denial by the State of Equal Protection” 3) the 14th is not limited to just citizens it also includes citizens since it states all people. 4 4) When looking at the application of the law look at the stats of the denials. -200 people denied -every single white person got it. -if there had been objective conditions, it would have been different, if facially neutral and implemented neutral with dispareate effect the out come should have been like in Washington v Davis b. The End of Reconstruction At the same time that the Court was dismantling . . .@ CB pp. 463-464 -The first turning point was the disputed election 1876. For the compromise of the republicans victory, the federal troops were withdrawn from the south and the democrats were given cabinet positions. ---this was due to a deal between the dems and the republicans. -In an article Williamson, The crucible of Race states that the rules against the blacks were meant to subjected the black race and also it was away for them to build their power in part upon the assumption that the blacks would remain in the south and that he would be subordinate. -this was a way to control the african american under the auspice that they needed to be controlled. Background Texts for Plessy v. Ferguson CT Plessy v. Ferguson (1896) CB pp. 464-467 i. LA statute required separate railcars for blacks and whites, exception for nurses ii. SC upheld law as a valid exercise of the states police power 1) purpose of 14amendment political equality, not social equality 2) exercise of police power must be reasonable and enacted in good faithhere to preserve the social customs and to promote public order 3) “If one race be inferior to the other socially, the Constitution of the US cannot put them upon the same plane” The inferiority of blacks because of this is not state sanctioned but a social construct of them perceiving this to be. 4) social equality must be achieved through voluntary agreement (sounds a bit like Lochner—only Lochner struck down the law at issue) Separation does not mean inferiority, only the “colored race” thinks so. Addittionally, they are calling this social rights and saying that the government does not have a place enforcing those kinds of rights. Instead what is applicable are the rights of people that deal with their public rights. The distcintion is muddled, here but it seems as the court used this as an out, said that non-seperation was a social right. iii. effect of Plessy is to swallow up public rights and threaten political and civil also iv. dissent (Harlan)—there IS a social meaning attached to segregation 1) the purpose of the law is to keep blacks from whites 2) “There is no caste here. Our Constitution is color-blind, and neither knows, nor tolerates classes among citizens.” a) color-blind—deals with race, more formal principle—able to strike things down by reading the statute (act as though didn’t know race) b) caste system—distinctions could be based on gender, economic class, also implies a hierarchy among the different groups—much more textual, examine intent and the text—can take race into account to break down caste system 3) Violates Both equal protection & “personal liberty” (Due Process Analyzing “Racial” Laws 1. Colorblind – (Formal) Is the law colorblind? 2. Caste – (contextual) Does the law set up/reinforce separate castes of people? (e.g. Yick Wo – on the surface OK, but really discriminatory) Giles v. Harris (1903) CT Facts: This is a bill in equity on behalf of 5,000 black people in Alabama, County of Montgomery. This prary of the bill is in substance that the D may be required upon the voting lists the name fo the P and of all other qualified members of his race who applies for registration before aug 1 1901 and were refused and that certain parts of the constitution are against the 14th 1nd 15th amendment. The P is entitled to vote, under the Constitution of Alabama. He applied in March 1902 and he was rejected on the arbitrary ground of color. Under the constitution people registered before jan 1 1902, were called electors for life. Thus large portions of the black populations were not allowed to register nor vote. According to the court this was a broad disenfranchisement of the black vote. The Supreme Court, in an opinion written by Justice Oliver Wendell Holmes, decided to uphold the dismissal of the case, for two reasons: First, the Court noted that the plaintiffs were asserting that the entire registration system was unconstitutional, but the only relief they sought was to be registered. The Court suggested that it would solve nothing for the names of the plaintiffs to be added to the voter rolls while the entire voting process remained illegal. Second, the Court noted that under the doctrine set forth in Hans v. Louisiana, the Eleventh Amendment prohibited the plaintiff from suing the state directly in a United States federal court. Since the federal court has no power to issue an order to the state, the only way that the plaintiff's ability to vote could be enforced would be for the court to monitor the entire election process, which would be difficult in light of the overwhelming desire of the white population to prevent blacks from voting Without an ability to enforce the judgment of the court it would not mean much at all. Justice Holmes is saying that this is a conspiracy of the political branches. This is similar to the political question doctrine opinion Veith v Bandermer c. Modern Equal Protection Basics and the Ironic Origin of Special Scrutiny for Race Railway Express Agency v. New York (1949) CB pp. 519-520 –application of a rationale basis review 1) NY law prohibited vehicles from driving around w/sole purpose of advertising 2) H: SC upholds law, does not violate EPC--leg may have concluded that those who advertise on trucks, and it is the sole purpose, may pose more of a traffic problem Is an example of a case where the law (that distinguished between 2 types of advertising & was challenged on equal protection grounds) was found constitutional as promoting public safety. The law was found to have a legitimate purpose because it heightened traffic safety. The city felt that prohibited advertisements might be more distracting than the ordinary notices on business delivery vehicles.(rationale basis review) 3) “It is no requirement that of EP that all the evils of the same genus be eradicated or none at all”—an example of an incremental rationale basis review. 4) Concur (Jackson): different kind of Ratioanle Basis review: gov’t not allowed to discriminate between groups except based on some “reasonable differentiation fairly related to the object of regulation” Equal protection says that you just can't slice it this way. The equal protection is a narrower approach---and it allows, for either applying it more broadly or not at all. You might not do it not at all, if you have to do it more broadly, this is connected with less opression of the minority group. ----and this is a way to check for an unwise legislation.---thus it forces thinking whether it is wise or not. 5) RB review ok b/c affected people able to participate in the political process and that is important when making these type of decisions Williamson v. Lee Optical (1955 Douglas) p. 731—example of rationale basis review 1) SC upheld OK law that made it unlawful for an optician to fit lenses w/out a prescription from a ophthalmologist or optometrist—reasonably and rationally related to health and safety (RB review) 2) ultimate deference to legis—“legis may have concluded that…”—no need for legis record so long as not blatantly violating rights—legis role to balance—does not look at the record but instrad they hypothesize what happened 3) enough that law is rational—no need for perfect logical consistency 3) Repudiates Lochner: “The day is gone when this Ct uses DPC to strike down state laws, regulatory of business and industrial conditions, b/c they may be unwise, improvident, or out of harmony w/a particular school of thought” 4) Ct basically adopts Holmes’ dissent in Lochner—let the political branch decide and then defer on issues of this kind. -“Evils in the same fields may be of different dimensions and proportions requiring different remedies. “ -Incremental application of the law is ok under Rationale basis-It allows the reform to take one step at a time. Even if they pose the exact same evil they may get rid of it one step at a time. -The law precluded opticians fro fitting new lenses into old frames or supplying duplicate lenses without a prescription. Helping optometrists and ophthalmologists at the expense of opticians. -but the court upheld it as potentially advancing public health. -there is a lot of legislature discretion Rationale basis Review standard New Orleans v Dukes, rationally related to a legitimate state interest. The court has also been consistent that the challenger has the burden of proof when rational basis is applied. There is a strong presumption in favor of laws that are challenged under the rational basis test. Korematsu v. United States (1944) CB pp. 525-529 1) FDR issued exec order authorizing military commanders to estbalish. military camps, Cong passed legislation pursuant (contrast w/Youngstown), Korematsu, US citizen was charged w/disobeying order to go to internment camp 2) H: classification is not a violation of 5th a (EPC inherent in DPC of 5th a)—SC defers to leg/exec judgment due to circumstances of war. 3) Black says that he’s applying most rigid scrutiny—establishes precedent for using SS for race: “All legal restrictions that curtail the civil rights of a single racial group are immediately suspect”---but he is really not, since he is deferring so much to the Executive and the military for strict scrutiny, we look at it to have a compelling interest, based upon race. -under strict scrutiny they legislature actually thought this. Cannot be exposed Under justice Black view there is a compelling interest -yet he then says that he defers to the military thus there is not much in terms of compelling interest inquiry—not really strict scrutiny -What is he upholding that when the individual, stayed in his home, and they uphold it when the exclusion order was issued, when they disobeyed it there that is when it applicable -by pinpointing the time of the order, it allows him to disregard the final report to congress by the military. The reason being that the reasonableness is able to be circumvented. 4) military measure ok: a) country at war with the Japanese Empire b) military authorities feared an invasion of the West Coast c) temporary segregation + evidence of some disloyalty of the citizens d) Cong authorized the military leaders to do so In light of Hirabayshi we hold that is within the war powers of congress and the executive to do this. The exclusion from a threatened area, no less then curfew has a definite and close relationship to the prevention of espionage and sabotage. As In Hirabayhsi the nature of the enemy is unknown, and we cannto know that the govt. did not act appropriately. 5) dissent (Murphy) a) excludes reasons analysis—clearly motivated by racial animus: “such exclusion goes over the very brink of constitutional power and falls into the ugly abyss of racism.” b) says he’s applying RB—no reasonably relation, strikes ↓ rule 6) dissent (Jackson): “ a) “jud’l construction of the DPC that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself.” b) no emergency provision (like in Youngstown) 7) last time ct upheld a race-specific statute disadvantaging a racial minority 8) Ex parte Endo—same day, imprisonment in relocation center is unconstitutional if loyalty was proven (ok to make them go, but once loyalty proven must let them go) 9) racial profiling: 1) excluded reason (look at stats)? 2) dep’t policy? 3) look to motivation, is it rationally related to purpose? Chemerinsky-These cases are more about the defrence to the military than anything else. And when ti comes to issues of foreign policy/war the court is hesitant to become involved. Justifications for Special Scrutiny of Racial Class CB pp. 533-542 Justifications for Special Scrutiny of Racial Classifications May be we should care about race to some degree. Since there are correlates such as different health problems that are correlated to race. Yet at the same time maybe it is better to just say that there should not be any racial classification because these classifications normally lead to racial problems. Defects in the political process make it especially likely that racial classification will be based on hostility or inaccurate stereotypes. -Despite its holding Korematsu stands for the idea that statutes that facially discriminate against racial minorities are almost always unconstitutional. 1. Framers of the 14th Amdt. intended to protect African-Americans 2. Race is rarely, if ever, relevant to any legitimate government purpose 3. The prohibition against racial classifications reflects a fundamental moral norm. 4. Stigma – places a “brand” upon certain groups. 5. Defects in the political process make it especially likely that racial classifications will be based on hostility or inaccurate stereotypes. (Prejudice against minorities may obstruct their ability to form coalitions). 