Flemming

Front 1

Barrows v. Jackson

Back 1

a white woman sells her property to a black family, but the property is in a neighborhood with a racially restrictive covenant. Residents sue for damages (can’t sue for an injunction b/c of Shelley v Kramer). Woman says that would violate the equal protection rights of African Americans.

Standing to assert a third party claim
white person defending against enforcement of racially-based covenant on behalf of discriminated negroes.
1. HOLDING
a. Rule of practice outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained and the racially discriminative covt to be enforced.
a. Court allowing standing on behalf of a third party CLASS of individuals – blacks – b/c specific enforcement of racially discriminative covts would violate 14th amendment.
If blacks had brought suit f/ themselves, sellers would gear transactions specifically against blacks – court granted standing b/c 3rd party nonlitigants aren't in an effective position to assert their Const rights.

**most distinctive element of Barrows –
1. It really stands out as representative of the public law conception (public values model)
2. Court thinks that important issue if one can be assessed damages in violation of racially restrictive covenant
3. b/c there is an important norm that needs to be clarified, they use public values model

Front 2

Baker v. Carr

Back 2

F: voters in TN bringing suit alleging that the voting districts do not fairly represent the voters as population has changed and shifted attempting to suit under the guaranty clause of a republican form of government in every state under article 4. Under a system like TN of malapportioned legislature had 1/3 of the legislatures represented 2/3rd of the population. In a sense it makes some people’s vote worth more b/c of the size of the district.
Key Issue: threshold issue or the question of justiciability. Can the court decide this on the merits or conversely is this a political question.
H: no political question here but they should bring the suit under the equal protection clause of the 14th amendment. Then the case was remanded to determine if this particular scheme violates due process.
Analysis: In determining whether a question falls in the political question category the Court must consider the appropriateness under our system of gov’t attributing finality to the action of the political department and also the lack of satisfactory criteria for a judicial determination are dominant considerations. Nonjusticiability of a political question is primarily a function of the separation of powers, and the textual commitment to a coordinate political department, a lack of judicially

Front 3

Nixon v. United States

Back 3

This is a Judge Nixon who was tried and convicted by the Senate he brings his case challenging the removal on the basis that his trial by the Senate was not fair. His gripe is that this streamlined process does not qualify as a trial under the constitution. Supreme Court rejects the claim and it does not rule on the merits. Instead they say that this procedure is a matter that they will not issue a ruling on it b/c of political question. Here have a textual commitment to a coordinate branch of government the Senate, or whether it was principally a problem of lack of judicially cognizable standards. Justice Souter: would have deferred the question of whether the court could have overturned a Senate conviction. He does mention that this might not always be a political question if the Senate decided to just convict by heads or tails. But normally this is a political question. One response to Souter: if the Senate wants to convict someone they will no matter what the process. Pres. Ford “an impeachable offense is whatever the majority of the House says it is and whatever the Senate thinks is convictable.”

Front 4

Griswold v. Conn (contraceptive case)

Back 4

held that birth control clinic officials convicted of abetting married persons in violating the same statute barring use of contraceptives, had standing to assert consitutional rights of the married persons.

Court recognized as a practical matter why people should not be forced to come into court and explain why they need contraceptives
1. The doctor in this case had a special relationship with the 3rd party.
2. The relationship between the parties must be such that the law being challenged by the P (or D) requires him or her to take action that will dilute the absent party's rights.

Front 5

Hunt v. Washington Apple Advertising-

Back 5

set 3-part standard for third party standing of organization on behalf of its members
• Rules required
1. the org’s members would otherwise have standing to sue in their own right
2. the interests sought to be protected are germane to the organization’s purpose, and
a. usually an easy criteria to meet
3. the claim asserted and relief requested do not require the participation of individual members in the suit (this is the problem area)
• Additional requirement – The party asserting the rights of the third party must have injury-in-fact; must be a MEMBER of the injured class.
1. The court will sometimes waive this requirement if a party whose rights are being asserted isn't in an effective position to assert their own rights- see above Barrows, NAACP, Craig

Front 6

Rescue Army v. Municipal Court

Back 6

Issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied. The pronouncement of contrary policy, or accelerated decision might do equal or greater harm for the security of private rights, without attaining any of the benefits of tolerance and harmony.

Front 7

Defunis v. Odegarrd

Back 7

F:
• Plaintiff was fighting with the University of Washingon law school and he challenges the rejection by challenging their affirmative action program and the trial court orders them to let him in. By the time this case reaches the Supreme Court he is in his last semester of law school.
H:
• Court says there is no point to it because he is about to graduate. Whether they uphold or strike down nothing will change for Defundis. There was no longer a case or controversy for the court to decide. “This case in no way presents the exceptional situation in which this doctrine might permit a departure form the usual rule in federal cases that an actual controversy must exist at stages of appellate or certiorari review and not simply at the date the action is initiated.
Narrow Exceptions
1. Instance where have a situation where the mootness doctrine could be applied but this situation is capable of repetition but evading review. But because of the nature of the controversy and the time before it gets to the court it will always be moot.
a. Issue Roe v Wade: by the time the case finally came to the Supreme Court she had already had the child. But the court said in addressing the issue of Mootness that there will be more pregnant women who will want an abortion but the issue will always be evaded b/c they will all be strictly speaking moot. So they decided the case on the merits.
Larger Point: which way the court will resolve the dispute will depend on what type of larger framework the court views the controversy.
1. Fundamental Conception is to go back to Marbury and the fundamental purpose is to
Resolve cases of a live case and controversy, therefore if it is not live then the court aught to avoid resolving it.
2. Public Law Framework. It is not to resolve just the private disputes
But we rely on the Supreme Court to give us a coherent interpretation of important legal issues.

Front 8

United States v. Richardson

Back 8

Seeking to apply and expand the doctrine of taxpayer standing, Richardson challenged the law that prohibited disclosure of CIA expenditures. He claimed a violation of Article I, section 9, which requires publication of all public expenditures.

*The court’s approach here says this is not an individual injury instead all taxpayers suffer the same and as far as the court is concerned an injury that you share with all of the other taxpayers is not going to qualify as an article 3 case or controversy or injury in fact.
• Suffering in common will not give you standing.
• Powell’s concurrence: the court is really saying a quasi-political question the broader argument here is that we cannot spend the capital of the court freely you most need the courts power when we have an infringement on the rights and liberties of those protected under the bill of rights b/c we can’t count on the political process to deal with these injuries freely.
• If everyone is suffering in a comparable way then the remedy is the political process.

2. HOLDING
a. P had no standing – his claim was “generalized grievance” and he suffered no specific harm as a result of it.
i. Generalized grievance – if he is injured, then everyone else is too. It is just a generalized injury not specific to the person
ii. Rule: If you are suffering from an injury that all citizens are suffering if it arises to the level of the injury then this does not qualify under injury in fact under Article III.
1. Must be a individualized injury f/ standing under Article 3.
iii. The absense of any particualr individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress and the political process.
3. NOTES
a. STERN: this case is a situation where court intervention is most needed (under Caroline products footnote reasons) – this problem is so obscure that it's not possible to gain enough public support through political channels – Court should have let P bring his claim into court, recognizing his injury.
i. Courts are much more receptive to claims w/ individual injury standing than taxpayer standing.

Front 9

Warth v. Seldin

Back 9

Suit brought by Rochest taxpayers challenging discriminatory ordinances on Constitutional grounds b/c they discriminate against lower incomes, and most lower incomes are minorities, ordinances violate Bill of Rights. Really they’re just pissed cause they have higher taxes b/c of added cost of building more low income house f/ the negroes.
HOLDING
• No Individual Injury- No standing b/c its not their Constitutional rights being violated! General standing rule is that you don’t presumptively have standing to assert someone else’s const rights.
b. Traceability - can't trace the injury to the zoning ordiance as the root of their problem (they couldn't have afforded to live there anyway).
i. There were no facts establising that any builder had specific plans to develop low-cost housing within the town that plaintiffs could afford.

• No Redressability- the negrfoes couldn’t afford to live there anyway! Ps failed to demonstrate that ordinance was the cause of injury (inability to live there)

Front 10

Youngstown v. Sawyer

Back 10

Apprehensive that an impending strike by steelworkers would harm the country's participation in the United Nations' police action in Korea, President Truman issued an executive order instructing Secretary of Commerce Charles Sawyer to seize and operate the nation's steel mills. Secretary Sawyer directed the companies' presidents to operate the facilities in compliance with government regulations. The president immediately gave Congress formal notice of his action, but Congress took no action. Although the seizure lacked statutory authority, Truman took the view that his action was valid under the powers invested in him as president and commander in chief. He relied upon the many historical precedents of executive seizure without the consent of Congress.

The steel industry argued that the purpose of the Labor Management Relations Act of 1947 (Taft‐Hartley Act) was to allow the parties to arrive at a settlement and to permit Congress to become involved if collective bargaining was unsuccessful. The fact that Congress had specifically rejected a seizure provision during the debate of this act could only be interpreted as a prohibition against executive seizure.

Justice Black
• the president had no power to do so without an express prior congressional authorization. Black insisted that each of the popular branches must be left to carry out its duties according to the original constitutional understanding. The power exercised by Truman was clearly a law‐making task that properly belonged only to Congress.

Justice Jackson
• Concurred and distinguished constitutional situations in which presidential powers fluctuate:
o strongest with a congressional authorization,
o weakest against a congressional prohibition, and
o uncertain alongside a congressional silence.
• Jackson concluded that the president acted unconstitutionally because Congress had refused to authorize the seizure.

Front 11

Marbury v Madison

Back 11

1. FACTS
a. Marbury suing to force new Prez Jefferson to deliver completed commissions of Federalist judges, including himself and Marshall.
2. HOLDING/NOTES
C. court declines the right to enforce writ of mandamus on Article III grounds that Marbury did not fulfill the public minister requirement, satisfying the Jefferson administration (who would have impeached him had he granted the writ), but creates judicial review – court has power to review constitutionality of laws. The Constitution prevails over the statute. The Constitution is the superior paramount law over statutes that are repugnant to the constitution and are void.
i. Logic: JR is implicit in Const under the Supremacy clause Article 6 – “Const is supreme law of the land”
1. Constitution governs all cases under the laws of the US, and is superior to all legislation – unconstiutional laws are void.
i. LIMITS ON JUDICIAL REVIEW
1. The judiciary can’t just make unprovoked decisions – they must wait for an appropriate case to come along before they can make decisions to change various aspects of the law or Constitutional issues.
1. This case establishes ONE TYPE of judicial review – SC to review constitutionality of federal statutes in a case that is brought through the federal courts.
• Judicial Review is a mechanism by which the courts may invalidate decisions of congress and the president, subject only to the burdensome process of constitutional amendment. In these circumstances, the existence of judicial review is often said to give rise to a "countermajoritarian difficulty."

