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Unformatted text preview: Angela M. Huddleston Constitutional Law Fall 2004 Standard of Review
1) Rational Basis- legitimate state interest, minimally rational relation, not arbitrary. P has burden of persuasion. Legislation will almost always be upheld. Apply: a) Dormant Commerce Clause i) State regulation must pursue a legitimate state interest and be rationally related to that end. b) Substantive due process i) As long as no fundamental right is affected and ii) Legislation pursues a legitimate state interest and iii) Means are rationally related to state interest c) Equal Protection i) No suspect or quasi-suspect class ii) No fundamental right in question 2) Strict Scrutiny- objective must be “compelling” and means must be “necessary,” with no less restrictive alternatives available. Govt. has burden of persuasion. Legislation will almost always be struck down. Apply: a) Substantive due process i) Affects a fundamental right b) Equal Protection i) Suspect class (race, national alienage, origin) OR ii) Fundamental right (vote, courts, travel) 3) Heightened scrutiny/intermediate scrutiny- legislation must address an “important” state interest and means must be “substantially related.” Burden usually placed on government. Generally only for gender-based cases. a) Equal Protection i) Semi-suspect class (gender, illegitimacy) ii) Legislation must be substantially related to achievement of some important government interest 4) Rational basis with teetha) statute regulates status rather than conduct and restricts a wide variety of rights based on that status i) Romer, Moreno, maybe Lawrence. b) Court detects animus, no legitimate state interest Angela M. Huddleston Constitutional Law Fall 2004 I. II. III.
IV. SOURCES FOR FEDERAL LAW Necessary and Proper Clause Commerce Clause a. Channels/instrumentalities b. Four Morrison considerations. Dormant Commerce Clause Section 5 of 14th Amendment Ask: Is it constitutional? Angela M. Huddleston Constitutional Law Fall 2004 Necessary and proper clauseCongress may use any means that is rationally related to the exercise of the enumerated power and not specifically forbidden by the Constitution. Angela M. Huddleston Constitutional Law Fall 2004 COMMERCE CLAUSE
Activity must substantially affect commerce and the means must be reasonably related to the objective. 1) Private or public actors? Commerce clause legislation can be valid as applied to private actors alone or applied to public (governmental alone) or as applied to both. Gun-free school zones only applies to private actions. VAWA is private actors. a) Private- Lopez/Morrison factors. Three categories. If the channels/instrumentalities seem preposterous, don't dwell on them. b) Public (or private and public)- Lopez/Morrison but only after you ask about clear statement rule. i) CLEAR STATEMENT RULE HERE for public actors. Has congress made it clear that it wants the statute to apply to public actors? It must include a clear statement. If there is no clear statement, can't be applied to public actors. CONGRESS DIDN'T INTEND FOR THIS STATUTE TO APPLY. ii) Keep clear statement separate from anti-commandeering. That is a question of whether Congress can commandeer state officials to help enforce its federal laws against private actors. Whether that is valid is a Printz question. 2) Approaching the question:
a) Lopez/Morrison-Unless he says imagine it's 1925 (which he won't), Lopez/ Morrison should give the analytical template for how to address a commerce clause question. i) Three categories of what congress can legislate: (1) Channels- airports, railway stations (2) Instrumentalities (3) Intrastate activities that substantially affect interstate commerceLopez ii) Is everything in each category regulable? Is it really the case that as long as a thing moved in interstate commerce at some point that congress can regulate it? The court has not yet held that the answer is no. There is not an obvious limit. But it is almost impossible to imagine that Congress's power is really so broad. There are few things that have NOT moved across a state line. And even if Congress does not have literal authority, how much authority DOES it have? (1) Four considerations (one is not necessarily sufficient, all are not necessarily required): (a) Jurisdictional nexus (i) EG- Post-Lopez amendment to gun-free school zones acts. JD nexus is that the statute was amended so that you could only violate the statute by satisfying a factual predicate that put you into interstate commerce. You had to possess a gun within 1000 feet of a school where the gun has passed in interstate commerce. The last part (interstate commerce) guarantees a connection between possession and interstate Angela M. Huddleston Constitutional Law Fall 2004 commerce. That element satisfies the commerce clause. There cannot be an application that violates the constitution because an element of the statute REQUIRES constitutionality. Statute repeats a constitutionally sufficient condition. Takes some part of commerce clause and makes it a part of the statute. (ii) The more broadly it sweeps, the more we have to ask whether it was sufficient. The closer to the core it is, the more likely it is that the nexus consideration is sufficient. (b) Congressional findings to substantiate connection (c) Substantial effect (Level of attenuation between conduct and interstate commerce) (d) Economic v. non-economic (need economic) 3) Three categories that can be regulated under commerce clause:
a) Channels – Heart of Atlanta (racial discrimination discouraged travel for black community, congress could regulate, court didn’t care about motives) and Darby b) instrumentalities – Shreveport case c) persons or things or activities that have a substantial effect on interstate commerce. Morrison and Lopez Angela M. Huddleston Constitutional Law Fall 2004 DORMANT COMMERCE CLAUSE
1. 2. 3. 4. Legitimate state end rationally related to state end burden on interstate commerce must be outweighed by state interest. NO intentional discrimination against out of staters. a. UNLESS state acts as a market participant. 5. Approaching the question. Classic question is what if there is NO federal regulation at all, but it falls within the area that congress has the power to regulate? a) Old vision is that if it falls within the area that congress can regulate, states can't regulate at all. b) Modern view (last 80 years) is one of concurrent JD. States AND congress can regulate. (a) To what extent does state law interfere with or conflict with the federal law? to the extent that it does conflict, look to Supremacy clause to preempt state law. (b) States can't interfere with federal interest in interstate commerce. a. West Lynn Creamery is the state of the art case on this. 1. Look at Scalia's opinion. Four examples that reflect two basic rules. Descriptively accurate as to what passes and what fails. His criticism is that the categories collapse into each other. p. 228 a. Higher tax for out of state- no b. Tax credit for in state- no c. Tax on all with rebates from special fund- NO d. Subsidy for in-state from general fund- yes 2. State regulations that purposely or facially discriminate against interstate commerce are INVALID unless supported by an extraordinary justification. 3. When a state regulation only incidentally, rather than purposely, restricts interstate commerce, it will be upheld unless the burden imposed on interstate commerce is …? Angela M. Huddleston Constitutional Law Fall 2004 SECTION 5, 14th Amendment
Useful only for public actors. Does not apply to private actors. No need for clear statement rule- if it's section 5 legislation it can ONLY apply to state actors. Morrison. 1. In order to determine whether it's valid, imagine state agency discriminating on basis of sexual orientation, and then ask what is the CONSTITUTIONAL STATUS of that activity? This will turn on whether it's responding to legislation that violates that provision. 2. Will always involve analysis of due process or equal protection. 3. On what factual basis is congress legislating? Look at Kimmel a. Is congress responding to a sufficiently pronounced pattern of unconstitutional behavior by the state actors it is seeking to regulate? b. What kind of findings has congress included? c. Legislative history? d. Has congress identified conduct by state actors that actually violates the constitution? As congress gathers evidence, does it have to use the same test that a court would use if it were facing litigation challenging that state conduct? Under Morgan, no, but under newer cases, like Boerne, the answer is obviously yes. e. Must show some pattern of conduct that would fail rational basis (age, disability). Must not be justifiable differential treatment. 4. If congress is trying to enforce EP on basis of race, we talk about conduct that fails STRICT SCRUTINY. a. Differential treatment on basis of race is presumptively unconstitutional. All congress might have to do is create a record that state actors have been treating actors differently on the basis of race. b. Qualitative and quantitative evidence. 5. Is this statute a permissible means to the end of enforcing the 14th amendment against the states? a. Is it congruent and proportional to the 14th amendment? Congress can’t choose methods that are broader than discrimination being cured. Boerne v. Flores. i. Analogue to tailoring question. 6. Enforce means remedy. a. Remedies can be prophylactic in nature. We can deter conduct that is close to being unconstitutional to create a buffer zone. How far can it go? Boerne- you go beyond congruence & proportionality if you pass substantive legislation that redefines the substance of the constitutional right. Its hard to know. Look to how overprotective it is as a substantive matter- how geographically tailored is it? If 8 states have a history of unconstitutional conduct and congress passes a nationwide piece of legislation, it might be too broad. Temporal considerations- if there is a history, but states Angela M. Huddleston Constitutional Law Fall 2004 have improved over time, 25 years from now, states might stop acting unconstitutionally, so fed legislation may have built in renewal requirements. Angela M. Huddleston Constitutional Law Fall 2004 EXECUTIVE POWER
1. Does this amount to making a law? a. If so, treading on Congress’s territory. i. Congress can acquiesce. 1. Dames & Moore v. Regan. Congress never explicitly delegated authority to suspend claims, but it had implicitly authorized the practice through history. 2. Not dispositive. 2. As commander in chief, can commit the use of American armed forces abroad, but only Congress can declare war. a. President may commit armed forces without declaration in order to repel a sudden attack and probably to defend an ally with whom we have a treaty. But not that President has to consult with Congress if Congress hasn’t declared war. Angela M. Huddleston Constitutional Law Fall 2004 DUE PROCESS
Due Process- a whole group has a right taken away. If this is a federal law, look at fifth amendment violation. 1. Fundamental? Apply strict scrutiny, legislation must be necessary to achieve a compelling state interest. a) Levels of generality (1) Lawrence, Lochner, Griswold, Eisenstadtfundamental right depends on how specifically or generally you define the liberty interest at issue. Bowers defined a low level of generality- homosexual sodomy. Morris defines it a higher level of generalityindividual autonomy. (2) Methodology- Scalia's approach in Michael (i) Lowest level to define interest is lowest at which there is a tradition. If you don't find it there, move up a level. 1. Problems: it's not obvious which direction is the next level of generality. What if you found traditions moving in opposite directions? What is another way to pick level of generality (more legitimate)- Look at Lawrence. Court talks about kinds of liberty interests that have been recognized as fundamental at the level they were described at in the past and try to liken it to current issue. Another way is to play with what we mean by traditiontrends within or how we looked at it 200 years ago? Legal reforms over the last fifty years or look to international legal developments. These approaches might partake of some of Scalia's approach but play around with relevant moment in time. (2) Fundamental right to Privacy (a) Birth control (b) Abortion (c) Family life, raise children, education of children, marriage (Zablocki) ii) Not fundamental? Must meet rational basis test. Shifts burden of persuasion to government. (1) Homosexual sex is not fundamental, gets rational basis review (a) With teeth- if there is evidence of animus, court may strike down anyway. Romer. (b) Unmarried adults- rational basis review (c) Unmarried minors- rational basis review. iii) Questions to ask (1) What right is being asserted? (2) What is the source of the right? (3) What is the state interest? (a) Morality as a state interest (i) For DP purposes but not EP purposes? Angela M. Huddleston Constitutional Law Fall 2004 1. O'Connor in Lawrence. Walks a fine line, avoiding overruling herself in Bowers, but wants to strike down Texas law. She does that by going to EP rather than DP. a. As part of EP, she says morality based desire to treat people differently is not a legitimate state interest for EP purposes. But she says if there is a law that applies to everyone equally on its face, and it advances a particular moral agenda, that's ok. But when a law discriminates on the basis of morality, it's impossible to understand that as pursuing anything other that disfavor toward that group. Once she has made that move, she connects EP doctrine by saying state always has to ID interest beyond disfavoring a group. Can't justify race-based treatment with racebased answer (Loving). Exceptions: remedying discrimination. In general, you can't single out a group for the purposes of singling out that group. O'Connor's point is THAT is what morality does when used as a justification for unequal treatment. It's a different thing to pursue morality as a formal facial matter equally toward all. A law that describes conduct that perfectly describes a particular group of people effectively singles out those people for unequal treatment or disfavor. One could say that is where her analysis collapses. b. On the DP side, she looks at it as a facial matter- it's ok if it's evenhanded. But she does not look at it in lawrence that way- she looks behind it to see who it's targeting. If she had done that in bowers, she may have come to the same place. The bowers law still had disproportionate effects on homosexuals. (4) Is the distinction a suspect class? (a) If yes, strict scrutiny (i) Does fundamental right always trigger strict scrutiny? YES. But sometimes people claim a fundamental right, but court says it's NOT a fundamental right. Marriage is a government benefit, so how can we say it's a fundamental right? 