6. The Equal Protection Clause prohibits the subordination of any group 7. Economic models of the political process justify strict scrutiny D. The Demise of ”Separate-but-Equal” i. Education 8 Note: The Road to Brown CB pp. 471-473 Road to Brown: 2 questions: Which institution of gov’t should decide whether facilities are unequal? How should that determination be made? i. Gaines v. Missouri (1938) p. 444 1) MO law required sep schools, University of MO offered a law school but ║black school, Lincoln U did not 2) board authorized the students to go out of state 3) SC held that it violated EPC—remedy did not remedy discrimination -the Gaines majority decided that they should look at the issue de novo. -the issue of equality is one of complexity for it does not mean identical. -additionally the case fo McCabe further complicated this, because it set the standard of constitutional right as an individual one In Sipuel v. Board of Regents (1948) – Court reaffirmed Gaines & said that the state must provide an equal legal education. They must either enroll the student or establish a separate black law school. ii. . Sweatt v. Painter (1950) 1). SC ordered the admission of a black student to a white school ║black school not equal 2) measureable factors (based on size of library and number of full-time faculty) as well as non-tangible qualities that make for a great law school such as reputation, experience, prestige, traditions. The black law school was not comparable to the white one, and therefore they could not deny admissions. They used objective criteria such as the number of professors. Fisher the court said that, the state might not satisfy the equal protection clause of the 14th amendment by establishing a separate school for blacks. It just denied relief because of procedural matters. The other school needs to be as good as the while school. iii. McLaurin v. Oklahoma State Regents (1950) 1) black student was admitted to white ed. school but was made to sit at different/separate tables 2) SC held that the restrictions were unC b/c impaired and inhibited his ability to study, engage in discussions and effectively learn his profession—part of it is interacting with other students. Brown v. Board of Education (I) (1954) CB pp. 473-475 Brown v. Board of Education (1954 Warren unanimous) p. 446 i. Segregation of children in public schools solely on the basis of race, even though other tangible factors may be = deprives the children of = ed opportunities, as separate but = educational facilities are inherently ≠ and therefore in violation of the EPC of 14th a. ii. relies on Sweatt and McLaurin—intangibles important In the Sweatt case they used intangibles, in the case of Mclaurin, used intangible considerations --they used the necessity to interact. To separate them from others of similar age and qualifications solely b/c of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds. iii. relies on social science data: Separation of children generates a feeling of inferiority and “affects their hearts and minds in a way unlikely ever to be undone” -Said we can’t just compare black schools with white ones to see if they are equal, because segregation inherently stamps black children as inferior & thus impairs their educational opportunities. “Separate educational facilities are inherently unequal”. The true purpose of the segregation created this unequal effect. Big change from Plessy—now the law IS responsible for social meaning, saddles the state with the responsibility for the social meaning of the law & the resultant harm. Note 1 on Justifications and Explanations for Brown, The courts justification--there is an argument that schools were not intended hence they were left out of the 1875 Civil Rights act. There is an also an argument that it was meant to be an elastic thing. 2. In Bolling v Sharpe----in the case of Bolling v Sharpe the court held that the 14th amendment was not applicable But isn't just a falsity to draw a distinction, because the 5th was drawn up when slaves existed and the conditions were ones were blacks were not in school Today, education is perhaps the most important function of state and local government--- The brown decision is based upon the inferiority aspect that it caused on kids, but it has been expanded to an over all idea that all segregation is invalid since it rests on an impermissible basis of classification. Is stigma alone a sufficient injury. Thomas thinks that there is an implicit racism in the whole Brown argument, because there is a notion that the black students cannot learn without the white students. Bolling v. Sharpe (1954) CB pp. 475-478 i. decided same day as Brown, SC held that the school segregation in DC is unconstitutional ii. could not rely on EPC because 14th a only applies to states, used 5th amendment iii. stated that it is unthinkable that the const would impose a lesser duty on the federal gov’t (what about the fact that the framers specifically chose to have the EPC apply only to the states—thought that institutional safeguards on the fed level made a C guarantee of equality unnecessary?) iv. RB not enough—Strict Scrutiny used—“EPC component of DPC” Herbert Wechsler, Toward Neutral Principles of Constitutional Law (1959) CT Herbert Wechsler, “Toward Neutral Principles of Constitutional Law” (1959) cp. 67: courts must decide case before them on grounds of adequate neutrality and generality, not solely with an eye for the individual case’s outcome i. in an ideal world, ct should not be compromising views in order to get where we want to be—should not take race into account ever e. Charles Black, “The Lawfulness of the Segregation Decisions” (1960) cp. 74: these + all judgments “must rest on the rightness of their law and the truth of their fact.” i. “It would be the most unneutral of principles… to require that a court faced w/ the present problem refuse to note a plain fact about the society of the US – the fact that the social meaning of segregation is the putting of the Negro in a position of walled-off inferiority – or the other equally plain fact that such treatment is harmful to human beings.” ii. “That Q has meaning and can find an A only on the ground of history and common knowledge about the facts of life in the times and places aforesaid.” iii. To rule otherwise would be “law based on self-induced blindness, on flagrant contradiction of known fact.” iv. can’t ignore reality and expect it to catch up ii. Public Accommodations Palmer v. Thompson (1971) CT pp. 107-110 i. Jackson, MS closed pool after ordered to deseg—said wouldn’t be able to keep it open ii. SC upheld action: no disparate impact—affected all races equally no evidence that closing was due to intent—more economic and safety reasons also need to show impact as well also it was not as if there was a private actor with the pools that was just a cover for the government Justice Black, in the majority opinion, -the Justice says that it is hard to figure out the ulterior motivations of each legislature. There is also an argument that it is much harder to figure out why you are not doing something than why they are doing something Why does the court think that this is ok. -the court is saying that the denial of the pools to everyone is ok. -As an abstract matter a legislature does not have a duty to create a swimming pools. The constitution does not put a position of the court to act. One argument is that the effect is different on whites than blacks And the expressive nature is that blacks are not fit to be in the same pools as white This one is just about the social impact of the law. And for these they seem to be unchallengeable. Chemerinsky-thus this case suggests that discriminatory purpose along is nto sufficient to prove that a facially natural law constitutes a race or national origin classification. There needs to be a discriminatory purpose as well as a discriminatory impact. iii. Family Loving v. Virginia (1967) CB pp. 529-531 i. SC struck down VA law that prohibited interracial marriage ii. Equal Protection demands that racial classifications get Strict Scrutiny—preservation of racial integrity is not a compelling st interest (excluded reason) iii. “clear and central purpose of the 14th a was to eliminate all official state sources of arbitrary and invidious racial discrimination in the States” iv. places badge of inferiority on blacks, criminalizes conduct based on race—violation of anti-caste principle from Plessy v. could formulate as Substantive DP claim (marriage fundamental right—SS) Caste Argument: By this law applying only to white intermarriage, the law implicitly states that whites are superior. The law would still be wrong even if applied even-handedly because racial purity is not a legitimate state purpose. It is an excluded reason. Concur (Stewart): A state law can’t be valid that makes the criminality of an act depend upon the race of an actor. Thus, it is good to put them through a two part test 1)is it colorblind 2)is one that tries to keep a caste system---but you don’t have to get to this if it is just not colorblind -there can be no dbout that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection clause. Mere application of a statute is not sufficient to get past the equal protection clause, because the use of race to limit something is unconstitutional. Palmore v. Sidoti (1984) CT i. custody case—mother remarried AA, father wanted custody ii. lower court: difficult for child to be raised w/interracial parents iii. H: effects of racial prejudice cannot justify a racial classification removing the child from the mother after it was previously determined that she had custody iv. law cannot give prejudices effectSTATE ACTION ISSUE “The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody” Notes from Chemerinksy- The S.ct denied a state court ruling that the custody of a child would go to the father because she married a black man. The reason for this was because of the problems with inter-racial couples being stigmatized. The S.ct ruled this unconstitutional, the constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside of the reach of the law but the law cannot give them effect. e. Modern Formal Equality and the Requirement of Discriminatory Intent Washington v. Davis (1976) CB pp. 546-549 i. DC had a “SAT” like test administered for applicants to the police force, b/c more black applicants failed, challenged as intent to discriminate ii. H: statute upheld--A statute is not unC solely because it has a racially disproportionate impact, there must be some INTENT to racially discriminate. RULE: racially disparate impact is not enough to trigger SS—must show that state acted w/discriminatory intent (anti-effects test) There is no evidence of intent, as the police made affirmative efforts to recruit black officers. -There is a rational basis for this law. Concur (Stevens): The line between discriminatory purpose & discriminatory impact is not bright. (if we allowed solely impact this would lead to a broad array of impacts on the way we decide policies, such as taxes, welfare, public service…. i.it is hard to get evidence of discriminatory intent and also some times it is underlying in decision The test employed in this is that there needs to be a credible allegation that it is meant to be discriminatory---if all you have is disparate impact all you get is rational basis review Strict scrutiny-- when you have an intentional discriminatory impact--this says that the racial classification is necessary and compelling. Rational basis--if there is an effect, than the court will look at the rationale behind it. Whether it rationally serves a purpose that the government is trying to pursue. just need some kind of rational basis Under the equal protection clause you need some proof a discriminatory intent.---in order to get strict scrutiny. Arlington Heights v. Metropolitan Housing Corporation (1977) CT i. AH refused to grant zoning request for multiple family low-income housing ii. H: no demonstration of discriminatory intent—refusal ok iii. to determine if invidious discrim intent: 1. impact of the official action (only obvious in rare cases like Yick Wo) 2. historical background of the decision 3. specific sequence of events leading up to the challenged decision 4. departures from the normal procedural sequence 5. legislative or administrative history Footnote, says that even if the intent was to not allow black people to live in the community, if it would have reached the same result, without the intent to discriminate than it would still be permissible. The burden though would shift to the cityprove that it would have done it anyways and it would be harder to prove that vi. must show that intent to discrim. was the main motivation iv. Palmer + Wash v. Davis + AH imply that intent to discriminate must be the main purpose(like in Arlington footnote) + there must also be a disparate impact 5. “Benign” Discrimination and Affirmative Action f. Remedial Measures: School Desegregation Brown v. Board of Education (II) (1955) CB pp. 481-482 i. H: Racial discrimination in public education is unConstitutional and the District Courts are remanded to enter such orders and decrees consistent with this opinion as Necessary+ Proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed, additionally was asked to use traditional equity principles to do this. ii. goal to end segregation, but no mention of integration iii. -each locality has different issues it has to deal with in integrating the schools; therefore, the local school should implement additionally because of their proximity to local conditions the courts which originally handled these cases should be the ones to perform judicial appraisal. IV. f more time is needed the burden is on the D to convince the court accordingly the schools may consider the physical problems involve Note on The Response to Brown, including discussion of Cooper v. Aaron (1958) a. Arkansas failed to comply w/ DC order requiring deseg. b. H: Brown is supreme law via 14th a, and Art IV sup. makes it binding on the states c. takes Marbury further—asserting judicial power: a. Marbury: each branch, acting w/in own power, may interp. the const b. Cooper: SC suggests that the courts have a special duty to interpret the const, other branches should look to the courts interpretation as authoritative d. contrast w/ Jackson’s veto message on the Bank e. contrast w/ Jefferson—making SCs interp. binding on other br.