Front 12

Martin v. Hunter’s Lessee

Back 12

JR applied to state legislation
a. VC must obey USC’s rulings- USC has appellate jurisdiction over state SCs on issues involving federal Constitution, laws and treaties. Uses 3 modes of analysis:
i. Textual analysis - Judge Story felt that Article 3 of Const gave USC sweeping appellate jurisdiction over federal question issues.
ii. Design analysis (broader) - VA has taken the position that to elevate the US sup ct above the states, we are going against the spirit of the constitution which they think is a co-equal partnership between the federal and the states
1. Story says that the federal gov’t and the states have not been set up the same at state and federal level. Examples to indicate that the federal system is supreme to the state:
a. The state cannot create their own currency as we see in Artile I Section 10
b. He also references Article VI, the Supremacy Clause which says that the states have to follow the constitution
iii. Teleology (when not clear from other approaches, look at both possible outcomes and pick one that serves broader const. end - Constitutional Uniformity- it's inconsistent w/ national Constitution if rights granted by that doc vary from state to state. It’s better to have consistent place to look for laws than patchwork system from state to state.
iv. Orginalism - what was the framers' intent about this issue?
• Hard to discover because of remoteness.

Front 13

US v. Carolene Products, Footnote 4

Back 13

To combat the problem of a countermajoritarian difficulty, there is generally, a strong presumption that congressional laws are constitutional. However, courts will apply heightened level of scrutiny to laws that may
1) on its face, infringe upon Bill of Rights,
2) restrict political representation that would otherwise be expected to bring about repeal of undesirable legislation,
3) statutes dealing w/ minorities (political or racial, or religious in nature).
This ensures that people are represented and b/c minorities otherwise may not have another path to defend itself in the political process if not for the courts. Court is going to start with the presumption that the law was created with a hostile outlook on the minority.

Front 14

Const Article 1, Section 10 – States Federalist Limitations

Back 14

a. States can’t act as sovereign entities – can’t make their own money, enter into treaties/alliances with foreign countries, wage war, etc.

Used in the Martin v. hunter's lessee analysis

Front 15

Political Question Doctrine

Back 15

o The issue is textually committed (in the constitution) to a different branch of the government
o There is no cognizable standard to judge them by
o It is impossible to decide without first making a policy decision
o There is not an adequate judicial remedy
o It is impossible to decide the issue without stepping on the toes of another branch

Justifications -
• to preserve what the judiciary’s fragile political legitimacy.
• it allocates decisions to the branches of the government that have superior expertise in particular areas.
• the federal courts’ self-interest disqualifies them from ruling on certain matters. Specifically in the reviewing process for ratifying the constitutional amendments.
• justified on a separation of powers ground as minimizing judicial intrusion into the operations of the other branches of the government.

Front 16

Defunis v Odegaard

Back 16

Mootness
• Problem
o The ruling would have no meaningful impact on the parties

o P was rejected from UW Law School, brings a discrimination suit under the Equal Protection Clause. By the time the suit gets to the SC P is in his last semester at UW and cannot be kicked out.
o HOLDING – the issue is moot because no matte what they decide P will finish law school at UW
• Private law v Public policy standpoints

• Execption to Mootness
o The controversy is capable of repetition, and evading review
 The same legal issue presented in this case inevitably will arise again, and all disputes of this nature will be technically moot by the time it gets to the supreme court

3. Voluntary Cessation Doctrine: Defendant has voluntarily, but not necessarily permanently, changed his conduct
a. Voluntary cessation of conduct by D will not make case moot
b. Case would be moot ONLY IF there is no reasonable expectation that wrong will be repeated
c. Injunction requested, and D ceases conduct, will still not make case moot b/c D could revert to old ways
d. There are adverse collateral consequences to the defendant's action which, when considered, prevent mootness
e. Ex. - If a criminal D has already served his sentence, case will not be deemed

BUT mootness presents strongest case for public values model approach: cases provide vehicle f/ USC’s larger purpose of providing coherent interpretation of fed law and Const issues for public good. Mootness is good for applying this b/c you don’t have the same uncertainty/vagueness probs that you do with advisory opinions – parties have previous adversarial relationship, well-defined facts and arguments – a decision should be made in the interest of public policy!

Front 17

Nixon v. US

Back 17

Political Question (non-justiciability)
Judge Nixon is impeached, he claims that the senatne tried him improperly. Court holds that the case is non-justiciable

1. Textual argument - looks a text itself and the article 1 language says that the senate has the sole power to try one ofr impeachment making nonrevieable by the court
2. Lack of manageable standards - court looks to the dictionary for the definition of "try" and concludes that they lack the resources to determine this issue.

Souter (Concurrence) - shouldn't relinquish all power to review what the senate does.

Front 18

Baker v. Carr

Back 18

Jusiticiability or Reapportionment Challenge. _H: No PQ

 P sought an injunction of the use of the 1901 apportionment for voting because so much had changed since then that small communities had the same vote as large cities and therefore people who lived in large cities’ votes were diluted.
 The court says that this is NOT a PQ because:
• It is an equal protection issue, not a guarantee clause issue
• The issue deals with something that restricts the political process (Carolene FN 4 – court’s deference to the legislation is not appropriate when the legislation does not represent the majority/restricts the political process that would solve the problem)
 Frankfurter’s dissent
• The distinction between the guarantee clause and the equal protection clause is bogus
• The court needs to conserve it’s capital so it doesn’t loose credibility

Front 19

Roe v Wade (mootness)

Back 19

 By the time her particular case got to the supreme court she had already given birth, so it is technically moot, but we know this kind of dispute will arise again and if we adhere rigidly to the doctrine of mootness then we will never be able to decide this issue

Front 20

Rescue Army v. Municipal Court

Back 20

constitutional issues affecting legislation will not be determined in friendly, nonadvesary proceedings; in advance of the necessity of deciding the; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance , of one who fails to show that he is injured by the statute's operation, or who has availed himself of its benefits.

1. ASHWANDER RULES – courts will go out of their way to dispose of disputes without raising constitutional issues – if multiple interpretations of statutes are available, courts will interpret statutes in a way that avoids questioning the Constitutionality of legislation.
2. “Constitutional Doubt” – strong assumption of legislative constitutionality if other interpretations are available. Doctrine of Constitutional Doubt - ‘won’t take up constitutionality of statute if the construction is fairly possible by which the question can be avoided.
a. If have statute where constitutionality being challenged
b. 2 interpretations – one casts doubt on constitutionality of statutes, other does not. Court says when faced with situation where both are plausible, they will tilt toward the interpretation that does not raise constitutional difficulty

Front 21

The Necessary and Proper Clause

Back 21

o Art I sec 8 cl 18 – Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
o This clause was construed broadly in McCulloch v Maryland, therefore Congress has a lot of latitude to carry out its enumerated powers.

Front 22

With the commerce clause power, Congress May regulate: (3 things)

Back 22

1. Channels of interstate commerce
A. Congress may on this basis regulate the terms and condition on which goods or services are sold interstate and may restrict the tpes of goods that can be shipped from one state to another.
2. Instrumentalites - such as railroads, airlines, and trucking companies
3. Commerce that substantially affects that commerce.
A. By using the necessary and proper clause in connection with the Commerce clause, the commerce power also includes the authority to regulate economic acitvity that has a substantial relationship with interstate commerce or substatnitally affects that commerce.

Front 23

McCulloch v. Maryland

Back 23

1. When second Bank of the United States – federally chartered corporation. Historically, corporations had always been creatures of the state rather than the federal government – it was considered unconstitutional by some for the federal gov’t to get into the banking game.
a. Maryland leveled a punitive tax against the Bank to get it out of their state- the US is resisting (challenging) the tax – federal gov’t is challenging state power - State contending for dual soverignty – state power EQUAL to federal power.
B. HOLDING
1. Congress had power to create bank even thought it was not explicitly laid out in Constitution – Const isn't supposed to be ultra-detailed legal code.
2. Marshall addressed 2 issues that needed to be resolved
a. #1 - Did gov’t have power to make Bank?
i. Yes, under Necessary and Proper clause – Article 1 Sect. 8 – Bank is necessary in that it is a USEFUL, CONVENIENT means of accomplishing Congress’s goals of leving taxes, borrowing money, and regulating commerce– Marshall uses own definition of “necessary,” different than “absolutely necessary” as characterized in in Article I, sect 10 - flexible definition that gives Congress wide-ranging power
1. Congress can use any appropriate means to attain legitimate ends that are within scope of Const, and aren’t specifically prohibited by it – Congress still can’t do anything specifically prohibited by the Const, even if it’s towards a valid goal.
2. “presumptively permitted” – presumption IS in favor of congressional exercise of power unless it is an irrational rule "Lunatic Test"
b. #2 - Consequentialist Argument – if Maryland’s strict construction of Const is permitted, it would make Const too inflexible to be a long-lasting governmental instrument.
c. #3 – Accountability and State powers- Marshall is concerned that giving states right to tax federal gov’t it could hamstring fed govt’s ability to serve - states could tax postal service, military installations.
i. Whole population represented by fed, small section represented by each state- Maryland residents would have political recourse through voting, but no one else in the US would be able to act if MA acted contrary to their interests!

• HOLDING # 2 – States cannot tax the federal government
o If the states were allowed to tax the federal government the federal government could be brought to its knees by overtaxation

Front 24

Gibbons v. Ogden

Back 24

o FACTS - Ogden is granted exclusive right to operate his steamboat btwn NY and NJ. Gibbons has license from the federal government to run his steamboat and does so in the same route as Ogden.
o HOLDINGS
 Commerce = any commercial transaction that involves the exchange of money
 “Among the States” = any commerce that affects 2 or more states, even if there is no actual “entry” into the other state (catapulting people across the river still counts)
 Congress’s power to regulate interstate commerce is exclusive, and therefore a state cannot exclude federally authorized operators.

1. Internal limits: a limitation inherent in the commerce clause itself you would only need to examine the clause itself
2. External Limits: limits impose on the commerce clause from outside of this clause elsewhere in the constitution. Ex. 1st amendment.

Front 25

Champion v. Ames (Lottery)

Back 25

o FACTS - Federal Lottery Act prohibited the interstate transportation of lottery tickets. D shipped tickets from Texas to California.
o HOLDING – the end does not have to be commercial so long as the means are
 Passes the rational relationship test - regulating commerce is one of Congress’s enumerated powers, the end is constitutional because it falls under the Police Power of congress, and it is not specifically prohibited by any other part of the constitution
 Seperation of Powers Rationale – the court has no authority to look at the “motives” of Congress, the only thing the court should do is see if there is a plausible connection to a constitutional end.