1. Specific version of right to privacy? Best way to go. Marriage IS a fundamental right, but only some people have it. Siblings do not have a fundamental right to marry each other. There is a substantive context to that right. Court doesn't speak in terms of privacy as much, but access to institution of marriage. What if some people are given access to marriage and not others? Angela M. Huddleston Constitutional Law Fall 2004 (ii) Point to Souvlaki and Lawrence in a same-sex marriage question. Two edged sword- Lawrence goes out of its way to say THIS IS NOT ABOUT MARRIAGE. (b) If not- does it violate rational basis review? (i) Rational basis with teeth: Romer When does this apply? 1. Look for animus. How do you know when there is animus? Romer- may be present where you see a state legislating on the basis of status, rather than conduct. Immutable characteristics that are singled out and a huge amount of legal consequences flow from that characteristic. What about Moreno? Animus there was just sort of being anti-hippie, which is not immutable. It's hard to account for this, as far as immutable characteristic. The concern is with animus. Look to O'Connor's account in Lawrence as a competing possible version of when this applies. She talks about inhibiting personal relationships. She says this is a problem with cohabitating with likeminded people at will. It inhibits a personal relationship of considerable importance. (5) What state interest is being furthered by this law? (a) Reasoning by analogy. Start with state interest we've looked at in class- do any of them literally apply? (i) If not, how can I relate it to another state interest? Is it related enough that I can say the interests are of the same importance? (ii) What state interest may have been furthered by particular ban on amnio- trying to discourage abortion or protect fetal life- analogize that to other cases. Promoting gender equality as a state interest? Reason by analogy. A more open-ended inquiry- use creativity. iv) Tailoring question- DP and EP legislation. Angela M. Huddleston Constitutional Law Fall 2004 EQUAL PROTECTION
Equal Protection- applies to government action only. Clause guarantees that people who are similarly situated will be treated similarly. 1. Government failed in SETTING UP the classes a. Invidious discrimination. i. Segregation is invidious ii. Stigmatization b. Benign discrimination (re: women) c. Federal gov- 5th amendment d. State gov- 14th amendment. 2. Is the government acting for the PURPOSE of discriminating? a. De Jure- on its face. i. Triggers strict scrutiny b. De Facto- as applied. i. Will not trigger strict scrutiny. ii. Cannot even be redressed by the court. c. Circumstantial evidence can show intent- eg, gov. chooses jurors from registered voters, with results in far fewer black jurors than other methods. 3. Levels of review a. Strict scrutiny- will be upheld only if necessary to promote compelling interest. i. Suspect classification- race, national origin, alienage. (some immutable trait) OR ii. Fundamental right- vote, courts, interstate migration. b. Heightened scrutiny- must be substantially related to an important governmental objective or “exceedingly pervasive justification” i. Semi-suspect classes (gender) c. Rational basis- rational relationship to a legitimate state end 4. Has the law attacked the entire evil? It does not have to: a. Government can combat evils one step at a time- Williamson v. Lee. 5. Is there animus? a. Rational basis with teeth. 6. Is the law narrowly tailored? Angela M. Huddleston Constitutional Law Fall 2004 JUSTICIABILITY
Is this justiciable? Possible issues: 1) advisory opinions a) eg- state court gives advisory opinion and loser seeks review. Must be a true case or controversy. 2) standing a) injury in fact or likely to suffer injury soon b) concrete harm c) individuated d) but for cause e) decision must be likely to redress injury. 3) mootness 4) ripeness 5) 11th amendment ban on suits against he state 6) abstention 7) political questions a) War Powers dispute- might be regarded as a political question because of the lack of judicially manageable standards. Angela M. Huddleston Constitutional Law Fall 2004 Constitutional Interpretation
1. Traditional sources of interpretation a. Originalism: what did the framers of the Constitution intend? b. The Living Constitution: The Constitution is only worth keeping if it can continue to be compelling and useful to succeeding generations. To make it be those things, people in the present need to adapt the text to present needs. c. Textual- plain meaning of language – strict constructionists d. Structural e. specific intent – (1) honorable men (2) social history (3) treatment in colonies (4) statements f. Historical i. legislation in states ii. judicial decisions iii. executive actions g. Formalist-Ginsburg, Scalia, Thomas, Souter h. Functionalist-O'Connor, Breyer, Kennedy, Stevens, maybe Rehnquist 2. When may judges depart from framer’s intent? a. conflict of constitutional norms – for example, right to fair trial conflicts with freedom of press b. change in conditions, and policy could not be applied unless it is broadened – broadening of specific intent – women and equal protection clause c. specific intentions in conflict with broader ones – separate schools consistent with equal protection clause, but over time, courts say that they are inconsistent 3. Non-intent sources of interpretation a. moral values b. values rooted in const or in traditions and history Angela M. Huddleston Constitutional Law Fall 2004 Scope and Allocation of Federal Powers
1) Judicial a) Judicial review i) Marbury v. Madison. (1) FACTS: Marbury sued to compel delivery of his commission as a Justice of the Peace after President Jefferson and Secretary of State Madison failed to deliver it to him after President Adams had appointed him. (2) HOLDING: Marshall held that Section 13 of the Judiciary Act of 1789 was unconstitutional because it sought to confer on the Supreme Court original jurisdiction over a type of dispute over which the Constitution gave it only appellate jurisdiction. Where a statute violated the Constitution it was the duty of the courts to apply the Constitution as paramount law which superceded inconsistent statutes. (3) Marbury can be read as giving the judiciary power of judicial review or as giving the judiciary the ultimate power to interpret the Constitution. Although many have argued that other branches also have the power and duty to interpret the Constitution, the Court increasingly contends that it has the ultimate power to do so. (4) Marshall makes a structural argument- we have a written constitution that creates a judiciary. Part of his reasoning is textualrefers to “judicial power” and uses it extensively. Somewhat functional with attention to text, not narrowly textual. (5) When the judicial branch decides that something is unconstitutional, there is no way to go back and review it again- the legislative branch has that luxury. (a) Is the reference to “the judicial power” extending to all cases necessarily equal to judicial review? (i) Marshall says yes. (6) Does not create a showdown in the exercise of judicial power with the executive branch, because the executive branch won. b) Presumption of constitutionality. i) Carolene Products, 1938. Federal statute prohibited the shipment of “filled milk.” Court ruled that it was not unconstitutional, upheld the statute. The court begins by describing presumption of Constitutionality, which applies to statutes regarding economics. (1) the burden is on the party challenging the statute. (2) Is the aim of the legislation permissible? (3) Is the means of reaching that aim permissible? (4) If a court can imagine a reason that the legislature might have wanted to enact this statute that is rational, we will uphold it. ii) This is a very deferential form of review. iii) Footnote 4: Identifies potential exceptions to the presumption of Constitutionality. (1) Those that violate the first ten Amendments. Angela M. Huddleston Constitutional Law Fall 2004 (2) Stricter standards of review for laws that manifest prejudice against discrete and insular minorities. Specific application of paragraph 2. (3) We should be thinking of footnote four as justifying more intrusive judicial review for legislation discriminating against a covered minority in any way. (4) The presumption is premised on issues of counter-majoritarianism and that the other branches are democratic. Laws that pervert the democratic process itself… (a) Imagine that congress passes filled milk prohibition act. The next day, they say in order to repeal it, it must be by unanimous vote, or that you must have a net worth of $3 million to vote to repeal the Sact. c) Why courts should determine invalidity i) province and duty of courts – no historical precedent for this, but it is true that courts have historically decided conflicts btw laws ii) oath of office – actually a bad argument because everyone who takes public office takes an oath to support the constitution – doesn’t tell us that it is that person’s role to determine repugnancy – new citizens take oath as well; this argument strengthened by previous argument iii) “arising under” – (Art. 3) – could also mean anything arising b/c all laws come from const; could mean cases in which congress had not spoken; could mean looking at state court cases iv) written v) legislative history of const. – the weight of comments of the framers vi) necessity (Learned Hand) vii) consistency will be improved – institutional competence viii) insulation ix) time to reflect x) best protector of inequities (minorities) d) Exceptions: i) Non-justiciable issues (1) Justiciability – the political question doctrine – an issue is nonjusticiable when it is not within the jurisdiction of the federal judiciary. (a) Baker v. Carr- two pronged test (i) An issue is nonjusticiable 1. if text of Constitution assigns a task to a specific branch. 2. there is a lack of judicially discoverable or manageable standards for resolving the issue. (b) List of criteria comes from Powell and Nixon: (i) TDCAB – textually demonstrable commitment to another branch (Powell) (ii) lack of respect for other branches (Powell) (iii) policy determination (Powell) (iv) potentially embarrassing confrontation (Powell) (v) lack of judicially manageable standards (Nixon) Angela M. Huddleston Constitutional Law Fall 2004 (c) Court usually relies on TDCAB and lack of judicially manageable standards, and then throws everything else in for good measure. ii) Exceptions to clause limits: (1) To appellate jurisdiction (2) Even if there is hostile motivation (3) “Essential” motivation (4) does not include selective removal which equals a rule of decision, and you cannot make a rule to direct decision (5) does not immunize against other constitutional complaints iii) Case and controversy limits – 1-2 required; rest are not required specifically but usually apply (not on test) (1) no advisory opinions – extends only to cases and controversies (2) no collusive suits – two people can’t bring complaint just to figure out an issue (3) mootness – controversy gone now – admissions decisions (4) ripeness – opposite of mootness – wait until there is a real controversy (5) standing – must have right that has been violated; if they cannot assert own right, someone close can have standing (6) narrow rulings (7) avoid constitutional ruling if can be decided on stat. Grounds (8) construed in two ways – const or unconstitutional, court should pick constitutional interpretation (9) if you benefit from a statute, can’t come into court to ask it to be struck down (10) Congress cannot make an act that takes away jurisdiction if that act violates some other constitutional right. Congress could say that the court couldn’t hear cases on school prayer, but could not say that the Court was restricted from hearing cases brought by Catholics. iv) Other Cases (1) Cooper v. Aaron, 1958. desegregation of schools. The Supreme Court’s function extends beyond the resolution of a dispute between two parties. (2) Powell v. McCormack - petitioner elected to HR, met all constitutional requirements for that office, but was not allowed to take his seat pursuant to a House resolution after a Select Committee reported on a number of improprieties committed by petitioner. Court finally ruled that House could censure its members once they were part of the House, but could not bar entry, because it would ruin the democratic process. The issue was justiciable because it was not a political question, and the judiciary could define what the requirements were because they were specifically listed in the constitution. Angela M. Huddleston Constitutional Law Fall 2004 (3) Nixon v. US - Nixon sued on the grounds that Rule XI is a violation of the constitutional grant of authority to the Senate to “try” all impeachments b/c whole Senate unable to take part in hearings. (a) FACTS. Nixon is a district judge, convicted by jury of making false statements to federal grand jury. Prison sentence. Refused to resign. Impeached, two thirds majority conviction on first two articles. Nixon filed suit. Claims Rule XI violates constitutional grant of authority. Senate must TRY all impeachments. Whole senate did not take place in evidentiary hearings. (b) HOLDING. Interprets “sole” to mean “without outside interference from the judiciary.