-->SC despotic (br should check each other) The court said that the they are the supreme interprator of law and it becomes par of the law of the land. This ties in to Marbury v Madison, this is the strongest of the three possible holdings in that case. The end of deliberate speed-Watson v Memphis, said that all deliberate speed was not applicable and that there needed to be an immediate stop of segregated schools. Griffin v County School bard --holding unconstitutional the closing of county school to avoid desegregation The civil rights act of 1964, allowed for the AG to bring suits to institute desegregation, instead of the need of just private citizens. Federal funding was not allowed for segregated schools. Green v. County School Board (1968), . Green v. County School Board (1968)---this was a case of du jure segregation i. court invalidated “freedom of choice plan” based on the inadequacy of the remedybecause it was inadequate to achieve a unitary school system & overcome private preferences for segregation. Separate but equal has no place in public education. The state retains a burden even after it eliminates the most noxious viola ii. TEST: whether the plan promises realistically to convert promptly segregated schools into just schools iii. caste system—people choose schools according to their race iv. goal: unitary school system Swann v. Charlotte- Mecklenburg Board of Education CB pp. 483-488 i. DC remedy—gerrymandering, to help race disparity in schools, district lines and busing students ii. SC upheld measure—endorsed busing (not necessary to get precise proportions) iii. jud’l intervention only to correct deliberate seg answer to problem that blacks and whites often live in separate areas they don’t ned to be mirrors of actual racial composition. has lead to three principles 1)the constitutional stemmed from purposeful state manipulation of schools racial composition--therefore there needed to be constitutional violation for these actions 2)that the scope of the judiciary power limited to the constitutional violation 3)that once a school district achieved unitary status judicial intervention should cease Idea: District Courts have broad authority to formulate remedies in desegregation cases Note: School Desegregation Moves North CB pp. 488-490 Note: Modern Limits on the Duty to Desegregate including discussion of Milliken v. Bradley (I) (1974), Milliken v. Bradley (II) (1977), Missouri v. Jenkins (I) (1990), and Missouri v. Jenkins (II) (1995) CB pp. 490-497 Keyes v School district 1, in which the school districts in Denver were segregated, not by statute but by gerrymandering this caused the problem that it led to -the lower court just asking the gerrymandered districts to integrate, but not the rest of the school district---which was also segregated de facto, but not by any conscious way -the S.Ct, applied that once the P had shown discriminatory intent in on area, the P was not required to show it at each school--the court said that there was an assumption that it would effect everyone then. Milliken v. Bradley I (1974)—Detroit busing case H: INTRAdistict segregation makes INTERdistrict remedies unconstitutional, can’t bus students in, this lower the effects of the ability of the courts to deal with du jure segregation per district, as in Green and to use the widespread powers of Swan, thus in order to do interdistrict remedies need to be interdistrict violations. The court held that the courts lack the power to impose interdistrict remedies for school segregation absent an interdistrict violation or interdistrict effects. The court said that in order for the court to assign pupils around the system, they would need to have deliberately segregated school districts drawn, and they could also re draw them as well. In Jenkins II, the court limited the ability of courts to order Milliken II, type remedies. The S .CT said, that the use of magnet schools to bring in interdistrict school kids pushed the bounds to much, and that it was the same as fixing an intradistrict problem with interdistrict solutions. Dissent (Marshall): This makes district judges powerless to require the State to remedy constitutional violations in a meaningful way. k. Milliken v. Bradley II (1977) i. DC plan--extensive educational reform, counseling, and career guidance ii. SC affirmed—rejected the notion that deseg remedies were limited to pupil assignment iii. dist judge could order spending of state funds for remedial education as part of an effort to return victims of unC conduct to the position would have enjoyed but for the violation l. Missouri v. Jenkins I (1990) i. Dist judge levied a 100% inc in property tax to create magnet schools to attract whites ii. SC: Dist judge abused discretion by levying tax, ccant order local gov’t body to raise own tax iii. trying to solve same problem as Milliken w/out burden of busing—again SC stresses need for intradistrict remedy for intradistrict violation m. Missouri v. Jenkins II (1995) i. DC had issued an order mandating salary increases for instructional and non-instructional staff within the school district ii. SC held unC—interdistrict remedy to attract white students (court tried to do indirectly—interdistrict transfer of students—what it could not do directly)— -Ct. ordered an end to a school desegregation order in K.C. schools. – Supreme Ct. rejected a district court order mandating salary increases because they were intended to serve an inter-district goal of attracting white students from other districts. -Can’t have an inter-district remedy for an intra-district problem. Concur (Thomas): Courts have been using their equitable powers beyond the narrow purposes of remedying a constitutional harm. In Jenkins II, the court limited the ability of courts to order Milliken II, type remedies. The S .CT said, that the use of magnet schools to bring in interdistrict school kids pushed the bounds to much, and that it was the same as fixing an intradistrict problem with interdistrict solutions. Milliken & Jenkins Collectively – We can only use inter-district remedies when there are inter-district violations. In these cases the Court limited the Constitutional responsibility to the local school districts, rather than the states. The state bears little burden where the state is not involved in the discrimination. Current situation of the issues at hand, US v Force--Mississippi in the 90's had a public university school system that had mainly white schools and black schools ,and the white schools had higher standards and therefore excluded the black students, who had lower achievement scores. The S.ct invalidated the system because if four suspect aspects left behind from the segregated days the differing admissions standard, the program duplication, institutional mission assignments for the various schools, and continued operation of the 8 schools. The court held that the state could not leave in place policies rooted in its prior officially segregated system that serve to maintain the racial identifiability of its universities if those policies can be eliminated. Idea: Colorblind v. Caste System Views: Colorblind – Where state actors are completely colorblind Caste System – By recognizing race & trying to overcome it. -De Jure (Colorblind) v. De Facto (Caste) Segregation * * * * * RECAP: From Plessy to Brown – In Brown the state comes to bear some of the burden of the social realm, unlike in the previous period. Green – The state retains a burden even after it eliminates the most noxious violations. Milliken/Jenkins – The state bears little burden where the state is not involved in the discrimination. Washington v. Davis – Without intent by the state to discriminate there is no violation (like Milliken/Jenkins) & responsibility. 2. ”Benign” Discrimination and Affirmative Action a. Strict Scrutiny All Around Note 3 on City of Richmond v. J.A. Croson Co. (1989) CB pp. 578-581 . City of Richmond v. J.A. Croson Co (1989 O’Connor) p. 557 i. city set-aside program for subKs found to be unconstitutional—not narrowly tailored—does not meet strict scrutiny standard ii. state affirmative action measures are subject to strict scrutiny iii. 3 reasons why use SS: 1) smoke out illegit motives: “there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what class’ns are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” (narrow tailored req ensures means actually tailored to stated end) 2) danger of stigmatic harm - effects 3) racial hostility – effects iv. state can engage in affirmative action 1) to remedy its own past discrimination 2) to remedy societal discrimination that the state has become an unwitting participant (“passive participant”) or exacerbated by doing nothing Concur (Scalia): I agree with the use of strict scrutiny, but I don’t agree that state & local govts. can sometimes racially discriminate in order to remedy past discrimination. We can’t classify anyone by their skin color. We may only use race where it is necessary to eliminate the maintenance of a system of racial classification (e.g. where there is a pay scale that pays blacks 20% less than whites. Then we could raise the salaries of blacks 20%) Marshall dissenting said, they would have applied a form of intermediate scrutiney. They state that there are two compelling interests, is remedying discrimination and other other is preventing the city's own spending decision from reinforcing and perpetuating the exclusionary effects of past discrimination. After Croson – The state can use race-conscious measures to (1) remedy past discrimination & (2) remedy larger, societal discrimination that manifests itself in the states. Affirmative action in these cases is OK. Metro Broadcasting v. FCC (1990) – S. Ct. held that congressionally-approved affirmative action programs only need to meet intermediate scrutiny. After Metro the composition of the Court became more conservative. Adarand Constructors, Inc. v. Pena (1995) CB pp. 581-589 i. US dept of trans program gave Ks compensation if they used subKs certified as small businesses controlled by “socially or economically disadvantaged individuals (basically minorities” (H: SC remands to use Strict Scrutiny) ii. ALL racial classification, fed or state, benign or invidious, must be reviewed w/SS -Ct. says there should be no difference in deciding claims brought under the 14th Amdt (states) & the 5th Amdt (Feds) – STRICT SCRUTINY. We need to do this to distinguish between legitimate & illegitimate uses or race in govtl. decision-making. -Good intentions are not enough to sustain racial classifications; Giving preference will exacerbate racial prejudice. -There is never a compelling interest in racial discrimination for the purpose of making up for past discrimination iii. 3 general propositions from Croson: 1) skepticism—any preference based on racial or ethnic criteria must receive a most searching examination 2) consistency—the standard of review under the Equal Protection Clause is not dependent on the race of those burdened/benefited by a particular classification 3) congruence—Equal Protection Clause analysis in the 5th a area = that under14th a iv. concur (Thomas): G can’t make us equal; it can only recognize, respect, and protect us as equal b4 the law (formal-race, as opposed to Marshall’s historical-race, and O’Connor’s cultural-race – inexplicable diff’s in vocations) What we do need paternalism for blacks by the court. dissent (Stevens): nothing really consistent about applying intermediate scrutiny to invidious gender discrimination but strict scrutiny to invidious and benign race classifications—effect is that the gov’t can more readily enact measures designed to eliminate gender discrim than race discrim when the clear purpose of the 14th a was to remedy discrim against Blacks. These are not judicially ordered remedies, the question is to what extent can the state or congress remedy, the effects of discrimination, to what extent can the state or congress take responsibility of the social problems. There is an argument that in the enforcement provisions of the 14th amendment, the congress has more power, and therefore should not be under strict scrutiny. ---yet the court rejects this is in the ruling in Arland. Part of this problem is that the govt needs to look past race, what Scalia says and O'Connor is that we need to get past that c. Grutter v. Bollinger (2003 O’Connor) supp 70 i. SC upholds the U of M law school use of race as a legit factor in achieving diversity in educational context ii. uses SS—finds that the means are narrowly tailored to achieve Constitutional permissive goal, diversity is a compelling interest Dieferrence to the law school in many ways iii. education is important for training leaders does not require race-neutral alternatives to be tried first—LOTS of deference to UM—would sacrifice diversity or quality of education narrowly tailored A race conscious admissions process cannot use a quota system it can only consider it a plus--Bakke It is clear that there is no quota system. The review by the law school is holistic in nature There is no predetermined bonuses on race or ethnicity The nature of diversity is not only race based it allows people with lower scores that are not minorities as well race is not the only factor holistic approach as well -Narrow tailored does requires serious good faith consideration of workable race neutral alternatives that will achieve the diversity the university seeks Many of the neutral race admissions standard are not possible to be used in the grad school setting. We understand that 14th amendment, is meant to get away of the race based discrimination. Accordingly race conscious admissions policies must be limited in time. -We take the law school at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its race conscious admission program as soon as practical. iversity helps to break down racial biases and helps to lead to educational benefits -this is backed up by the needs of business to understand diversity. Law school provide the leaders of the country and it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity Gigsburge concurring-clear that minorities need educational opportuntiies dissent (Rehnquist)—majority gives too much deference to school, not really using SS, really using a quota and “critical mass” is a smoke screen, what critical mass, when d0 we reach it? Also the numbers are too well correlated from year to year, for them to be just paying attention to race in some way. Kennedy-By deffering to the law school, the court will lose the chance to make better AA standards. He advocates a closer standard. Scalia- if we allow AA here, why shouldn’t we continuing this argument it everywhere up and down the scope. Thomas- No need for blacks that need help 1)no compelling interest in having an elite school in Michigan 2)more lax standard would allow for the admissions for minorities 3)the LSAT standard might be inherently biased; yet that is the standard they choose to use--they could use others to get rid of the bias 4)The notion of being able to tell the difference between discrimination that helps people and hurts is naive Most of the arguments made are constitutional policy. HOW TO APPLY STRICT SCRUTINY – (1) “Smoke out” illegal motives. (2) Is the burden justified? (3) Is the “end” important? (4) Do the means & ends fit? (Dean Camiker in A Glimpse Behind Grutter)- Targeting Michigan was a mistake from a policy sense because it allowed them to say that, if not for AA, if not for the ability of Michigan to take a holistic approach, we are going to have a largely all white school and if we care about a diverse leadership then it will defeat this. -Also a problem that the P sued under Title VI,(anti discriminatory norm on every school in the country that has federal funds) because if it was shot down under this, it would have a widespread effect on all schools that use public funds, therefore Harvard Yale etc…could not use AA Reviewing both cases together allowed the court(mainly O’connor) to say that look we have a bad plan the UG plan and a good Plan therefore let her craft legal education in the future. Also this allowed for the military academes that are undergrad introduce that they needed this in order to have a diverse military leadership and if they made this unconstitutional it would kill diversity for them. Diversity in Higher Education at Michigan . Also the notion of a meritocracy is flawed, because meritocracy is not a rigid system. Post Admissions Educational Progamming in Post Grutter World: A response to Proffessor Brown—Dean Camiker- The question is what do we do once we get in, --this is building of Scalia’s dissent, Scalia is flawed because he syas that minorities hang out together, yet we all hang out with people that are familiar to us, and the only reason we care about minorities is because it is visually evident. Three rationales for affirmative action 1)remedial necessary to redress problems from prior discrimination 2)integrative rationale is forward looking arguing that affirmative action is necessary to break down societal barriers and allow for integrated leadership in various professional and social walks of life in future society. 