The Great Stern Con Law 1 Outline I. The Nature and Scope of Judicial Review a. Origins A. Federalist Ppr.

#10 1. Written by James Madison advocated created of a united Republic (representative govt) - to minimize danger of factions i.e. independent states/groups vying for power. 2. Constitution has built-in mechanisms to avoid govt oppression (primary concern of the anti-Federalists) a. separation of powers in the Constitution Checks and balances b. Federalism states have own rights and legislative independence c. Judicial review (established in Marbury v. Madison) courts protect citizens by making sure legislature sticks to the Constitution i. JR protects America when America has had too much to drink keeps republic from violating core rights. ii. Framers wanted to make it difficult for temporary majorities to change the fundamental interests of society. B. Marbury v Madison- created judicial review 1. FACTS a. Marbury suing to force new Prez Jefferson to deliver completed commissions of Federalist judges, including himself and Marshall. 2. HOLDING/NOTES C. court declines the right to enforce writ of mandamus on Article III grounds that Marbury did not fulfill the public minister requirement, satisfying the Jefferson administration (who would have impeached him had he granted the writ), but creates judicial review court has power to review constitutionality of laws. The Constitution prevails over the statute. The Constitution is the superior paramount law over statutes that are repugnant to the constitution and are void. i. Logic: JR is implicit in Const under the Supremacy clause Article 6 Const is supreme law of the land 1. Constitution governs all cases under the laws of the US, and is superior to all legislation unconstitutional laws are void. b. LIMITS ON JUDICIAL REVIEW i. The judiciary cant just make unprovoked decisions they must wait for an appropriate case to come along before they can make decisions to change various aspects of the law or Constitutional issues. 1. This case establishes ONE TYPE of judicial review SC to review constitutionality of federal statutes in a case that is brought through the federal courts. b. Theories of Constitutional Interpretation Many laws violate Constitution i.e. Jim Crow laws after Brown v. Board of Education but not every unconst law is gonna get addressed b/c SC cant deal w/ them until a case addressing them is brought into the courts, and even then SC wont declare statutes unconstitutional unless statute is CLEARLY erroneous strong presumption of Constitutionality w/ statutes is a major inhibitor of SC JR. Courts use their massive power sparingly to avoid undermining public opinion, creating controversy and 1

compromising efficient implementation of their decisions by other branches of govt (they wont take courts seriously if they do crazy shit all the time and congress is capable and has on occasion changed the USSC rulings.). A. Martin v. Hunters Lessee- SCs JR applied to state legislation 1. FACTS a. Conflict b/w state and natl govt Virginia SC confiscate land granted to P by US treaty w/ Britain., and balk at USC order to give him back land b/c Sect 25 of Judic. Act (which infers that USC has appellate jusrisdiction over state SCs) is invalid b/c Const doesnt explicity give USC power over SCs. 2. ISSUE Allocation of Powers Conflict/Different Federalism Ideals i. VSC wants dual federalism separate but equal SCs ii. USC feels that Const gives them bottom-line appellate jurisdiction. 3. HOLDING a. VC must obey USCs rulings- USC has appellate jurisdiction over state SCs on issues involving federal Constitution, laws and treaties. Uses 3 modes of analysis: i. Constitutional Textual analysis - Judge Story felt that Article 3 of Const gave USC sweeping appellate jusridiction over federal question issues. ii. Design analysis (broader) - VA has taken the position that to elevate the US sup ct above the states, we are going against the spirit of the constitution which they think is a co-equal partnership between the federal and the states 1. Story says that the federal govt and the states have not been set up the same at state and federal level. Examples of where state power is limited: a. The state cannot create their own currency as we see in Artile I Section 10 b. He also references Article VI, the Supremacy Clause which says that the states have to follow the constitution iii. Teleology (when not clear from other approaches, look at both possible outcomes and pick one that serves broader const. end Constitutional Uniformity- its inconsistent w/ national Constitution if rights granted by that doc vary from state to state. Its better to have consistent place to look for laws than patchwork system from state to state. B. US v. Carolene Products, Footnote 4 1. Courts will apply heightened level of scrutiny to laws that may 1) infringe upon Bill of Rights, 2) restrict political representation, 3) statutes dealing w/ minorities (political or racial, or religious in nature). This ensures that people are represented and b/c minorities otherwise may not have another path to defend itself in the political process if not for the courts. C. Const Article 1, Section 10 States Federalist Limitations a. States cant act as sovereign entities cant make their own money, enter into treaties/alliances with foreign countries, wage war, etc. D. Intent of the Framers Approach to Constitutional Interpretation 1. Main Problems 2

a. Different framers had different opinions so you cant nail down one single mindset on behalf of the framers. would be hard to find single approach or coherent intent. b. Times have changed and there are either new issues or the issues are different than the framers could have imagined c. Political Question Doctrine - The case or controversy requirement of Article 3, Section 2 limits federal jurisdiction to only justiciable cases: cases w/ substantial disputes affecting legal interests of genuinely opposed parties, where specific relief can be obtained through judicial decision. Court will leave to resolution to one of the other political branches. Purely political questions have been determined to be nonjusticiable and should be left to other govt branches, under separation of powers. - 4 factors are weighed in determining whether there is a political question: #1 - A textually demonstrable constitutional commitment of the issue to political branches f/ resolution, #2 the appropriatenes of attributing finality of action to political branches, #3 lack of adequate standards for judicial resolution of the issue, #4 the lack of adequate judicial remedies. 1. Examples of Determined Political Questions: a. Luther v. Borden- different factions claiming to be true govt of Rhode Isleand; SC decides its a political Q for Congress 2 deal w/ i. its not for courts to determine initial policy or what a republican form of govt comprises thats politics. b. Coleman v. Miller- national Const amendment proposed by Congress, Kansas waits 13 yrs to approve issue that approval is invalid cause wait was too long. SC determines that its a political question b/c they lack the judicial standards to determine it. i. Stern: they could have said there is a textually written commitment in the Const f/ Congress to determine whats a reasonable timeframe. 2. Gilligan v. Morgan- the Kent State Shootings p. 33 of handout- Ps want decree to clean up Ohio Nation Guard after they shoot a bunch of kids at Kent State in 1970; court claims political question with inverse reasoning of Coleman says theres textual commitment of militia operation to political branches; Instead, they looked at Art 1 Section 8 and said that there is a vesting of guards in other branches of govt other branches of govt have the job to oversee the national guard so not going to get in the way i. Stern: Court could have done lack of judicial criteria! Courts cant determine what it takes to run a militia, and any decisions from court would be political, not judicial. 1. Notice that what makes this a political question has nothing to do with the fact that these shootings were a huge political issue 2. The court is not going to stay out of an issue that otherwise provides avenue for constitutional interpretation just b/c there are political stakes (ie Bush v. Gore) b. Goldwater v. Carter- Senator sues Prez f/ withdrawing from Taiwan treaty. SC says its a political question b/c they dont have the judicial criteria to determine if Prez can do it c. his w/o Senate approval. Its up to Congress to figure that out. 3

i. Stern:- Cant do textual commitment with this one, cause Constitution speaks only of ratifying treaties, not terminating them. 3. Nixon v. US - a judge, Nixon, challenges removal by saying that he was not properly tried under constitution. He challenges process that senate used to make conviction. There was a streamlined decision that was not a full trial. Several senators were assigned and there were essentially a series of closing arguments. He says not tried under contstutional Article I Section 3 Clause 6 saying that the senate shall have the sole power to try for impeachment. He says that the senate did not moved slowly enough and that he says that the senate should perform a trial for impeachment that provides more than what he was provided a. The court rejects Nixons claim the court is not ruling on the merits. The holding is not on the merits saying that they are trying him under Article I the holding refrains from deciding whether a process in the senate rises to level of whether this was proper trying for political offense and for impeachment. Says it was a political question
4. Nixon v. US - Senate delegated a committee to hold hearings on accusations against Nixon. Committee then gave Senate transcript, and Senate voted by 2/3s to convict. Nixon argued this violated amendment b/c full Senate didn't hear evidence, but rather committee. Supreme Court held that Nixon's argument presented a nonjusticiable political question. Interpreted Article I Section 3 Clause 6 (Senate Impeachment Clause) to determine that Senate had power to determine what constitutes valid "trial." Court further held that opening this door would expose political life to chaos."

5. Renquist in Nixon hedges a bit about what criteria for a political question are relied upon 6. He meshes together a number of the parts together meshes textural argument with a lack of judicially manageable or discoverable standards i. Textural looks at text itself and the Article I language says the senate has the sole power to try one for impeachment making non reviewable by the court ii. Manageable Standards - However, the opinion continues and points to the various definitions in dictionaries of the term to try says the court lacks any principled standards to determine whether a judge has been properly tried under the constitution iii. Either of these could have been independent, but he uses both b. Suter concurrence - He makes an argument against the majority saying dont want to hand down categorical rule that the court can never rule on conviction after impeachment b/c there can be a process for example that is totally arbitrary that they may want to review for the adequacy of the outcome. political standards very important B. Baker v. Carr- Justiciability of Reapportionment Challenges- NO PQ 1. FACTS a. P seeks an injunction prohibiting the 1901 standard of county representation, saying that it undermined the value of his vote made it arbitrary and illogical and requested a reapportionment based on federal census figures. According to outdated apportionment, small districts had same voting power as large cities minority of population could control legislature b. Lower federal courts denied relief on grounds of nonjusticiability, saying that it was a political question. 2. HOLDING a. Federal judiciarys relationship w/ the states doesnt give rise to political question federal crts have jurisdiction over const challenges to state legislative apportionment. 4

b. Relationship b/c judiciary and coordinate branches of govt is what creates political question, not fed judiciarys relationships w/ states. 3. NOTES a. This case was justiciable b/c it was an equal protection clause claim malapportionment discounted votes, not all people had equal voting power. i. Courts usual deference to will of the people isnt applicable when the political process doesnt represent the will of the majority of the ppl. b. P. 115 Judge left EPC guideliness intentionally vague, b/c judicial standards under EPC arent well-developed and familiar and he didnt want to lose his majority vote on the case. i. STERN: there may be tension b/c what a justice needs to do to get a majority vote and what he needs to do to provide guidance to the lower courts his opinion was vague and sucked b/c he had to keep it vague to get a majority for the decision (which was the right decision) but it gave little guidance to the lower courts for future cases. ii. Stern - Frankfurters Dissent - Essentially called this claim of Equal Protection bogus essentially calls it a Guarantee clause claim in disguise. Stern thinks has a point. C. Powell v. McCormack 1. FACTS a. Powell junior representative in the House of Reps, and the HOR refused to let him sit b/c of alleged malfeasances. Argument against Powell is nonjusticiability the matter of who gets to sit in the house of reps is textually committed to the House itself no court interference (political question) 2. HOLDING a. Judge Warren says that as long as Powell meets the Constitutionally mandated requirements for HOR members, and the House is empowered to be the judge of, that the house cannot refuse him his seat. (Article I Section 1) 3. NOTES a. If you follow through the logical implications, in theory the House could decide that Powell didnt meet one of these requirements we think Powell is 10 yrs old since they determine whether the criteria are met. i. If court had ruled otherwise, it would have established precedent that HOR has authority to thwart/subvert the will of the voters (in their appointment of their Reps) by rejecting Reps that are too liberal, too honest, too ugly etc. ii. Court says wrong left out some relevant text 1. Article I Section 2 spells out some other parts of house membership 2. Holding: On the merits, the court says that as long as he meets these requirements set out in constitution, that he cannot be excluded from House membership iii. There is a potentially anomaly of holding, which says in theory the House could say that there was another requirement that he didnt meet 5