“ District court found claim nonjusticiable, Court of Appeals affirmed. Supreme Court affirmed. Slippery slope argument: To say the entire senate must participate in evidentiary hearings is an unnatural reading of the Constitution and is inconsistent with construction of clause and with other Senate activities. Constitution lays out three requirements related to Senate trying impeachments: (i) under oath (ii) two thirds vote to convict (iii) Chief Justice presides when President is tried. (c) Impeachment is a check on judicial branch. Judicial branch cannot participate, or it would not be a check. (d) REHNQUIST TRIES TO DETERMINE INTENT OF FRAMERS (vs. living document). 2) Legislative Power and Federalism a) Necessary and Proper clause i) McCulloch v. Maryland. If powers are not enumerated in Constitution, authority is left to the states. If it is enumerated, federal law is supreme. (1) FACTS. Congress, in 1816, passed an act incorporating the Second Bank of the U.S. Maryland, in 1818, passed an act taxing all banks or branches not chartered by the State at prohibitory rates. Tax was on all notes issued by such banks, or in lieu thereof a flat tax of $15,000 per year with a penalty of $500 for each violation. McCulloch, cashier of the Maryland branch of the Bank of the United States, issues notes and refused to pay the tax. Maryland brought suit against him to recover the penalties and won a decision against McCulloch. (2) ISSUES (a) Has Congress the power to incorporate a Bank of the United States? (i) Yes (b) Has Maryland the right to levy this tax against a bank chartered by Congress? (i) No (c) Has Congress the power to charter this bank? Angela M. Huddleston Constitutional Law Fall 2004 (i) Yes (d) Has Congress the power to charter banks generally? (i) Yes (e) Has Congress the power to issue charters to any kind of corporation to implement the expressed powers of Congress? (i) Yes (f) Has Congress the power to use any means not prohibited in carrying out its expressed powers? (i) Yes (3) Rationale. (a) Interpretation- ORIGINAL PUBLIC MEANING OF CONSITUTION. (b) "Let the end be legitimate and within the scope of the Constitution." The end is- generate revenue so as to better raise and support armies. Regulate congress. Exercise tax. Those are within the scope of the Constitution. If the means are consistent with the letter and spirit of the constitution, they are fine. (c) How does Marshall justify this reading? (i) Necessary is meant to be constricting, but does not mean ABSOLUTELY NECESSARY. It says absolutely necessary in other places, so if it doesn't say it here, it must not mean that. (d) Should we understand the necessary and proper clause as LIMITING OR ENHANCING authority? (i) Argument for enhancing- clause is found in the part of the Constitution that enumerates the powers, not the part that limits the powers. language is fashioned in order to enlarge the powers- what about that fashioning is designed to enlarge rather than limit? It says it positively, rather than noting what CANNOT be done. Why else would it be there at all? (e) The Constitution is written to be permissive precisely because it would have been unrealistic for the framers to try to anticipate all appropriate means and courses of action in advance. (f) Congress passes law that have nothing to do with powers which are entrusted to it or the accomplishment of the enumerated "ends," the court may step in. (i) Marbury says that the court can determine whether the END is legitimate. McCulloch says that the court CANNOT determine whether the means are appropriate. b) Commerce clause
(1) Gibbons v. Ogden – state license v. federal license. i) The early limits Angela M. Huddleston Constitutional Law Fall 2004 (i) HOLDING. If an agency is one of many involved in interstate commerce, but its actions are all confined to one state, it is still subject to Congressional interstate regulations, because without regulating all agencies involved, the entire transaction cannot be regulated. (2) Hammer v. Dagenhart- Congress prohibited interstate transportation of products from factories that used child labor. Why is this different from Lottery? Because in that case, the production had to be regulated IN ORDER to regulate commerce. OVERRULED BY DARBY. (a) HOLDING. Congress exceeded its power enumerated by the Commerce Clause by passing a statute prohibiting the transportation of products from factories that used child labor. Child labor laws are purely a local matter. Congress does not assume the power to regulate local matters simply because without Congressional action, there may be unfairness in interstate trade. (b) DIRECT v. INDIRECT test. (c) Homes’ Dissent Just because it may interfere with states' regulation of its own commerce does not mean that Congress cannot regulate it- federal regulation trumps state regulation. The Act does not interfere with intrastate commerce. This is also a matter of national welfare. ii) New Deal Expansion.
(1) US v. Darby. Darby, a Georgia lumber manufacturer, was indicted for violation the federal Fair Labor Standards Act. (a) HOLDING. Congress has constitutional power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose wages do not meet the prescribed minimum. Congress has the power to prohibit the employment of workmen in the production of goods for interstate commerce other than prescribed wages and hours. (i) New test- substantial test, rather than direct or indirect test. (2) Wickard v. Filburn (1942). Farmer challenged government quota on wheat he raised and consumed on his own farm. Statute upheld- consumption has market effects, if everyone did this, if would affect commerce. iii) Commerce Clause & Civil Rights.
(1) Heart of Atlanta Motel Inc. v. United States (1964)- court ignored the motive behind legislation, upheld Civil Rights Act application because discrimination discouraged travel by black people. (2) Katzenbach v. McClung (1964)- Civil Rights Act applies to any restaurant a substantial portion of whose food moved in interstate commerce. Application upheld- the restaurant was small, but similar to Wickard decision. Angela M. Huddleston Constitutional Law Fall 2004 iv) Commerce Clause Limits
(1) US v. Morrison- Originally a civil rape case under federal statute making gender-motivated offenses a federal civil cause of action. Beyond the scope of the commerce clause, congressional findings were not enough (too attenuated), local v. national activities (2) Lopez(a) Four considerations established in Morrison: (i) Nothing to do with an economic enterprise. (ii) Statute contained no express jurisdictional element- these parameters would tell the court how far the statute should be applied. (iii) There are no congressional findings regarding the effects upon interstate commerce. (iv) The link between gun possession and substantial effect on interstate commerce was attenuated. (but for causation) (b) Activities that Congress can regulate: (i) Channels- highways, waterways, air traffic (ii) Instrumentalities- people, machines (iii) Articles moving in interstate commerce (iv) Activities having a substantial effect on interstate commerce. v) Reconsidering the limits
(1) Raich v. Ashcroft- medicinal marijuana c) Anti-Commandeering Principle:
i) Federal government may not:
(1) compel a state to enact or enforce a particular law or type of law (NY v. US) (2) compel state/local law official to perform federally specified administrative tasks (Printz/Mack) ii) Cases
(1) Wirz- court upholds the validity of the FLSA as applied to private employers and then says the court will not protect the state as an employer from FLSA if it is indistinguishable from private business in its effect on commerce. (2) National League of Cities (1976)- Overrules Wirz. Court imposes special limits on Congress's authority to regulate state as an employer, when state provides governmental services. (a) Holding. (i) court upheld Congress’ use of the Fair Labor Standards Act to regulate the wages and hours of private sector employees. However, under the 10th Amend, state and local governments are immune, their workers are not protected. States as employers cannot be regulated. (ii) Court said that “Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to Angela M. Huddleston Constitutional Law Fall 2004 function effectively in the federal system.” Wage/hr. provisions violated in two ways: 1. cost of compliance would impair the state’s ability to function effectively 2. new rules removed state’s discretion to decide how they wished to allocate the available salary resources. (b) Is there a constitutional difference between Congress's ability to pass regulation regarding a particular subject matter based on whether actor being regulated is a public or private actor? Does Commerce Clause authority extend to different lengths depending on whether entity being regulated is public or private? (i) Wirz says NO difference. (ii) National League of Cities says it does make a differenceactors engaging matters of state concern are immune from Congressional regulation. Question left open: state employment that AREN'T matters of state concern? (3) Garcia (1985)-Can be thought of as a limit on Congress's authority from the commerce clause or from the 10th amendment. Court overruled National League of Cities. Held that Congress could apply the Fair Labor Standards Act (same statute as National League of Cities) to municipal transit workers.
(a) Three prerequisites for governmental immunity per National League of Cities (i) Federal statute at issue must regulate the states as states (ii) Statute must address matters that are indisputably matters of state sovereignty. (iii) Must directly impair state's ability to structure integral operations in areas of trad. Govt. function. (b) Blackmun (majority) relies on several different arguments: (i) No practical way of separating off a sphere of traditional state government functions. Blackmun says it would be countermajoritarian (and arbitrary) to decide which subject matters fit within the box labeled “state functions.” Court would look as illegitimate in identifying “traditional state functions” as it would in the direct/indirect test, etc. (ii) Can we rely on tradition to identify core state concerns? This seems incongruous with the notion that state should act as laboratories. Also, what is tradition- nobody really knows for sure. (iii) Blackmun suggests that the court really doesn’t need to protect state sovereignty because the political process will take care of it. The structure of the federal govt, and the “procedural safeguards inherent in the structure of the Angela M. Huddleston Constitutional Law Fall 2004 federal system” would be sufficient to protect state sovereignty. Thus, the court need not enforce any 10th Amend. rights. Example of such safeguards: requirement that each state have two senators, that states are given control over the electoral college, etc. (c) Powell Dissent: (i) says that majority’s opinion results in no judicial review, the only check on abuse of federal power is the procedural safeguards inherent in the structure of federal system. Powell says that this violates Marbury, which established that it is up to the federal judiciary to “say what the law is” with respect to constitutionality of congressional actions. (4) Printz v. US/ Mack v. US (1997) (a) Facts: Brady Handgun Violence Prevention Act, chief law enforcement officers were forwarded Brady Forms, had five days to make reasonable efforts to determine whether sales were lawful. (b) Holding (i) 10th Amend. prevents Congress from commandeering state executive officers, just as it can’t commandeer state legislatures. Court struck down provision of the Brady Bill that ordered sheriffs (i.e. state law enforcement officials) to do background checks to hand gun purchasers. Court said Congress can’t commandeer state officials to do its work.. Congress might want to do this because it is “free”- wouldn’t have to appropriate any federal funds- unfunded mandate. Congress can take credit for doing something about handguns without actually paying for it.. Congress can use other means to encourage states to participate in federal legislation: 1. conditions federal spending on compliance- can attach conditions to funds 2. conditional preemption /cooperative federalismCongress can give states a chance to regulate but threaten to pre-empt state law if states don’t do a good job. Example: Printz- Congress could have given state executive officers the option to conduct background checks backed up with threat of preemption. 3. Congress can actually preempt state law, and directly regulate activity itself (under Commerce power) (c) dissent- can congress, acting on behalf of the Nation, require local law enforcement officers to perform duties during interim needed for development of federal gun control program (5) Testa case- judges can't refuse to execute federal laws.The supremacy clause anticipated the Testa problem. Angela M. Huddleston Constitutional Law Fall 2004 (a) Justice Stevens' dissent calls Scalia's application perverse.Structure argument- reduces the power of the president, because the if the legislative branch can execute their laws through the state. (6) NY v. United States- Congress can't say "you can either legislate this way or do this…"- but it CAN enact a federal law to regulate. Blurring the line causes problems with accountability. d) Dormant commerce clause. If there is no federal
law, states can legislate. If there IS federal law, states can legislate not in consistent with federal law. The fact that Congress can legislate doesn't mean states can't. i) What CAN'T states do?