3)the diversity rationale is meant to say that diversity is good for the classroom learning itself. Argument that we need AA within the school itself in the groups but that is just offsetting the people that would become involved in their own racial programs Additioanlly these programs are outside fo the class room and therefore we should not take them into account. Also race conscious selection for groups in law school has problems of narrow tailoring and also compelling state interest. Footnote from Camiker (To this day I believe that the most important data in the reconrd was shoaing how many nonminority applications possessing special diversity factors had leapfrogged over nonminority and even minority applications with more impressive traditoanl acedmica credentials proving that diversity factors other than race had a significant impact on admissions prosepects Grutter v. Bollinger (2003) CB pp. 594-606 Re: Admissions at UofM Law School. -Officials considered LSAT & GPA & “soft variables” that included racial & ethnic diversity. -Grutter claimed that she was rejected because race was used as a predominant factor in violation of the Equal Protection Clause (14th). -School claimed that no quota was used, only attempted to reach a “critical mass” so that minorities didn’t feel isolated. -DC ruled that the school’s use of race was unlawful, the COA reversed. Held (O’Connor): Student body diversity is a compelling state interest that can justify the use of race in university admissions. Strict Scrutiny is the proper standard, & this meets it because it is narrowly-tailored. -It is a compelling state interest that the path to leadership is open to all. -Bakke held that quota systems are not valid, but this school doesn’t use one. -School considers other diversity factors other than race. -Narrow tailoring doesn’t mean “exhaustion of every conceivable race-neutral alternative”, just good faith review of all alternatives that might achieve diversity. -We expect affirmative action in education will be unnecessary in 25 years. Concur (Ginsburg): We can’t specify a date when affirmative action will be unnecessary. Dissent (Rehnquist): The means are not narrowly tailored – a “naked effort to achieve racial balancing”. This is not strict scrutiny. The program bears little relation to the goal of achieving a “critical mass”. It also fails strict scrutiny because it has no time limit on the use of race in admissions. Dissent (Kennedy): This wasn’t strict scrutiny. Dissent (Scalia): The Const. does not allow discrimination on the basis of race. Period. Dissent (Thomas): There are better methods to achieve this goal. There is also no public necessity to maintain a law school, certainly not an elite one. The only cognizable state interest is in educatin that state’s lawyers, but only 16% stay in state. This will tar all blacks as undeserving, as people will not be able to tell which ones are admitted based upon affirmative action. Additionally, you get some of the negatives of what comes with the system you use for admissions and that is the use of the LSAT. Gratz v. Bollinger (2003) CB pp. 608-611 i. undergrad admission point system is un Constitutional, violates EPC—too much like a quota ii. dissent (Ginsburg): fully disclosed College affirmative action program preferable to achieving similar numbers through winks, nods, and disguises Souter and Gingsburg-this is not a quota system as in Bakke The very nature of a colleges permissible practice of awarding value to racial diversity means that race must be considered in a way that increase some applicants chances for admission. The college is doing what the law school does but with numbers. The percentage plans that allow admissions to all students in a certain percentage , such as Univ of texas, is the same as this Michigan plan the only difference is that they are hiding the ball it seems unfair to reward them for doing that over the Michigan plan Without these programs it will still exist just camouflaged. The End of Affirmative Action in Public Schools? Parents Involved in Comm. Sch. v. Seattle Sch. Dist. No. 1 CBS pp. 75-104 The District allowed all students to apply to attend any district high school, and used race as a tiebreaker when a high school both received more applicants than it could accept and had a nonwhite population more that fifteen percent higher or lower than the school district’s nonwhite population. Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of "tiebreakers" to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district's public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. If an oversubscribed school is not within 10 percentage points of the district's overall white/nonwhite racial balance, it is what the district calls "integration positive," and the district employs a tiebreaker that selects for assignment students whose race "will serve to bring the school into balance." If it is still necessary to select students for the school after using the racial tiebreaker, the next tiebreaker is the geographic proximity of the school to the student's residence Ct says only compelling interest for racial classification in education those don’t apply here. 1.Goals cant be remedying past segregation because there wasn’t any in one case and in outer school ct. already said it had reached unitary status. 2. not a holistic approach like in GRUTTER. In this plan race can be the only determining factor as to where student goes to school The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a "highly individualized, holistic review." As the Court explained, "[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount." The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be "patently unconstitutional." The Court in Grutter expressly articulated key limitations on its holding--defining a specific type of broad-based diversity and noting the unique context of higher education--but these limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter.... Racial balancing is not transformed from "patently unconstitutional" to a compelling state interest simply by relabeling it "racial diversity." While the school districts use various verbal formulations to describe the interest they seek to promote--racial diversity, avoidance of racial isolation, racial integration--they offer no definition of the interest that suggests it differs from racial balance.... If the need for the racial classifications embraced by the school districts is unclear, even on the districts' own terms, the costs are undeniable 3.ct says this is racial balancing and not a compelling state interest 4.ct sites brown 14th amendment, , not differential treatment based on race\ 5.ct says try other ways for diversity 6.Ct says that remedy of def facto segregation because it is de facto is not sufficient to be a compelling interest, School district could pass for the creation fo a magnet school, and if it did if it had a disparate impact and intention it would be subject to strict scrutiny. Associate Justice Anthony Kennedy filed a concurrence that presented a more narrow interpretation, stating that schools may use "race conscious" means to achieve diversity in schools but that the schools at issue in this case did not use a sufficient narrow tailoring of their plans to sustain their goals. In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race. School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible..... (The case Worked on the assumption that this was all de-facto and not du jure segregation) The question that is posed therefore is it ok for a school district to build a racial magnet school on its own…I think so. 3. Sex & Gender Note 1. The Early Cases CB pp. 622-623 Until the 1970's the court applied only minimal scrutiny to gender classification and consistently rejected constitutional attacks on statutes disadvantaging women. In Bradwell v Illinois (1873) the court rejected an attack on an Illinois refusal to give bar status to a women -because it was not in there disposition to practice this kind of law Minor v Happersett- the court in this case acknowledge that women were persons and citizens under the 14th amendment but held that the right to vote not a privilege of U.S citizenship. -this was overturned by the 19th amendment The early cases were decided against the backdrop of the Slaughter house cases which gave a vary narrow reading to the 14th amendment. In Muller v Pregon- the court upheld an Oregon statute prohibiting the women from working for more than 10 hours a day. In Lochner v New York- which held that the due process clause did not allow this limitation. Note: Heightened Scrutiny for Gender Classifications? CB pp. 634-639 The court has equivocated on the standard for women when it comes to the issue of scrutiny for a law dealing with sexes. Arguments for heightened Scrutiny- are there persuasive reasons to accord gender classification similar treatment as racial ones. There is a question as to whether the original 14th and 15th meant to apply to women. Arguments by analogy-In order to understand what standard to apply Siegel thinks we should approach the 14th against the backdrop of the struggle to attain women’s suffrage contained in the 19th. Some of the laws are achraic that deal with gender--such has in Micheal M, in which the court upheld that statutory rape did not apply to men as victims, because the legislature should be deciding this. Note 3. Archaic & Overbroad Generalizations v. “Real” Differences CB pp. 639-640 6. Gender + Mentally handicapped a. United States v. Virginia (1996) CB pp. 640-647 i. H: State of VA violates the EPC by maintaining VMI’s all-male admissions policy and the Virginia Womens Institute for Leadership program fails to remedy that violation. ii. Gender = intermediate scrutiny: Gingsburg, calls it must meet “exceedingly persuasive justification” for that action. Also must show “important governmental objectives”. Single sex schools are fine, as long as they are the same and they are not premised on overbroad generalizations the justification of the state cannot be on overbroad generalizations. Under this standard VA has not showing the”exceedingly persuasive justification for having an all male school.” VWIL, is not equal to VMI, and just because some women may fail at VMI does not mean we should keep out the people that can succeed there. iii. must demonstrate “exceedingly persuasive justification”—new standard? iv. VWIL is separate and ≠ —refers to Sweatt v. Painter—which is the speperate but equal rule for Law schools before Brown. v. . distinction between formal and substantive equality a. majority is asking for formal equality-just open the door to women b. substantive equality—let women have some influence on shaping the standard (will women really be able to do those things?) vi. concur (Rehnquist): a sep but = remedy would be allowed, VWIL ≠. Additionally, we should not shift the test from “important governmental objective” to exceedingly persuasive justification. dissent (Scalia): should defer to preference of people in VA. Ignores precedent and the longstanding history of the school. Remember that strict scrutiny is a compelling state interest which means to be narrowly tailored so the three triers -narrowly tailored (necessary ) compelling state interest -RBG in this case exceedingly persusuasive justification, substantially related to important govt objective (it has to be actual motives, not post hoc) -rationally related to , permissible govt. interest. -Exceedingly persuasive if it is suppose to be something different we don’t even know what it means. Rehnquest is saying that it is facially equal the two schools THEN IT SI OK Gingsburg does not Rehnquest- saying that there would be a more fair to have two equal ones catering to womens Gingsburg is saying that what needs to be is that we have to let the women achieve the male standard Question that is remaining after US v. Virginia: Is “exceedingly persuasive justification” the new standard when judging gender discrimination with intermediate scrutiny? Or do we stick to “substantially related to an important state interest”? The 14th amendment section 2, specifically refers to male, the equal protection clause was not meant to apply to women. -there is this general question of what do you do with a constitutional provision that was not meant to apply today. Especially in the 14th when it is discriminatory in itself. the 19th modifies this. another way to take this is that the general 14th amendment, needs to be more generally analyzed, and therefore it needs to be look at more generally and therefore this can apply to women remember the narrow Miller ruling of the slaughter house cases saying it only applied to blacks also the question is what is the level of scrutiny. 