Front 26

Commerce Clause police power: (3 things)

Back 26

c. 3 Categories of Activities Congress can prohibit in order to protect public health and welfare under federal police power:
i. #1 – Goods harmful to interstate commerce itself
• diseased animals that could spread disease
ii. #2 – Commercial Items that are harmful
• adulterated/mislabeled articles
iii. #3 – Noncommercial items that constitute “evil activity”
• like lottery tickets or stolen goods

Front 27

Houston, East and West Texas Railway v. US (The Shreveport Cases)

Back 27

o RR running 2 different routes, one running in Texas, one running from Texas to Louisanna. There was price discrimination – they were charging a lot more the route within Texas. There was no compelling economic reason for doing this. Congress steps in and says that the RR can’t charge more for interstate transport than instate transport. RR challenges.
o RULE/TEST – Congress can regulate IN-state commerce if there is a close and substantial relationship to INTERstate commerce
 The interstate commerce cannot be regulated without the regulation of instate commerce
o Notes
 Further expands Congress’s power under the CC
 Takes a “big picture” view of things – most of the time interstate and in-state commerce are inextricably related, not separate entities.

Front 28

US v E.C. Knight – manufacture v commerce

Back 28

Restricting the Commerce Clause Power
• US v E.C. Knight – manufacture v commerce
o FACTS – American Sugar refinery has a monolopy on the manufacturing of refined sugar. The government goes after them under the Sherman Anti-trust Act.
o HOLDING – the Sherman Act does not apply to this situation because it is manufacturing rather than commerce. Applying it the other way would make the act unconstitutional so the court doesn’t do that (Ashwander)
o RULE – Congress does not have the power to regulate manufacturing

Front 29

Hammer v Dagenheart

Back 29

o Congress passes a statute that prohibits the interstate transportation of goods produced at factories that employ children under 14.

ii. Wages and Hours
1. Can’t regulate (no longer good law)
a. Child Labor Hours and Wages - Hammer v. Dagenhart
1. Dual federalism
1. Congress created Child Labor Act which forbid interstate commerce involving factories which employed extreme child labor. However, court held that the state has the right to regulate child labor;
2. Public health is at issue
1. The court was regulating Wages instead of the pants/lottery tickets, so CC power denied.
3. 10th amendment
1. Said the power to regulate manufacturing was reserved for the state.

Front 30

Carter v. Coal Co.

Back 30

• F: problem in the coal industry and unrestrained competition with overproduction of coal and the prices were being driven down and almost no coal companies were making any money and they were paying their employees like nothing.
• Act set up local boards that could control wage and hour conditions for those coal workers in those particular regions. Challenge to this wage and hours provisions. In effect by the gov’t exceeds Congress’s power to regulate interstate commerce.

b. Wages and Hours - Carter v. Coal Co.
1. Direct v. Indirect test (Replaced with Appreciable Effect Test – if there is an appreciable effect on interstate commerce, regulating is OK)
• If local actions don’t exert DIRECT EFFECT on interstate commerce, it lays Beyond Scope of interstate commerce.
• Congress was trying to regulate intrastate matters. Wages and hrs aren’t interstate and don’t effect directly. If
Proximate Cause
• The wages on the production of coal is not proximately related to commerce

Front 31

NRLB v Jones and Laughlin Steel Corps

Back 31

o Congress passed an act saying that companies could not punish workers for forming or being active in a union
o The effect on interstate commerce was that there was a significant threat of widespread striking which would have a huge detrimental impact on interstate commerce
Can Regulate
Unions - National Labor Relations Board v. Jones and Laughlin Steel – prohibited businesses from firing workers for joining unions
Close and Substantial Relationship
• Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.

Front 32

US v. Darby

Back 32

Can regulate

Workers making commercial goods - US v. Darby – Overruled Hammer
• Exercise of congressional POLICE POWER
Court applying Protective Principle of Lottery Case – they can protect interstate commerce from being used as an instrument to spread evil – unfair competion
Fair Labor Standards Act set maximum and minimum wages for workers making goods for interstate Commerce and prohibits goods being shipped into interstate commerce made by those underpaid/overemployed workers.
• Dismisses 10th Amendment argument
Calls it a “truism” – does not grant states any more power than they already had at the time of the ratification; and that the relationship between Congress and the local level fundamentally existed.

Front 33

Wickard v. Filburn

Back 33

Cumulative Impact Doctrine

• USC pases Agricultural Adjustment Act to combat overproduction of wheat – nationwide quotas/cielings on wheat production all the way down to individual farm. P exceeds quota, but argues that Congress’s regulation doesn’t apply to him concerning wheat grown for his own personal consumption (its not going to end up in interstate commerce)
• Court is apply a consequentialist analysis – while his impact would be miniscule, if everyone did it, then it could damage interstate commerce by compromising quotas
• PRESUMPTION OF CONSTITUTIONALITY
Court is generally reluctant to intervene in economic sphere b/c of assumption that if majority of Congress voted for it it’s at least rational.

Front 34

Perez v. US

Back 34

• Upheld a federal statute prohibiting extortionate credit transactions basically loan sharking. There is very little loan sharking that would take place in an interstate commerce setting rather it is a local activity. Here they defer to Congress on their findings that the loan sharking is exerting a substantial impact on interstate commerce. This is the high tide of the indulgence of Congress by the court. Looking at the aggregate effects again like Wickard v Filburn

Congressional power b/c it almost inherently takes place at local level
Court upholds statute taking loan sharking as an aggregate class of activity – defers to Congress’s findings that loan sharking as an aggregate activity has a large effect on interstate commerce.
Discrimination

Front 35

Heart of Atlanta Motel v. United States

Back 35

• Title 2 of Civil Rights Act of 1964 outlaws racial discrimination in public places – federal law making state discriminatory policy illegal. Hotel is in prime location, had policy of not renting rooms to negros. Action is brought to force hotel to conform to Title 2
• Court could have upheld Act based on 2 Constitution provisions, and chose easier route by selecting Commerce Clause (avoiding of constitutional conflict and amendment – i.e. Ashwander Rule)
Commerce Clause – chosen reasoning – if blacks can’t sleep or eat while traveling, it will discourage interstate travel and effect interstate commerce.

Front 36

Katzenbach v. McClung

Back 36

• Ollie’s BBQ is a family-owned restaurant in Birmingham – extremely local clientele. Refused to serve black guy traveling through w/ his fam
• The point of this case is that the courts can find a link between any economic activity and the Commerce clause, if they want to.
1. Cumulative Impact Doctrine – if everyone does this, it will effect interstate commerce
2. The substantial impact found was the reduction in business traffic, the reduction of food consumed, and dissuasion of professional people to move to that area
• This case represents the high water mark in the court’s expansion of Congressional regulatory power under the Commerce clause

Front 37

US v. Lopez

Back 37

Challenge to the Gun-Free School Zones Act of 1990, which made it a federal offense for to knowingly possess a firearm w/n a school zone.
• “substantial impact” doctrine - you CANT just say it anymore – you have to show actual evidence in regard to purely local activities – plausible possible theories are no longer sufficient.
• FEDERALISM CONCERNS
• must protect the divide and relationship b/w fed and states, and state soveriegnity.
• This would displace the explicitly state powers concerning education and law enforcement.
• FACTORS COURT WILL NOW CONSIDER FOR FED REGULATION, SINCE THEYRE NOT JUST ALLOWING EVRYTHIN
• Nature of activity being regulated
• Whether there’s a jurisdictional element
• Whether there’s some sort of interstate commerce connection (lesser factor)
• Federalism concern – whether activity being regulated is one traditionally regulated by the state
• Opinion will be at least influenced by whether the problem being addressed is one that needs to be addressed on a national scope.

• Analysis: Filburn case even though wheat was individual it was commercial while the gun was not so much. The court is not returning to Carter v Carter Coal but returning at least to an approach of worrying about what the activity has to do with. Congress is trying to reach activity that does not have an inherent commercial nature. There is also a flaw in the statute here, the statute does not require that we know where the gun came from. Certainly you would have a stronger statute if you include a jurisdictional element.

• There is no plausible economic dimension to having a gun in a school zone. It is one thing to regulate a local activity that has an economic dimension and regulating an activity that has no kind of obvious or subtle connection to interstate commerce.

Front 38

US v. Morrison

Back 38

The 1994 Violence Against Women Act (VAWA) was the product of four years of congressional hearings that documented the prevalence of violence against women, its impact on the nation, and the states' failure to protect women from such crimes. Citing specific evidence of a substantial effect on the nation's economy and bias in the state justice systems, Congress used its authority under the Commerce Clause and section 5 of the Fourteenth Amendment to enact the Civil Rights Remedy of VAWA (section 3981). The Civil Rights Remedy enabled victims of gender‐based violence to sue their assailants in state or federal court for compensatory or punitive damages, declaratory or injunctive relief, and attorneys' fees.

Supreme Court ruled the Civil Rights Remedy of VAWA unconstitutional. Evaluating the same factors considered in United States v. *Lopez (1995), the majority found violence against women to be noneconomic in nature and outside Congress's legislative jurisdiction. Writing for the Court, Justice William H. Rehnquist emphasized that gender‐based violence was a local issue and therefore inappropriate for federal legislation.

1. Written by same majority as in Lopez
2. Court held the civil remedy provision of the Violence Against Women Act unconstitutional
3. Court found the connection between violence against women and commerce too attenuated, despite legislative history full of evidence of affects on commerce

The court meant what it said in Lopez, and there was no significant commercial impact here

Front 39

Gonzales v Rach

Back 39

o Congress prohibited growing marajauna for medicinal purposes
o HOLDING – the court upheld this as a proper exercise of congress’s power
 This is an intrinsically commercial activity
 Look at the bigger picture (tealology) if the court struck this down then it would inhibit Congress’s ability to control other drugs
o CONCURRENCE (Scalia)
 Under the necessary and proper clause Congress has the power to regulate local pot growers because it is necessary to get to the constitutional end of regulating illegal drugs

A. Court upheld a federal ban on growing marijuana which was legal under CA law for medicinal purposes The court pointed to Wicker v. Filburn – the court in both cases
1. This is a little different; but the idea here is that even if they say idea is just growing pot at home for medicinal purposes, there is a strong demand for pot and inevitably some of this will get out into interstae commerce; nieve to think that none of it will make it’s way into the interstate market
D. This is not a retreat from Lopez or Morrison; not much in opinion about whether activity has a commercial nature in the aggregate or its having a substantial impact on interstate commerce
E. The distinction on the court’s mind is that growing marijuana even though itself doesn’t have an immediate economic dimension, it does seem to have an inevitable economic association in that people buy it and consume it in much the same way that they sell wheat; this is main reason why court doesn’t see case as strongly governed by Lopez
0. Economic – “the production, distribution, and consumption of commodities”

Front 40

ational League of Cities v. Usery – (Overrules Wirtz) Overruled by Garcia

Back 40

• Sought to extend the Fair Labor Standards Act across the board to all employees of state and municipal Governments. Court said it infringed on the constitutional provisions of the state
• Three-Prong analysis
1. Do the wages and hours of the state and municipal worker affect interstate commerce? Yes
2. Do the wages and hour regulation have a plausabile relation to a legitimate goal? Yes
3. Is regulating the Hours and wages prohibited by some specific provision of the constitution? Yes, 10th amendment
• External Limitation on CC
1. Invoking Hammer v. Dagenhart, Court says FLSA violates the 10th amendment – perhaps telling the states how to allocate funds strips them of their sovereignty
• Governmental Immunity from Congressional acts (all must be satisfied) – as espoused in Garica
1. Federal statute regulates “the states as states”
2. The statute must address matters that are indisputably attributes of state sovereignty
3. State compliance with the fed obligation must directly impair their ability to structure integral operation in areas of traditional gov’t functions
4. Nature of the regulation to interest must not be such that the nature of the fed interest justifies state submission

Front 41

Garcia v. San Antonio Metro Transit

Back 41

State and Municipal Workers – Garcia v. San Antonio Metro Transit – Overruled Usery

F: Congress enacted the FLSA. Garcia sought overtime pay from the transit authority under the FLSA. The trial court said the application of the FLSA would violate the constitution.