(1) Expressly discriminate against interstate commerce. (a) But they CAN incidentally restrict, inhibit, or burden flow of interstate commerce in the name of local interests (i.e. by restricting the kinds of containers something can be shipped in). ii) Cases
(1) West Lynn Creamery- The Commerce Clause limits the power of states to adopt regulations that discriminate against interstate commerce. Thus, state statutes that clearly discriminate against interstate commerce are routinely struck down ... unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism. The "premium payments" are effectively a tax which makes milk produced out of State more expensive. Although the tax also applies to milk produced in Massachusetts, its effect on Massachusetts producers is entirely (indeed more than) offset by the subsidy provided exclusively to Massachusetts dairy farmers. Like an ordinary tariff, the tax is thus effectively imposed only on out-of-state products. The premiums simultaneously burdens interstate commerce and discriminates in favor of local producers. 3) Executive Power and Separation of Powers a) Separation of powers question does not ask whether fed. Gov. has power at all to act on the matter- that's a question of federalism. Sep. of Powers question asks WHICH PART can address the issue. We are assuming the issue is within the power of the federal government. i) Cases
(1) Youngstown Steel Seizure Case The Steel Seizure case offers a different vision. To the extent it relates to foreign affairs–it did after all involve a seizure of steel mills to support the Korean War–it envisions a consultative approach. (a) The most important case re: separation of powers. Justice Jackson's concurring opinion has been the most relevant to how we approach the issue today. Angela M. Huddleston Constitutional Law Fall 2004 (b) FACTS. Pres. Truman ordered Sec of Commerce to take possession and operate most of the nation's steel mills. He wanted to prevent work stoppage, thereby averting a national catastrophe of no steel production during Korean War (there had been a strike). (c) HOLDING. Justice Black says there are only two possible sources of the president's authority- either from the constitution itself (article 2) OR from Congressional mandate. There is no statutory source of authority, so if it exists, it must be from the constitution. Black has a very formalist opinion. He delegates the powers to certain branches and then that is that. He holds against the pres. That the wrong branch of government did the deed. (i) Frankfurter has a more functionalist point of view. Functionalist starts by thinking of the consequences of a particular branch engaging in certain powers. This stresses the point of separation of powers. (ii) Jackson's opinion is functionalist. 1. He gives three practical, yet oversimplified groupings about the president's relative power and when it may be in doubt: a. When he is acting pursuant to express or implied authorization of Congress, his authority is at its maximum. This is the non-delegation doctrine. Modern court says non delegation doctrine is very limited. b. Without a grant or denial of authority- "zone of twilight." Congress might have concurrent authority with president, or it may be unclear under whose authority a matter lies. c. This case falls in category three- president has taken measures incompatible with expressed or implied will of Congress. Authority is at its weakest. 2. The last issue addressed by Jackson is necessity. a. Congress can easily confer this power on the president if it's a necessity. i. An argument from necessity on the part of the president means there are no bounds on the powers of the president. b) Congressional acquiescence- if the president had acted in a manner again and again in the absence of congressional objection, it would suggest that it was a permissible exercise of his article 2 authority i) Dames & Moore v. Regan (1981) (1) Holding- the International Emergency Economic Powers Act constituted a specific congressional authorization for the President to order the transfer of Iranian assets. Though the IEEPA itself did Angela M. Huddleston Constitutional Law Fall 2004 not authorize the presidential suspension of legal claims, previous acts of Congress had "implicitly approved" of executive control of claim settlement. Emphasized the narrowness of its ruling, limiting the decision to the facts of the case. (a) Congress has implicitly approved the practice of claim settlement by executive order vis a vis the enactment of the International Claims Settlement Act of 1949, which allocated to US national funds received as part of claims settlement with Yugoslavia and provided procedure whereby funds resulting future settlements could be distributed. (i) MORRISON finds Jackson's opinion most compelling. c. Foreign Affairs i. The foreign affairs power is divided between the President and Congress but in practice the President has exercised the dominant role. ii. Internal affairs v. external affairs. Powers are different in origin and nature. Enumerated powers applies to INTERNAL, not external. Powers to wage and declare war, etc. would have gone to federal government even without Constitution (inheritance theory- specific to question of foreign affairs). Internal v. external.<--- this is why CurtissWright is important. The president is the sole representative with respect to foreign affairs- only he has power to negotiate. He has access to privileged information and must be allowed room for his own discretion. He must be allowed to withhold some info when necessary. iii. Delegation. A hallmark of an unconstitutional delegation is one which does not specify when authority is triggered. This argument fails here. But the argument is that Congress should have said, "the president can embargo when the following conditions are met:" and then listed EXTERNALLY verifiable conditions to be met (not just the president's belief that something would lead to peace). The court rejects the argument in Curtiss-Wright in part by saying its ok for delegations to be more open ended in the area of FOREIGN AFFAIRS. iv. Cases
2. Curtiss-Wright 1. FACTS. Joint resolution of Congress authorized Pres. To prohibit sale of arms to Bolivia and Paraguay (who were fighting with each other) if the prohibition would contribute to peace between the countries. President proclaimed embargo, CW was indicted for violating terms. Angela M. Huddleston Constitutional Law Fall 2004 2. HOLDING. Joint Resolution does not amount
to an unconstitutional delegation of power to the president i. Consider what Jackson said- this is where the president's power is at its highest- he has the authorization of Congress. But is it unconstitutional? SIGNIFICANCE. The case stands for the idea that the President can exercise broad power in foreign affairs and is often relied upon by Presidents to support claims to sweeping executive power in foreign policy. This interpretation rests largely on dicta in Justice Sutherland’s opinion. In fact, Congress had authorized the action President Roosevelt had taken.. v. War Powers. ACCORDING TO CONSTITUTION. Congress- lay and collect taxes to provide for defense, declare war, raise and support armies, provide and maintain navy, regulate armed forces, send troops, organize militia, suspend writ of habeas corpus during times of insurrection. President- commander in chief, take care that laws are executed. 2. War Powers Resolution When war has not been declared, but soldiers enter into hostilities, are armed for combat, or enter in large numbers equipped for combat, president must submit report within 48 hours re: circumstances that make it necessary, authority under which action took place, scope and duration of involvement. After report, has 60 days to terminate use, unless congress has declared war, has granted extension, or cannot be physically met due to attack on US. No extension longer than 30 days. Forces must be removed if Congress directs. Resolution does not give any more power to pres than he already has and does not take away Congressional power. 1. This is an assertion of Congress's role in the process of war. Presidential powers in Section 2©- power to introduce US Forces into hostilities only pursuant to: decl. of war, statutory authorization, national emergency (attack on US territories or forces). Must answer to Congress (section 2. War Powers Resolution, passed in 1973 in response to Vietnam War. President vetoed because it unconstitutionally constrained president's war powers. 3. Angela M. Huddleston Constitutional Law Fall 2004 Considered a failure. Does not deal with military operations that can be completed in less than 60 days. Presidents ignore it. 3. Proposed Deployment memo (1995) President wants to be able to send troops to Bosnia to maintain peace. 1. Why can he do this? i. Historical precedent of President's ability to use troops without initiating hostilities: using Navy to open up Japan, armed forces in Dominican Republic to forestall revolution. Presidents have acted without express authorization from congress at least 125 times. ii. This is not a war. iii. the warring parties have invited troops to maintain peace. iv. Combat is not anticipated. v. The consent of the party to be "invaded" vi. Protective nature of the operation vii. We aren't trying to take over, just to protect a peace process. viii. As Commander in Chief, Pres can dispose of troops and equipment to promote the safety of the county. He can do it if he is doing it to protect American interests. 2. What American interests are at stake? i. Preserving peace and keeping threat from spreading. Support NATO, which is the anchor of America' security. ii. Resolution is construed to make it sound like President has the authority to deploy troops without Congress's input. 3. Risks involved in allowing the President to deploy troops without Congressional authority i. If Congress passes a statute or joint resolution requiring president to bring troops home (defunding the mission), it's not clear that the President would listen to Congress- there would be Constitutional crisis and we don't want that. ii. Congress may not be able to draw troops back from the field as easily as it Angela M. Huddleston Constitutional Law Fall 2004 can prevent them from going in the first place- Pres is Commander in Chief. a. How often will Congress pass legislation prohibiting hostilities that have already begun? It's not likely. That sounds like political suicide unless the operation is very unpopular. b. Counter- that's what we mean by self-help. That's just a risk that has to be taken. c. BUT- it's a question of default setting. Criteria established by opinion, using WPR as implicit authorization, to give president authority: 1. Not starting hostilities 2. Similarity between proposed deployment and historical practice 3. Needs not to be war Hamdi v. Rumsfeld. issues: 1. can the United States detain its citizens as enemy combatants without charging them with a crime and, if so, for how long; and 2. if a detainee contests his enemy combatant status, what manner of habeas corpus review, if any, is he entitled to receive? Holding. O'Connor says this is a category 1 casepresident's power is at its highest. She likens this to POW detention. He was taken from active field of combat and it is still an active zone of combat- our troops are still deployed there. She talks about this as one piece of the war on terror, not a War on Terror- when we are out of that particular area of combat, does it still apply? Reason for detention is important to O'Connor- is it to keep him from returning to enemy? If it's for the purpose of interrogation, that is NOT authorized (did not say it could not be authorized by Congress, just that it is NOT authorized). 1. Relevant factors: i. Citizenship ii. fact of ongoing military operations 4. 5. 6. 7. Angela M. Huddleston Constitutional Law Fall 2004 iii. purpose of detention iv. notion that detention will not be indefinite. 2. She wants to give exec. Branch leeway and not assume that they will abuse it, but she suggests that there is a limit on the authority, just doesn't state what that limit is.The court can determine if the detention is legal, but not if the classification is factual. 8. Partial concurrence.