4. Other Disadvantaged Groups B Prohibiting ANaked Hostility@ Generally? City of Cleburne v. Cleburne Living Center (1985) CT i. H: city ordinance req special permit for mentally retarded group home violates EPC ii. lower ct erred in applying intermediate scrutiny when they struck it down --mentally retarded not quasi-suspect instead we should apply RB review, and we should get rid of it. We Should use RB because— The actual lassification is to RB iii. not discrete and insular(comes from Carolene footnote) 1) state interest in dealing w/them is legit…beuase they need the legislature in many cases in order to protect there interests 2) great variation in abilities of mentally retarded (gov’t should have flexibility) 3) not politically powerless—attracted legis attention 4) line drawing problem (what next? Elderly, disabled, mentally ill…) 5) legis deals w/them w/out prejudice (minorities, are sometimes better organized, and larger ones) iv. no RB for the law—town only req permit for mentally retarded, not for fraternity houses, boarfing houses, etc… v. Concur (Stevens): obviously law based on irrational fears 1) thinks RB review could be used to strike down more things (no RB for denying someone the right to vote based on race) 2) 3 questions Ct should be asking a) What class is harmed by the legislation and has it been subjected to a “tradition of disfavor” by our laws? b) What is the public purpose that is being served by the law? c) What is the characteristic of the disadvantaged class that justifies the disparate treatment? (Wants ot just kind of figure it out ona cases by cases basis but this does not give us much precedent though) Stevens does not care about what level is used here it does not meet and the thigns I s that it is an issue of semantics normally, we are always applying rational basis. The rational basis test on its own allows for validity. This is common sense No special status What characteristic of the class should get disparate treatment. He is saying forget about the standard, we should just generally look at it and apply as the rationale basis test. Marshall Brennan,Blackmun Concurring This should be ok under rational basis. Yet it should be under strict scrutiny because -the test put by the court is actually strict scrutiny -the rational basis test should be like lee optical -the rational basis test is as long as it moves forward a legitimate interest of the city When an ordiance is like this it is limiting the mentally retarded and disadvantaged grop what is having its interest adversly ifluence. The standard should be one of strivt scruity. This is compounded by their history as well. The clear history of the adverse treatment of the retarded should push this forward to become an issue that is one of the law being subject to strict scrutiny. b) History of discrimination (It seems that here the Court was using more bite than normal, as it has allowed under inclusiveness in the application of law, sunder rationale basis as it goes step by step.)Conversely, you can also argue that it was just a normal rationale basis review as it was just looking for an arbitrary application of law. F. The Guarantee of ”Due Process of Law” Economic Liberty and “Substantive Due Process” Liberty of Property and Contract in a Time of ”Laissez-Faire” Ideology Introduction to Substantive Due Process CB pp. 741-742 The constitution has several provisions that do not allow it to interfere with the private economic interests of individuals the 5th and 14th provide that no one shall be deprived of property without due process of the law. Article 1 section 10, states that no state shall pass any laws impairing the Obligations of Contracts the 5th states property will not be taken without compensation. The Lochner option held that the due process clause of the 5th and 14th protect liberty of contract. Note: The Road to Lochner CB pp. 742-745 1.In Cadler v Bull more the a century before Lochner the court held that, natrual law concerned property rights 2.Fletcher v Peck(1810)the court held that the state could not rescind property purchased in good faith The court said it was against natural rights and also and against the contract clause Wynehamer v People- the court held that you could not make a persons property illegal if they had bought it legally Dred Scott v Sanford- held that you could not take away property due to the due process clause, just becausw a slave was brought to a slave state Although the slaughterhouses did not hold for the butchers they did though ambiguously hold the proposition of expanding the meaning of the due process clause to include the action at hand in some way. Lochner's antecedents -there were lazee faire doctrine hegemony during the time of Lochner, they believed that it would hurt individuals it meant to held to rule in certain ways. Munn v Illinois 1887-the court held that an Illinois law fixing the maximum charges for grain storage did nto vilate the 14th amendment. The court noted though that under some circumstances it could violate the due process clause. -the critical inquire was whether there is an overriding public interest. The Railroad cases allowed for the (1886) regulation of the railroads, but not the destruction by taxing them too much till destruction and also they were not allowed to go to the point of also forcing the companies to take certain elements on th ir trains. Santa Clara v Southern pacific railroad(1997), held that corporations were persons and therefore they were subject to the same rights as a person. Mugler v Kansas(1887) the court allowed the restriction of alcohol sale sbut not every limitation was allowed. Minnesota Rate Case, the court held it against due process to set railroad rates that were not reviewable. IN allegeyer v L.A., the court held that it was unconstitutional to prohibit from limiting a person from issuing insurance on property in the state if they were admitted to do business. -this was the precursor of Lochner because it held that -there was a right to be free from the government control of what the person does. Lochner v. New York (1905) CB pp. 745-750 1) H: st statute setting max # of hours bakers could work is un Constitutional 2) No reasonable ground for interfering w/ liberty of person and freedom of K (protected by Due Process Clause of 14th Amendment) 3) Realist: The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. To interfere with such rights, must have a) direct relationship btwn means and end, and b) the end itself must be approp and legit (like intermed scrut) In the case of Holden v hardy it was ok to limit the hours mineworkers worked because of the nature of the employment—in this case the people being regulated do not have those healtj problems This law is not in the scope of the general welfare. It is not the scope of government if it does not affect any portion of the populous outside of those engaged. Just because there is a remote degree to the general welfare does not mean it is legitimate. -the act must have a more direct relation as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interfere wit the general right of an individual to be fee in his person and in his power to contract - There is no reasonable foundation here to do this. -the health of the baker is not in question here. -there must be more than the mere fact of the possible existence of some small amount unhealthiness to warrant legislative interference with liberty. 4) dissent (Harlan): not the duty of SC t to inquire if legis is wise or not, state legis only subject to review if clearly inconsistent w/C 5) dissent (Holmes): a) SCt not intended to embody an economic theory b) reasonable person might think law a valid health measure c) political Darwinism—majority should win out, let the legislature figure it out (What the majority was doing was that government inaction was suppose to be the neutral position. The inaction, of the court is action. Therefore it used the baseline of thec ommon law with inaction into the due process law.) Note: The (Alleged?) Vices of Lochner CB pp. 750-755 1.the liberty of contract is not the same as the liberty in the 14th amendment But the English common law according to Earl Warren is that it does include the liberty of person and that this includes this power The rights to property and the rights to liberty run concurrent. -calder v Bull maintain that natural law gives the people the power to contract. \ The interest to protect the health of the people was sufficient even if there is a substantive right to liberty to contract In this case there was sufficient reason to think that it appleid because of the conditions placed on the necessity to have the state oversee these health matters In Muller v Oregon, that it cut the way of disenfranchising a woman of the right to operate machinery because the court read it as saying that it applied to protecting the rights of women that could nto handle machinery. The issue in Lochner was labor law even if there is a right for people to have a freedom of contract this is just a way to compensate for the unequal bargaining position of the workers. thus they are working to balance the freedom of contract issue, which does not actually give that with the unequal bargaining position of people Lochner and the political process-ins some cases the statutes are just for the benefit of organized people In Lochner the labor unions had a organized power over the process and these groups 1)over consumers they would pay for the higher process for bread from limitations on production 2)over nonunionized immigrant workers and the regulations sought after were already imposed through collective bargaining. Lochner was not properly decided because there were powerful groups deciding this and it does not matter it is not the role of the courts to oversee this at all. - Summary-there are two types of objections her Institutional that emphasize that the court overstepped its bound in relation to the legislature Substantive, the role of the court and the particular ideas at work here. They things is that they put a laiseez faire aspect to it. The substantive did not mind the role of the courts here it just should have been in a way that was not guided by an economic policy. The reason why it is wrong for some is because it is judicial activism. Note: The Lochner Era B 1905-1934 CB pp. 755-757 1) Muller v. Oregon—SC upheld max hours req for women—because they were considered a weaker sex 2) Coppage v. Kansas—SC struck ↓ efforts to compensate for bargaining power 3) Bunting v. Oregon(1917)—SC upheld max hours req for both sexes, overruled specific holding of Lochner, still applied theory 4) Adkins v. Childrens’ Hospital (1923)—SC overruled Muller—women no longer a protected class—now right to vote, have same right to contract b. Reconsidering the Role of the State in Economic Affairs: Lochner’s Demise Nebbia v. New York (1934) CB pp. 757-759 -A NY legislative cmte. Determined that milk was necessary & that this drop in prices might lead to a drop in production & in standards against contamination. -NY legislature established the Milk Control Board – sets min. & max. milk prices -Nebbia (grocery store owner) convicted of selling milk below set price 1) NY legis establshed Milk Control Board to fix min/max prices of milk 2) 5th (feds )/14th (states) a don’t prohibit legis for general welfare—law must be reasonable and means substantially related to the ends and must not be arbitrary, discriminatory or capricious 3) SC defer to legis as to what is for general welfare 4) neither property rights, nor K rights are absolute normally the role of contracts and prices is left for the public to figure out, but there are certain times in which the legislature needs to become involved. -contact rights are not absolute -the government has the power to get involved in order to advance the general welfare. - -This is subject only to constitutional restraint the private right must yield to the public need. 5) similar to Jones & L—eased bright line Lochner rule 6) there is no class of business that is closed off to government intervention. Dissent (McReynolds): It is unclear how higher charges will lead to benefits on the farm. West Coast Hotel Co. v. Parrish (1937) CB pp. 759-760 1) H: State law estb. min wage for women does not violate Due Process Clause of 14a 2) overrules Adkins; big retreat from Lochner Due Process = procedural 3) Constitution does NOT speak of a freedom to contract 4) SC suggests that gov’t inaction is itself a Constitutional significant decision 5) liberty is subject to the constraints of due process—which requires that regulations are reasonable in relation to its subject and adopted in the interests of the community—general welfare 6) “Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the legis is entitled to its judgment…” 7) This upheld a minimum wage for women. the violation alleged by those attaching minimum wage regulation for women is the deprivation of freedom of contract. but where is freedom of contract in the constitution we have a one that speaks of livery and prohibits the deprivation of liberty without due process of law. what is closer to the public interest of the heal of women from employers. the legislature of the state is warranted to review these issues of pay, especially because fo the weal bargaining power of women. the legislature is entitled to review these issues. additionally the exploitation is bad for their health and also for the community. the community is not bound to prove what is in effectively a subsidy for unconscionable employers. Note: The Context of West Coast Hotel CB pp. 760-761 c. The Modern Approach to Economic Regulation – Note: The End of an Era CB pp. 761-764 In the years after West Coast hotel the court overruled prior decision and consistently rejected challenges to legislation based on assertions of a constitutional preference for Laissez fair economics Olsen v Nebraska-The court unanimously upheld a state statute fixing the maximum fee that an employment agency could collect from employees Phelps Dodge Corp v National Labor Relation Board-The court upheld a provision of the national labor relations act declaring it unfair for an employer to discourage union membership Lincoln Federal Union v Northwestern Iron Metal Co-The court upheld a state right to work law that prohibited closed shops, the state can regulate as long as it does nto go agaisnt some constitutional provision Day Brite Light Inc v Missouri---The court upheld a law authorizing employees to take four hours leave with full pay on election day, nothing that if our recent legislation means anything they leave debatable issues to the legislature. Including: U.S. v. Carolene Products (1938) 1) Cong prohibited filled milk to be transported in Interstate Commerce 2) H: does not violate 5th a Due Process Clause—rational basis test 3) ct will defer to the leg and uphold economic legis if any state of facts either known or reasonably inferable could support the legis. judgment. 