iv. The court held that not political question where some though they would have said it would v. The court did not hold political question perhaps b/c the political process itself has been undermined; the constitutents in Powell district voted him in and the House said he wasnt qualified, so the court though that this represented the second para. Of the Caroline Products where the court needs to take a closer look where political process has failed D. Gilligan v. Morgan- Kent State Shootings see above. E. RELEVANT PQ CONSTITUTIONAL PROVISIONS
1. Article 1, Section 5 a. Cl 1 - Outlines the duties and behaviors of the House of Representatives and the members of each state. b. CL 2 Each house may determine the rules of these proceedings, punish its members for disorderly behavior, and can expel a member with 2/3 majority vote. Article 1, Section 1 a. CL 2 House of Reps member must be 25, a 7 year citizen of the US, and must inhabit the state he represents. 14th Amendment a. Ppl born in a state are residents of the US and that state. No state can make laws violating rights of US citizens, nor can any state take away liberties w/o due process, nor deny any citizen equal protection of the laws. (as opposed to the Guarantee Clause which

2. 3.

guarantees a certain structure of government) 4. Article 4, Section 4 (Guaranty Clause)

a. 5. US gaurantees to every state a Republican govt, shall protect them against invasion and domestic violence (insurrection). Article 5 a. Criteria for creating Constitutional amendments Congress will hold a convention for amendments whenever 2/3 of the House deem it necessary, where they may be ratified as part of the Constitution.

d. Justiciability Advisory Opinions, Ripeness, and Mootness The Case and Controversy requirement of Article 3, Section 2 disallows judiciary to invalidate legislative or executive actions merely b/c they are unconstitutional there must a justiciable constitutional case presented for court to rule upon. When a case dismisses an issue as non-justiciable, theyre saying that Article 3 doenst give them power in that circumstance. Court may not issue advisory opinions, may not decide political questions, may only hear constitutional cases w/ someone who has standing(personal stake in the controversy), etc. This c and c requirement could be to limit friction b/w branches of govt b/c of JR, to make sure Constitutional issues are resolved only for concrete disputes rather than abstract/hypothetical problems, and make sure probs are solved only to those that are injured i.e. racially discriminated ppl must bring their case to court, outsiders w/ ideological interest CANT. Mootness the converse of ripeness and advisory opinion we acknowledge that there was a full blown dispute at one time between these parties, but by this time the parties are no longer at odds there is no live controversy a ruling would have no meaningful effect (no impact on the parties) Advisory Opinions- opinions on the constitutionlity of legislative or executive actions that did not grow out of a case or controversy courts wont hear them b/c theres no adverse parties. Under Article III, there must be an adversary party going up against the other. 6

Ripeness its not the right time to hear this case yet too early. Some kind of dispute between two parties, but hard to determine exactly what the dispute or the relevant facts are. This is called a lack of ripeness there is a dispute, but not ripe for resolution for court. This is very similar to advisory opinion the line is very blurry These 3 doctrines all lack standing due to timing either too early or too late. Comparatively the political question doctrine isnt permitted based on the issue itself. A. Muskrat v. US- No Advisory Opinions - No concrete controversy, no justiciability 1. FACTS a. Federal govt gives parcel of land to Cherokees, Congress subdivides it further so each indian gets less land. Indians sue b/c of further subdivision. The government hadnt taken action yet the legislation had been passed but not enforced. 2. HOLDING a. P didnt show there was a concrete controversy b/w adverse parties (both parties with concrete stakes at issue and something to lose). This is just a challenge to unenforced sketch legislation, the govt has nothing at stake. B. United Public Workers v. Mitchell- if your claim is to vague, nonjusticiable 1. FACTS a. Employees challenge constitutionality of Hatch Act, which prevents govt employees from engaging in political activities. 2. HOLDING a. Claim dismissed b/c its too vague group doesnt say what they want to do other than help with a campaign we need to know more than we can learn from the appellate record we make precise rulings on precise behavior. b. Court wouldnt know precisely what it would be ruling on this is why more ripe then advisory opinion no question that there was a dispute, but court didnt have precise picture of dispute court doesnt want to create ruling until understand what the case is (in Article III terms). C. Rescue Army v. Municipal Court Courts avoid Constitutional conflict if possible 1. ASHWANDER RULES courts will go out of their way to dispose of disputes without raising constitutional issues if multiple interpretations of statutes are available, courts will interpret statutes in a way that avoids questioning the Constitutionality of legislation. 2. Constititional Doubt strong assumption of legislative constitutionality if other interpretations are available. Doctrine of Constitional Doubt - wont take up constitiutionality of statute if the construction is fairly possible by which the question can be avoided. a. If have statute where constitutionality being challenged b. 2 interpretations one casts doubt on constitutionality of statutes, other does not. Court says when faced with situation where both are plausible, they will tilt toward the interpretation that does not raise constitutional difficulty D. DeFunis v. Odegaard- mootness if controversy is moot, its nonjusticiable! 1. FACTS 7

a. P is rejected from UW Law School, brings Equal Protection clause discrimination suit against the school, case goes back and forth up to the US SC. 2. HOLDING a. The case is moot P already registered for his last year of law school whether we decide its valid or invalid, DeFunis will finish law school - the specific fight between these parties is over and therefore there is no need to resolve this issue in this instance. b. Difference between Roe v. Wade and this case is that Roe will always be moot; no woman will ever be able to get in front of SC in time so allow 3. Voluntary Cessation Doctrine: Defendant has voluntarily, but not necessarily permanently, changed his conduct a. Voluntary cessation of conduct by D will not make case moot b. Case would be moot only if there is no reasonable expectation that wrong will be repeated c. Injunction requested, and D ceases conduct, will still not make case moot b/c D could revert to old ways d. There are adverse collateral consequences/ to the defendant's action which, when considered, prevent mootness e. Ex. - If a criminal D has already served his sentence, case will not be deemed 4. NOTES a. STERN: This was a close case; by deciding close cases in favor of mootness, crt is favoring private law approach: court is looking at this as a specific dispute b/w individuals, no concrete dispute = no case. i. Private law model the overriding function of the courts is to resolve individual disputes, and the Sup Ct in doing this promulgates broader principles, but it is thought the vehicle of individual cases that it does so the court should confine disputes to specific disputes to parties who have clear important stakes in the outcome of the disputes therefore they should go beyond what is needed to resolve dispute and beyond core function of judiciary 1. In this method, when there is ambiguity in the mootness, the burden should be on those who dont think its moot to show this ii. BUT mootness presents strongest case for public values model approach: cases provide vehicle f/ USCs larger purpose of providing coherent interpretation of fed law and Const issues for public good. Mootness is good for applying this b/c you dont have the same uncertainty/vagueness probs that you do with advisory opinions parties have previous adversarial relationship, well-defined facts and arguments a decision should be made in the interest of public policy! iii. Public Values Model says that yes courts resolve disputes, but importance of the Sup Ct is that it resolves important theories for interpretation and we look to USSC to get a coherent interpretation of important principles and it happens to be that individual cases are the vehicle that these important principle are decided. One of the strongest vehicles for this are judges themselves. Justice Kennedy said that they dont pick the cases that they think worst injustice 8

done, they pick cases with most need for society to have a question resolved. 1. If dispute involves an important legal issue that is ambiguous and the public is going to look to the court to resolve, then the court should resolve these ambiguitites against mootness so that the court can resolve its basic functions 2. In DeFunis, Brennan in dissent said that it is not over yet and he may get sick of flunk out, that there is still a possibility that he is not going to ultimately graduate and that they should go ahead and resolve the issue 3. Of these various types of non justiciability, mootness probably provides the strongest case for the public values model the argument against mootness like Brennans here. This is distinguished from the advisory opinions in that in those the court is uncertain and doesnt know exactly what its ruling on. In mootness cases, esp like this one, we know there is a full blown dispute and by the time get to USSC there is a full record. e. Standing (like in civpro, there is a similar phenomenon of successive motions to survive constitutional claim which include: a. Does this party have standing are they right person? b. Is this an issue that these courts can resolve or is it political question? c. Does this have merit on the merits does it violate the constitution. f. Standing is a threshold condition you must demonstrate that you are a proper party to be bringing this claim (that you have standing). The court will not hear the merits of the case unless there is standing. There are 3 requirements to have Const. standing: #1 Injury in Fact most rigid requirement you must be hurt in some way that the court is willing to recognize b/f theres c or c gotta have concrete stake in the outcome of the case 2 Types of Standing Injuries Individual Standing- most common govt action has harmed you by infringing on your individual Constitutional rights. I.e. state shuts down your newspaper cause u talk shit about G.W. Citizenship/Taxpayer Standing- unusual - govt has duty to act properly towards taxpayers. Only possible in challenging govt expenditure programs taxpayer thinks govt is spending his tax unconstitutionally #2 Attributability (Causation)- you must show that the injury was clearly caused by the statute must be fairly traceable to the governmental action. You gotta demonstrate to court that statute will cause you injury, regardless of how obviously unconstitutional it is.
i.e. 62 dorks cant buy 100 ft yacht statute Bill Gates has standing, poor dork doesnt b/c even if harmed by statute this is not whats preventing him from buying yacht.