HOLDING: not a violation of Commerce Clause power. Gov't CAN enforce FLSA on overtime regulations

• Unworkability of Usery test
1. How do we know what are “traditional, integral functions of state gov’t? State sovereignty is better protected by procedural safeguards such as state representation in senate. This is the argument presented in McCulloh v. Maryland.
2. Court doesn’t see anything in the FLSA that is destructive of state sovereignty.
• Usery misread 10th Amendment
1. Held like Darby – 10th amendment is a “truism” and not a functional legal doctrine for state’s rights.
• Judicial Restraint
1. “Usery case was disrespectful to the states… better to let them protect themselves through state representation.

Front 42

New York v United States 1992

Back 42

Statute for the disposal of low level radioactive waste which the court feels is a mandate from Congress to the states about how to deal with this and that Congress cannot do this and it is unconstitutional. Basically the federal government is trying to dump the waste on the states. If a state cannot deal with the waste then they can regulate the waste in which the way congress says or the state can take possession of the waste. We are worried about the last provision where the state takes title.

• Low-Level Radioactive Waste Policy Act: fed govt trying to put responsibility for dealing w/ radioactive waste to the states, - they either have to take title to their nuclear shit, or enact a certain set of federal regulations.
a. Courts Problem w/ statute is with the means, not the ends
i. Statute that is directed ONLY towards the states AS states is different from one directed at individuals or groups of citizens (such as Garcia).
1. Federal gov’t can’t just TELL state govts what to do – “here is the kind of law that you must enact – must give these two options” – this is not a policy chosen and implemented by the states, it is chosen and implemented by the feds – and it is a serious infringment on state sovereignty.
2. Congress can regulate individuals under the commerce clause, but it cant force the states to enact regulations.
0. Incentives to adopt legislation; permissible
b. Disconnection b/w Incentives and Regulation
i. Must be connection b/w behavior sought and incentives, which doesn’t exist here – i.e. withholding funding f/ nuclear waste disposal.
a. FEDERALISM OVER THE 10th Amendment - wasn’t a possible way of overruling this cause it had been dismissed as a truism, SO, the court uses the broad structure of the Constitution and the federalism inherent in it to infer that it is reasonable to infer that the act is beyond the constitutionally-assigned power of Congress
i. Re-imposes the notion of dual federalism as put forth in OLD cases like Hunter’s Lesee
a. ACCOUNTABILITY ISSUES- it’s kind of shitty for fed gov’t to force state employees to carry out their policies, cause if the people don’t like them they’re going to blame the state ppl for policies they didn’t even create! Can’t let fed gov’t enforce policies w/o accountability.
a. FINANCIAL IMPOSITION- this policy reduces states’ ability to manage their money and expend it in the ways THEIR ppl see fit!

Front 43

Printz v. United States

Back 43

Restriction on Commerce Clause Power - regulating states as states
1. Challenge of the Brady Act, gun control legislation which established a national instant background check system - ACT STRUCK DOWN AT USC.
2. Federal legislation of a program, with an order to the states to carry out that legislation, is generally not allowed (relying on NY case, above, 1992)
a. To the extent that the federal government makes the state devote resources to carrying out a federally conceived program, then the state is left less room to carry out programs of its choosing
3. ACCOUNTABILITY ISSUE – state employees are having to enforce the mandatory background check policy, and incurring unpopularity f/ it

Front 44

South Dakota v. Dole Case

Back 44

construing Congress's power under the spending clause

• Facts:
1. The statute here directed the Secretary of Transportation to withhold a portion of federal highway funds from states that did not prohibit the purchase of alcohol by people under the age of 21.
• Court imposed this regulation because the 21st amendment gave the states exclusive power to regulate alcoholic beverages. (EXTERNAL LIMITATION)
• Spending is subject to limitations:
i. The exercise of the spending power must be in pursuit of the general welfare
• Courts should defer to the judgment of congress
. If congress desires to condition the state's receipt of federal funds, it Must do so unambiguously.
. Grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs
. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds.
• Majority: the spending limitation did was not coercive because the state would only lose 5% of funds if it did not adhere to the regulation.
• O'Connor dissenting
o Says that limiting highways funds that a state receives is not really related to controlling the drinking age.

Front 45

Youngstown v Sawyer (Steel Seizure)

Back 45

o FRANKFURTER V JACKSON
 Jackson’s approach is that if Congress says the president can do A, B and C, but not D, the president can do A, B and C, definitely not D, but also not E or F because they were not addressed
 Frankfurter’s approach, on the other hand, is that under the same circumstances, the president could not do D, but could maybe do E or F

Front 46

Dames & Moore v Regan

Back 46

a. Prez Carter froze all Iranian assets in the US in response to Iranian Hostage Crisis. D & M had a land surveying K w/ Iran and they didn’t pay. Prez had three requirements under the agreement to release the hostages

a. Court upheld Prez’s power to perform these conditions, under difft rationales.
i. Pertaining to first two provisions, the IEEPA statutes confer on the President the power to make these executive provisions.
1. First two provisions are easily justified – falls into first category of executive powers (specifically granted by Congress).
2. Third Provision – falls within the “Twilight Zone” Jackson category – Congress hasn’t specifically granted or forbid this action. Therefore the 3 factors must be analyzed.
a. HISTORY: general tenor of Congress’ legislation, acceptance of such behavior
b. Long accepted that presidents have authority to enter into executive agreements (outside of treaty process)
c. Recognizes that a president, while not having inherent authority, is not totally lacking in authority
d. Circumstances reasonably called for immediate action
b. NOTES
i. Rehnquist applies Jackson test, but Frankfurter’s conclusion, that the president might be able to do things legislation has not spoken on
1. President gets more deference in the international sphere than in the domestic sphere
2. Long-standing principle of the judiciary to provide the president broad discretion when dealing with international affairs
c. Rehnquist noted that Congress cannot foresee every situation in which the president may need to act (p. 350)
ii. D&M v. Youngstown
a. D&M court found legislative approval where Congress had given none, which inverted the logic of Youngstown, where they construed statutory nonapproval to mean legislative disapproval!
a. D&M court also condoned legislative inactivity at a time that demanded interbranch dialogue and bipartisan consensus

Front 47

INS v. Chadha

Back 47

a. D an alien whose visa has expired – no question that Chada is imminently deportable. Provision in Immigration Naturlization Act – attorney general can suspend deportation if he met certain criteria.
b. Chada met these criteria (i.e. he’d suffer extreme hardship if deported). His deportation was suspended by the Attny General.
c. Same act that gives Attorney General right to suspend the suspension gives either branch – House or Senate – power to OVERRIDE attorney general’s suspension and kick the alien outta the country – they do so in this case.

a. Congress doesn’t have constitutional authority to create law single handedly – it must go through the legislative process of bicameral passage and presentment
i. While the legislative veto is efficient., efficiency is not the overriding value of the Constitution. Constitutional separation of powers cannot be eroded for convenience.

b. DISSENT – Justice White
i. Principled Objection: Many organzations have law-making capability.
1. i.e. – If FDA makes a ruling that VIOXX should go off the market, that ruling is law – there will be penalities for attempting to sell it.
ii. Bicameral passage isnt necessary for this and other organizations.
iii. Practical Policy Argument – if we don’t give delegation powers to other organizations it gives massive power to the legislative branch

Front 48

US v. Nixon

Back 48

Attempt to use executive immunity to block judicial branch

a. Nixon gets busted as a conconspirator in Watergate, subpoened to provide tapes of private discussions b/w him and his cronies. He first tries to release limited, censored versions of tapes and transcripts (18 min gaps) – NIXON IS A SHADY MUTHAFUCKA.

a. Court acknowledges that Prez has qualified executive priviledge, esp concerning nation defense – while this is not laid out in Const, its structurally inferred from separation of powers and Article 2.
b. NIXON’S EFFICIENCY ARGUMENT
i. that allowing everything said in Oval Office to go to the press would compromise candor and efficiency of executive function – court dmisses that argument, saying it wouldn’t effect communicative openness b/c judiciary will not
c. COURT PROTECTING JUDICAL POWER – by not letting the Prez dictate what evidence we can and cannot hear.
d. SCARCITY OF OTHER EVIDENCE
i. If special prosecutors couldn’t get their hands on the tapes, there are no other sources of evidence – i.e. no case. Also, need for evidence in criminal suit is greater than that in civil suit (b/c of higher degree of proof necessary).
1. see insider trading example with Attorney General in notes
e. COURTS AND OVERRIDING EXECUTIVE PRIVILEDGE – while in this case P attempted and overcame exec privileged, in other

Front 49

Morrison v. Olson

Back 49

a. Congressionally-created Ethics in Govt Act granted judiciary the right to create independent counsel f/ investigating federal criminal offenses – could only be removed with good cause as specified under the statute, and the removal could be appealed.

o Attorney General could recommend that an independent counsel be appointed to investigate criminal charges for high ranking officaials, and then a judicial board would appoint the independent counsel. Congress required that the independent counsel could only be dismissed “for cause.”
o ISSUES
 Does the board appointing the independent counsel encroach on the president’s power?
• The president shall appoint all officers of the US BUT… Congress can appoint “inferior” officers. The Independent counsel is an inferior officer
 Does the “for cause” limitation violate separation of powers?
• TEST – Do the restrictions on removal impede the president’s ability to perform his constitutional powers?
• Instant case - no
o HOLDING – upheld the legislation
o PRECEDENT
 Meyers v US
• The president has the power to dismiss any purely executive officer at will
 Humphry’s exectuor v US
• congress could place some restriction on the president’s ability to remove head’s of agencies that do quasi-legislative or quasi-judicial functions
o DISSENT – Scalia
FORMALIST approach
* Strict approach of separation of powers, this violates it


• How it works: the Attorney General gets credible evidence of possible wrong doing by high ranking gov’t officials. You have to investigate then report your findings to the special panel of judges called the special division. If the AG believes there is a need for further investigation then the AG applies to the special division for an independent counsel. Functional equivalent of the special prosecutor in the Nixon case. Now this position is institutionalized. Independent counsel has a lot of authority to investigate within these classes.