4) FOOTNOTE 4: (p. 734)—basic idea: representation reinforcement (lays ground work for strict scrutiny), states that a stricter standard may be applied to when we are dealing with a) (¶1)--there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the C. b) (¶2)--Suggests that leg’n which restricts political processes ordinarily expected to bring about repeal of undesirable leg’n be subjected to more exacting jud scrutiny under 14A than other types. (ex. Voting, expression, political association) c) (¶3) --Suggests that similar considerations enter into the review of statutes directed at particular religious or national or racial minorities, and that prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those pol processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching jud inquiry. (discrete— supported or opposed legislation against the views of the majority; insular— unable to form coalitions with other groups that would have enabled it to achieve the desired ends through the political process) basically: (if it restricts the political process, when legis. directly impacts BoR, racial, religious, national minorities and discrete and insular minorities) Williamson v. Lee Optical (1955) 1) SC upheld OK law that made it unlawful for an optician to fit lenses w/out a prescription from a ophthalmologist or optometrist—reasonably and rationally related to health and safety (RB review) 2) ultimate deference to legis—“legis may have concluded that…”—no need for legis record so long as not blatantly violating rights—legis role to balance 3) enough that law is rational—no need for perfect logical consistency 3) Repudiates Lochner: “The day is gone when this Ct uses DPC to strike down state laws, regulatory of business and industrial conditions, b/c they may be unwise, improvident, or out of harmony w/a particular school of thought” 4) Ct basically adopts Holmes’ dissent in Lochner Note: Pluralism, Naked Wealth Transfers, and the Courts CB pp. 765-768 Including footnote 4 of Carolene Products Noneconomic Liberty and ”Substantive Due Process” Introduction: Privacy, Personhood, and Family, discussing CB p. 845 Meyer v. Nebraska (1923) & i. Meyer v. Nebraska (1923)—SCt invalidated st law prohibiting the teaching of any foreign lang in public and private schools— liberty guaranteed by Due Process Clause also includes the right to contract, engage in occupations, education, marry, establish a home and bring up children, worship accordingly, enjoy privileges “recognized at common law as essential to the orderly pursuit of happiness by free men” Pierce v. Society of Sisters (1925) SC invalidated OR law req children to attend public (not private) schools interfered w/ the right of parents to raise & educate children Griswold v. Connecticut (1965) CB pp. 845-853 i. SC struck ↓ st law prohibiting married couples from using contraceptives ii. “We don’t sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch on econ problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husb/wife…” Douglas: penumbra-- specific guarantees of the Bill of R have penumbras formed by emanations from those guarantees that help give them life and substance. Various guar’s create zones of privacy: 3, 4, 5, 9, 14 (although right to privacy not explicitly mentioned) NAACP v Alabama, the court held that there is a freedom to associate and privacy in ones associations noting that the freedom to associate was a peripheral first amendment right. There are a number of rights which are not explicit in the constitution, The courts have restricted the use of contraceptives instead of the sale and manufacture of them. It is repulsive that this could be an issue under which the courts could issue a search warrant. -the governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. the 9th gives a liberal construction of the rights in the bill of rights. -and to give these rights the judges need to look at the fundamental principles that form our way of life. -although the constitution is not explicit on the issue of marriage it is hard to believe it is not included as well -the issue which is sought to deal with is to broad, and that application needs to be more narrowly tailored in order to deal with what the state wants to deal with which is the stopping of extra material relations which they believe to be evil. iv. Goldberg: 9th a—certain fund rights not mentioned in C are reserved to people via 9th a—determine based on history and traditions Douglas focused on the privacy of the bedroom from police intrusion. -Focus on the destructive impact therein, that could have been achieved in a less destructive way (regulate their manufacture & sale, not use) Harlan: Due Process Clause 14th amendment—implicit in concept of ordered liberty (could do a combo Harlan + Douglas—determine implicit based on BoR and amendments_ -the liberty guaranteed by the Due Process Clause is not a series of isolated points (represented in the bill of rights). It is a rationale continuum which broadly speaking includes a freedom from all substantial arbitrary impositions and purposeless restraints. -need to look at history, of the tradition , -this therefore leads to the privacy that is needed. -Harlan wants to put in history in order to vi. White: means/ends argument—overinclusive means to solve problem of adultery; irrational vii. dissent: (Black)—right to privacy not in C--∆ C only by amendment Dissent (Black & Stewart): There is no right to privacy in the Constitution. This is the same natural law due process philosophy found in Lochner, this view was previously rejected. (Stewart & Black): Silly law. But doesn’t violate the Constitution. Court doesn’t say which amendments are infringed. It violates no constitutional provision. viii. reconcile w/Lochner—marriage protected by C, business not (econ rights not fundamental, no penumbra of rights here) Note 5 on Eisenstadt v. Baird (1972) CB pp. 855-856 i. SC struck down law prohibiting contraceptive to unmarried people—law violates Equal Protection Clause ii. would have to ban contraceptive for married people (not allowed via Griswold) iii. pruporting to apply a traditional rationale basis review the court held that none of the interests asserted in defense of the staute was sufficient to justify it. -1)the court said that detering sex was not sufficient 2)the statue did not prohibit the distribution of contraceptives to prevent the spread of diseases 3)also that mass has decided pregnancy as the punishment for extra marital affairs. The other justification was that it was designed to serve the health needs of the community by regulating the distribution of potentiall harmful articles 1)not all contraceptives are potentially dangerous 2)the rationale does not seve to distringuish between married and unmarried persons Note that this is not rationale basis review, as it would meet it otherwise. Roe v. Wade (1973) CB pp. 857-863 10 i. Constitutional right to privacy based on the Due Process Clause and it is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy Reasons why this is include: additional kids may lead to stressful life; psychological harm; Distress of having an unwanted child Fundamental right in many societies, has beena round for a while this right Three reasons have been advanced historically 1)avoid illicit sexual conduct(although not brought up be Texas in this case) 2)when this was first adopted it was hazardous. Yet now it is not the mortality rates for women with an abortion is lower than that of ones with childbirth The state also has an interest that this is done in a health way 3)the state claims it is a life or at lrast that the potential for life is involved. -The constitution does not explicitly give a right to privacy but it does have a personal right, or a guarantee of certain areas or zones of privacy does exist. They have seen it in the 1,4,5,9 and the 14th liberty clause. -The appellee argues that the fetus is a person and under the 14th they have a right to life. The constitution refers time and time again to a person as a person that is post natal. Additionally considering that during the 19th century when the statute was adopted the notion of abortion was much more liberal, therefore it does not apply. -This case is not one of just clear cut privacy as in the case Einstade, Griswold, Stanley Loving, Skinner, Pierce and Meyer…here it is reasonable and appropraite for a state to decide at some point in time that the heal of the mother or the potential for human life becomes significantly involved. ii. State has an interest in protecting the health of the mother and protecting the potentiality of human life—becomes compelling at viability iii. Trimester Framework: 1) 1st trimester—abortion decision left to the medical judgment of the pregnant woman and her doctor 2) end of 1st trimester to point of viability—States, in the interest of promoting the health of the mother, may regulate the abortion procedure in ways that are reasonably related to maternal health (ex: requirements as to qualifications of abortion doctor, facilities) 3) After viability, State has a compelling interest may reg/proscribe except for the preservation of the life/health of the mother. iv. Dissent (White + Rehnquist): decision to allow abortion for the state legislatures Planned Parenthood v. Casey (1992) CB pp. 884-903 i. affirms essential holding of Roe, while rejecting trimester framework: (1) right of a woman to choose before viability (DP), (2) st’s power to restrict abortions after fetal viability if exceptions for maternal life/health concerns, (3) state has legitimate interest in protecting health of woman and life of fetus from outset as long as it is not an undye buden ii. New Test: state may not enact a law that imposes an undue burden, a substantial obstacle, in the path of a woman seeking an abortion before fetus viability, also the law must have good justification Upheld: 24-hr waiting period; info. about the fetus; reporting requirements (parental consent?) Disallowed: Spousal notification--- because it is an undue burden In Casey, they talk about an undue burden to tell the husband of the abortion. And in some cases it would not but in some cases it would. So the question is how do you apply it, since it depends on the context. iii. Stare decisis analysis:court could not legitimately overrule Roe 1. unworkable 2. reliance (people organize their lives around ruling) 3. doctrinal anachronism 4. ∆ of facts In terms of the role of Stare Decisis, Souter asks that in order to apply it need to look at it if it is: 1)workable--if it is not workable anymore then it does not apply 2)reliance--souter in this case is saying that womens position on society is relied upon due to the need for the abortion if we need it 3)there needs to be principled justice, that it needs to be principled opinion making. 4)factual assumption behind the decision have stayed the same---such as in the case of Plessy vis a vis the brown v board of education, And this is in line with the principled justice because it is not fluctuating in short run opinions, but in long run deep dramatic changes -here he is si not saying that we can change for the democratic assumption, and that is as in the New Deal coalition emmergence for the cases of Lochner and West Coast Hotel 5)doctrinal anarchronism. iv. dissent: (Rehnquist)—joint opinion problems w/stare decisis analysis: ct recognized error in basic Congressional jurisprudence, not that the ct learned new lessons in the meantime. The purpose is a purpose test The effects is a means test In Casey they shift from trimesters (of Roe) to viability they then go to a standard that could shifts with medical advances--as it is viability Gonzales v. Carhart (2007) CBS pp. 135-153 This is a case dealing with validity of the Partial birth Abortion Ban Act of 2003, We conclude that the act should be sustained against the objections lodged by the broad facial attack brought against it. (1) The act deals with a certain way of ending life -80-90 percent of abortions happen in the first trimester -the rest of the abortion procedures mainly happen during the second trimester in which the fetus is dismantled. The ban in questions here is the intact Dilation and Evacuation which is taking the fetus out whole, in some cases the fetus is moving and seems kind of alive. -IN 2003 after the courts decision in Stenberg the congress found that a partial abortion was never medically necessary and should be prohibited--this is the D & E procedure. Basically, is giving some type of birth to the fetus. Second and more relevant here, the acts language differs from that of the Nebraska statute struck down in Stenberg. (2) In Planned Parenthood of Southeaster v Casey, the court held that, there was a legitimate interest in preseving the fetal life and if repudiated this cast, we would be turning our back on that statement. The court is assuming the following principles A state may not prohibit any women from making the ultimate decision to terminate her pregnancy before viability Also there can not be an undue burden, which is if there is a substantial obstacle in the way of the abortion. At the same it is ok to have to state, that express profound respect for the fetus as long as it does not a substantial obstacle to the woman's exercise of the right to choose 3) Respondent agree that the Act encompasses intact D & E procedure, but they contend its additional reach is unclear and excessive. The other party says it encompasses intact D and E. The court concludes that the act is not vague, does not impose an undue burden from any over breadth, and is not invalid on its fact. A the act only applies to the use of D and E on a living fetus, and does not include if it is dead, the act does not apply unless the head is out of the womb, or half the body. -additionally it must have been delivered with the intent to kill it. B) Unlike Steenberg as S.D law, that was ambiguous in its definition of what substantial portion was this is not. -here it is not ambiguous. The next question is whether it is an undue burden. -here it is not because, it is clear as to what is meant and it is not something normally happens when committing an abortion. In Steenberg the Nebraska statue related to a substantial portion which was too ambiguous. Additionally there are also alternatives, whch are Killing the fetus and then dismembering it 2)the people say that this can happen by accident are wrong because there needs to be an intent to commit this. The act would be considered unconstitutional if it was in a position in which it puts a substantial obstacle before the fetus obtains viability. -the bortions affected by the act take place both reliability and post viability -the questions is whether the act measured by its text in this facial attack imposes a substantial obstacle to later-term put previability abortions. This act does not on its fact impose a substantial obstacle and we rejects this further facial challenge to viability. A The purpose of the act is quite clear it protects the right to life, moments before it becomes possible. The act says that partial birth confuses the medical legal and ethical duties. Where the act is rational and it does not impose an undue burden the state may use its regulatory power. One reason to limit this is because the women might be told what the intact D and E procedure do. - B The acts furtherance of legitimate government interests bears upon but does not resolve the next question, whether the act has the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where it is necessary and property for the preservation of the health of the mother. Also if the procedure was dangerous for the mother then it could be banned. -the respondents said that the intact D & E was safer for the mothers because it allowed for less invasive procedures. -the other side says this is open for debate. In situations such as this the court gives the legislature wide area to make a decision. -the medical uncertainty allows the court to decide that it is not an undue burden Respondents have not demonstrated that the act as a facial matter is void for vagueness, or that it imposes an undue burden on women's right to abortion based on its overbreadth or lack of a health exception. Thomas and Scalia concurring The court is saying that abortion has not basis under the constitution. Gingsburg Stevent, Souter and Breyer dissenting The court in Casey said that the state regulation of access to abortion procedures even after viability must protect the health of the women. -the cour tin Stnberg held it was unconstitutional because it was too great a limitation on a women's health. The court here is retreating