#3 Redressability- you gotta show if that relief is granted, it will benefit you. i.e. if dork yacht statute is revoked, poor dork still wont be able to buy the yacht Alternate Way to Establish Standing 9

Statutory Standing Congress establishes standing for certain classes of ppl automatically through statute. Think enviromental stuates prohibits factories from emitting ctain amounts of toxins if you breath the toxins, you have standing against the factory (youre within the zone of interest of the statute). Statutory standing is a much easier claim to bring than proving constitutional standing courts dont like collisions /w legislature and judiciary, and theres no threat of that with a statutory claim. Courts rarely reject statutory standing. A. US v. Richardson Courts dont like taxpayer standing claims 1. FACTS a. citizen challenges CIA Act which allows CIA to keep expenditures private challenges govt as a taxpayer, saying that it violates his Constitutional right to know whats happening with his money. 2. HOLDING a. P had no standing his claim was generalized grievance and he suffered no specific harm as a result of it. 1. Generalized grievance if he is injured then everyone else is too. It is just a generalized injury not specific to the person 2. Rule: If you are suffering from an injury that all citizens are suffering if it arises to the level of the injury then this does not qualify under injury in fact under Article III> ii. Must be a individualized injury f/ standing under Article 3. 3. NOTES a. STERN: this case is a situation where court intervention is most needed (under Caroline products footnote reasons) this problem is so obscure that its not possible to gain enough public support through political channels Court should have let P bring his claim into court, recognizing his injury. i. Courts are much more receptive to claims w/ individual injury standing than taxpayer standing. B. Warth v. Seldin- snob zoning - No standing if youre not the party being injured. 1. FACTS a. Suit brought by Rochest taxpayers challenging discriminatory ordinances on Constitutional grounds b/c they discriminate against lower incomes, and most lower incomes are minorities, ordinances violate Bill of Rights. Really theyre just pissed cause they have higher taxes b/c of added cost of building more low income house f/ the negroes. 2. HOLDING a. No Individual Injury- No standing b/c its not their Constitutional rights being violated! General standing rule is that you dont presumptively have standing to assert someone elses const rights. b. No Redressability- the negrfoes couldnt afford to live there anyway! Ps failed to demonstrate that ordinance was the cause of injury (inability to live there) 3. NOTES a. Kicking parties out of court before they can plead their case leads to catch 22 situation the more effective zoning barrier is at keeping ppl out, the more difficult it is to find builders/insiders to meet courts standing 10

requirement of DEMONSTRATING youd be able to move in if ordinance was removed. g. Standing to a Statutory Claim 1. General Rule: easier to bring case and get standing for statutory claim than a constitutional claim 2. more lenient in applying attibutability 3. If you think of distinction betw. Standing in const. and statutory context, it is not an arbirtrary notion a. Stern is saying that in constitutional claims, you would expect more restrictive notion b/c concenerned with separation of powers. Remember the ashwander rules where they say that if they can avoid a constitional claim they willl if they dont have to confront, and standing is one of bases for dismissal under Ashalder b. In statutory claims, the court no problem with separation of powers, b/c the courts function is to dissern the intent of the congress when they made the statute. It is really implementing congresss will, not stepping on its toes 4. Minor point: court says that congress does not have unlimited power to create standing or say that class of persons can have standing. There is a limit, but it is very far out before they will regulate what congress says about causation where people have been injured by something chain of causation would have to be very long before the court would say the chain of causation created by congress is too big to lack standing h. Standing to Assert 3rd Party Rights The general rule requiring that Constitutional standing must be based on a violation of your own rights is NOT a mandatory rule its a rule of practice. Courts will waive the rule and allow third parties standing when other factors outweigh upholding it. A. Craig v Boren boy b/w ages 18-21 AND a beer vendor bring suit f/ Constitutional gender discrimination concerning alcohol ordinance that allows girls to buy 3.2oz beer at 18 but disallows boys to buy it until 21 (even though they could drink it). 1. ISSUE Does beer vendor have standing to bring suit using the Constitutional discrimination against males 18-20? 2. HOLDING- YES since statute directly impacts/effects alcohol vendors, vendor has standing to raise equal protection challenge to this law. B. Rule (most common type court allows)When the third party whos constitutional rights are being violated are in a difficult or impossible position to assert right themselves NAACP v. Alabama- govt requiring membership lists for NAACP NAACP brings suit, citing Constitutional right of freedom of association on behalf of its members 1. HOLDING a. Common sense since bringing members into court to defend their right of privacy would destroy it, NAACP can litigate f/ them i. Rights of individual privacy override practice rule of allowing only personal claims of Const violation. C. Barrows v. Jackson- white person defending against enforcement of racially-based covenant on behalf of discriminated negroes. 1. HOLDING 11

D.

E. F.

G.

a. Rule of practice outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained and the racially discriminative covt to be enforced. i. Court allowing standing on behalf of a third party CLASS of individuals blacks b/c specific enforcement of racially discriminative covts would violate 14th amendment. ii. If blacks had brought suit f/ themselves, sellers would gear transactions specifically against blacks court granted standing b/c 3rd party nonlitigants arent in effect position to assert their Const rights. 1. **most distinctive element of Barrows a. It really stands out as representative of the public values model b. Court thinks that important issue if one can be assessed damages in violation of racially restrictive covenant c. b/c there is an important norm that needs to be clarified, they use public values model and resolve the case on the merits. Pierce v. Society of Sisters the state had passed a statute making parents criminally liabile for not sending their kids to public schools. Catholic Schools brought suit i. There are a number of reasons to speculate why parents would not be able to comfortably be able to come forward themselves - court probably took these into consideration when saying that school can assert the constitutional rights of these third parties 1. declaratory judgment act might not have been available might have been concerned about being prosecuted 2. background is anti-catholic prejudice and they might not have wanted to risk social persecution by coming forward 3. there may not have been individual parents who could bear the risk, burden and cost of the litigation. Griswold v. Conn the contraceptives case - Court recognized as a practical matter why people should not be forced to come into court and explain why they need contraceptives Hunt v. Washington Apple Advertising- set 3 part standard for third party standing of organization on behalf of its members 1. the orgs members would otherwise have standing to sue in their own right 2. the interests sought to be proteted are germane to the organizations purpose a. usually an easy criteria to meet 3. the claim asserted and relief requested do not require the participation of individual members in the suit 4. Additional requirement The party asserting the rights of the third party must have injury-in-fact; must be a MEMBER of the injured class. a. The court will sometimes waive this requirement if a party whose rights are being aserted isnt in effective position to assert their own rights- see above Barrows, NAACP, Craig THIRD PARTY STANDING SUMMARIZED - Party asserting rights for a third-party must still have been injured by the statute challenged per Article III requirement; case and controversy can be waived, but injury in fact cannot

12

II.

Congressional Power under the Commerce Clause and Related Regulatory Sources
The Commerce Clause -Article 1 Section 8 Congress has power to regulate interstate commerce The Commerce Clause confers many wide-ranging powers on Congress most regulatory regimes stem from CC. Courts have begun to restrict Congressional power under the CC. There are two dimensions to the Commerce clause. The first (and most important) is to confer upon Congress the power to regulate interstate commerce. The second is the dormant commerce clause, where there is an implied limitation on the states ability to regulate certain types of commerce even if Congress hasnt addressed or done anything about it particularly b/c it seems to be encroaching on Congresss commerce power. ORIGINS OF COMMERCE CLAUSE: Congress wanted to stop trade wars between the states (there were thirteen different economies and the states were constantly trying to undermine each other). Framers economic intent was clear the very purpose of the Congress Convention was to establish far more commercial authority for the fed govt. a. McCulloch v Maryland A. FACTS 1. When second Bank of the United States federally chartered corporation. Historically, corporations had always been creatures of the state rather than the federal government it was considered unconstitutional by some for the federal govt to get into the banking game. a. Maryland leveled a punitive tax against the Bank to get it out of their statethe US is resisiting (challenging) the tax federal govt is challenging state power - State contending for dual soverignty state power EQUAL to federal power. B. HOLDING 1. Congress had power to create bank even thought it was not explicitly laid out in Constitution Const isnt supposed to be ultra-detailed legal code. 2. Marshall addressed 2 issues that needed to be resolved a. #1 - Did govt have power to make Bank? i. Yes, under Necessary and Proper clause Article 1 Sect. 8 Bank is necessary in that it is a USEFUL, CONVENIENT means of accomplishing Congresss goals Marshall uses own definition of necessary, different than absolutely necessary as characterized in in Article I, sect 10 - flexible definiton that gives Congress wide-ranging power 1. Congress can use any appropriate means to attain legitimate ends that are within scope of Const,and arent specfically prohibited by it Congress still cant do anything specifcally prohibited by the Const, even if its towards a valid goal. 2. presumptively permitted presumption IS in favor of congressional exercise of power. b. #2 - Consequentialist Argument if Marylands strict construction of Const is permitted, it would make Const too inflexible to be a long-lasting governmental instrument. c. #3 Accountability and State powers- Marshall is concerned that giving states right to tax federal govt it could hamstring fed govts ability to serve - states could tax postal service, military installations. 13

i. Whole population represented by fed, small section represented by each state- Maryland residents would have political recourse through voting, but no one else in the US would be able to act if MA acted contrary to their interests! b. Federalist Ppr #46 A. Madison was trying to assuage concerns about the federal government trampling the rights of the states B. His argument was that states would have all the advantages, because state legislators are closer to the people, states provide the services people use on a day-to-day basis, states have more employees, federal legislators are elected by the states and will not alienate their constituents by selling out the states, and federal government rules only in times of war and unrest C. Also argued that states would have the means to fight encroachment by the federal government by manning together D. Argued that the system would promote individual choice, as people were free to move to any state whose politics better suited their preferences (real phenomenon) E. Local politics allow citizens to participate in their own governance F. Prevention of tyranny through dispersion of power c. Theories of Federalism A. Advantages to federalism 1. Promotes ability for individuals to move to other states with more favorable politics for them 2. gives people local access to govt greater participation 3. helps to prevent tyranny The Courts interpretation of the Commerce clause isnt a straight line the decisions are inconsistent and cant all be reconciled with each other. B. Gibbons v. Ogden- Commerce definition expanded 1. FACTS a. Ogden has exclusive authority from NY statute to operate steamboats b/w NYC and New Jersey - monopoly to operate steamboat service. Gibbons wants the same power he claims his authority based on federal statute he has a license to operate his steamboats in the same waters. Conflict b/w state and federal law incompatible. 2. HOLDING a. Congresss power to regulate interstate commerce is an exclusive power that is not shared w/ the states, and relates to both goods and services including ferrying states cant exclude federally authorized operators, its unconstitutional. (Marshall the federalist again takes an expansive view) 3. NOTES a. While the Supremacy clause allows federal law to trump state law, this case is decided on Commerce clause b/c court defines commerce to include not just goods, but any commerical transactions where money is exchanged between parties commerce just must involve or affect other states to qualify as commerce among the states- catapulting them across the border still counts despite no actual entry into other state. b. RATIONAL LIMITATION OF COMMERCE CLAUSE 14