1. Narrow issue or technical question of whether the appointment of the independent counsel by this special division of judge’s exceeds the power of the courts under article 3, or it encroaches on the authority of the President. Appointments clause: officers of the US should be appointed by the President, and here the IC was being appointed by the special division of judges. Loophole in the clause: Congress can vest the appointment of inferior offices in the courts of law or in the heads of departments. Since this is someone who is appointed by the court this is ok assuming the independent counsel is an inferior officer. The court agrees and upholds the appointment and he falls within the loophole.
2. Whether the authority and independence vested in the Independent Counsel violates the separation of powers and infringing on the President’s prerogatives.
• Whether the restrictions on the Attorney General’s power to remove the IC encroaches on executive authority? Right up until the time this case was decided we would have found that in the black letter law two rules. Rule #1 Myers v US purely executive officers can be removed by the President at will. Myers was an attempt to restrict the Presidents ability to fire the Post Master. The court said the President can remove the Post Master. Second rule: Humphreys executor v US: Congress could restrict the President’s ability to remove heads of what were termed quasi legislative or quasi judicial agencies, such as the federal trade commission, FDA etc. If you call these quasi then you get around the problem of the unitary executive. Usually the requirement is only for good cause can you dismiss. If you apply both of these rules to this case clearly the provision is invalid and must be struck down. The duties of the IC is purely executive is quasi nothing.
3. The court decides not to follow their rules in this case. They say they will not read Myers literally (which Stern says is not logically) the court says we should not create rigid compartmentalization. “such a nature that they impede the president’s ability to perform his constitutional duty” Is the restriction on the President’s power to remove an official going to keep him from doing his job. This standard is so vague you could pretty much justify anything.
4. Crucial question is whether the Ethics in Gov’t Statute as a whole excessively intrudes on the President’s authority. Here see the stark contrast between the formalist and functionalist approach. If start with Scalia and subscribe to a strict adherences to sharply divided gov’t meaning the three branches are separate and have autonomy within their own sphere then clearly it is improper and invalid to diminish even a single thing of the President’s power. The court should not put up with tampering of the powers of one of the branches. This is the formalist approach.
5. The majorities approach is functionalist or pragmatic. They think the branches are only separated by a “wire fence” yes they are separated but not completely and they do not feel that this intrusion on the President’s power is only limited and does not affect his ability to carry out his constitutional duties.
6. The majority says this does reduce the Presidents power some but it is ok, but Scalia says it diminishes the President’s authority and then stop that is it, the statute is unconstitutional.

Front 50

Question: how do independent agencies fit into the constitution?

Back 50

• By statute the President can only remove the heads of these agencies for good cause because they are not purely executive and rather quasi legislative or quasi judicial. If the court in Morrison v Olson had gone the other way and found that this statute was unconstitutional. Before this the Chadha case the Bowsher case the court followed a rigid and formalistic view of separation of powers. If the court took this approach here (Scalia) it would have invalidated this provision of the Independent Council provision, but then you can’t stop there then logically the next step is going to be to question the validity of these independent agencies. Such as the FDA and the federal exchange commission. Scalia thought that Humphreys was wrongly decided and there should not be independent agencies. By the time of this case there are certain things that are settled about the modern government and it would cause too much upheaval to get rid of the independent agencies.

Front 51

Bowsher v Synar in the spirit of Chadha

Back 51

• F: constitutional question on the Gramm-Rudman Hollings Act (designed to deal with the federal deficit) which mandated automatic across the board spending reductions in the federal budget under certain circumstances such that the deficit exceeded the target deficit. The Comptroller general is in charge of effectuating these cuts he is the head of the General Accounting Office, nominated by the President from a list provided by the Speaker of the House and Senate Pro tempore. This role of the comptroller general causes the court to strike down this provision. This is in the spirit of the Chadha decision, and will not allow Congress to infringe on Executive authority. On the other hand, the court does not decide this case on the basis of the rule of Chadha that all law making has to occur through the constitutionally prescribed process of the bicameral passage and signed by the President.
• Analysis: To permit an officer controlled by congress to execute the laws would be in essence to permit a congressional veto. Analogize one house of Congress and legislating with a legislative officer carrying out executive functions as both unconstitutional. The court sees no way to get around the fact that Congress has retained removal authority over the CG he may not then be entrusted with executive powers.
1. In Chadha terms we would call the action of the Comptroller General legislating. This
Would technically be a new statute which would need to be passed again. Justice Stevens
And Marshall believe this is the way that the majority should have decided.
2. In actuality the Comptroller General was being an executive and carrying out the act. But
Congress retained removal power so that was side stepping the executive branch. He was basically an agent of Congress. A legislative actor may not execute the law. They should have made him removable at the will of the President to make it constitutional.
3. White in dissent: the court should look at this realistically and look to see whether this
Really upsets the balance of powers not just abstractly or formalistically. Also the same dissent from Chadha that there is not strict compartmentalization of the branches we lost that battle a long time ago ex. The admin agencies. Functionally this statute does not upset the general equilibrium or balance of power.

Principle of the Unitary Executive: article 2 vests all executive authority in the President and his subordinates so under the constitution we have distinct types of powers and if it is executive here then that is power that cannot be exercised by Congress. Ex. Removal of executive officers, and carrying out of the law.

Front 52

Clinton v NY:

Back 52

Return to Chadha Analysis against exec – Prez cant law-make

a. Line item veto act enabled prez clinton to cancel/change certain spending items of his own volition.
2. HOLDING
a. Court invalidated federal line item veto act - Predictable based on Chada.
b. Same principal as Chada – bicameral processes for creating law – w/ line item veto, prez’s altered legislation qualifies as NEW law (different spending budgets, etc)
i. the Framer’s intentionally meant to withold the power to veto particular items (esp expenditures) in particular legislation.
3. NOTES
a. Why was the court divided if this was an obvious case?
i. The way the line item veto was enacted was a delegation
1. Delegation – all delegations of the last 70 yrs have been permissible
b. How can we say that bicameral passage is only way to create law when agencies create law all the time?
i. b/c agencies are acting under direct order from Congress to accomplish a certain goal, and laws created under that premise are considered as getting Congressional approval.
ii. nondelegation doctrine- agencies need specific doctrine – outdated – last 70 yrs of delegation have been permissable.
c. Scalia’s argument- the cancellation permitted to prez under line item veto act is same as permissable delegation – lawmaking other than in specifically–prescribed for (via agency)

Front 53

Southern Pacific Co. v. Arizona- BIG case – Epitome of Modern DCC, Post-Dowling

Back 53

1. Arizona passed legislation limiting lengths of all train cars operating within the state – interstate carrier challenged statute, claiming that it unduly burdened interstate commerce (impermissibly interferring with interstate commerce) – it effectively dictates to other states what their train’s lengths have to be – instead of breaking up their trains at the borders, they’ll just run all of them at lower lengths to avoid difft state regs– huge burden on IC. Also, most other states already tolerate longer trains.
B. HOLDING
1. BALANCING TEST - Court candidly admits that this type of regulation has 2 dimensions to balance
a. #1 – state has safety interest under the “police power” - inherent power of the state to protect its citizens.
b. #2 – this regulation interferes w. interstate commerce
i. Must conduct balancing test b/w state interests and adverse effects to interstate commerce
2. RESULT – non-existent state safety concerns are massively outweighed by burden to IC regulations present – too much of a hassle for all states to comply
a. Court looks to the validity of the state interest – its relative weight – gives FAR LESS deference to the state legislature’s discretion than was given in Barnwell.
C. NOTES
1. POPULARITY REASONING – if 40 states had adopted a similar legislation to Arizona, burden on IC would be far less – but b/c only 2 had them, it’s a burden.
2. ABSENCE OF FED STATUTE– there is no federal statute on point here, therefore court has to guess what Congress would approve on this subject – after this decision Congress could have expressly permitted the kind of regulation Arizona had enacted through creating statue.
a. Congress can always come in and supercede the court’s judgment on what the Court’s think Congress’s will is.
3. IN SUMMATION: This case represents the Court changing it’s mind from the early Barnwell decision, b/c its after the DOWLING PAPER is published!
a. Barnwell- if the state can come forward and bring any remotely plausible safety measure, we won’t second-guess them
b. Southern Pacific- we will second-guess the states’ safety measures as we see fit, and override their regulation.

Front 54

Bibb v. Navajo Frieght Lines – Reiterization of Court’s ability to judge SI validity

Back 54

a. The Mud-flap case – trucks on IL highways must have contoured, rather than the common flat mudguards (45 states only require flat mudguards) – to change mudguards they must be welded on – 4 hour process – at border of IL. Conflicting requirements w/ Arkansas…– Arkansas REQUIRES straight mudguards.
2. HOLDING
a. BALANCING TEST
i. State interests: lack of evidence f/ actual safety benefits – no good reason for the regulation!
ii. IC Inference – huge, b/c of transferring guards, etc Perishable food could… perish.
b. This case represents FACIAL DISCRIMINATORY REGULATION – therefore the discrimination doesn’t have to be closely examined.
3. NOTES
a. STERN: on the other hand there is a subtle form of protection for a burdensome statute
i. If the trucks route is within states that have the same or no statute then trucking interest will be affected, but only initially (still must put on the mud contours, just don’t have to take them off in other places).

Front 55

Kassel v. Consolidated Freightways Corp

Back 55

Stupid safety standard doesn’t = valid state interest
A. FACTS
1. Bibb case, but with double-wide trailers – Iowa prohibits 65-foot double-wide trailers on their highwways, citing safety concerns – at trial, brings forht lots of evidence of dangers posed by these huge trucks “100,000 lbs of ROLLING DEATH! Also, the statute allows discriminatory permit practice that allows Iowa trucking companies to be exempt from the restriction.
B. HOLDING/NOTES
1. Plurality (majority all w/ different reasons) strike down statute for being overly burdensome to IC – unless state has special conditions which necessitate special regulations on vehicles, states should be able to dump their transportation problems and road wear and tear probs onto other states – cant shut down roads to one type of vehicle that other states allow – this will force other states to GO AROUND IOWA!
a. EXAMPLE OF APPROPRIATE SPECIAL CONDITION TO MERIT REGULATION – snow tires in Minnesota during the winter.
2. Balancing Test – burden on IC outweighs safety benefit
C. NOTES
1. PROTECTIONIST UNDERCURRENTS – court’s balancing test is more “for show” in this case – court feels that Iowa is just trying to exert barrier to other state’s commerce, and therefore court gives little consideration to state safety interests.
a. If they really posed a danger, they wouldn’t be allowed ANYWHERE in Iowa – but they are allowed at border cities – to Court, this suggests that they're reasoning is bullshit. Law would have been a lot more credible if it had been blanket for all of Iowa.
2. KASSEL v. BARNWELL
a. In Barnwell regulation was equally discriminatory to in/out of state interests, therefore its duty of legislature to repeal the regulation when everyone comes out bitching
b. HERE the regulation effects almost exclusively out of state interests, b/c of permit allowing natives to sneak around it.
i. LACK OF ACCOUNTABILITY: shrewd Iowa statutory “li-l scheme” to circumvent political culpability b/c legislature wont give a shit about adverse impact on non-voting out of state interests.