from previous rulings, by stating that it can have this without a provision for the health of the women. I A In Stenberg, we held that we could not have this because it did not have provisions for the health of a woman. B Congress claimed that this procedure was never necessary, C There was testimony of people that said that intact D& E is a safer alternative. -the S.ct does not pay attention to the fact that those that testified against, it were doctors that did not have a strong background in this II A It is illogical to say that the intact procedure is not ok, when tearing apart the baby is ok. The court in this decision is not allowing an automonomous decision. B The court is blurring the line, between viability and that in this case, the baby is living within the womb. III A The court also makes a mistake when it says that facial attacks are not ok when there is medical uncertainty exists. -this holding is perplexing considered the case of stenberg, and how it was gotten rid of because the court though that it did not have a safety of the mother provision in it. IV The court is deferring too much to congress on this. ---------- Class Notes: By the time we get to Casey, we say that it is dependent, on viability, thus it cannot stop abortions for women, but it can regulate once viable outside the womb. -Under here, it can also regulate when it is pre-viable if it is not an undue burden. This is about the partial birth abortions, the fetus is delivered half way out of the women's body, and then is killed. -first it was Nebraska, that banned that the intact D&E, in which, a substantial portion, then it was prohibited, the court in Steenberg said it was vague -the congressional act said it does not apply to when it is a mistake and also it has to pass a certain number of anatomical landmarks -there are a few differences between the Casey and Roe framework. -and here what is the interest? -and it is not clear, since we are not saving a single fetus. The court is saying that are expressing a dignity of life but the Dissent of Gingsburg is saying that we are not doing that, since we are not actually trying to save the fetus And then there is the argument that the normal D & E is just as gruesome, and therefore the question is what are we actually advancing. -Kennedy, really here is not applying the language of strict scrutiny. -the court then makes a departure, from Roe and goes into the over breadth analysis by stating that it might have unconstitutional portion but ti says come back when you have an applied situation. -and that frame work when if there is that type of challenge could lead to a provisions for the health if the other D & E could lead to a safer abortion for the mother. Note: The Limits of Privacy CB pp. 929-930 Freedom of intimate association Roberts v Jaycess-The court in 84 upheld a state prohibiting discrimination on the basis of sex in public accommodation. The court explained that there are two types of freedom associations THE EXERCISE OF FIRST AMENDMENTS RIGHTS THE OTHER CONCERED WITH INTIMATE HUMAN RELATIONSHOPES People have rights from the unnecessary state intervention in the areas of family relationships and small intimate relationships that are selective. On the other hand an association lacking these qualities such as a large business enterprise does not have this The court then said that the Jaycess being of a nature that is large and unselective is not given the constitutional protection. Bowers v. Hardwick (1986) CB pp. 930-935 p. 896---footnote says not applied to heterosexuals , overturned by Lawrence v Texas i. S.Ct upheld GA facially neutral anti-sodomy law—no fund right to homosexual sodomy (not implicit in concept of ordered liberty, nor deeply rooted in nation’s history and traditions—therefore not in Due Process Clause) ii. Upholds statute b/c doesn’t violate Due Process and has a Rationale Basis representing moral legislative choices. illegal conduct is not always OK when it happens at home (e.g. illegal drugs) 1)None of the abortion cases,or Griswold, bear an resemblance to the claim constitutional right of gays to enegage in acts of sodomy. There is no connection here with family. Additionally, any cliam that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutional insulte from state proscription is unsupportable. - we will not say that sodomy is a constitutional right - In Palko and we said that rights for heightended scrutiny are those that are implicit in the concept of ordered liberty and in Moore we categorized those liberties as those that are deeply rooted in this nations history and tradition. iii. dissent (Blackmun): right to be let alone. “The fact that the moral judgments expressed by statutes like [this one] may be natural and familiar… ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution.” iv. dissent (Stevens): 1) May a state totally prohibit the described conduct by means of neutral law applying without exception to all persons subject to its jurisdiction? a) liberty announced in Griswold, Eisenstadt, and Casey embraces the right to engage in non-reproductive, sexual conduct that others may consider offensive or immoral. 2) If not, may the state save the statute by announcing that it will only enforce the law against homosexuals? a) No. Either the selected group doesn’t have the same interest in liberty that others have, or there must be a reason why the state can discriminate--homosexuals do not merit special disfavored treatment.---- Selective application must be supported by something more than a dislike for a disfavored group Lawrence v. Texas (2003) CB pp. 935-948 i. pretty much goes along w/Stevens dissent--right about sexual privacy ii. historically, anti-sodomy laws are not ingrained in society iii. ct deliberately fudges question of level of scrutiny—cites cases with strict scrutiny, but kind of applies Rationale Basis, but no really iv. social worth of being able to engage in meaningful relationships--Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers iv. Concur (O’Connor)—would strike down on EPC grounds (doesn’t give gays special status), employs Rational Basis, does not overrule Bowers v. dissent (Scalia)—majority does not employ stare decisis analysis outlined in Casey vi. dissent (Thomas)—doesn’t agree w/law, but nothing in Constitution gives right to privacy Notes from class The court is saying that the right to intimacy in liberty of the 14th. -if we look at it being balanced between both heterosexuals and homosexuals, -this is protected by the substantive due process of the 14th amendment. -the basic idea is that the court is trying to get away from these labels, they are talking about the legitimacy of the interest, but it is much more serious, it is basically strict scrutiny couched in the language of rationale basis review, -If you look at O'connors concurrence you see that in order to get to the equal protection clause argument need to go through the same basic argument. -Are Gays a discrete and insular minority? Could they get through the use of Corolene v Products, standard of discrete and insular minority. -there are arguments against the substantive due process, because it gets at issues that are not explicit in the constitution. - Sum of Substantive Due Process: -Focus is on fundamental rights. -Some things found to be fundamental: privacy (abortion, contraception) -Some things that have not: economic, contracts -Anything that touches on a liberty interest must have a rational basis -Anything that touches on fundamental rights must withstand strict scrutiny Re: Due Process Strict Scrutiny (for fundamental rights) - “Is it necessary?” Undue Burden - “Does it produce an undue burden?” Rational Basis (for non-funtl. Liberty rights) - “Is it rational?” Re: Equal Protection Strict Scrutiny (typically re: race) - “Is it necessary?” Intermediate scrutiny (typically women) - “Does it substantially further a legit. govtl. interest?” Rational Basis (For non fundtl. liberty - “Is there a rational basis”? Interests – see Williamson v. Lee Optical, Lawrence v. TX but not really R. B review) G. The Fourteenth Amendment and the Requirement of State Action 1. State Action The Civil Rights Cases (1883) CB pp. 1584-1587 The Civil Rights Cases (1883 Bradley) p. 1502 i. Civil Rights Act of 1875 (all persons entitled to full and equal enjoyment of accommodations etc. and private indiv’s who violated wre subj to civ/crim penalties) was invalidated b/c it wasn’t auth’d by any substantive grant of power to the Fed G. ii. 14A: prohibitory upon the states, not individ’s—cannot remedy a private wrong—must link private wrong to the state iii. 13A: absolute declaration against slavery / involuntary servitude (refusal to serve = ordinary civil injury, not badge of slavery) iv. dissent (Harlan): “the majority opinion in these cases proceeds… upon grounds entirely too narrow and artificial… the substance and spirit of the recent amendments… have been sacrificed by and subtle and ingenious verbal criticism.” citizenship acquired in virtue of affirmative grant from the nation may be protected by both the jud and leg. (cit’ship clause) §5 arg: Cong power ≠ restricted to enforcement upon st’s, but to “enforce the provisions of this article,” “not simply those of prohibitive character, but… all of the provisions… of the amendment.” 13A should be read to touch all kinds of racial subordination—avoid anti-caste principle 14A is about equal access Marsh v. Alabama (1946) CB pp. 1626-1628 i. town owned by corporation asked Jehovah’s Witness distributing pamphlets to leave, didn’t—was arrested for trespassing ii. H: b/c Chickasee functions like a normal town—can’t violate the 1st a + other C protected rights—APPEARANCE of state action falls under 14 a prohibition ii. implies that there are limits on the extent to which a state can escape const. restraints by “delegating” to private parties functions traditionally performed by the state Shelley v. Kramer (1948) CB pp. 1601-1604 i. H: restrictive covenants not themselves unC, but if the Ct enforces, this constitutes state action and is therefore prohibited by the 14th a EPC. ii. consistent w/Wash v. Davis—decision to enforce restrictive covenant is a racially infected purpose judicial enforcement = state action In a case of Norwood the court said that if you give textbooks to all schools in the state . Then the providing of the textbooks was regarded as state action. Burton v. Wilmington Parking Authority (1961) CB pp. 1609-1612 i. Eagle coffee shop refused service to black, located in parking structure owed by state ii. H: state interdependent with Eagle (symbiotic relationship) so it must be recognized as a joint participant in the challenged activity—Eagle’s conduct cannot be described as being purely privateviolates EPC iii. state inaction: no state may effectively abdicate its responsibilities by either ignoring them or merely by failing to discharge them whatever the motive may be Jackson v. Metropolitan Edison Co. (1974) CB pp. 1633-1635 i. Metro utility discontinued service to P based on unpayed bills—does NOT constitute state action. ii. Test to determine if business constitutes state action: whether there is a sufficiently close nexus bet. the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself. iii. here state did not authorize termination practice iv. regulation not enough--given to substitute for competition in natural monopoly 2. State Inaction DeShaney v. Winnebago County Dept. of Social Services (1989) CB pp. 1589-1591 i. State knew about child abuse but failed to take him out of father’s custody ii. H: states failure to act is not in violation of DPC a. nothing in the DPC 14th a imposes an affirmative duty on the State to protect the life, liberty, and property of its citizens against other persons b. purpose of DPC is to protect people from the State, not to have the State protect people from other people Flagg Bros v. Brooks (1978) CB pp. 1591-1595 Two part test from Lugar 1)deprevation must be use by the exercise of some right or privilege created by the state, or a rule of conduct imposed by the state or by a person from whom the state is responsible 2)the party charged with the deprivation must be a person who may be fairly to said to be a state actor, because he has acted together with or has obtained significant aid from the state. The question hee is whether a warehouse mans propose sale of goods entrusted to him a storage as permitted by New York Law the section proves that after proper notification a wharehouse may satisfy the lien on goods in his possession by selling the goods…the question is if the law is action attributable to the state of NY. The S.ct held that a private credtiors self help repossession did not constitute state action, and thus due process was not required prior to sale of her beloningigns. The Customer said that the state delegated to the company a power traditionally exclusively resereved to the state. The cresditor could have don’t a lot of different things to sell the good, and that this was just one of the ways in which they decided to allow them to do that therefore this was not an esclusive prerogative of the state. Allowing of a private action is not the state doing something personally 1 The city marshal evicted P and moved her stuff to the Petitioners warehouse -brooks then claimed that the sale without a hearing would violate the due process clause -she relied on a series of decision in which the court had held that due process requires to debtors to be afforded a hearing before a creditor can utilize remedies involving the deprivation of property. II -It must be noted that respondents have named no public officials as defendants in this action. -Only a state or a private person whose action "may be fairly treated as that of the state itself' -thus the question here is whether Flagg brothers action may fairly attributed to the state of NY. -We conclude that it is not. III Respondents primary contention is that NY has delegated to Flagg Brothers traditional powers exclusively reserved to the state. They argue that the resolution of private dispures os a traditional function of civil government and that the state has delegated this unfction to Flagg brothers. ---yet the notion that a power is exclusively reserved to the state is very limited in its approach. There are a number of rights and remedies which the P could have exercised, and these rights include the ability to ask that the goods not be sold, she did not have to have them listed there. Additionally there is not much a dispute that disputes between creditors and debtors is not a traditionally an exclusive public function. IV The respondents further argue that Flagg Brothers proposed action is properly attributable to the state because the state has authorized and encouraged it in enacting 7-210 -this court has never held that a states mere acquiesce in a private action