i. Unless Congressional action is specifically prohibited by the Const, as long as Congress has rational basis for that exercise of power it is Constitutional. c. INTERNAL v. EXTERNAL LIMITATIONS i. Internal does fed govt have authority to impose laws of that nature? Is Congress authorized to do it under the Const? YES. 1. Like McCollough, if there were an external limitation in the statute from another part of the constitution (cant transport African Americans), then not within power. C. Champion v. Ames-enumerated intrstate commerce pwr to regulate undesirable activity 1. FACTS a. D was transporting lottery tickets across state lines against the Federal Lottery Act of 1895, which prohibited all interstate carriage of LTs. 2. HOLDING a. Congress has power under CC to regulate undesirable activity. Lottery tickets, a moral pestilence, are subjects of commerce that can be sold and transported, therefore theyre subject to the CC when they start moving from state to state. b. HUGE expansion of Congresss power to make laws effecting interstate commerce as long as theres some logical basis for enacting the law, the court is going to uphold it. 3. NOTES a. Holding passes McCulloch Rational relation test its an enumerated power of Congress, and its rationally connected to a legitimate goal. b. Congress using CC to accomplish noncommercial goal attacking the moral problem of lottery. i. POLICE POWER RULE As long as Congress is pursuing a valid interstate goal, its entitled under the police power provision, which grants govt inherent, wide powers to protect societal interests - can be noneconomic and still subject to Congresss power over interstate commerce. c. 3 Categories of Activities Congress can prohibit in otder to protect public health and welfare under federal police power: i. #1 Goods harmful to interstate commerce itself 1. diseased animals that could spread disease ii. #2 Commercial Items that are harmful 1. adulterated/mislabeled articles iii. #3 Noncommercial items that constitute evil activity 1. like lottery tickets or stolen goods d. SEPARATION OF POWERS RATIONALE i. It would be intrusive of courts to pass judgement on motives of legislators i.e. Congress passing Fed Lottery Act as long as its enumerated power of congress and rationally related to legit goal, court has no business interfering and must respect legislative intent. 1. even if congress was not really acting with moral interests at heart (they were bribed and clergy didnt think immoral), court still will likely not overturn statute b/c rational and reasonable link to the goal of solving moral problem. (dont really look at the personal motives of legislators. 15

D. Houston, East and West Texas Railway v. US (Shereveport Rate Cases) CC and Intrastate Commerce 1. FACTS a. Classic instance of interstate price discrimination railroads that are charging higher rates to haul goods from louisiana to texas than from one point in texas to another point in texas, w/ no valid reason given. b. Interstate Commerce Commission federally created body declares that railway must charge same rate for both in and out of state transfers. 2. HOLDING a. Fed govt can regulate intrastate transfers in Texas to the extent to which they have an adverse effect on interstate commerce it would diminish state-to-state commerce here. 3. NOTES a. CREATION OF CLOSE AND SUBSTANTIAL TEST f/ REGULATING INTRASTATE COMMERCE UNDER COMMERCE CLAUSE i. Intrastate activity must be so closely and substantively related to interstate traffic that one cannot be controlled w/o controlling the other ii. This Shreveport Test looks to the degree of the relationship b/w the intrastate activity and interstate commerce. b. Case represents another expansion of Congresss power under CC takes rea;listic and practical big picture approach interstate and intrastate commerce are inextricably related, not separate entities. i. Demonstrates leniency in rational relationship test E. Stafford v. Wallace a. Activity that Congress was regulating was a local activity, the buying and selling of cattle in the Chicago stock yards (Illinois), nothing on fact thats interstate about it b. Court is saying that you cant look at this in isolation; must look at whole transaction c. Broader implicated transaction is cattle shipped from out west, slaughtered in Chicago and then shipped to points easteward d. Congress is not taking narrow aim on local bad business practices but how they affect the larger or broader transaction on the shipment/slaughter/sale of cattle e. They looked on how it had the close/substantial relationship to broader transaction, and as they viewed it does have the ability to regulate Commerce Clause Trilogy cases continued (after Shreveport, etc.) restriction on the power of the first trilogy. None of these cases are good law today. F. US v. EC Knight first major case where SC didnt support Congress under CC 1. NOTES a. American sugar refinery has monopoly on refined suger product- govt goes after them, under the Sherman Antitrust act. b. Court construed Sherman Antitrust Act NOT to apply to this particular manufacturing activity b/c Congress couldnt have intended the Commerce clause to pertain to local production of sugar. 16

c. Its unconstitutional to extend Antitrust Act to this activity utilizes doctrine of constitutional doubt interpreting to AVOID a constitutional question.

G. Hammer v. Dagenhart- Congress failed attempt to influence intrastate production 1. FACTS a. Congress creates Child Labor Act, which forbids interstate commerce involving factories which employ extreme child labor. 2. HOLDING a. State was beyond scope of CC and Congresss authority because it was a federal attempt to use Commerce clause to control purely state-held rights of policing labor policies actual shipment of products wasnt leg intent. i. the activity Cong is truly trying to regulate doesnt meet either prong of CC its neither interstate NOR commerce. 3. NOTES a. Tension b/w Hammer and Lottery case there Congress was allowed to regulate b/c of ulterior protective motives, but not here. Way to distinguish them: there the product itself was societally harmful. b. DECISION RESTS ON DUAL FEDERALISM states and fed both have specific spheres of authority. c. This case represents ABRUPT SHIFT from Shreveport decision to a stricter CATEGORICAL APPROACH i. commerce or manufacturing, interstate or locally new way of determining whether it falls under CC and congressional juris. d. RESULT OF THIS CASE i. states must regulate child labor, but they wont b/c it will undermine their competition with other states in terms of production costs non-regulated states goods will be cheaper. ii. Case is no longer good law iii. *Here is Hammer the theoroy is the power to regulate, local regulation of production, is a power and prerogative is a poewer the states always had that they did not relinquish to feds at time of constitution being formed; for feds to act as they did here enacting child labor act really usurps the prerogatives of the states; this is basic theory underlying the holding of Hammer court was concerned with figuring out specific activity and in this case decided that the federal govt cant regulate production under CC e. Reconciling Hammer and EC Knight i. *the practical effect in both case thwarts the regulation of business at any level; federal barred, and the states as a practical manner not in position to regulate them

17

New Deal Era - Congress and President Roosevelt began implementing New Deal in 1933. SC view of congressional power under Commerce Clause stood in an ambiguous state. Three Blocks on the Court). H. Carter v. Coal Co. court strikes down another fed attempt to intefere w. state matters 1. FACTS a. Coal industry was faltering - Congress passed Bituminous Coal Act of 1935 these mechanisms had the power to set up minimum wages and maximum hours for coal workers. b. Coal industry challenges act, saying that it exceeds Congressional power under commerce clause. 2. HOLDING a. Act is struck down Congress simply trying to regulate intra-state matters wages and hrs arent interstate commerce, and dont effect it if local actions doesnt exert direct effect on interstate commerce, it lies BEYOND scope of interstate commerce. i. Causation b/w them is too weak theres merely an indirect effect on interstate commerce. No matter how great the effect is, if its an indirect effect at the local level it CANT fall within CC. 3. NOTES a. This case didnt use the Shreveport test of degree of influence upon interstate commerce it instead adopted the stricter, formal classification of whether or not the activity is interstate or intrastate. b. This case is ironic in the same way as Hammer: i. States arent in a position to alleviate the problem because if they do regulate coal it will render the coal uncompetitive w/ other unregulated states. 1. the federal govt is the ONLY body who was sufficiently equipped to deal with this problem! c. Formalistic argument of Majority - IF THE RELATIONSIHIP IS INDIRECT, THEN IT DOESNT MATTER WHAT THE IMPACT IS GOING TO BE, IT FALLS BEYOND CONGRESSS POWER TO REGULATE INTERESTATE COMMERCE d. SLIPPERY SLOPE ARGUMENT court argues that if we allow fed to exercise control over state matters this one time because of the severity that the government argued due to the depression crisis and impact on coal, it will result in complete erosion of state power and violate allocation of power b/w fed and states I. KILLING CARTER The Modern Commerce Power f/ Inter and Intrastate Commerce 1. Affectation Doctrine - SC abandoned direct v. indirect or geographic stndards for Commerce clause regulation after Carter decision Congress now has power to regulate ANY inter or intrastate activity as long as it has any appreciable effect on interstate commerce. J. NLRB v, Jones and Laughlin Steel Corps-, 1937 Return to Shreveport degree test 1. FACTS a. National Labor Relations Act protects rights of employees to form unions and protect against unfair labor practices and distcrimination against union members. National steel corp who had fired union activists challenges act on the grounds that it exceeds the power granted to Congress under the 18

Commerce clause that the stuff it interferes with are purely local concerns that do not deal w/ interstate commerce. 2. HOLDING a. If there is a CLOSE AND SUBSTANTIAL RELATIONSHIP w/ the instate actions and interstate commerce, Congress can regulate it regardless of whether it is totally in-state or not. i. Since the manufacturers national operations have deep ties to interstate commerce, and labor strife could cripple the companys interstate operations, it would affect IC and can be regulated under CC. 3. NOTES a. This decision closely mirrors justice Cardozos dissent in the Carter case instead of trying to pidgeonhole an activity into one category in realistic terms, what would be the impact of an ABSENCE of such provisions, there would be a disruption in interstate commerce( realistic /Permissive instead of formalistic) b. The Court chooses Shreveport analysis over the other line of cases Carter, the Lottery case, Hammer i. He doesnt acknowledge that the court is abandoning/refuting a line of cases going in another direction, and instead follows a line of cases that look at the degree of relationship b/w the in-state activities and their impact on interstate commerce. c. **This is a striking departure from Carter, but it started a revultion in the next four cases where we see the court go well beyond what Jones did K. US v, Darby Overruling of Hammer Congress can regulate manufacturing under CC 1. FACTS a. Fair Labor Standards Act set maximum and minimum wages for workers making goods for interstate commerce, and FORBADE interstate shipment of goods made by non-compliant employers. 2. HOLDING a. Congress may estalbish and enforce wage and hour standards for manufacture of goods for interstate commerce falls within police power. i. Forbidding of interstate shipping easily associated w/ CC ii. Setting of wage and hour limits more attenuated argument, but court says that setting wage/hour regulations prevents unfair competition, which could impede interstate commerce. 3. NOTES a. PARALLEL TO LOTTERY CASE -EXERCISE OF POLICE POWER court is applying protective principle that they can protect interstate commerce from being used as an instrument to spread evil - gambling, unfair competition which allows them some power at local level. b. Power to go into intrastate affairs related to interstate commerce only if they so affect interstate commerce that you have to regulate one to effect the other. i. Getting them at the source disallows them from slipping into the stream of commerce and creating unfair competition. c. Hammer v. Dagenhart has been OVERRULED through this decision. d. Court dismisses 10th amendment as a truism, not a policy- and that the relationship b/w Congress and the local level fundamentally existed 19