1. Justices Souter and Ginsburg disagreed with this analysis, reasoning that § 4001(a) required a more specific congressional authorization than could be found in the AUMF. i. specifically rejected the government’s assertion of the “inherent, extrastatutory authority under a combination of Article II of the Constitution and the usages of war,” recalling Justice Jackson’s observation that “the President is not Commander in Chief of the country, only of the military.” ii. conceded that there may be room for the executive to take the power to act against an imminent threat, but dismissed the possibility that this was such a case, as Hamdi had been detained for more than two years. iii. Hamdi is not being detained in a way that is consistent with prisoners of warif he were, he would be subject to the Geneva Convention, etc. iv. Application of the clear statement rule. 1. Is the authority inherent? NO. 2. If this falls under the executive branch's inherent authority, what doesn’t? v. Imminent threat does not apply to Hamdi because it's been two yearsthere must be some compressed time limit on the threat. Also, there were no charges- if a person were an imminent threat, he could be charged with attempted X or conspiracy to commit X. Angela M. Huddleston Constitutional Law Fall 2004 INDIVIDUAL RIGHTS
1. General a. Three basic questions re: individual rights. i. What are the valid sources of individual rights? a. Bill of Rights. i. 9th amendment says BoR does not cover ALL rights. ii. Against whom is any particular right enforceable? 1. 1st amendment appears to only refer to federal government. Other amendments don't expressly refer to any level of government. It seems that only some of the rights apply to the government while others do not apply to anyone in particular. The court held that nothing in the bill of rights applied to the states (Marshall). The bill of rights was to protect individual rights from the newly developed government. The constitution took the states as it found them. iii. The question is always what is the limit on that right? b. natural justice- natural rights that people do not waive when entering a society. There was some disagreement among the justices as to how much they could enforce this idea of natural justice. i. What is natural justice and how are they supposed to apply it?-----> leads to idea of judicial activism. ii. Judges decide what is a right based on their own idea of social policy. 1. *countermajoritarian difficulty* Why should 9 people's idea of social policy trump the decisions of a democratically elected legislature? No clear answer, ongoing debate. 2. Due Process a. Implied Fundamental Rights Rational Basis Reviewminimally rationally related to legitimate interest, ie. any conceivable nondiscriminatory purpose Intermediate Scrutinysubstantially related to important interest (50/50), actual purpose evaluation Strict Scrutinynecessary to accomplish a compelling interest (i.e. no less restrictive means that would accomplish the ends), actual purpose evaluation Angela M. Huddleston Constitutional Law Fall 2004 no fundamental right at issue: economic regulations, etc. fundamental right: Privacy – marriage, contraception, procreation, raising children, right to live with family member, decline unwanted medical procedures Interstate travel, voting, fairness in the criminal process, a. Facially Discriminatory i. Strict scrutiny is applied automatically, no showing of discriminatory purpose need be made b. Facially Neutral Laws i. Ps must show that discriminatory purpose was a motivating factor in the enactment or administration of the statute. ii. Court will NOT generally look at the effect of the law if it is NOT facially discriminatory or the motive for the inaction is improper. Exception – as applied if the law is being applied disproportionably then court will review the effect process. c. Lochner era i. Cases 1. Lochner v. US (1905) a. Facts/Holding. struck down a NY statute limiting bakery employees to 60 hrs./wk. Point of the New York law: Long hours were detrimental to the health of the bakers. This was in an era of progressive legislation. Congress was passing laws at this time to prevent harsh child labor conditions (Hammer v. Dagenhart). i. Two questions: 1. What right was being asserted against this law? a. Economic freedom- the right to contract. 2. Authority? a. Due process clause. b. Court's test p. 288: i. Is it fair, reasonable, appropriate exercise of power, or unreasonable, arbitrary interference with right of individual? The test is mean-sensitive, not just endsensitive. ii. ends state could pursue (protection of worker- court said this was special interest Angela M. Huddleston Constitutional Law Fall 2004 legislation, a mere wealth transfer to bakers, readjustment of economic power), and iii. means the state could choose to pursue those ends (state had used a “health law” justification: less tired bakers make safer bread). Court said that health laws are valid, but there had to be a tight fit between means and ends. Here, a less restrictive means was available (health inspections, required bathroom furnishings, etc.) to accomplish the ends. iv. court looked to the legislature’s actual purpose. Court refused to defer to legislative fact finding. 1. Two potential concerns: a. Labor i. Court rules its NOT a valid labor law. Bakers are not an exceptionally vulnerable class. ii. It was a partial law and not a general law. It is a class privileging legislation- none of the general justifications that could be made works because it doesn't benefit the public, it only benefits ONE side of ONE industry. b. Health i. Court rules it is NOT valid as a health law. ii. It would be a partial law, again- it doesn't benefit the whole population with better bread. c. Harlan’s dissent: There are serious health risks faced by bakers, and their life expectancy is only 50. i. But the court does not buy this as a special danger industry. Slippery slope argument- Angela M. Huddleston Constitutional Law Fall 2004 if some occupations are healthier than others, the court could legislate all kinds of industries. ii. But NY wasn’t arguing SEEDS on unhealthiness- they were arguing ACTUAL unhealthiness. d. Holmes’ dissent: Herbert Spencer- father of social Darwinism. Lassieze faire will yield the best outcome for society. accuses the court of judicial activism- justices are deciding policy. Freedom of contract is not a constitutionally protected right. 2. Nebbia NY enacted statute to fix price of milk to protect the milk sellers. Alleged to be a limitation on the right of parties to contract for a lower price. a. What would the Lochner majority would have said about this. i. Like bakers, dairy farmers were not a protected class, and therefore not a public interest. Continued supply of milk would be a public interest. Lochner majority would say that its not a narrow enough connection – will not have the effect the legislature believes it will. Looks the same as Lochner. Court comes to a very different result. The majority loosens the scrutiny of the due process clause, because even if there is a loose connection it will be acceptable – and we define public interest very broadly. Legislature moved the price set by law above the equilibrium price – but this does not help the farmers, because the middleman can still charge whatever he wants. Is it possible that the NYS legislature could not figure this out? No- they had another motive. The retailers are the only ones that could benefit from this. b. Test i. Law must be reasonable and not arbitrary. ii. Means must be related to object sought to relate. iii. Rational basis test applies to economic legislation: does it pursue a legitimate state interest- is there any rational basis for concluding that this statute furthers that interest to some degree. Carolene Products- In the footnote, court suggests Angela M. Huddleston Constitutional Law Fall 2004 there are circumstances (non-economic interests) , foreshadowing strict scrutiny. 3. Williamson OK statute re: opticians, forbade opticians from duplicating lenses without prescriptions. What would Lochner court say about this regulation? It is restricting their economic freedom- it's partial legislation. How does the court justify its refusal to strike down this statute? It's along the lines of Holmes' dissent. ii. When we move from Lochner we lose what counts is the public interest, but when we stop scrutinizing, we wonder if the legislature has looked at it closely enough. Nebbia appears good at first, but then maybe not. d. Procreative autonomy i. Cases 1. Griswold a. FACTS. Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception. b. ISSUE. Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives. c. HOLDING. Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third (quartering of troops), Fourth (Search and seizure), and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The word privacy appears nowhere in the Constitution. He talks about privacy within marriage. The point of the amendments cited by Douglas is PRIVACY. Self-incrimination protects us from divulging our private thoughts, the third amendment protects the privacy of our home. Bill of rights guarantees protection of privacy and creats a penumbra of privacy. Angela M. Huddleston Constitutional Law Fall 2004 i. Justice Harlan: stresses Due Process clause. Douglass does not because he does not want to be accused of returning to Due Process. 2. Eisenstadt a. FACTS. William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and over-population. Massachusetts charged Baird with a felony, to distribute contraceptives to unmarried men or women. Under the law, only married couples could obtain contraceptives; only registered doctors or pharmacists could provide them. Baird was not an authorized distributor of contraceptives. b. ISSUE. Did the Massachusetts law violate the right to privacy acknowledged in Griswold v. Connecticut and protected from state instrusion by the Fourteenth Amendment? c. HOLDING. In a 6-to-1 decision, the Court struck down the Massachusetts law but not on privacy grounds. The Court held that the law's distinction between single and married individuals failed to satisfy the "rational basis test" of the Fourteenth Amendment's Equal Protection Clause. Married couples were entitled to contraception under the Court's Griswold decision. Withholding that right to single persons without a rational basis proved the fatal flaw. Thus, the Court did not have to rely on Griswold to invalidate the Massachusetts statute. "If the right of privacy means anything, wrote Justice William J. Brennan, Jr. for the majority, "it is the right of the individual, married or single, to be free from unwarranted governmental intrusion tino matters so fundamentally affecting a person as the decision to whether to bear or beget a child." e. Abortion i. Roe v. Wade Majority opinion in Griswold went out of its way to disavow the due process clause as the grounds for its decision. Roe decision is building off of Griswold- right to privacy. ii. Questions to ask 1. What is the right being asserted? a. Fundamentally, this is a right of bodily integrity/procreative autonomy. i. Argument: right to have an abortion is a part of a fundamental right to privacy. Angela M. Huddleston Constitutional Law Fall 2004 ii. Cases that can be cited: Griswold, Eisenstadt- because the right to decide whether or not to bear or beget a child is the right of the individual. 2. What is the state interest being invoked? a. Compelling state interest to protect the health and life of the pregnant woman and of the potential life of the fetus. i. When is the state interest of protecting the woman valid? 1. AFTER the first trimester- there isn't much of a risk in that trimester. ii. When is the state interest in prenatal life valid? 1. Harder question. From the point of viability, about 28 weeks, the state can prohibit abortions, with certain exceptions (protect the life of the mother). 3. What kind of fit is there between legislation and that interest? (means ends question) 4. Narrowly tailored. Statute can't sweep to broadly. 5. Strict scrutiny. This is strict scrutiny under Carolene products because it infringes on the Bill of Rights, NOT because women are viewed as a discrete and insular minority. f. Stare Decisis. If we were asked to apply Casey's approach to substantive due process to a set of facts that didn't have anything to do with abortion, that would be tricky. i. Casey 1. FACTS. PA state law with three provisions: a. Information 24 hours before b. Minor needs parental consent c. Husband must be notified i. Exceptions to all of these in case of medical emergency. ii. Reporting requirements. 2. Questions to ask a. Two things are absent: i. Nothing about interest of the woman's being fundamental ii. Nothing about state interest being compelling. b. What is the right being asserted? Angela M. Huddleston Constitutional Law Fall 2004 1. When the court gets to defining the precise liberty, it defines it at a very high level of generality (414). 2. We can't say it’s a fundamental right, but the exercise of it cannot be prohibited until the fetus reaches the point of viability (reaffirming of roe). c. What is the state interest being invoked? i. Abortion is a big deal- the cost is undeniable, so a state wants to ensure that it's not a course entered into lightly. The underlying state interest could be construed as the woman's mental health, but other than that attenuated connection, these regulations are pursuing an interest in fetal life. d. What kind of fit is there between legislation and that interest? (means ends question) i. Under a strict application of Roe, the PA statute would be prohibited until after the first trimester. ii. This statute could be considered regulatory innovations in an area that Roe seemed to leave open to interpretation. 3. HOLDING. a. According to Casey, Roe has three parts: i. Before viability, woman has a right to get an abortion without obstacle- state interest is not powerful enough. ii. After viability, the state can restrict or prohibit abortions, provided there is an exception for the health of the woman. iii. Legitimate interest in the outset of the pregnancy protecting the woman and the potential life of the fetus. b. Hallmark of the court's analysis- undue burden. What poses an undue burden? i. The spousal notice requirement is an undue burden. For some categories of women, this might be dangerous, or at least onerous. ii. 24 hour notice requirement is NOT an undue burden. Critics say this is a class issue- rural poor have a problem with this restriction. Angela M. Huddleston Constitutional Law Fall 2004 c. court identifies as relevant considerations in stare decisis analysis: i. Reliance interest. Have people ordered their affairs in light of this decision? What about institutions built up in reliance on the existence of this decision? Would be relevant if Roe had gone the other way as well. 1. Comment: is this a weak argument? Would anything be overruled if reliance were taken into consideration? ii. Whether the rule is "workable" 1. The question is similar to whether something is "judicially manageable"have courts been able to build up a coherent jurisprudence based on this case? iii. Whether the growth of other law has made the ruling anachronistic 1. Decisions don't have to be formally overruled, but where law in some areas has developed in such a different direction as to leave this particular decision unmoored from the rest of the law. iv. Whether the factual circumstances have rendered decision out of touch with current times. 