converts that action into that of the state. If the mere denial of judicial relief is considered sufficient encouragement to make the state responsible for those private actions whenever the state, for whatever reason denies relief sought by the putative property owner. The crux of the argument by the P is that the state has refused to act. This statutory refusal to act is no different in principle a remedy for private deprivations of property after passagfe of a give period time. DISSENT The question is whether a state statute which authorizes a private part to deprive a person of his property without his consent must meet the requirements of the Due Process clause of the 14th amendment. -the court is saing that the state statute permits but does not compel the sale, and because the warehouseman has not been delegated a power exclusively reserved to the states Under this theory the state could pass a number of laws that would allow private action to allow people to be deprived of property and a number of different things. The questions here is not on the deprivation but on the state action allowing it. -there is not bright line division between the two here -the power to order legally binding surrends of property and the constitutional restriction on that powers are necessary correlatives in our system. In effect today's decision allows the state to divorce these two elements by the simple expedient of transferring the implementation of its policy to private parties. Reitman v. Mulkey (1967) CB pp. 1598-1599 California passed a proposition that allowed people to discriminate for whatever reason they wanted. The P contended that the proposition violated the equal protection clause. The calf. S.ct rule din their favor, and in 5to 4 decision the U.S supreme court affirmed. -the court agreed that the mere repeal of a statute prohibiting racial discrimination was not unconstitutional. But it held that it was not permissible because it allowed the people to discriminate under the guise of the state constitution. Harlan dissenting -this is the equivalent of mere repeal of their laws. It is not a violation. The court here is saying that the announcement of an inaction is action in itself. -why doesn’t Flagg Brothers come out differently. The court says that the constitutional amendment creates the right of discrimination, and this is not constitutional The question is how close is the state to the activity in question. And the closer the more likely it will be unconstitutional. IV. Federalism, Powers, and Rights: Congressional Enforcement of the Civil Rights Amendments A. The Old Regime: A Coequal Congress Introductory Note and Note: Possible Interpretations CB pp. 299-301 Katzenbach v. Morgan (1966) CB pp. 301-303 i. Lassiter v. Northampton Election Board, English-language literacy requirement did not violate the substantive guarantees of the 14th and 15th a. ii. SC upheld §4e of Voting Rights Act of 1965—prevented literacy tests to disenfranchise PRs as a valid use of §5 power iii. looks like the ct is employing RB (of the Lee Optical sort): 1) Remedial measure to deal w/discrim in gov’t service—correct failure in pol process 2) Cong could have concluded that Congress could have concluded that the NY literacy requirement constituted an invidious discrim in violation of the EPC iv. Cong allowed to prohibit lit tests even though they are C v. Nationalist perspective: Cong §5 power limited to adopting measures to enforce guarantees of 14a, no power to restrict, abrogate, or dilute these guarantees vi. dissent (Harlan): the court reads §5 as giving Cong the power to define the substantive scope of the Amendment – what is a violation of DP / EP (and thus under §5) is a jud Q Note: The Scope of Section 5 CB pp. 303-306 Section 5 and the shift in the courts jurisprudence, The shift from Katzenbach v Morgan, went form rationale basis review to a situation in which it is congruent and proportional to remedying and preventing a constitutional violation. This push in Boerne repeated had already happened before, we are going to abandon strict scrutiny, and we are going to move for a test in which . In Boerne the court went from strict scurtinty to abandon it and then congress went to strict scrutiny, and then the court came back and said that it wanted congruence and proportionality There was a series of opinions that followed Boerne and it was followed by Nevada v Hibbs B. The New Regime: An Assertive Court City of Boerne v. Flores (1997) CT i. SC’s holding in Smith (peyote cases), that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling gov’t interest, you do not have a free exercise claim against a generally applicable neutral law that does not have the purpose of discriminating -before they had a balancing test, in which the burden was placed a vis a vi the Shurbet v Boerne, They use to put it to strict scrutiny, because it deal with a 1st amendment right. Under Smith strict scrutiny standard is not applicable to a neutral law of religion, ii. Cong response: Religious Freedom Restoration Act saying no Government action can substantially burden religious exercise unless that G action were the least restrictive means of furthering a compelling Government interest (SS test).--Congress is saying that they like the Surbert test, thus it would allow people to bring it up. In this case the zoning permit, limited the building of the church, under Smith there would have been no claim under RFRA. iii. H: RFRA is un Constitutional use of §5 power: 1) TEST: a) prophylactic legislation under §5 must have a “congruence and proportionality betw. the injury to be prevented or remedied and the means adopted to that end.” (this becomes the new standard for deciding if it is ok) You cant have a problem in one specific area and then pass a blanket law to cover it. b) must be remedying or preventing a Constitutional violation as identified by the ct 2) to be C would need to show that generally applicable laws usually a cover for discrimination based on religion 3) that C can prohibit acts that are not themselves unC (survives from Boerne—but must now point to specific evidence on the legis record of how the acts it prohibits pursuant to 5 are closely related w/acts declared unC by the ct. 4) problem w/RFRA applied to every gov’t action anywhere in the US---too broad and sweeping 5) §5 enforcement cl is remedial—not substantive 6) RFRA also intrudes on areas traditionally for the states, as well as oversteps on to bounds of jud br. iv. Federalist perspective: Cong may not use §5 power to expand scope of rights or to create new rights What does Kennedy say that Katzenbach was about-- there are two things 1) in that case there were remedying discrimination in public services 2)also congress had an independent findings that NY was actually violating the rights of the Puerto Ricans. Are they overriding Katzenbach, they are distinguishing, Kennedy approaches this question is saying that it is re-interpretation of Katzenbach by establishing a new standard that is different and more narrow. Saying that there was necessity on the record. Under Katzenbach, not under the new we woud not have found this case -the standard of Katzenbach When looking at the case they look at the Bingham amendment and te rle of the 14th. Interpretation:The court is saying that in order to do this it comes down what does the 14th amendment mean, and that is to enfroce not to interpret. History:The second source, is Structure: Precedent: United States v. Morrison (2000) CT i. VAWA—civil action remedy for victims of gender-motivated crime to sue in fed ct ii. VAWA unC use of §5 power under Boerne Test 1) VAWA not aimed at state or state actors but at private individuals, therefore could not apply 2) evidence that discrimination against victims of gender-motivated crime is not a problem in all states, therefore too broad, not congruent and proportional iii. dissent (Breyer): remedy is congruent—creates a fed remedy where the state remedy is inadequate (seems to be ok w/ purpose of 14th—allow feds to step in where the state has failed) Overall: Cong, pursuant to §5 power, may only reg state/fed gov’t not private conduct Remember that in this case the This is mainly in a lot of ways about the private right of action that is given which is problematic because thr 14th only applies to state actors. Cant get at private tired to do it through the 13th. Reasons the VAWA is flawed--In order for it to apply to every state, not congruent and proportional, is too sweeping. The second part is that you re not getting a t the state actors is creating the violation. When going in under the 14th, section 5 is that it can tell the state what do. Which is in contrast to the Printz and NY, but we should not think of this as a commandeering problem, we should think of it as the congress is really, supervising the states in a limited area and they have the power to do this. (if the statute had said that it would allow a cause of action for anyone that came under the state law. ) The congress has to tell the states what to do. C. Familiar Accommodation Note: The Interaction of Congressional Enforcement Power and the Eleventh Amendment CB pp. 310-312 Nevada v. Hibbs (2003) CT Family and Medical Leave Act of 1993 (FLMA) up to 12 weeks of unpaid leave annually—created a private right of action for person to seek equitable relief and money damages against any employer who interfered or denied FLMA. Here they tried to use the 14th amendment, section 5 as well as the commerce clause. But to get to have the state enforce this they needed to use the 14th section 5 as logn as it is congruent and propotional to the harm they want to protect against. If it refers to male ad women in classification needs to meet intermediate scrutiny. States had policies that perpetuated the gender generalizations for medical leave. In terms of disabled people the court said that because discrimination on the vases of age or diability-based discrimination is in the laws is a rationale basis, the state only had to show that there was a reaon to do that of some kind. Thus congress needed to identify not just the existence fo age or disability based state decisions but a widespread patter or irrational reliance on such criteria. ---see. Kimel. In the case of gender it was easier for the state to show a pattern of discrimination, because it is heightened scrutiny. For race it is strict, therefore it was easier to hold up the voting rights act of 1965—although it is not under the new city of boerne standard. For the dissent in the fact of gender based discrimination, sthe congress could do no more than simply say that it was illegal., yet congress is no just confined by what is in the 14th amendment. It can prohibit a broader set of actions. --- Additionally, the act is proportional and limited, in the fact that it does not affect high level ranking official in the state government and there is a commitment issue as well. Furthermore, there is also is alimitted cause of action, which is restricted, by SOL and just back pay. The statute tells the state to provide for 12 weeks pay. Thus it commandeers the state really. ii. FLMA passes C muster under Boerne Test: 1) Cong had evidence that neutral laws administered discrim (like Yick Wo) 2) narrowly targeted at the fault line betw work and family iii. dissent (Kennedy): FMLA is not a remedy but a benefit program 1) evidence should be more specific than general history of employment discrim 2) heightened scrutiny should be case-by-case method of analysis—not used to identify the particular problem vi. Underlying issues: 1) Rehnquist really cares about Title VII and Cong authority 2) 11th a bars general private action suits against states for money damages 3) 15% of the workforce is a civilian employee of the fed, state or local gov’t—so if you can’t get damages, you can’t really enforce Title VII to 15% of the workforce—and the public sector a visible sector that should set the standard 4) Wash v. Davis—need intentional discrim in order to trigger EPC violation, but Title VII looks closely at anything that has a disparate impact (broader) 5) Cong needs §5 to get at public realm and get over 11th a barso SC polices all intentional discrimination and Congress looks at disparate impact--a bargain of sorts, court doesn’t want to reach into the social realm 6) Nothing in the legislative record of Title VII to link disparate impact and discrim intent. Ct upheld the FMLA to signal that it would uphold title VII. vii. reconciling w/Morrison: 1) Morrison tried to regulate not economic 2) Hibbs—tortured application of Boerne—response to nat’l consensus that public economic sphere is a legit area that Cong can regulate G. Some Definitions: 1. Tiers of Scrutiny: i. RB: means reasonably related to achieving a legitimate gov’t purpose ii. IS; law upheld if it is substantially related to an important gov’t purpose iii. SS: narrowly tailored to achieve a compelling gov’t purpose 2. DP i. procedural: procedures the gov’t follow before it deprives person of life, liberty or property ii. substantive: whether the gov’t has an adequate reason for taking away l,l, or p 3. excluded reasons: prohibited reasons i. race ii. message in what is said V. Final Thoughts Larry Kramer, The People Themselves (2004) CT Case Issue What is “Commerce?” What is “among the states?” Note Gibbons v. Ogden (1824) May Congress break up NY ferry monopoly? YES Almost everything – commercial intercourse Interstate plus intrastate that “affects” interstate comm. Commerce power is “complete in itself, etc.” US v. Knight (1895) Is sugar manufacturing “interstate comm.?” NO Manufacturing is not commerce Eventual introduction to interstate market doesn’t = interstate comm. Champion v. Ames (1905) May Congress ban interstate transport of lotto tickets? YES Transportation of goods (lotto tix) is commerce Transportation from one state to another Power to regulate = power to ban, regardless of reason Hammer v. Dagenhart (1918) May Congress prohibit transportation of goods manufactured by child labor? NO Production is not commerce Product/process distinction. Can only regulate product (lotto tix), not process (child labor) ALA Schecter Poultry Corp. v. US (1935) Was federal “sick chickens” code (from New Deal legislation) constitutional? NO Must directly affect interstate commerce. Indirect transactions remain w/state Code wasn’t regulating interstate transactions, but operations in NY “ Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez From the supplement- Congress can regulate purely intrastate activity if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in the commodity. Congress had a rationale basis for concluding that the high demand in the interstate market will draw such marijuana into that market. After raich might the issue in lopez been upheld if it was a larger part of a scheme to regulate gun sales.