e. Darby represents a dramatic expansion of Congressional power under the Commerce clause the range of goals that Congress is allowed to pursue under interstate commerce is extremely broad, and the link b/w a local activity and interstate commerce to grant Congress regulatory power is easily created by Courts. i. Court is NOT giving Congress national police power they still have to justify their regulation UNDER the Constitution but once they do that, the goals they are allowed to pursue and the relationship they must establish is extremely easy to create. L. Wickard v. Filburn- huge expansion of Congress power to regulate individuals 1. FACTS a. USC pases Agricultural Adjustment Act to combat overproduction of wheat nationwide quotas/cielings on wheat production all the way down to individual farm. P exceeds quota, but argues that Congresss regulation doesnt apply to him concerning wheat grown for his own personal consumption (its not going to end up in interstate commerce) 2. HOLDING a. Court is applying practical, not rigid abstract analysis (like employed in Carter) - while this commerce could be categorized in local, it realistically can have a substantial effect on interstate commerce as a part of the bigger picture. i. Court demonstrates that Congress could reasonably believe that production limits on wheat could remedy the problems facing the wheat industry and this INCLUDES personal-production wheat 3. NOTES a. Cumulative Impact Doctrine - Court is applying consequential analysis while his impact would be miniscule, if everyone did it it could damage interstate commerce by compromising quotas. i. if Congress is allowed to regulate class of activities in an aggregate capacity, then they are allowed to regulate each individual practitioner in that same industry enormous power granted to Congress within the economic sphere. b. FAIRNESS OBJECTIONS TO POLICY - Objections that this legislation favors bulk wheat growers over small-time wheat growers feeding their family court says TOUGH SHIT if you cant demonstrate that this is beyond Congresss power, thats the end of the Courts inquiry. i. if you dont like it, change it through the political process. c. PRESUMPTION OF CONSTITUTIONALITY- Court is generally reluctant to intervene in economic sphere b/c of assumption that if majority of Congress voted for it its at least rational, if not fair. i. This philosophy/approach is STILL applied by USC. M. Perez v US The end of Congress expansion under the Commerce clause 1. court upholds federal ban on loan sharking Ds argument is that loan sharking legislation exceeds Congressional power b/c it almost inherently takes place at local level. a. Court upholds statute taking loan sharking as an aggregate class of activity defers to Congresss findings that loan sharking as an aggregate activity has a large effect on interstate commerce. 20

i. This is the limit to Congresss power under Commerce clausebut it is STILL good law. Lopez case marks the end of courts deference to Congressional power under the Commerce clause. N. The line of cases up to this point: An activity being related in a particular circumstance, even if a decidedly local activity, if the impact can be aggregated to exert a substantial impact on interstate commerce, then Congress will be able to reach each instance of that local activity 1. COURTS PROGRESSION its clear that court is signaling abandonment of any serious restriction on Congresss ability to limit economic activity using the Commerce clause. a. Darby and Wickard -federal government is not required to show for EVERY single case that there is a strong connection b/w that specific activity and interstate commerce aggregate activity doctrine allows for broader inclusion. O. Heart of Atlanta Motel v. United States p. 183 Discrimination outlawed using CC 1. FACTS a. Title 2 of Civil Rights Act of 1964 outlaws racial discrimination in public places federal law making state discriminatory policy illegal. Hotel is in prime location, had policy of not renting rooms to negros. Action is brought to force hotel to conform to Title 2 i. Noone is disputing that this is the type of establishment discrimination that the legislation was designed to prevent - this is a question of pure Constitutional interpretation did they have the POWER to forbid establishments like motel 2. HOLDING a. Court could have upheld Act based on 2 Constitution provisions, and chose easier route by selecting Commerce Clause (avoiding of constitutional conflict and amendment i.e. Ashwander Rule) i. Equal Protection Clause of 14th Amendment states cant pass any laws that deny the equal protection of the law, and Congress can enforce that amendment by any necessary legislation ii. Commerce Clause chosen reasoning if blacks cant sleep or eat while traveling, it will discourage interstate travel and effect interstate commerce. 3. NOTES a. Court avoided using 14th Amendment b/c of old precedent case 1883 civil rights case which raised questions about Congress ability to reach that type of private activity unde rthe 14th amendment i. Commerce clause was used to authorize Congress to pass a law to prohibit racial discrimination. P. Katzenbach v McClung- Partner case to Heart of Atlanta- even broader CC application 1. FACTS a. Ollies BBQ is a family-owned restaurant in Birmingham extremely local clientele. Refused to serve black guy traveling through w/ his fam i. HARD to find a link b/w interstate commerce and this case there arent many or ANY customers coming from other states. ii. Only potential link is 70,000 pds of meat a year shipped in from outof-state but that doesnt appreciably effect interstate commerce. 2. HOLDING 21

a. Aggregate effect doctrine if everyone does this, it will effect interstate commerce i. The substantial impact found was the reduction in business traffic, the reduction of food consumed, and dissuasion of professional people to move to that area 3. NOTES a. Congress isnt required to demonstrate that the particular activity being regulated itself b. Its small world after all, and the Commerce clause covers it all! c. The point of this case is that the courts can find a link between any economic acitivty and the Commerce clause, if they want to. This case repesents the high water mark in the courts explansion of Congressional regulatory power under the Commerce clause. d. The Court Begins to Limit the Commerce clause The court continued to use the expansive Commerce clause powers established in these cases until the mid-1990s, where the line of cases finally began imposing limits on Congressional power under the CC. A. US v. Lopez- 1995 No logical economic connection, no CC application 1. FACTS a. Challenge to the Gun-Free School Zones Act of 1990, which made it a federal offense for to knowingly possess a firearm w/n a school zone. b. Prior to Lopez, court would have probably in a routine fashion reasoned around the lack of interstate commerce connection by using the usual aggregate impact doctrine 1. this is basically the govt argument i.e. could raise insurance rates, discourage ppl from moving to gun school towns, guns in school zone will reduce learning capability. 2. HOLDING a. there is NO plausible economic connection b/w firearm regulation of this type and interstate commerce. - Different from say the personal wheat case, where there is a logical commercial link. b. CONSEQUENTUALIST RATIONALE- if they let this one go by, there will be NOTHING left that Congress cant regulate b/c aggregate impact can be linked to ANYTHING. i. Congress may exercise only those enumerated powers to uphold this statute would negate the idea of specified enumerated powers bordering Congressional power. o DISSENT even if you accept the courts premise in the other cases (which do not have an economic basis for the actual case of the end but just an economic result) then you should accept this case as effecting commerce NOTES o Return and Modification of substantial impact doctrine - you CANT just say it anymore you have to show actual evidence in regard to purely local activities plausible possible theories are no longer sufficient. STERN: Different wording could have made the link work have statute say something about BUYING guns and regulating that way - congress was getting sloppy b/c the courts had been spoonfeeding them decisions. o FEDERALISM CONCERNS 22

must protect the divide and relationship b/w fed and states, and state soveriegnity. This would displace the explicitly state powers concerning education and law enforcement. If it HAD been determined that there was an acceptable aggregate effect, the state statutes or rights would have been overriden. o FACTORS COURT WILL NOW CONSIDER FOR FED REGULATION, SINCE THEYRE NOT JUST ALLOWING EVRYTHIN Nature of activity being regulated Whether theres a jurisdictional element Whether theres some sort of interstate commerce connection (lesser factor) Federalism concern whether activity being regulated is one traditionally regulated by the state Opinion will be at least influenced by whether the problem being addressed is one that needs to be addressed on a national scope. o FOUR CATEGORIES
There are four broad categories which Congress will typically regulate: o Channels - Congress will regulate use of channels of interstate commerce (highways, waterways and air traffic). Congress can do so even though activity is intrastate. o Instrumentalities - Congress can regulate instrumentalities of interstate commerce, even though threat may only come from intrastate activities. (Category refers to people, machines and other things.) o Article moving in interstate commerce - Congress can regulate articles moving in interstate commerce. o Substantially affecting - Congress can regulate those activities which have a substantial effect.

B. US v. Morrison 2000 Application of new regulatory factors 1. Written by same majority as in Lopez 2. Court held the civil remedy provision of the Violence Against Women Act unconstitutional 3. Court found the connection between violence against women and commerce too attenuated, despite legislative history full of evidence of affects on commerce a. Must look at all the factors to try to get some sense of where the court is going to come out on these issues e. Gonzalez v. Raich, Su;plement pgs 1-4 A. Court upheld a federal ban on growing marijuana which was legal under CA law for medicinal purposes The court pointed to Wicker v. Phiburn the court in both cases B. The court as of yet is not going to cut back too severly on congress power to regulate under congress clause C. At least at last term, Wicker was reaffirmed and relied upon in the Gonzalez case; in both cases the federal govenmtne restricted commodity grown intrastate even though locally and not directly used in commercial transaction just like in Wicher where only growing crops for family; what you have in both cases is instatnce where the aggregate production of both commodities produced a substantial connection with interstate commerce; famers will not be able to go out and buy crops 1. This is a little different; but the idea here is that even if they say idea is just growing pot at home for medicinal purposes, there is a strong demand for pot and inevitably 23

some of this will get out into interstae commerce; nieve to think that none of it will make its way into the interstate market D. This is not a retreat from Lopez or Morrison; not much in opinoion about whether activity has a commercial nature in the aggregate or its having a substantial impact on interstate commerce E. The distinction on the courts mind is that growing marijana even though iself doesnt have an immediate economic dimension, it does seem to have an inevitable economic association in that people buy it and consume it in much the same way that they sell wheat; this is main reason why court doesnt see case as strongly governmed by Lopez f. Blah A. National League of Cities v. Usery- Initial limiting of CC, overruled by Garcia 1. FACTS a. Another challenge to Fair Labor Standards Act. After Darby, legislature kept extending FLSA until it covered vast majorty of private, state and municipal employees. 2. HOLDING a. Fed govt cant infere with state soverignty to that degree w/o justification- FLSA regulation cannot be enforced here b/c it violates state rights under the 10 amendment. b. 3 Prongs of Analysis: i. Regulations covered working conditions, which court had already accepted as grounds for federal regulation substantially affects interstate commerce ii. Activity regulated had ALSO been accepted as accomplishing a legitimate goal of Cong, having effect on interstate commerce 1. Workers might strike, etc. iii. BUT, regulation violated 10th Amendment. c. The courts concern is that the regulation undermines the states ability to operate w/n the federal system court used 2 rationales. i. The regulation violates the internal limitations of the CC b/c of lack of activitys connection to interstate commerce. ii. STATE SOVERIEGNTY fed govt cant violate it. 3. NOTES a. This case revived notion of dual soveringty of state and fed govts i. Certain activities police, fire protection, education are core state powers that cant be interfered w/ by fed w/o legit reason. b. LOPEZ v. NATL LEAGUE i. NL differs from Lopez in that Lopez restricts Congresss ability to regulate by shrinking the activities that can be regulated, while Natl League finds enclaves within state sphere of power that cant be regulated. c. CONSEQUENTALIST PERSPECTIVE if fed govt regulated wages of state employees and state had only budgeted to pay certain amounts, state would have NO recourse i. It would be direct interference w/ state sovereignty, forcing them to operate in a way besides that which they had chosen. g. DURING THE TIME BETWEEN NATL LEAGUE AND GARCIA A. Over next 9 years, majority of court shifted to disfavor Natl League holding, (shift back towards allowing govt regulation under CC), but it was never directly overruled courts 24