1. The court says the case is not made for the overruling of roe- in part because some of the factual underpinnings have changed. The rigid reliance ont eh trimester framework seems like it's not sound given advances in medicine. v. The scientific facts of the case. 1. The court noted that viability had moved back from 28 weeks to 24 weeks. g. Partial Birth Abortion i. Cases 1. Stenberg v. Carhart, a. Facts. S. Ct. Dilation and Extraction- D&X. Dilation and Evaluation- D&E. In D&X the procedure is that the doctor will induce labor and Angela M. Huddleston Constitutional Law Fall 2004 as the body comes out, the skull is collapsed and the brain is vacuumed out. In D&E, the fetus is dismembered in the uterus. Statute begs the question of what is a substantial part of the body? Is an arm a substantial part? b. Holding. Court concludes that the statute is so vague that there is an undue burden based on uncertainty re: D&E procedure. i. Problems of vagueness. If a criminal statute is so vague that we cannot reliable know whether it falls within the statute, the statute is void for its vagueness. There is fear that a vague statute will improperly chill action that does not fall within the scope of the statute. ii. Problem with the statute- no exception for health or life of woman. Roe says exceptions for both health and life of the woman are important. If the scope of the statute were clearer, would we need the exception for health (would there still be an undue burden)? h. Familial rights and the right to marry i. In what circumstances may the state restrict the ability of people to associate intimately with one another in some way that is not sexual? 1. Cohabitation a. Hypo- PAD rents a house, 8 people each with his own room. Violates Ithaca zoning statute saying only 3 unrelated adults can live in a single family dwelling. How do they do in court? Not wellthere must be a rational relationship to state interest, and there is an interest in prohibiting unsanitary conditions. What are they lacking? Blood relationship. 2. States understanding of family a. To what extent may the state define what family is? b. To the extent there are limits on the state's ability to define family, does the Constitution assume a particular definition of family? c. To what extent do people have the right to marry? i. To what extent can the state impose a burden on that right? 1. Is it a fundamental right? ii. Cases Angela M. Huddleston Constitutional Law Fall 2004 1. Whalen v. Roe, 1977 Intimately personal matters. Making very important decisions- link to Eisenstadt 2. Moore v. East Cleveland, 1977. Grandmother and two grandsons who were not brothers couldn't live together under statute. Court struck it down because it attempts to define what a family is. a. States ability to regulate who can cohabitate depends on whether they are family members, and state does not have absolute power to define what a family is. b. Court will not give a definition of a family, but says this case fits the definition. i. Hypo: Suppose you have three single parents, unrelated to one another, all single mothers. Each has one child. They decide to live together in order to share costs. After a while, they act as a family and develop intimate (non-sexual) relationships. But it violates a town ordinance (these were designed to prohibit brothels). Should they be granted the same protection as in Moore? If not, why not? 1. Is this the kind of privacy interest that requires states to tailor its statute narrowly? 2. Ought this kind of association get heightened con. Protection and thus strict scrutiny 3. Zablocki Fails on tailoring grounds. They are legitimate state interests, but the statute sweeps too broadly. iii. The reason we are supposed to look at history is that those are sort of things that are implicit in liberty are those things that are accepted over time. i. Levels of generality and sexual orientation i. How can we connect liberty interest with text of the Constitution? How well we can do that is often going to turn on the level of generality at which the liberty interest is expressed. ii. Court uses various levels of generality without justifying why. They usually use a higher level of generality to protect a liberty and a lower one to say such liberty does not exist. The question is whether there is a way to pick a level of generality that is not arbitrary. 1. More potential for conflict at higher level of generality. More specific always trumps general. iii. Cases Angela M. Huddleston Constitutional Law Fall 2004 1. The Michael M. v. Gerald D. considers whether the father of a girl conceived in an extra-marital relationship has a fundamental right to participate in any way in his child's upbringing. The case also provides an interesting debate among justices on the question of how fundamental rights protected by the Due Process Clause ought to be identified. a. Footnote 6- should refer to most specific level of generality in order to apply historical tradition test. b. You could stress a different aspect of Michael H. and you would look in a different direction from specific to general- it's not clear in which direction to point yourself. Scalia says if we can find no tradition as to the rights of natural fathers vis a vis children born out of wedlock, then we should look to the rights of natural fathers more generally. Why? Why not move to custodial issues over children born out of wedlock? Or Why not flip it to motherhood? c. If there were one tradition granting robust parental rights to natural parents vis a vis children over whom they now do not have custody who were conceived out of wedlock AND there were the opposite tradition with respect to natural fathers generally, Scalia does not tell us how to mediate that difference. They are both the next higher level of generality up. 2. Bowers v. Hardwick (1986) a. Facts. Statute applies to everyone- not same-sex specific. b. Questions i. What is the claimed liberty interest? 1. Fundamental right to homosexual sodomy. Very low level of generality. a. If it's a fundamental rightstrict scrutiny. White says this is NOT a fundamental right. He says the other cases were about family and procreation and things that help procreation along, like marriage. b. If not- rational basis. Does the statute rationally pursue a legitimate state end? Angela M. Huddleston Constitutional Law Fall 2004 c. Holding. No substantive due process right to engage in sodomy. d. Dissent bothered by the selective application of this law to homosexuals, but not heterosexuals who engage in sodomy (equal protection issue). Sodomy statutes are rarely enforced against homosexuals, this case involved weird facts ª as applied problem 3. Lawrence v. Texas a. Differs from bowers- this one is homosexual sex only. b. HOLDING. i. Majority focuses on whether the conduct is protected by the Constitution…? ii. Stare decisis question- Casey was the approach to the abortion question and to stare decisis- how much to rely on precedent and how much to revisit the matter. Court ultimately overrules Bowers. Justification as a matter of stare decisis: 1. Subsequent decisions have eroded the precedent. Casey and Romer undermine the rationale used in Bowers. a. Casey - realm of personal liberty where government may not enter. It's hard to see how it's approach to substantive due process does anything to Bowers. iii. Majority says reliance doesn't commend retaining Bowers because there is no individual or societal reliance- people have not altered their mindsets, there was no detrimental reliance. Reliance is one wayit's important when looking to deny rights, but not when looking at implementing one. c. Scalia's dissent- stare decisis should be used sparingly in Constitutional cases and more robustly in statutory cases. j. Right to Die i. The state law is that there needs to be clear and convincing evidence that incompetent wants a certain thing to happen. Clear and convincing is somewhat less than beyond a reasonable doubt. This just shifts which way error will lie. ii. This is an undue burden test. Angela M. Huddleston Constitutional Law Fall 2004 iii. Cases 1. Cruzan v. Director 2. Washington v. Glucksberg a. Competent patients, want to end their lives with the assistance of drugs provided by doctor. b. Chief's opinion- history per the Michael H. approach. Suicide has never been recognized as a fundamental right. \ c. O'Connor says this is not about the double effect because state laws effectively permit the double effect- the point of the drugs is to alleviate suffering. k. Equal Protection i. Level of scrutiny: 1. Justifications for Applying Heightened Scrutiny a. Precedent b. Text and Original Intent: c. Irrelevancy: d. Moral Consensus: e. Normative Condemnation f. Political Process Theory g. Prejudice Prongh. Discrete group i. Insular group ii. The traditional approach 1. Can we connect rational basis test with text of EP clause? a. Discussion of note 5 on p. 1143. b. Rationality requirement for equal protection à excessively over/under inclusive? Does it matter? 2. Cases a. Railway Express Agency (1949) i. Facts: Trucks in NYC were not allowed to advertise unless the vehicle was a delivery vehicle engaged in the business of the owner, appellant owned trucks that he advertised on, and was convicted. ii. Holding. As long as congress has a rational basis for believing there is a connection à deferential treatment. iii. Rule: Economic legislation may discriminate so long as the discrimination is rationally related to a legitimate state interest. It may be underinclusive of the class discriminated against. Angela M. Huddleston Constitutional Law Fall 2004 iv. “One step at a time approach” (I.E. Underinclusive legislation is okay) b. New Orleans v. Dukes (1976) In the advantage group is more likely than not that will not be contributing to the problem limiting while someone in the disadvantage group would be i. Review limited to the rational characteristic test 1. Statute: Ban on all French Quarter pushcart vendors that had not been in operation except those in continuous operation for eight or more years 2. Possible S Interest: Aesthetic interests of the French Quarter, tourism, etc. ii. Holding: “Legislatures may implement their program step-by-step in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil for future regulations.” c. NYC TA v. BEAZER, 1979 The Methadone Case i. FACTS. Statute: Forbid Transit Authority from hiring methadone users. S Interest Identified: Safety and efficiency ii. HOLDING. Despite the fact that 75% of patients who have been on methadone maintenance for at least one year are free from illicit drug use, the rule does not characterize a class of persons by an “unpopular trait of affiliation” it does not matter that the degree of rationality is not as great with respect to “certain ill-defined subparts of the classification.” 1. “Any special rule short of total exclusion that the TA might adopt is likely to be less precise – and will assuredly be more costly – than the one that it currently enforces.” iii. Rule: Economic legislation may discriminate as long as the basis for the discrimination is rationally related to some legitimate state interest. May be overinclusive of the class discriminated against. Angela M. Huddleston Constitutional Law Fall 2004 d. U.S. Railroad Retirement Board v. Fritz i. FACTS. Statute: preserved windfall benefits for some while taking them away from others. S Interest Identified: Preserve “limited” windfall for career employees, and those who had not have left the RR before the Act’s passage were more likely to be career ii. HOLDING. From Dukes: does not matter that everyone was not included. “It is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivates the legislature.” e. FCC v. Beach Communications, Inc. – The Modern Test (maximally deferential version of the rational basis test) i. FACTS. Statute: Facilities that provide cable television to one or more buildings under common ownership or management are exempt form standards applicable to facilities owned or managed separately. S Interests Identified: The small number of subscribers might make the costs of regulation outweigh the benefits of regulation; or those under common ownership may have greater bargaining power ii. HOLDING. “In areas of social and economic policy, a statutory classification that neither proceeds on suspect lines [e.g. race, national origin, religion, etc.] nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Basically: The burden of proof is on the P to show there can be no rational basis f. United States Department of Agriculture v. Moreno - If the statute itself provides a purpose, or if the legislative history discloses a purpose, that will control i. FACTS. Provision of the Food Stamp Act excluded “any household containing an individual who is unrelated to any other Angela M. Huddleston Constitutional Law Fall 2004 member of the household.” Stated purpose of Act: Raise levels of nutrition among lowincome households ii. HOLDING 1. Provision clearly irrelevant to the stated purpose, so must see if it is related to some other legitimate governmental interest 2. Legislative history says the provision was intended to prevent “hippie communes,” but EP “at the very least means that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental purpose.” a. Also, does not prevent fraud because applicants could just nominally alter their living arrangements 3. Note: A classification is not suspect unless there was actual legislative intent to discriminate against someone based on race or nationalorigin (other groups have not been recognized as suspect classes) The mere fact that a law has a disproportionate effect on a certain group will not suffice to trigger strict scrutiny, but it can be used as evidence of intent g. Allegheny Pittsburgh Coal Co. v. County Com'n. i. FACTS. A county policy which assesses real property on the basis of recent purchase price, but which makes only minor modifications to assessments of properties not recently sold violates EP. The valuation results in gross disparity of assessed value of comparable properties over a long period of time. Law must provide some attainment of a rought equality of similarly situated property owners. l. Race. i. Strauder through Plessy, Korematsu, Brown, and Loving are about race based classification. Those cases trigger strict scrutiny. Angela M. Huddleston Constitutional Law Fall 2004 1. Cases a. Dredd Scott b. Strauder i. Facts 1. Statute: Prohibited from serving on juries; Strauder sued to overturn his murder conviction ii. Holding: S may prescribe qualifications for jurors based on sex, citizenship, education, or age, but not based on race. Court said the true spirit and meaning of the 14th amendment is that races are equal before the law. (formal equality) They say that it was designed for a special group's particular benefit (newly emancipated slaves). Formal inequality- 14th amendment may not prohibit formal inequality unless it leads to some form of subordination c. Plessy (1896) i. Holding: 1. Laws such as the one in question only violated “social” equality, not political or civil equality 2. Law itself does not stamp blacks with a badge of inferiority, and if they felt inferior, it was only because the “colored race chooses to put that construction upon it.” ii. court would have been acting hugely countermajoritarian to have come out the other way; public sentiment supported segregating the races for the benefit of both iii. Justice Harlan dissent (way ahead of his time): Con. is colorblind, anything that classifies people on the basis of race is unconstitutional. Colorblind principle comes back to bite affirmative action in the ass. d. Korematsu (1944) i. Facts: Post-Pearl Harbor military order excluded all people of Japanese ancestry from certain areas of the West Coast and resulted in their effective imprisonment. ii. Holding: Despite its suspectness (strict scrutiny applies), Ct found a compelling need to prevent espionage in with no sufficiently practical and rapid way for the military to distinguish the loyal from the disloyal, I.E. apprehension by military of the “gravest imminent danger to the public