Front 56

Pike v Bruce Church

Back 56

Dormant Commerce Clause

o FACTS - Arizona has a requirement that all cantaloupes before leaving the state, be packaged and labeled as Arizona product. Church produces cantaloupe, but he has them packaged in Cal, and are not labeled as Arizona product. It would cost Bruce 200,000 to package them in Arizona.
o HOLDING – court strikes down the statute
 The statute is not facially discriminatory, but the burden on interstate commerce is much greater than the state interest
 In effect this will discriminate against California because it will take business away from Cal’s packaging industry and move it to Arizona.

If you discriminate equally between instate and out-of-state, statute may be valid. BUT, when only discriminate against out-of-state, likely to fail.

Front 57

Philadelphia v New Jersey

Back 57

o FACTS - P was looking for a place to get rid of it’s garbage, and had agreements with landfills in NJ and paid them money to take P’s garbage. NJ didn’t want the extra garbage. The statute banned out of state garbage being brought into NJ. P challenges
o HOLDING – court strikes down the statute
 This is explicit discrimination
 The court basically establishes a per se rule that if a statute is found to be discriminatory it is struck down, even if the state has a valid goal it is achieving with the statute
LEAST RESTRICITVE ALTERNATIVE
• Created in Dean Milk - When a state (or city) discriminates against out of state commerce, the court will strike down that measure if we can think of another measure that can accomplish the same goal with a different measure that doesn’t discriminate.
• The court here took it even further than in Dean Milk because there they actually came up with other alternatives, here they just assume that there is another alternative.
• The court is basically saying that discrimination is too drastic of a means to accomplish any goal
• The court is worried about the multiplier affect – if we let NJ do this then other states will as well.

Front 58

Hunt v Washington State Advertising Commission

Back 58

o FACTS - NC passed a law that said if apples were in crates it had to be labeled by the USDA grading system only. You can’t have a crate of apples that bears both the USDA and Washington rating label. Everyone agrees that the Washington system is higher than the USDA system.
o HOLDING – the court struck down the statute
 The statute isn’t discriminatory on it’s face, but in application it discriminates against Washington apple growers b/c their apples are better but people won’t know that without the Washington system
Least restrictive alternative – allow both labels

Front 59

Exxon Corp. v Governor of Maryland

Back 59

o Maryland passes a statute saying that refiners of oil cannot operate retail facilites in the state
o HOLDING – the court upholds the statute
 DISCRIMINATION
• Majority - This is not categorical discrimination of out of state actors as out of state actors. It is discrimination against oil refiners, not unconstitutional.
• Dissent (Blackmun) – there are no refiners in Maryland so all of the companies that are affected are out of state and therefore have no political voice.
 IMPERMISSABLE BURDEN – the statute creates an excessive burden on interstate commerce
• Majority – the statute is not burdening the overall flow of interstate commerce, just certain companies, and the DCC only protects the overall flow
• Dissent – the policy behind the DCC is that we should have one national economy and discriminating against particular potent out of state competitors goes against that

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Preemption

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• Opposite of the DCC – Congress has addressed the issue, and what Congress said is in conflict with the state action
• Express Preemption
o The Federal statute specifically states that it preempts state law
o Still requires interpretation as to the extent it preempts
o This is rare
• Implied preemption
o The federal statute does not say it preempts, so the court has to determine if it does
o Conflict Preemption
 There is conflict in the operation of the federal legislation and the state legislation
 Ex: Gibbons v Ogden – the federal licensing legislation preempted the state legislation
o Occupied Field Preemption
 Federal regulation scheme has been enacted to deal with a particular area and Congress intended for that to be the only regulation, no state regulation

This is a case by case analysis

Front 61

United Building v Camden

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o City of Camden NJ imposed a quota that if you contracted with the city you had to employ 40% Camden residents
o HOLDING – strikes down the quota
 Just because something escapes DCC analysis (market participant) doesn’t mean it escapes art. IV analysis
 2 PRONG TEST
• Is this a fundamental right?
o “fundamental right” here is a term of art that means is the right fundamental to the promotion of interstate harmony
o Instant case – out of state employee’s interest in employment is fundamental to the promotion of interstate harmony
o Ex: Montana charges non-residents more for hunting license than instate residents, this is not a fundamental right
• Is there a justification?
o Camden argues that unemployment caused by commuters from Philadelphia justifies the legislation
o The case is remanded to decide

Front 62

Intrepretivism (originalists) v Non-intrepretivism

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• Intrepretivism
o The court should adhere closely to the text of the constitution, it should not infer things that are not in the text
o Generally less restrictions
o Scalia is a strong intrepretivist
• Non-intrepretivism
o More inclined to find limitations

Front 63

Slaughterhouse Cases

Back 63

Economic Substantive Due Process

Test: Reasonably related to a persmissible state objective.

o Louisiana, in an effort to ensure quality meat (genuine health concern), passed a statute that created a monopoly within the state. Competing slaughterhouses challenged this as an abridgment of the right to own and use property. P contended that this was a right guaranteed by the P&I clause of the 14th amendment.
o The court upheld La’s actions saying that it didn’t violate the 14th amendment P&I clause because it reasonably related to a valid state interest. This made the P&I clause ineffective to regulate any state action.

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Lochner v New York

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"reedom of Contract”

o New York statute limited the number of hours that Bakers can work. The basis for the statute is that the work of a baker is very tough so it is a valid labor law, and there are public health implications to protect the quality of bread.
o HOLDING – the court strikes the statute down
 The majority created (read into the due process clause) freedom of contract
 This is extreme non-intrepretivism
 Basically the court says if we were in the seat of the legislators we wouldn’t have voted for this legislation – they are imposing their judgment for the legislatures
 The government has no right to interfere with employer-employee contracts
o DISSSENT – Holmes
 The majority is injecting their own personal views into their decision
 This opinion is admired because Holmes shared the same views as the majority but said that his views had no place in judicial review
 If a sane person could think this was reasonable state action that should be the end of our inquiry, not if we think it is good legislation. (similar to the rational relationship test)

Front 65

Nebbia v New York

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beginning of the end of Locknerism, return of rational relationship test

1. FACTS
a. NY tries to establish retail price of milk - minimum and maximum – grocer found to be selling below minimum, so NY brings suit.
2. HOLDING
a. Statute upheld under modern, post-Lockner approach – instead of approaching issue in terms of abstract “freedom of K” way, court LOOKS at relevant facts to determine “whether NY has factual foundation for thinking that setting minimum price of milk would support health of citizens and dairy industry
i. Rational Relationship Test – as long as there’s some plausible basis for NY to think this’ll help ppl and industry, court wont interfere
1. most lenient level of judicial review
3. NOTES
a. TOTAL INVALIDATION OF LOCKNER
i. court announces that its “getting out of the business” of second-guessing the policy decisions of the legislature
b. PRESUMPTION/DEFERENCE TO STATE LEGISLATIVE VALIDITY
i. “state is free to adopt any legislation reasonably designed to promote public welfare”
ii. Legislature is the judge of such enactments – all assumptions should be in favor of them”
c. COURT SPECIFIES WHAT’S UNCONSTITUTIONAL
i. Court found that price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt
1. must be an “unnecessary and unwarranted interference with individual liberty”

Front 66

West Coast Hotel v Parish

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• F:Overrules a decision from the Lochner era and upholds a minimum wage standard for women.
• A: the legislature can take into account that womens’ wages and bargaining power was weak so the legislature should be able to protect them. What is shocking about this is that the Lochner case explicitly said they could not do this. The Lochner court felt that the gov’t does not have the constitutional authority to interfere with private contracting to make the parties more equal this is the price of economic freedom. Now the court is saying no it is under this relaxed approach that the court will be applying in the realm of economic regulation under substantive due process it is permissible for the gov’t to take into account and to act upon the consideration that a certain class of persons has less economic clout and leverage then those who they are contracting with.
• Regulation which is reasonable in relation to its subject and is adopted in the interest of the community is due process. Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is entitled to its judgment.

1. Court upheld a state law establishing minimum wages for women
a. Court took into account that the bargaining power of women in that area was relatively weak; (antitisis of the appraoch that the court tooki into account in Lochner - that any bargaining inequality is inherit in the liberty to contract. Some businesses will not survive) legislature was entitled to make that adjustment in the market under rational relationship test.
2. EXPRESS REPUDIATION OF LOCKNER
a. The Lochner court would have thought it was entirely wrong of the legislature to make such adjustments in the market, as inequality/unequal power is the price of a free market
3. Standard of review was whether the legislative response to the situation was arbitrary or capricious
a. Court found the legislature was entitled to its judgment
4. COURT’S NEW PHILOSOPHY
a. wholesale deference to legislature concerning commercial and economic policy-making- court totally avoids the question of what “they” would do, rather they examine whether it was rational that the legislature did what they did