just made lame distinctions in subsequent cases instead of explicitly striking it down; until Garcia. B. Garcia v, San Antonio Metro Trans Authority 1985 Overruled Natl League 1. FACTS a. Garcia seeking overtime pay from state transit authority under federal FLSA legislation, while Trans Authority countersues saying theyre exempt from FLSA. Revisiting of same issue from Natl League. 2. HOLDING a. Fed govt can enforce FLSA overtime regulations on state-run agency explicit overruling of National League. i. This is still the current state of law, but League of Cities approach may be revived someday b. Court argued, naively, that the political process and structure of the fed govt imposes limitations on fed govt ability to intrude upon state rights i. State sovereignty interests are more property protected by procedural safeguards state representation in Senate, etc than by judicially created limitations on federal power. 1. STERN: NAVE SILLINESS- just because Senate reps are elected from a particular state doesnt mean theyre going to be looking out for those states and protect their soverienty. 3. NOTES a. Court discussed the four conditions of the National League Test i. federal statute must regulate the states as STATES ii. Statute must address matters that are indisputably attributes of state sovereignty iii. State compliance with the federal obligation must DIRECTLY impair the states ability ot structure integral operations in areas of traditional govt regulation. iv. Relation of state and federal interests must NOT be such that the nature of the federal interests justifies state submission. 4. Court found 3 reasons f/ overturning National League Test a. #1 - Sheer unworkability of the test- it creates PROBLEMS i. traditional, integral functions of govt the standard gives us no way to apply these concepts and principles. ii. how can judiciary decide what comprises a traditional government function?? Any selections made will be intrinsically arbitrary this standard cant be applied in a uniform manner. iii. Gives NO PRINCIPLED WAY to gauge undue impairment or excessive interference 1. Too difficult to distinguish whether federal statutes unduly impaired state function. b. #2 - National League court MISREAD the 10th Amendment i. Two Competing Visions of what 10th amendment stands for 1. Ntl League held that 10 amend represented a substantive source of state soveriegnty that could be used to strike down violative legislation.

25

2. Garcia held as Darbyi did; 10th AMENDMENT JUST A TRUISM (to placate states federalist worries) not an functional legal doctrine f/ state rights. c. #3 - Judicial restraint (bullshit argument according to Stern) i. the National Cities rule is disrespectful of state rights, so instead were going to protect NONE OF THEM and let the political process serve as your only 10th amendment protection. 5. DISSENT! a. POWELL: Court wimped out by abandoning 4-pronged Natl League approach just because constitution issues are difficult is no reason to abandoning them. i. Marbury v. Madison connection Powell says theres a danger of undermining Marbury v. Madisons power of judicial review (to interpret and apply the law) court is passing on interpreting this provision b/c it is too hard. He is concerned that court is abrogating duty/responsibility to interpret the law. b. REHNQUIST - we will, once there have been appropriate shifts in the court, BRING BACK the national league of cities rule. C. NY v. US -1992 Court restores SOME degree of state sovereignty last big CC case 1. FACTS a. Low-Level Radioactive Waste Policy Act: fed govt trying to put responsibility for dealing w/ radioactive waste to the states, - they either have to take title to their nuclear shit, or enact a certain set of federal regulations. i. Incentives: MONEY surcharges given to states that dispose of their own waste. ACCESS access to existing sites could be denied after a series of deadlines. FORCED TAKE TITLE PROVISION if states unable to dispose its own waste by 1996, it takes title and must take possession of the shit. b. NY has problems complying with the Act, and just challenges its constitutionality. 2. HOLDING a. Act struck down - there is a sphere of state sovereignty that we must protect states are not just vassals for fed govt this derived from general constructin of the Constitution b. The federal govt cannot use the state govts to accomplish its means by bullying them with coercive legislature it must deal with the people DIRECTLY. 3. NOTES a. Courts Problem w/ statute is with the means, not the ends i. Statute that is directed ONLY towards the states AS states is different from one directed at individuals or groups of citizens (such as Garcia). 1. Federal govt cant just TELL state govts what to do here is the kind of law that you must enact must give these two options this is not a policy chosen and implemented by the states, it is chosen and implemented by the feds and it is a serious infringment on state sovereignty. 2. Congress can regulate individuals under the commerce clause, but it cant force the states to enact regulations. 26

b.

c.

d.

e.

ii. Congress CAN offer incentives to adopt legislation they just cant forthrightly COERCE them to adopt it; the federal govt can take over a whole policy like waste, but if it doesnt cant tell the states how to regulate and spend $. The opposite way is saying that theyll reward them a certain way, like giving them highway money if they regulate drinking age; the state then has the choice of whether to regulate or not if they want the $. Disconnection b/w Incentives and Regulation i. Must be connection b/w behavior sought and incentives, which doesnt exist here i.e. withholding funding f/ nuclear waste disposal. FEDERALISM OVER THE 10th Amendment - wasnt a possible way of overruling this cause its been dismissed as a truism, so court uses the broad structure of the Constitution and the federalism inherent in it to infer that it is reasonable to infer that the act is beyond the constitutionally-assigned power of Congress i. Reimposes the notion of dual federalism as put forth in OLD cases like Hunters Lesee ACCOUNTABILITY ISSUES- its kind of shitty for fed govt to force state employees to carry out their policies, cause if the people dont like them theyre going to blame the state ppl for policies they didnt even create! Cant let fed govt enforce policies w/o accountability. FINANCIAL IMPOSITION- this policies reduces states ability to manage their money and expend it in the ways THEIR ppl see fit!

D. Printz v. US 1. Challenge of the Brady Act, gun control legislation which established a national instant background check system - ACT STRUCK DOWN AT USC. 2. Federal legislation of a program, with an order to the states to carry out that legislation, is generally not allowed (relying on NY case, above, 1992) a. To the extent that the federal government makes the state devote resources to carrying out a federally conceived program, then the state is left less room to carry out programs of its choosing 3. ACCOUNTABILITY ISSUE state employees are having to enforce the mandatory background check policy, and incurring unpopularity f/ it. E. CUMULATIVE COMMERCE CLAUSE CONCLUSIONS 1. Conceivable that if in fact as threatened by the dissents in Garcia, if the National League of Cities team ever made a comeback, the federal government might still be able to come through the back door a. No longer able to say that the states must allocate funds to certain means/ends, e.g. paying minimum wages, the federal government could simply offer or withhold funds until those ends are met b. The result could therefore be obtained through the spending clause instead of regulation through the commerce clause h. The 11th Amendment and State Immunity NOT ON TEST THE 11th AMENDMENT p. 230 (not on test, but listening anyway) A. limitations on Congresss ability to subject states to suits from private individuals FOR damages 1. Courts cant use commerce clause to subject states to suits by private individuals 27

B. Americans w/ Disabilities Act doesnt supercede 11th amendment and doesnt allow individuals to sue states i. Exceptions A. Individuals CAN go to federal court to get injunctive relief against a state b/c theres a legal fiction that allows it a. Cant sue states for damages for ADA but you can go into federal court to bring an injunctive sut against the state; cant get $ but you can go to court to get a decree to require a state to cease its ongoing violation of the ADA b. Court has rationalized b/c not a state suit itself but a legal fiction that you are bringing agains an individual who is violating the state B. The federal govt CAN sue the states for violations of federal statutes C. Another extremely limited exception is if congress passes stateue pursuant to section 5 of 14th amendment (rather than commerce clause) then the federal govt can make states subject to suit for damages by private individuals there are very few statutes that meet this criteria of being pursuant to section 5 of 14th Amendment

III.

Executive (Presidential) Power, Other Sources of Power, and the Separation of Powers.
The Constitution provides for separation of powers between the judiciary, executive and legislative branches of govt, in order to prevent power from becoming accumulated in any one source. These powers overlap to some degree though- i.e. Prez and Congress share legislative duties. Article 2 vests all executive power in the President, as well as granting him limited legislative powers while his powers seem sparse on paper, they have extended FAR beyond what the framers originally intended. Federal govt has vastly increased in power in terms of how it regulates society by association the presidents powers have increased also. Pres also has other advantages in exerting power over the other branches, as he is a single person, and therefore has a unity of will and purpose that Congress will never have (divided on partisan lines) A. Youngstown v. Sawyer- President acting beyond scope of his executive powers 1. FACTS a. At beginning of Korean War, steel workers were going to go on strike. Truman freaks out and gets secretary of commerce to take over steel mills federal govt takes over operation of all steel mills steel mill owners bring suit. 2. HOLDING a. Justice Black - Truman doesnt have authority to take over steel mills Congress did not give consent for such an exercise of power in fact, it specifically rejected the means used by D (Taft-Hartley Act). 3. NOTES a. This is an exercise of lawmaking power exclusively by the President himself- the structure of the presidential order is structured as a statute looks like a statute, rather than an executive order. i. It is congress that makes the law, and the president carries it out this is a distinction that is fundamental to our democracy. b. Court found C and C authority didnt warrrant the siezure its too far removed from theater of war c. JACKSONS CONCURRING OPINION (the good opinion f/ this case) 28