safety.” Angela M. Huddleston Constitutional Law Fall 2004 Essentially, the Ct relied on a cooked-up report provided by the military, showing their judgment great deference 1. did not apply what we think of today as strict scrutiny. a. What do we think SS is today? i. Must be a fundamental interest ii. This case doesn’t look at the facts given very much and doesn’t care about overinclusivity of the statute b. State is acting on a racial classification and burdening the civil rights of a specific group. (Trigger) i. importance of the gov’t interest and narrowly tailoring ii. Court says what you would need for this kind of classification would be “a pressing public necessity. ”Military necessity – preventing espionage & sabotage. The gov’t interest is important iii. BUT is there really evidence to think that these threats are real? (That’s kind of a fit question). Report was of hundreds of activities of subversion on the west coast. Still, this may be an overinclusive response to the problem. Court does not weigh competing evidence. There is a great deal of deference to fact-finder. Defers to the facts given by the exec branch. Doesn’t subject the assertions by exec to any scrutiny at all really. iii. What do we walk away from this case with? We know that national security interests count as compelling state interest iv. Dissents: Angela M. Huddleston Constitutional Law Fall 2004 1. Murphy: Ct relied on the assumption that person’s of Japanes ancestry were more likely to commit sabotage – could have relied on individualized trials, at least for citizens 2. Jackson: a. The violence to our constitutional values is greater form this decision than from the order itself – at least the former would only last as long as war time, instead of validating for all time the principle of racial discrimination in the criminal procedure of transplanting American citizens b. “The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” c. No similar order for Germans or Italians d. Jackson says courts are not well situated to decide how permissible a military procedure is i. He’s saying we can’t just let the military do whatever they want either ii. What should we do? He doesn’t really say for sure e. Brown v. Board of Education (1954) p. 1167 i. Court distinguishes this case from earlier education cases. Why? 1. None of the past ones specifically asked them to examine the doctrine of separate but equal. 2. The earlier cases are about resource equality. They were not separate but equal, they were unequal 3. It was litigation strategy. Get your outcomes w/out changing status quo 4. They thought that maybe they could help move the country toward equality slowly since the country wasn’t necc ready for big steps of equality (brown) Angela M. Huddleston Constitutional Law Fall 2004 5. Court is going to look at Separate but Equal Doctrine 6. This was the first time the doctrine was actually challenged 7. Court is going to look at the original meaning of the 14th amendment 8. Originally Courts and Congress said that racially segregated schools are fine. a. That’s a problem. How did the court respond? How did Bickell Respond? ii. What does the court say about the original meaning of 14th amendment? It’s not despositive. That’s kind of dodging their own question. 1. The court isn’t troubled by that b/c of the changing nature and status of education. It wasn’t really important way back then, but it is now, and since it’s more important, it’s something equal rights could apply to. a. Public Education has moved from social to political. Now it gets 14th amend protection. b. Brown Says Original meaning interpretation isn’t the end of the game. It must stay up to date. i. What does Bickell say about this? Framers were just setting forth an ideal (equality), they knew that specifics would change (education). Framers consciously used broad language knowing that over time the dimensions of equality would show themselves and dealing with that was part of the reasoning behind the amendment himself. But this is not really originalism. iii. Court now looks at separate but equal and says “is there a harm here”? 1. Yes. Separation makes children feel inferior. a. Social Science – Doll Study Angela M. Huddleston Constitutional Law Fall 2004 2. Is it the formal equality point or substantive equality point that is causing the problem here? 3. Holding: In education, separate but equal has no place, separate is not equal. (Plessey isn’t overruled. The Court basically said that education nowadays is factually different from the situation in plessy. Similar (to Brown) holdings follow Brown. So, although Plessey was never explicitly overruled, the doctrine is technically overruled. iv. So what do we do about the finding of Brown 1? That’s what Brown 2 tells us. 1. There was a risk that if Brown decision said that schools must desegregate immediately that some school boards would just shut down completely. 2. Brown 1 was confined to public schools. Later, racial segregation was invalidated in all public places. However it did not touch on marriage. f. Loving. i. Facts. Statute is aimed at preventing white people from marrying non-white people. This is race specific and an endorsement of White Supremacy. It is not a public safety issue. If strict scrutiny applies, VA is in trouble. VA's argument is "this is not a 14th Amendment event." VA says the punishment is the same for both races, so no violation of equal protection. The fact of equal application is not enough to remove the law from 14th amendment proscription of racial discrimination. ii. HOLDING. Court says "we're not doing originalism"- it looks for a broader, more organic purpose of the 14th amendment. Mentions "organic" properties of 14th amendment. If the state admits to a purpose that can't be justified, the inquiry ends. Court discusses alternative basis for decision: 1. Marriage is a fundamental liberty interest a. Strict scrutiny i. State interest and tailoring offers not legit reason for sustaing legislation Angela M. Huddleston Constitutional Law Fall 2004 2. De Jure v. De Facto a. De jure- state's purpose is to discriminate on the basis of race. The purpose is manifest on the face of the statute (Strauder). b. De facto. Yick Wo (special member), Washington, Arlington Heights, Batson give us tools for figuring out if these cases are discrimination. i. Yick Wo. This is before the time of strict scrutiny. Disparate application. Statute prohibited laundry in wooden buildings without permission of board of supervisors. Statute was only applied to Chinese people. Nothing on the face of the statute related to race, but there is a good case that given the way the statute is being applied, on group is being discriminated against. There is purposeful discrimination from the executive branch of the state, not the legislative branch. Remedy: to allow all Chinese in wooden laundries to operate or to stop all non-Chinese in wooden laundries from operating? ii. Washington v. Davis DC police dept was recruiting for police force, had to pass civil service test. Four times as many black people failed as white people. Think of the test as the statute. It does not reflect a discriminatory purpose. The disparate impact is an EP violation. If disparate impact is ALL you have, that is not enough to trigger strict scrutiny. Strict scrutiny applies when the state engages in race based discrimination. 1. Disparate impact cases are about whether the case triggers strict scrutiny. a. DISCRIMINATORY PURPOSE is the standard. Decision maker selected and reaffirmed a course of action in least in part but not in spite of its adverse impacts on a group. It does not have to be the ONLY factor. i. What if what motivated the statute were a number of different purposes? Feeny case. Statute was in part for its adverse effects upon an identifiable group. If it's BECAUSE of its adverse Angela M. Huddleston Constitutional Law Fall 2004 effects, this is a violation of EP. iii. Arlington Heights (1977) 1. court upheld zoning board’s refusal to grant building permit to non-profit real estate developer who wanted to build low-income housing. 2. Zoning rule was facially neutral, P said it was meant to exclude blacks, court accepted Town’s argument that they merely wanted single family homes. 3. Effects alone usually not enough -although occasionally effects are so egregious that they are sufficient: a. Circumstantial evidence of discriminatory purpose i. Historical background of decision ii. Sequence of events leading up to the decision iii. Whether legislature breaks with procedure. iv. Practically impossible for P to meet this burden. v. Burden shifts to D to prove that decision would have been made even if race had not been a factor. 4. Arlington and Washington gently overrule the Palmer decision. Willing to listen about the legislative process and willing to strike down laws for being passed for the wrong reasons and willing to police the legislative process MARBURY!!! iv. Batson v. Kentucky- specific form of applying Arlington Heights 1. “A D may establish a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the D’s trial” 2. Prosecutor can not use as a defense the notion that juror’s shared race would have created sympathy – I.E. constitutionally irrelevant even if true Angela M. Huddleston Constitutional Law Fall 2004 v. McCleskey v. Kemp - Denial of the use of statistical evidence in EPC cases 1. Facts: The Baldus study showed that blacks charged with killing whites were statistically more than four times more likely to received the death penalty than those charged with killing whites 2. Holding: a. Insufficient to “to compel an inference that his sentence rests on purposeful discrimination” b. Unlike Batson, this is not conduct that occurred in a particular instance, but instead the study reflects past conduct of other prosecutors over a long period of time Also: policy dictates that jurors not provide the factors that led to their decision, and this would ask prosecutors to defend their decisions years after they occurred ii. Affirmative Action a. Affirmative Action as a Remedy i. Same for Fed as for states - no more acceptable for Feds to engage in discrimination as it is for States to do so. Strict scrutiny for every state & governmental actor. ii. Strict scrutiny – applies to govt. classifications as well as state. Adarand iii. Racial balancing, quotas, specific % in state or private schools violates Const. Bakke iv. Role models, racial balancing ≠ compelling state interest v. Achieving diversity in student body is compelling interest, as long as plan is narrowly tailored and does not unduly burden majorities. Grutter v. Bollinger vi. OK to have individualized consideration of race to achieve diversity in law schools, where race is not assigned preordained value in all cases. Grutter vii. Diversity is not necessarily compelling state interest in undergraduate schools. Gratz v. Bollinger viii. Individualized review must be given to all applications when race considered. Gratz b. Cases Angela M. Huddleston Constitutional Law Fall 2004 i. Croson Benign Discrimination Subject to Strict Scrutiny 1. Facts: Richmond enacted a Minority Business Utilization Plan that required at least 30% of the dollar amount of each prime construction K funded by the city to go to a Minority Business Enterprise; the rationale for the plan was to remedy past discrimination in Richmond 2. Rationale for Strict-Scrutiny - basis for strict scrutiny does not vary with which race is being affected. a. Impossible to tell if a statute is benign or invidious (E.G. the measure enacted here was done be a Black-majority City Council, could have just been an attempt to get bigger slice of the economic pie)Carolene Products- is it about formal equality or some substantive antisubordination vision of equality? If CP said any time a race has a numerical majority in the population, and then does something to favor its race, strict scrutiny is triggered (which IS the rule), majority is right. But we don't have to read the footnote that way. But maybe it's about whether legislative action repeats race-based problems the country has had- if it exacerbates or revives those problems strict scrutiny might be justified. i. Also, this would help to “smoke out” the illegitimate use of race b. Danger of stigmatic-harm c. As a society, we’ll never be raceneutral unless these plans are strictly scrutinized 3. Application to the instant case: a. There was no evidence that this was a necessary objective (I.E. that this type of discrimination had occurred) i. E.G. evidence that only .67% of publicly funded prime Angela M. Huddleston Constitutional Law Fall 2004 construction Ks were going to blacks was irrelevant because there could have just not been any black owned firms that could do the work ii. Blacks might just not be attracted to construction iii. Evidence that there was discrimination nationwide was irrelevant to the situation in Richmond b. Thus the lack of proof of a legitimate S interest, would have been enough, but the statute was also insufficiently narrow in its tailoring i. No showing that race neutral means would not have established the same goal (E.G. financing for small firms without regard to color) ii. 30% quota was pretty random 4. Ct did say, however, that not all raceconscious remedial plans would fail strict scrutiny, and furthermore statistical evidence might be enough to show an inference of discrimination if there was also evidence of a disparity between the number of black contractors willing and able to perform a particular service. Thus the rule was developed that: Race-conscious “reverse discrimination” may be upheld only if necessary to achieve a compelling government interest (and it must be narrowly tailored to do so) ii. Adarand 1. Facts: Federal program gave prime contractors a discount when they used Disadvantaged Business Enterprises on sub-contracts a. White owned firms weren’t necessarily disqualified from DBE status, but they were presumed not to have this status whereas minority and female firms were 2. Holding: court remanded to the DC for decision, but in the process: Angela M. Huddleston Constitutional Law Fall 2004 a. Federalized the Croson test requiring strict scrutiny of a compelling S interest and a sufficiently narrowly tailored means b. Also: i. The degree of outcome determinativeness and the rebuttability of presumptions could go to showing narrow tailoring ii. Some deference given to Congress as opposed to a City Council (I.E. need less evidence), and nationwide evidence can be used for congressional measures 3. If it's necessary to further a compelling state interest, it's ok, as long as it meets the tailoring requirement. 