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US v. Carolene Products

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1. FACTS
a. Federal Filled Milk Act prohibits shipment of aduleterated milk – mixed with veg oil – from interstate commerce, D violates and is prosecuted
b. D moves for demurrer claiming that act violates his due process rights.
2. HOLDING
a. Act is constitutional – Court holds that the burden of demonstrating the lack of any rational relationship is on the party challenging the legislation.
i. The court deliberately closed its eyes to the fact that the legislation was based entirely on special interests, with no actual legitimate goal
ii. This is a near impossible burden of proving a negative.
3. NOTES
a. LIMITS OF COURT DEFERENCE
i. This extreme deference applies only to specific areas of legislation, like economic/commercial ones.
ii. *Only qualificiation – when we talk of courts beingn so permissive, keep in mind the kind of legislation this applies to; they are talking about legislation in the areas of economic and social welfare (products, prices business, ) – all of these courts will apply rational relationship std.
iii. **Footnote #4 - when we start talking about individual rights and liberties like freedom of speech or the right of privacy then the approach is not so deferential and when the face of statute encroaches on one of these rights and liberties the court takes a less deferential approach and takes a stricter standard
b. THE FAMOUS CAROLINA FOOTNOTE
i. THIS case is an exception to the general rule – when we’re dealing w/ legislation that on its face violations liberties, we’re going to look at it more closely
1. Court is cautioning that just because we’re deferring to legislation here, doesn’t mean we’re going to let everything go by or stop watching shit.
a. When it comes to deciding how economic pie is going to be carved up – when it comes to specific rights that are in the bill of rights, we are NOT going be so deferential as the general rule implies
ii.
c. COURT FURTHER EXPANDS DEFERENCE IN SUBSEQUENT CASES
i. Williamson v. Lee Optical- extreme rational basis
1. Oklahoma statute requiring that anyone wanting a lens had to obtain scrip from optician/opthamologist
a. no legitimate purpose f/ this legislation other than benefitting opticians
2. But court doesn’t say that – dances around real purpose of legislation (special interest grps that got to legislature) – instead, Crt comes very close to saying “Ok Oklahoma, u thought this was a good idea and that’s good enough for us”
a. This is an extreme form of rational basis test – OK doesn’t have any pronounced reason for this, but court in speculation can think of how “a leglislature” could have possibly formed this.
3. Court says they will no longer use the DP clause to strike down laws because they may be unwise or improvident
ii. Ferguson v. Skrupa, 1963 – ULTIMATE rational basis test
1. Kansas passes law that says “if you wanna be a debt adjustor, you have to be a lawyer” – blatant favoring of lawyers.
2. Court goes further than Lee Optical – court says “here are some reasons that might work, so legislations are ok” - if legislation thought it was a good idea, that’s good enough for us
a. “up to legislatures, not courts, to decide on the wisdom and utility of legislation”
b. *there is vitually no chance that the court will strike down under substantive due process
c. ***lawyers still try to raise substantive due process challenges which is surprising b/c they’ll def fail

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United States Trust Co. v. New Jersey

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1. FACTS
a. NJ wanted to divert revenues to support mass transit system, changes K legal rules. The money was coming from money that was agreed w/ bondholders would NOT be used particularly for this purpose
i. NJ is violating its contract w/ bondholders to use money for other purposes
2. HOLDING
a. Court strikes down NJ’s law, which was an attempt to weasel out of their K.
i. This decision signaled a new life for the K clause, but was considered at the time to be a “flash in the pan” – Wrong.
b. UNFORESEEABLE EMERGENCY EXCEPTION:
i. NJ tried to argue that the money was used and laws changed b/c mass transit problem was an unforeseeable emergency – had this been the case, the changes might be justified.
1. BUT NJ’s attempt to control where this money went failed,, b/c it was foreseeable that NJ would have mass transit problems – NJ was NOT responding to an unforeseeable problem.
3. NOTES
a. STATE SHADINESS UNDER THE K CLAUSE
i. US TRUST is an easier case for the court b/c state was a party in the case – when you have a case where a state, as a party, is trying to change their own obligations, etc, it looks more dubious to the court and seems like the state is breaking its word for its own benefit.
1. Other than the courts, there isnt much of a political check on statues
b. REMAINING QUESTION
i. How seriously were courts going to apply the newly-resurrected K clause, and how would it apply when a private party, NOT a state, was trying shade out of the contract?

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Allied Structural Steel Co. v. Spannaus

Back 69

K-Clause
1. FACTS
a. Minnesota law provided that under certain conditions, the amount of money that a minnesota employer had agreed to pay in a pension agreement would increase
i. Original formula was that employer owed $5 million to employees, new formula increased all those agreed upon Ks to $10 million
2. HOLDING
a. State does not have a general right to increase the employer’s contractual obligations – legislation struck down.
i. While underfunded pensiosn are a problem, this is not the kind of widespread severe problem that warrants this drastic a changee in the contractual obligation of Allied Steel.
b. Factors considered by the court
i. How substantially law will affect K terms?
1. Is it a drastic change to term or is it a modes change to K?
2. It amount to sliding scale where the more severely the legislation alters the terms the more stringently the state will enforce
3. If it’s not a big alteration, then the court is much more likely to sustain the terms of K’s
ii. How necessary was state’s need to change K?
1. not enough need to merit this severe alteration – there were many alternative solutions to this problem.
2. The court will clelarly take into account the scale or magnitude of problem that will be addressed by altering terms of K
3. The court draws the comparison of the broad and desperate emergency conditions in depression in that pension is problem but pale in comparison to conditions in depression and therefore the state has far less justification than in Blaisdale case than they did during the great depression
4. Magnitude far less than depression
iii. Foreseeability – both state and employer – if prob was unforeseeable, state might be given more slack.
1. Prob was foreseeable – there were known problems b/w employers and employee pensions – NOT emergency.
2. employer indicated that he didn’t expect changed K terms
iv. Compromised Interests – state was a party in this K…when state is trying to break its own K. this weighs against court support of change.

a. DIFFERENCE b/w K CLAUSE AND SUBSTANTIVE DUE PROCESS
i. Here is a very specific provision in the constitution concerning Ks, as opposed to courts making up shit like “liberty of contract” under Lockneristic methodology.
b. SPECIFICITY OF STATE LEGISLATION IMPORTANT
i. Courts are particularly hostile to states picking out particular types of Ks and changing them legislatively, esp in their own interest.
1. when it comes to state legislation that simply happens to have impact of affecting private contracts, but wasn’t designed specifically to TARGET those kind of Ks, court will uphoild that sort of legislation.
c. REAL MEANING OF THESE DECISIONS
i. These cases were really more warning shots to the government/states, rather than an indication that the court would consistently strike down such legislation
1. were really more warning shots to the government/states, rather than an indication that the court would consistently strike down such legislation
a. If the states take a really egregious regulation, particularly if aimed at particular contracts, the court is prepared to strike them down

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Modern K clause Review

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A. Modern review under the contract clause is substantially identical to modern rationality review under the due process and equal protection clauses
1. In all three contexts, the court engages in the same inquiry
a. The court identifies the state interests and requires a rough relation between the legitimate state interests and the measure under review
2. Class of legitimate state interests is extremely broad, including everything other than raw political questions
a. Idea seems based on existing distributions never being prepolitical and are often unjust, and therefore a matter for democratic control
i. The fit between the legitimate interest and the measure under review need not be close

Front 71

Piece v. Society of Sisters

Back 71

1. Struck down a state statute forbidding parents from sending their children to private schools (also discussed in standing)
2. Court found the statute interfered unreasonably with parents’ right to direct the upbringing and education of their children

Front 72

Griswold v. Conneticut

Back 72

1. FACTS
a. Challenge to Conn statute prohibiting use of contraceptives by everyone – married couples included. What we have here is state invasion of personal, fundamental rights concerning procreation and children and family rights
2. HOLDING
a. Statute struck down. What state has done here is to infringe upon body of rights w/ presumptuve right to make life decisions – when state infringes upon these “rights of privacy,” we’re going to apply strict scrutiny - statute must prove that statute serves legitimate state interest
i. Its easy to see how this statute fails that test – this is a very difficult standard to prove – state will almost always fail that test, esp when the statute is totally insane.
3. NOTES
a. CREATION OF RIGHT OF PRIVACY (i.e. SUBST DUE PROCESS)
i. Court wants to recognize these intensely personal rights – the courts decide to call it “right of privacy”
1. Court held that this right of privacy came from various provisions in the bill of rights – 1st, 3rd , 4th, 5th, and 9th -just kind of mentioned them all without going into specifics
ii. “Penumbra” – each of these amendments has a privacy aspect, and together they emanate a “penumbra of privacy” that encompasses rights to have access and to use contraceptives b/c it falls into life decisions about personal matters that court has been protecting since, Meyer¸ Pierce, and Skinner.
1. This is essentially the same “substantive due process” application from Skinner – but court again is reluctant to call it that, and instead make up “right of privacy” label so they don’t touch on Lockner shit
b. THEORETICAL DEBATE – INTERP. V. NONINTERP
i. Goldberg (concurring opinion) – extreme noninterpretivism – doesn’t even use penumbra analysis, just “thinks its there”
ii. The rights are reasonably implied from the constitution.
iii. Douglas – Qualified non-interpretivism because he at least makes an effort saying that it does arise out of the specific provision.
iv. Black’s (dissent) – militant interpretivism – says court is Locknerizing, using vague reasoning/formulas to advance their own agendas – if it wasn’t in text, it doesn’t exist!
1. Black hates basing the existence of a right, you need to find it in an explicit guarantee in the constitution. If you don’t do it like this, you will be left with Lochnerism.
c. MODERN VIEW ON RIGHT OF PRIVACY AND SUBST DUE PROCESS – HARLAND’S CONCURRING OPINION
i. We are applying substantive due process, stop bullshitting around the issue with constitutional penumbra reasoning! Taboo a/b “Locknerism” is dead and buried, lets just call it what it is.
ii. In response to Black: SDP doesn’t give justices free reign to put their own personal beliefs into decisions – these rights being protected under substantive due process – the “vague formulas’ Black talks about – establish limitations that disallow judicial abuse of power. All SDP does is protect against violations against order and liberty.
d. STERN’S VIEW- BROADER HOLDING ON GOV’T INTRUSION
i. Harland’s view convening substantive due process is the modern view
ii. Griswold isn’t just about the rights of married individuals – what Griswold REALY embodies is broader right AGAINST gov’t intrusion into decisions regarding procreation – reinforced in Eisenstadt.
1. Griswold applies to broader decisions regarding rights of procreation, not just married people.