i. Thinks Blacks formalistic opining Congress declines to give this power is too simple court should apply a balancing test on a caseby-case basis. ii. The Spectrum of Presidential Power Circumstance - 3 Levels 1. Presidents action authorized by Congress (explicitly or implicitly) LEAST doubt of legitimacy of Prezs action. a. Strong overwhelming assumption of validity. 2. Twilight Zone Circumstance Congress has neither given nor forbid Prezs type of action Prez is acting on his own inherent authority. Will be analyzed on a case-by-case basis. a. Factors include how urgent, have PAST presidents undertaken that type of action, has Congress routinely acquiesced in the past when done, etc b. Stricter standard than #1. 3. Prez acting AGAINST the will of Congress a. Strong presumption against validity of action will be strictly scrutinized f/ legitimacy b. Presidential claim to power so conclusive and preclusive must be scrutinized with caution, since at stake is the equilibrium established by the constitutional system c. iii. Application of Jackson Test to Case at Bar 1. Placed his actions w/n third category against will of Congress. 2. HYPO is the Air Force unconstitutional b/c the Constitution doesnt mention it of course no, b/c it is not to be interpreted literally and the framers could not have contemplated such at thing (luket his the framers did not contemplate that the military would be operating as it did during the Korean war) d. JACKSONS OPINION v. FRANKFURTER i. Frankfurter reads the Taft-Hartley Act as Congress telling the president that he cannot take over companies in that way ii. Jackson reads the Act as Congress providing a method for dealing with that type of problem, and the president acting inconsistently with Congress prescribed method 1. Only an academic difference in this case, as the result is the same, although there are cases in which the distinction would make a difference iii. THE THEORIES IN PRACTICE 1. Jacksons approach is that if Congress says the president can do A, B and C, but not D, the president can do A, B and C, definitely not D, but also not E or F because they were not addressed 2. Frankfurters approach, on the other hand, is that under the same circumstances, the president could not do D, but could maybe do E or F e. BASIC ANALYSIS OF THIS CASE i. Whether Congress had granted or refused to grant the relevant power 29

ii. Whether historical practices supported the assertion of power iii. Whether contemporary imponderables or imperatives of events argued in favor of or against the asserted power B. Dames & Moore v. Regan- Presidential Authority to Enter Executive Agreements 1. FACTS a. Prez Carter froze all Iranian assets in the US in response to Iranian Hostage Crisis. D & M had a land surveying K w/ Iran and they didnt pay. Prez had three requirements under the agreement to release the hostages i. Nullify attachment of any Iranian property involved in litigation i.e. D &Ms K. ii. Transfer all frozen Iranian assets in English bank. iii. Suspend all actual underlying claims from private citizens/banks against Iran, and refer them to international tribunal this is the problematic element f/ DM. 2. HOLDING a. Court upheld Prezs power to perform these conditions, under difft rationales. i. Pertaining to first two provisions, the IEEPA statutes confer on the President the power to make these executive provisions. 1. First two provisions are easily justified falls into first category of executive powers (specifically granted by Congress). 2. Third Provision falls within the Twilight Zone Jackson category Congress hasnt specifically granted or forbid this action. Therefore the 3 factors must be analyzed. a. HISTORY: general tenor of Congress legislation, acceptance of such behavior b. Long accepted that presidents have authority to enter into executive agreements (outside of treaty process) c. Recognizes that a president, while not having inherent authority, is not totally lacking in authority d. Circumstances reasonably called for immediate action b. NOTES i. Rehnquist applies Jackson test, but Frankfurters conclusion, that the president might be able to do things legislation has not spoken on a. President gets more deference in the international sphere than in the domestic sphere b. Long-standing principle of the judiciary to provide the president broad discretion when dealing with international affairs c. Rehnquist noted that Congress cannot foresee every situation in which the president may need to act (p. 350) ii. D&M v. Youngstown 1. D&M court found legislative approval where Congress had given none, which inverted the logic of Youngstown, where they construed statutory nonapproval to mean legislative disapproval! 30

a. D&M court also condoned legislative inactivity at a time that demanded interbranch dialogue and bipartisan consensus iii. Stern on Treaties - Treaties are governed by the Consttution to some extent by Art. 2 Sec 2 and Supremacy clause Art 4. 1. Hierarchy b/w Treaties and Legislature a. As between an exec. Agreement and state law, an exec. Agreement if valid supercedes state law b. in conflict between treaty and executive agreement, TREATY overrides/ c. In conflict between treaty and properly enacted federal statute, the more recently enacted one wins. C. INS v. Chadha- Congress infringing upon the Executive Branch No Leg Veto 1. FACTS a. D an alien whose visa has expired no question that Chada is imminently deportable. Provision in Immigration Naturlization Act attorney general can suspend deportation if he met certain criteria. b. Chada met these criteria (i.e. hed suffer extreme hardship if deported). His deportation was suspended by the Attny General. c. Same act that gives Attorney General right to suspend the suspension gives either branch House or Senate power to OVERRIDE attorney generals suspension and kick the alien outta the country they do so in this case. i. Congress employs legislative veto to override executive branch. 2. HOLDING a. Congress doesnt have constitutional authority to create law single handedly it must go through the legislative process of bicameral passage and presidential veto. i. While the legislative veto is efficient., efficiency is not the overriding value of the Constitution. Constitutional separation of powers cannot be eroded for convenience. 3. NOTES a. House of Reps were taking this action to have legal effects on Chada when Congress wants to pass a law, they need bicameral agreement (house and senate) AND Prez must have chance to veto. i. While HORs actions legislative veto doesnt seem like law, it is the equivalent of passing a LAW YOU CANT ENACT LEGISLATION unless you undergo process of bicameral passage and presidential veto opportunity. 1. No one actor can enact law! b. DISSENT Justice White i. Many organzations have law-making capability. 1. i.e. If FDA makes a ruling that VIOXX should go off the market, that ruling is law there will be penalities for attempting to sell it. ii. Bicameral passage isnt necessary for this and other organizations. iii. Practical Policy Argument if we dont give delegation powers to other organizations it gives massive power to the legislative branch c. CONGRESSIONAL POWERPLAYS legislative veto is only one of the many ways Congress has attempted to control administrative agencies whom theyve delegated to other agencies substantial discretionary authority: 31

i. Other methods of control: oversight hearings, appropriations riders, decrease/increase in agencys budget, sunset legislation, passage of measures repealing/limiting agencys authority 1. In light of all this other bullshit, does the Chada decision even accomplish anything significant?? D. Bowsher v. Synar Cong infringing into Exec again Difft Approach from Chadha 1. FACTS a. Graham Redner Act an attempt to eliminate federal budget deficit. Stop Me before I Kill Again methodology- provides mechanism that allows for across the board spending cuts every time the budget exceeds specified levels. i.e. ceiling is 250 billion, actual spending is 270 billion 20 billion of so-called automatic cuts. Comptroller general figures out WHERE the cuts should occur b. Therefore, Comptroller General determines what budget deficit actually is this kind of calculation is NOT objective there is much subjective analysis (projections, estimations, etc). Its the Comptroller Generals role in this case that dooms the bill. 2. HOLDING a. Court rules that what the Comptroller General is doing is executing the provisions of the Graham Act, and because hes a part of the legislative branch he cant interfere with executive functions legislative branch cant infringe into executive branch powers. i. Congress trying to take shortcut through Constitutional methods represents Congressional overreaching of power into executive branch. 3. NOTES a. Court is adopting a strict formalistic categorical approach (i.e. Carter, Hammercd) classifying Comp. Gen. as a legislative officer, and sharply dividing the functions of the branches so that its UNCONST under separation of pwrs i. Congress is having its officer both write and execute the law, and under separation of powers that cannot happen b. BOWSHER UNDER CHADA ANALYSIS i. Court would say, What youre really doing is rewriting the law Comp General is rewriting the budget and when you are creating federal policy you need bicameral passage Stern thinks it would be a reasonable opinion. c. STERN: The Act would have been ok if the Prez had chosen the Comp Gen b/c it is a position w/ exectuive power and can only be nominated by an executive officer i. Untitary Executive theory is that the constitution created the position as one to be given to a sngle person all executive power should be vested in the president 1. if someone was to adhere to thise thoery then they wuld not allow the act regardless of who had delegated the power a legislative officer cannot act as an executive officer. E. Clinton v. NY Return to Chadha Analysis against exec Prez cant law-make 1. FACTS 32

a. Line item veto act enabled prez clinton to cancel/change certain spending items of his own volition. 2. HOLDING a. Court invalidated federal line item veto act - Predictable based on Chada. b. Same principal as Chada bicameral processes for creating law w/ line item veto, prezs altered legislation qualifies as NEW law (different spending budgets, etc) i. the Framers intentionally meant to withold the power to veto particular items (esp expenditures) in particular legislation. 3. NOTES a. Why was the court divided if this was an obvious case? i. The way the line item veto was enacted was a delegation 1. Delegation all delegations of the last 70 yrs have been permissible b. How can we say that bicameral passage is only way to create law when agencies create law all the time? i. b/c agencies are acting under direct order from Congress to accomplish a certain goal, and laws created under that premise are considered as getting Congressional approval. ii. nondelegation doctrine- agencies need specific doctrine outdated last 70 yrs of delegation have been permissable. c. Scalias argument- the cancellation permitted to prez under line item veto act is same as permissable delegation lawmaking other than in specificallyprescribed for (via agency) F. US v. Nixon Attempt to use executive immunity to block judicial branch 1. FACTS a. Nixon gets busted as a conconspirator in Watergate, subpoened to provide tapes of private discussions b/w him and his cronies. He first tries to release limited, censored versions of tapes and transcripts (18 min gaps) NIXON IS A SHADY MUTHAFUCKA. i. Executive Priviledge Defense - Nixon tries to exert executive priviledge, citing that since he is President he is ABOVE THE LAW (he has absolute privacy b/c he is Commander and Chief). ii. Also, since executive branch has absolute power to decide which cases to try and what evidence to use, therefore Prez has final decision in what evidence to be brought in crimc case. iii. Court responds by citing Marbury v. Madison is it the function of the Court to decide what the law is. STERN doesnt find this a strong argument, as the court equated their ability to interpret the law w/ some sort of of restriction on presidential power. b. Separation of Powers defense - Also, invokes separation of powers b/c matter was between members of the executuive branch, and therefore was not subject to judiciary interference. 2. HOLDING a. Give up the tapes asshole the judiciary and the appointed special investigator and Constitutionally-based rights that override Presidential general right to privacy w/o special excuse (national security secret, etc) i. BALANCING TEST OF BOTH SIDES