4. Scalia and Thomas v. Stevens, Souter, and Ginsberg a. Scalia and Thomas- formal equality. Equality of opportunity. There is no creditor or debtor race. We don't know if this will pursue some other higher ideal of equality, this is just what the Constitution says. b. Stevens, Souter, Ginsberg- the end is a colorblind society, only achievable after a program of substantive and anti-subordination equality have been successfully pursued. iii. Grutter AA survives strict scrutiny 1. Holding: “Student body diversity is a compelling state interest that can justify the use of race in university admissions.” a. Critical mass of minority students required to create “cross racial understanding,” breakdown stereotypes, and promote more enlightening classroom discussion i. Amicus curie briefs: Ct referred to several briefs, including an argument from military leaders that the Angela M. Huddleston Constitutional Law Fall 2004 military required raceconscious recruitment policies to create a qualified and diverse officer corps ii. “Visibly open” path to leadership: law degrees are a path to leadership positions and for these leader to have legitimacy “it is necessary the path to leadership be visibly open” iii. In Bakke, Powell suggested that courts defer to universities because they are in a better position to know. O'Connor signs onto this view in her opinion for this case. She describes diversity in terms of educational benefits for student body but also in terms of the diverse work force produced by diverse student body. b. Narrowly tailored: i. Not a quota system like Bakke because there is no fixed number of reserved seats (year by year variation in numbers of minorities enrolled) ii. “Holistic” review: not a mechanical, predetermined bonus, but a “highly individualized. holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute…” iii. College system is unbalanced, disproportionateMonet gets five points, any minority gets twenty. iv. S need not exhaust every race-neutral alternatives, and Bush-advocated percentage plan for reserving spots would Angela M. Huddleston Constitutional Law Fall 2004 not work in the graduate school environment c. Sunset provision: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” 2. Thomas dissent: a. Diversity an aesthetic b. No compelling state interest in maintaining an elite public law school c. AA bad for its (unprepared, overmatched) beneficiaries d. Thomas says “I agree with the court’s holding that the use of racial preferences will be illegal in 25 years.” 3. Ginsburg concurring: a. says that it will be SAFE to do away with AA in 25 years. i. Seems to be saying she HOPES it will be safe. iv. Gratz 1. Facts: Michigan’s undergraduate school used a point system whereby a score over 100 guaranteed admission, and 20 points were awarded based on an applicant’s status as an underrepresented minority a. These 20 points proved dispositive for all minimally-qualified minorities 2. Holding: Unconstitutional as it was not sufficiently narrowly tailored a. Does not conform to Powell’s Bakke opinion because here the points are decisive b. Flagging not adequate, because 20 points still dispositive for “minimally qualified” minorities c. Michigan’s large number of applicants was not a defense, because cost has no bearing on constitutionality 3. Ginsburg dissent: camouflage as the alternative m. Gender Discrimination i. This is going to be intermediate scrutiny- between rational basis and strict scrutiny. Angela M. Huddleston Constitutional Law Fall 2004 1. Arguments for heightened judicial scrutiny: a. History of discrimination or at least inequality. BUT: i. Race is per se suspect and presumptively unjustifiable. But is different treatment justified on the basis of sex? 1. In some cases, separate but equal is ok with respect to gender, e.g. sex separated restrooms. ii. Women have more power to change attitudes starting at home, where minorities do not have the opportunity to educate the majority. ii. Cases 1. Craig v. Boren – Intermediate Scrutiny for gender-based classifications a. Statute: Oklahoma forbade the sale of 3.2% beer (non-intoxicating) to males aged 18-21 but not to females b. Intermediate Standard: “Classifications by gender must serve important governmental objectives and must be substantially related to the achievement of these objectives.” c. Holding: The state’s defense that 2% of men and .18% of women were arrested for drunk driving was an insufficient correlation – the means (ban of sale of alcohol) was not sufficiently tailored to the end (promotion of traffic safety) i. Because such a small number of males were actually caught driving drunk maleness could not serve as a proxy- this would have passed rational basis test, even though it is over-inclusive. ii. Furthermore, the beer was supposedly “non-intoxicating” and the statute only banned its sale, but not its consumptionthis would have passed rational basis review, even though it is underinclusive. iii. Law prohibited sale of 3.2% beer to males under 21 and females under 18. Court struck this down- based on stereotypes that more men would drink and drive. iv. Court assumes that preventing drunk driving is an important government interest, Angela M. Huddleston Constitutional Law Fall 2004 but there is a poor fit between the classification and the asserted interest. 1. Heightened scrutiny. 2. United States v. Virginia – VMI a. Facts/Issue: Virginia operated an all-male college which they defended by a claim that its practices of extremely rigorous training, technique of depriving students of privacy, and “adversative” approach (I.E. extensive hazing) would need to be altered in order to admit women. i. They proposed the creation of a female equivalent, the VWIL, at an all-female LAC that would encourage “self-esteem” instead of using the adversative approach. b. Holding: State can not rely on “overbroad generalizations” about the perceived differences between men and women to justify sex classifications i. First, there would be at least some women who would prefer the existing VMI program and its adversative approach. ii. State’s defense of “diversity in educational approaches” not sufficient because of a lack of women-only public universities iii. VWIL would be a “pale shadow” of VMI because it would not give the students an intense, military-style education and would not same student body, faculty, or alumni network c. The Ct introduced a new “exceedingly persuasive justification” standard for gender-based governmental action that required “actual state purposes, not rationalizations for actions in fact differently grounded.” d. Scalia Dissent- says that we are disrupting a tradition. However, tradition is precisely the problem when you are talking about gender classifications. i. Detractors cry that VMI is changed, they have to put shades on the doors to protect privacy. 1. But why? Why put shades on the doors? a. If special accommodations are made, it is not equal, not same education as before. Angela M. Huddleston Constitutional Law Fall 2004 Have not solved the equal protection problem. ii. If physical requirements have a super disparate impact, will court infer discriminatory purpose? Open question. Washington v. Davis- court did NOT infer discriminatory purpose, even though way more blacks than white cops failed the writing test. Reed v. Reed (1971)a. Court strikes down state law under which men were given a preference in administering estates (men thought to have more business experience than women) i. Court seems to be more intrusive than the most deferential form of rational basis review, despite claiming to use rational basis review. Compare to Moreno. Frontiero (1973) a. Court struck down law under which female soldiers had to prove that their husbands were dependent upon them for the husbands to collect benefits. Govt’s justification was “administrative convenience.” i. Close judicial scrutinyMississippi University for Women v. Hogan – Remedy must be specific a. FACTS. Nursing department allowed men to audit courses but not take them for credit. b. Holding: In order to show that the classification compensated for discrimination against women, it would be necessary to show that women were disadvantaged in the field of nursing (which they are not). i. Ct also rejected the state’s claim that they were providing women with choice of educational environment, since it was only granted to women (and since men were actually allowed to audit). ii. State's justification- educational affirmative action for women who had been discriminated against in the past. East Harlem Girls' School Hypotheticala. Find out what the EVIDENCE says about the effects on boys, who may not be negatively affected. 3. 4. 5. 6. Angela M. Huddleston Constitutional Law Fall 2004 b. Find state interest- improving education of a substantial part of population. c. VMI was concerned with entrenching old patterns of gender stereotypes. That isn't the case here. d. How much overgeneralization is too much? i. There is never a perfect line. 1. EVERY girl won't learn better in a girls only environment. 2. EVERY boy won't learn just as well without girls. n. Sexual orientation discrimination i. Cases 1. Romer v. Evans (1996). After Bowers, before Lawrence a. Court invalidated CO Con provision that repealed anti-discrimination laws protecting gays in various municipalities. b. Con provision flunked rational basis review, suggesting that the court was actually applying some degree of heightened scrutiny.: i. no legitimate state interest being served (court finds that the actual purpose the legislature was pure “animus towards the class that it affects”) ii. means asserted were not rationally related to the (possibly legitimate) end c. Are gays being discriminated against by this law? i. Majority view- contends that Con imposes a special disability by denying gays protection from discrimination that other groups can seek more easily or already have (sex, age, race) or don’t need (group hasn’t been targeted- such as redheads). Gays are being singled out from other groups needing protection. ii. Scalia- govts aren’t obligated to have any anti-discrimination laws at all. States can’t discriminate themselves, but they don’t have to pass anti-discrimination laws that prevent private individuals from discriminating. Thus, withdrawing antidiscrim. law is not a constitutional problem. d. Standard of Review: Majority purports to be applying rational basis review. i. Court says that the only justification for the law is animus- and bare animosity does not Angela M. Huddleston Constitutional Law Fall 2004 count as a legitimate govt purpose- fails rational basis test ii. Court says rational basis review will uphold statute if there is a "rational relation to some legitimate end." iii. In reality, court is applying heightened scrutiny (moreno, romer, rational basis with teeth). 1. EVERY state action burdens someone, but the state can't draw a distinction where the POINT is the burden a particular group. 2. Hard to believe that state doesn’t have a legitimate interest in passing a law that doesn’t protect illegal conduct (sodomy). Promoting moral disproval of illegal conduct is a legitimate state interest 3. Maybe this law is overinclusivediscriminates against all gays, not just people engaging in homosexual conduct, and underinclusive (heterosexual sodomists off the hook). But overinclusiveness/underinclusivenes s is not fatal to rational basis review. iv. WHEN do you have rational basis review and when is there heightened scrutiny? 1. Normative claim: court is more inclined to see impermissible animus if it seems to be singling out a single immutable trait. Status, as opposed to conduct, especially when it yields regulatory responses out of proportion to any legitimate state interest-- this is the hallmark of animus. 2. Hypo: what if Amendment 2 only referred to conduct and not status? It might look more like Don't Ask, Don't Tell, which has not been reviewed by Supreme Court, but has been upheld by district courts. DCs say: this is about the military (defers to executive branch); this focuses on conduct. Angela M. Huddleston Constitutional Law Fall 2004 e. O'Connor concurrence: attempts to give us an explanation for when rational basis with teeth (heightened scrutiny) is appropriate. i. If the law inhibits personal relationships ii. Intimate associations (marriage cases, Eisenstadt) iii. Sometimes laws on their faces are about conduct but are really meant to discriminate against a particular class. iv. Tells us what the law thinks of morality as a state end. CO could have tried to justify Amend. 2 by arguing morals based legislation. 1. In Lawrence, the majority danced around whether morals legislation is a legitimate state end. In EP area, o'connor says Bowers was not morality based legislation. a. But you can't say, "the state end is to discriminate against this group." b. Morality on its own is NEVER a legitimate state interest for EP purposes, according to O'Connor. Has Kennedy said the same thing in Lawrence majority? It's unclear, though Scalia thinks so. o. Section 5 1. Due process clause and EP clause only apply to government action. When congress wants to regulate private actors, it can use the commerce clause. To regulate state actors, they can use commerce clause/Garcia/clear statement rules AND section 5 of the 14th amendment. . 2. Cases a. South Carolina v. Katzenbach – rationality standard when looking at i. T-Mo: The issue here was whether over or under inclusiveness killed a statute. Answer: No. 1. The means-end relationship here is just like that associated with the necessary and proper clause; in other words: it is an extremely lenient means ends relationship ii. Holding: Court upheld Congress’ suspension of any test or device used to determine voter eligibility in any state that met certain standards Angela M. Huddleston Constitutional Law Fall 2004 b. Katzenbach v. Morgan – Congressional power to define substantive scope of EP legislation, voting rights act of 1965. i. Facts/Issue: NY election law requiring voters be able to read and write English conflicted with a §5 Act that prohibited the states from prohibiting persons who had completed the sixth grade in a Spanish-speaking school in Puerto Rico from voting. IS THIS VALID SECTION 5 LEGISLATION? 1. What is the state action being regulated? 2. In order for Congress to regulate, does the state action have to violate the EP or DP clause? a. Does Congress have a prophylactic power to prohibit those actions that are CLOSE to being 14th amendment violations? i. This is really a means-ends question. Section 5 parallels the N&P clause. (McCulloch) ii. T-Mo: court has a choice between narrow and broad reading of Congress’ powers and chose the more broad interpretation – I.E. that they could legislate preventative measures and can use their own (not the Ct’s) standard for determining the necessity for legislation ii. Holding: Statute must be plainly adapted to ensuring an EPC violation does not occur 1. T-Mo: Thus the §5 power is a one way ratchet it cannot ratchet back a decision made by the Ct, only ratchet up and sweep in slightly more state action than a Ct would be willing to conclude was unconstitutional 2. But: Could Congress pass a statute “clarify” that the Fourteenth Amendment does not apply to a certain a issue before the Ct has ruled on it? (E.G. pass legislation saying Lawrence does not apply to gay marriage c. Boerne v. Flores – Congress cannot define the scope (“contours”) of a constitutional right Angela M. Huddleston Constitutional Law Fall 2004 i. Facts: In response to Smith (Native American use of peyote not okay for religious reasons), Congress passed the Religious Freedom Restoration Act, which essentially said that any governmental action that substantially burdened the exercise of religion had to pass strict scrutiny; it based the act on the DPC power to legislate. ii. Holding: “[Congress] has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” 1. Congress cannot alter the meaning of the Ct’s constitutional interpretation (I.E. Marbury, else the Constitution is unstable and, essentially, changeable by Congress) 2. Congruence and proportionality test: a. There must be congruence between the ends used and the means, and the means must be proportional to the permissible end i. Congress cannot change the permissible end – I.E. how the Ct has read the law ii. If it's substantive, it's gone too far. But you can enact prophylactic legislation. 3. In distinguishing the RFRA from the Voting Rights Act (Katzenbach v. Morgan) a. VRA had termination dates, geographic restrictions, and Congress had evidence of violations in those areas; the RFRA, on the other hand, applies to the entire nation i. These factors are not dispositive iii. Analysis. Boerne seems to be in tension with Morgan, but doesn't completely overrule it. 1. See Kimel, p. 1495. 2. See Garrett. a. Neither of the above cases would trigger heightened judicial scrutiny. b. Does congress have to look for a history of …? c. Is rational basis a tool ...
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