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Roe v. Wade

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a. Under Griswold, Meyer, Skinner and Pierce, a woman’s right to decide whether to end a pregnancy was part of the fundamental rights of privacy.
3. NOTES
a. ESTABLISHED COMPELLING STATE INTEREST TEST
i. Once you start with that position, the state cannot invade or restrict that right unless it is necessary to achieve a compelling state interest
1. Compelling state interest was the premise from which the whole trimester basis flowed
a. System was rooted in what was thought at the time as medical fact; medically, not a whole lot has changed since Roe
b. ESTABLISHED TRIMESTER SYSTEM – BALANCING TEST BETWEEN STATE INTEREST AND WOMEN’S RIGHT TO CHOOSE
i. First trimester - risk of abortion is same as carrying the baby – state has no real interest in woman’s decision – its between her and her Dr.
The health risks of having an avortion were less than having a baby.
ii. Second trimester - balance changes b/c health risks substantially increase – state can impose regulations governing abortion reasonably related to protect women’s health
1. The health risks of having an A rise from here on out. And the state does have a compelling interest in protecting the health of the poetential mother. And can imposes statutes reasonably related to protectin the mother's health.
iii. Third trimester- weight of state’s interest dramatically increase and state has compelling interest to protect life, and it overrides mother’s right to make a free choice
1. From the point of viability on, fromt eh 3rd trimester, the state does have an interest in protecting the fetal life that is stronger than the interests for the mother. Except from when an A is necesssary to protect the life and health of the mother.
2. Rule is that from that point on, state can prohibit abortions except when abortion is necessary to protect health of mother

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Planned Parenthood v. Casey

Back 74

o The court upholds the “essential holding” of Roe v Wade
 A woman has the right to have an abortion before the fetus if viable without an “undue burden” imposed by the state
o DOES NOT uphold the trimester breakdown
 Creates a strong presumption for the legitimacy of restrictions before viability – if you are going to challenge a provision that on it’s face doesn’t purport to prevent women from having abortions you are going to have to produce a lot of evidence
• Waiting period – upheld
o The woman must wait 24 hours before having the abortion and must be informed on the health risks and other alternatives available
o The court admits that this may inhibit abortions, but on the record before them there is no evidence that it will create an undue burden
• Spousal consent – struck down
o These are invalid because they operate as an absolute bar if the husband refuses
• Spousal notification – struck down
o Based on actual factual findings, as a realistic matter this will prevent a lot of women from having abortions
 Finally admits that there is non-economic substantive due process
• Is careful not to call this a right of privacy – gets downgraded to a liberty
 Stare Decisis
• It is important for the court to not “flip-flop” there must be something more than just if you were on the court at the time you would’ve voted the other way to overturn
• There has been no significant change in the facts (medical state of pregnancy) or an erosion of the doctrine upheld in Roe

Front 75

Moore v East Cleveland

Back 75

o Community confined housing to single family homes. P wanted to live with her 2 grandsons. That didn’t fit the definition of family.
o HOLDING – the court struck down

Substantive due process is implicated here, so there is more scruinty

The communitie’s definition of family is too restrictive and violates sub. Due process

Front 76

Bowers v Hardwick

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o Georiga statute that on its face is a ban on sodomy across the board, does not distinguish between heterosexual or homosexual activity. However the particular individuals in this case were homosexual, so the court viewed the issue as “whether the constitution provides a fundamental right for homosexuals to engage in sodomy.” Obviously, viewing the issue this way the court said it did not, and upheld the statute.
o MAJORITY
 Intrepretivist view – strong concern about reading individual liberties into the constitution that are not explicitly laid out.
 Puts a lot of emphasis on the fact that freedom to engage in homosexual conduct is not a pillar of western tradition
• Historically he is right, and therefore he argues that there is no problem with Georgia banning something based on morals that are deeply rooted in our historical jurisprudence
o DISSENT
 We should look at this issue from a broader perspective, the right for adults to engage in sexual conduct which does fall within the broad right of privacy we have set out with other cases
 Non-intrepretivist view (combined with a kind of twisted originalist view) – the framers of the substantive due process clause intended for it to be able to change with the times and did not expect that it would be limited to the specific known rights at the time. Therefore we should recognize the individual rights that are consistent with the spirit of the clause.
 The fact that a law embodies a historical moral view is something to consider, but if that is all the law has going for it then it should be struck down.

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Lawrence v Texas

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14th Amendment - "robust liberty interest"
o Texas statute bans same sex sodomy. There is no issue of statutory construction as was the case in Bowers. So the issue is does the right to engage in homosexual conduct (at least within your home) fall within the liberty of privacy? The overall issue is if the government can define the meaning of personal relationships absent abuse
o PRECEDENT
 Griswald
• The court recognized a fundamental right of privacy, and a specific right to use contraceptives
 Roe v Wade
• A right to decide whether to bring a fetus to terms
• The Casey decision – confirmed constitutional protection to personal decisions related to marriage, family relationships etc
 Bowers
• The court overrules this case
• One of the fundamental problems with Bowers is that they got the question being asked wrong
o MAJORITY
 Very similar to the dissent in Bowers
 Non-intrepretivist (semi-originalist) argument – the framers clearly did not mean to freeze the known liberties at the time because they deliberately used the word liberty, which is broad and vague and open to interpretation.
o DISSENT (Scalia)
 Originalist argument – those individual rights that are protected by the due process clause should be just those kinds of rights that the framers of the 14th amendment intended – unless a particular right can be said to be deeply rooted in this country’s history then the court should not inject them into the constitution
 Implies that the majority is lochnerizing the due process clause by injecting their own personal moral values into the decision.
 Morality argument – the majority is saying that if a law is founded on a particular moral view it should be struck down, and if you expand this then laws such as prostitution, bestiality, and bigamy will have to be struck down.
o Not sure what level of scrutiny the court is applying, but given it’s citation to the casey decision it is likely some sort of heightened scrutiny

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Saenz v Roe

Back 78

A. Saenz v. Roe – 14th amendment P+I Clause RESURRECTED!
1. FACTS
a. California statute said that when you moved to the state the first year you got the welfare payment you would have received in your last resident state (BUT only when the prior state paid less in welfare benefits
i. Cali’s official stance – reason we have to delay welfare to ppl from other states is that “We’re trying to deter fraud” – i.e. people come to cali saying they’re gonna stay, but really just want our higher welfare benefits, after which they’ll leave
ii. Cali’s real stance: keep poor ppl from coming to Cali.
2. HOLDING
a. Statute struck down because of the ends, not the means. Court acknowledges state’s valid justification of protecting their welfare system from crooks, but hold that these restrictions on welfare benefits impinge on constitutional right to travel (one of the components of P+I clause).
i. Const right to travel: travelers from other states have “right to be treated like members of that state”
1. Cali regulation treats out-of-state travelers DIFFERENTLY from residents.
- The states cannot create a hierarchy between its residency. The exception with this is that they can distinguish portable benefits – like in-state tuition
3. NOTES
a. P+I A GOOD FIT INSTEAD OF DCC
i. Explicit discrimination under dormant commerce clause – STERN feels that court adopted priviledges and immunities clause route for a few reasons
1. #1 – DCC – tacky to equate movement of people w/ movmt of goods – weird to treat them w/ same doctrine
2. #2 - In DCC, Court is making a guess as to what Congress would do in this situation – in theory and practice, even tho courts can decide one way, Congress can always specifically override them after the fact- here, they wanted their decision to stick
b. RIGHT TO INTERSTATE TRAVEL = STRICT SCRUTINY TEST
i. Slaughterhouse cases completely destroyed 14th amendment priv and immunities clause – this court revived it – this court held that Slaughterhouse decision left that Privileges and Immunities clause left ability to move from state to state w/o undue discrimination
1. When a state adopts a measure like this that so directly impinges upon right to interstate travel under Priv and Immunities clause, we will apply strict scrutiny rest
a. SS – is there an EXTREMELY TIGHT FIT between the means chosen and end (the goal) - when court applies strict scrutiny, its expecting almost a PERFECT match b/w rationale and statute – therefore almost all statutes brought before the court under strict scrutiny fail this analysis.
c. STATUTE’S INCONGRUITY UNDER STRICT SCRUTINY
i. STERN: i.e. you have someone coming from NJ, and they DIDN’T need welfare when they got to Cali, but something terrible happens after they get there and then they need it – in this case, even tho they don’t even remotely fall into the freeloader category, they will get fucked by this statute by making them get the NJ level of welfare – THIS IS THE INCONGRUITY b/w RATIONALE AND STATUTE = a lot more ppl would be adversely effected than just those that are the target of the statute.
d. WELFARE PAYMENTS = NONPORTABLE
i. The Question is – WHAT is the distinction b/w these two categories of statutes?
1. Portability – state can require reasonable waiting period f/ benefits – like college aid- b/c their education is a portable asset that will benefit them wherever they go!
2. Non-portability – welfare benefits – you can’t take it with you, they are consumed immediately – in a practical sense, when you go to Cali and get those benefits, you are going to consume them within California (i.e. welfare money for food)

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Board of Regents v. Roth – Limits on termination obligations of govt under PDP

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1. FACTS
a. Teacher hired for a one year fixed term at a public university, and was not rehired at the end of that term and given no reasons why not. Tenure doesn’t kick in until 4 years, and leaves all lower hiring decisions to university officials.
b. P brings suit, claiming he was deprived of “life and liberty” w/o a constitutionally-required hearing,
2. HOLDING
a. D had no obligation to rehire or provide termination obligations to P – liberty and property interests under the 14th amendment are broad BUT NOT INFINITE – gotta draw the line somewhere!
i. Concept of “liberty” does not extend to an otherwise NONEXISTENT right to be employed by a certain employer.
ii. There as no expectation or promise to rehire which is required
3. NOTES
a. NO PROPERTY INTEREST
i. Court holds that P had no property interest – P was given no specific contractual interest in being rehired, NOR did state law recognize any such property interest.
1. P’s abstract concern in being rehired is NOT a valid property interest to be protected under 14th amendment.
ii. Best known example of interest – tenure in a public university; once one gains tenure you can continue in the position until such time as there is cause to dismiss; this is conspicuous b/c the threshold of what is cause for taking away the property interest in the position is very high
1. review gotten benefit from gov’t and they have communicated that have benefit until cause to take away

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Arnett v. Kennedy(overruled in Loudermille)

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1. FACTS
a. Challenge by former federal employee to the procedures by which he was dismissed.
2. HOLDING
a. Plurality: where the legislation conferring the substantive right ALSO sets out the procedural mechanism for enforcing that right, the two can’t be separated.
i. B/c state law created the property interests, P’s property right is conditioned on the legislature’s choice of procedure for the termination of the right.
ii. If property rights flow from exclusively from state related mechanism, why can’t the state gov’t determine the set of procedures that they will take.

Front 81

Cleveland Board of Educations v. Loudermill---- 2 Step process re-emphasized.

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1. FACTS: Govt-hired security guard hired after writing on application that he had never been convicted of a felony – 11 months later employer discovered he was a felon, and fired him.
i. Applicable state law was that he could only be fired FOR CAUSE
1. i.e. property right created.
2. HOLDING
a. State law created property rights in P’s job by allowing him to only be fired “for cause – under the due process clause, once property right exists it cant be taken away unless constitutionally adequate measures are taken (i.e. termination hearing of some sort).
3. NOTES
a. DIGNITY REQUIRES DUE PROCESS
i. We have due process not just to determine whether this person deserves to lose benefit, but b/c due process is an important fundamental value in and of itself
1. Dignitary interests – its part of basic concept of due process that if you are dismissed from your job for being chronically late, it is fundamental to individual dignity that you have a power to respond to that charge and tell YOUR side of the story.
2. When it comes to determining what sort of property or procedure is valid, the courts are the best suited to address this question.
b. JUDICIAL BALANCING TEST FOR AMBIGUOUS CONST PROVISIONS
i. one of the modes the court employs is to weigh one consequence v. the opposite – if you do that in this instance it comes out pretty strongly in favor that state doesn’t have unrestricted plenary power to determine whatever positions or none at all employee has concerning his termination or taking of benefits
1. Unlimited state power could be bad: “we’ll hire you as a teacher until we decide that there’s cause – we decided cause exists b/c we looked at crystal ball.”

i. It is up to the state in first instance whether to confer an property interest of benefit or public employments, BUT once having done so it is up to the court to weigh whether the process has been provided for whether the cause exists measures up to due process