33

1. Constitutionally-endowed rights of justice in criminal law proceeding is greater than general Presidential privacy right and claimed right of priviledge. 3. NOTES a. Court acknowledges that Prez has qualified executive priviledge, esp concerning nation defense while this is not laid out in Const, its structurally inferred from separation of powers and Article 2. b. NIXONS EFFICIENCY ARGUMENT i. that allowing everything said in Oval Office to go to the press would compromise candor and efficiency of executive function court dmisses that argument, saying it wouldnt effect communicative openness b/c judiciary will not c. COURT PROTECTING JUDICAL POWER by not letting the Prez dictate what evidence we can and cannot hear. d. SCARCITY OF OTHER EVIDENCE i. If special prosecutors couldnt get their hands on the tapes, there are no other sources of evidence i.e. no case. Also, need for evidence in criminal suit is greater than that in civil suit (b/c of higher degree of proof necessary). 1. see insider trading example with Attorney General in notes e. COURTS AND OVERRIDING EXECUTIVE PRIVILEDGE while in this case P attempted and overcame exec priviledge, in other G. Morrison v. Olson- Congress limiting Prezs ability to appt/remove executive officers 1. FACTS a. Congressionally-created Ethics in Govt Act granted judicary the right to create independent counsel f/ investigating federal criminal offenses could only be removed with good cause as specified under the statute, and the removal could be appealed. b. 2 Issues at bar in this case: i. narrower whether judiciary appointment of IC exceeds power of the courts ii. broader - whether statutory scheme violates Separation of Powers infringment upon Prezs (exec branch) Appointment clause power by Congress (legislature). 2. HOLDING a. FUNCTIONAIST APPROACH COURT VIEWS RULE AS PRESUMPTION, NOT RIGID RULE - While Appointments clause of Article 2 gives Prez exclusive right to appoint and remove purely executive superior officers, Congress can invest apptment of inferior officers if 2 factors are met: i. Officer must be inferior (no standard for inferior officer we know it when we see it) ii. There must be relationship b/w function of appointed officers and the particular position here the court reasoned that judges are particularly well-suited to appoint prosecutors. 3. NOTES a. TWO precendent cases concerning Congressional Limitation of Prez i. Meyers v. US(overidden by Morrison) - purely executive officers (sec of state, attny general those carrying out directives of Prez) 34

could be approved by Senate (Senate could lock their appointment) but once they were in office, only prez could remove them. 1. Article II vests all executive power in Prez, therefore any restrictions on Prezs power to remove exective officers = bogus this logic fits well under the unitary executive principal ii.
Humphreys Executor v. Us - Congress COULD restrict prezs power to remove quasi-judicial and legislative officers (heads of indenpendant agnecies (FCC, FTC) 1. quasi terminology by calling them quasi-legislative, quasi-judicial, pres doesnt have to have COMPLETE control over them

iii. APP OF THESE CASES TO MORRISON 1. under Meyers Congress has no power to limit Prezs removal power, b/c they are purely executive, but Court says that issue isnt categorization of officers as executive is the determining factor; but rather whether the limitation of power IMPEDESS PREZS ABILITY TO DO HIS CONSTITUTIONAL DUTY which it doesntPrez can still do job despite restriction. 2. This ruling does not invalidate Myers and Humprey court is just saying
if an officer is purely executive, there is still a presumption against restrictions on Prez authority but Courts have a chance to address the restrictions in special situations.

b. DISSENT Scalia Formalist argument branches are rigidly divided and ANY restriction on prezs removal power or judicial intrustion into executive power is constitutionally invalid. c. Act is a strong candidate for flexibility for those who do not embrace Scalias view, since it involves who is going to investigate the executive branch i. Understandable that Congress would enact such a statute, particularly in the wake of Watergate, to gain a more detached investigation ii. Probably the most logical place to make an exception, as the conflict of interest does present a special circumstance that would cause the court to modify the ordinary standards H. I.
OPINIONS SHOW THE STARK CONTRAST b/w FORMALISTS AND INFORMALISTS Scalia- formalist restriction should be struck down courts should maintain

tight boundaries of the letter of the Constitution, and court shouldnt be takin liberties w/ the. particluarly, court has no business violating explicit principle of the unitary executiveputting this power
Majority funcitonalist approach 3 branches of govt shouldnt be totally cut off from each other a wire fence which can sometimes be breached when theres a good reason to do so 1. When balance of power is upset, you can get involved (if its bad) Stern: court needs to CONFINE their infringement on executive power to very limited circumtance (could be abused if overused) Morris v. Olson should represent outer limits of what courts can do in terms of infringing upon executive and presidential power 1. Court has heeded that warning and not invoked that power very often. STERNS HIDDEN AGENDA THEORY: if crt had followed earlier formalist decisions Chada, etc and struck down the Ethics in Govt Act courld have been launching board f/ invalidating all independent agencies and the court just didnt want to go there.

J. K.

L.

35

IV. State Power to Regulate: Dormant Commerce Clause, Preemption, and Interstate Priviledges and Immunites Clause
a. Overview of Dormant Commerce Clause The basic premise of dormant commerce clause is that the VERY EXISTENCE of Congresss power to regulate interstate commerce prevents the states from imposing restrictions that can effect that same commerce. Even when Congress is silent on a specific topic, the Commerce clause displaces states power to regulate in ways that adversely effect the flow of interstate commerce! Dowlings Article created the modern evolution of dormant CC before that, courts decisions were all over the place. Dowlings thesis was that when state legislation unreasonably intereferes with IC, and Congress hasnt EXPLICITY authorized that state action, the court is to assume that Congress would have disapproved of that particular state action, and invalide it on their behalf. WWCD (What would Congress do?) This doctrine is allowed b/c Congress cant expected to deal w/ every little thing, theyre busy. BALANCING TEST f/ INVALIDATING STATE REGULATIONS o States interests v. adverse impact on goals of CC how much will regulation adversely effect interstate commerce v. how relevant are the state interests?? if the interference gets more weight than the court will strike it down GENERAL PHILOSOPHY our economy is a unified single national unit, and isnt segmented off by state so anything that interefers w/ its operation must be addressed. DCC AS APPLIED TO: o Facially discrimintory statutes- these are default invalid o Statues that Affect In- and Out of State Interests Equally these are usually constitutional, unless challenger can show that statutes burden on IC is CLEARLY excessive relative to state benefits o Statutes That Affect Purely Out-of-State Interests state has burden to prove that statute is highely likely to achieve its legitimate purpose and that this purpose CANT be served as well by nondiscriminatory alternatives. DCC USED TO PREVENT STATE PROTECTIONISM (states trying to protect their own economic interests by setting up regulatory barriers) any legislation using geographic terms is viewed with great suspicion, as it is likely protectionist. b. South Carolina Highway v. Barnwell Bros no DCC violation if non discriminatory! A. FACTS 1. SC has placed limitations on width and weight of ALL trucks that pass through SC highways. Concerned about accidents from huge trucks and wear and tear on highways from these heavy trucks - 85% of trucks didnt meet these standards. a. Trucking company brings suit, claiming a Commerce Clause challenge that SC has violated the DORMANT commerce clause (inherent state limitations in the commerce clause. B. HOLDING 1. SCs regulation is Constitutional - South Carolinas regulations on these trucks DID NOT discriminate whether trucks are interstate or intrastate doesnt matter if road passes through SC or is just within SC. a. But IF you have a regulation where it discriminates against interstate commerce, court automatically drops the hammer and invalidates the 36

statute state cannot be imposed standard to gain an advantage at the cost of other states (a total violation of dormant commerce clause) C. NOTES 1. POLITICAL MACHINE RATIONALE a. If these restrictions are seriously affecting trucking interests, they are affecting both in and out-of-state trucking interests everyone goes to the politicians and bitch about it: - Court will DECLINE to intervene where you can expect the political machine to make the changes on their own. i. i.e. in SC the political process eventually changed the SC trucking regulations. 2. Absence of discrimination and involvement of the political machine play a role in the implementation of the dormant commerce clause.

c. Southern Pacific Co. v. Arizona- BIG case Epitome of Modern DCC, Post-Dowling A. FACTS 1. Arizona passed legislation limiting lengths of all train cars operating within the state interstate carrier challenged statute, claiming that it unduly burdened interstate commerce it effectively dictates to other states what their trains lengths have to be instead of breaking up their trains at the borders, theyll just run all of them at lower lengths to avoid difft state regs huge burden on IC. Also, most other states already tolerate longer trains. B. HOLDING 1. BALANCING TEST - Court candidly admits that this type of regulation has 2 dimensions to balance a. #1 state has safety interest under the police power b. #2 this regulation interferes w. interestate commerce i. Must conduct balancing test b/w state interests and adverse effects to interstate commerce 2. RESULT non-existent state safety concerns are massively outweighed by burden to IC regulations present too much of a hassle for all states to comply a. Court looks to the validity of the state interest its relative weight gives FAR LESS deference to the state legislatures discretion than was given in Barnwell. C. NOTES 1. POPULARITY REASONING if 40 states had adopted a similar legislation to Arizona, burden on IC would be far less but b/c only 2 had them, its a burden. 2. ABSENCE OF FED STATUTE there is no federal statute on point here, therefore court has to guess what Congress would approve on this subject after this decision Congress could have expressly permitted the kind of regulation Arizona had enacted through creating statue. a. Congress can always come in and supercede the courts judgment on what the Courts think Congresss will is. 3. IN SUMMATION: This case represents the Court changing its mind from the early Barnwell decision, b/c its after the DOWLING PAPER is published! a. Barnwell- if the state can come forward and bring any remotely plausible safety measure, we wont second-guess them b. Southern Pacific- we will second-guess the states safety measures as we see fit, and override their regulation. 37

D. Bibb v. Navajo Frieght Lines Reiterization of Courts ability to judge SI validity 1. FACTS a. The Mud-flap case trucks on IL highways must have contoured, rather than the common flat mudguards (45 states allow flat mudguards) to change mudgaurds they must be welded on 4 hour process at border of IL. Conflicting requirements w/ Arkansas Arkansas REQUIRES straight mudgaurds. 2. HOLDING a. BALANCING TEST i. State interests: lack of evidence f/ actual safety benefits no good reason for the regulation! ii. IC Inference huge, b/c of transfering guards, etc Perishable food could perish. b. This case represents FACIAL DISCRIMINATORY REGULATION therefore the discrimination doesnt have to be closely examined. 3. NOTES a. STERN: on the other hand there is a subtle form of protection for a burdensome statute i. If the trucks route is within states that have the same or no statute then trucking interest will be affected, but only initially (still must put on the mud contours, just dont have to take them off in other places) d. Kassel v. Consolidated Freightways Corp- Stupid safety standard doesnt = valid state interest A. FACTS 1. Bibb case, but with double-wide trailers Iowa prohibits 65-foot double-wide trailers on their highwways, citing safety concerns at trial, brings forht lots of evidence of dangers posed by these huge trucks 100,000 lbs of ROLLING DEATH! Also, the statute allows discriminatory permit practice that allows Iowa trucking companies to be exempt from the restriction. B. HOLDING/NOTES 1. Plurality (majority all w/ different reasons) strike down statute for being overly burdensome to IC unless state has special conditions which necessitate special regulations on vehicles, stats should not be able to dump their transportation problems and road wear and tear probs onto other states cant shut down roads to one type of vehicle that other states allow this will force other states to GO AROUND IOWA! a. EXAMPLE OF APPROPRIATE SPECIAL CONDITION TO MERIT REGULATION snow tires in Minnesota during the winter. 2. Balancing Test burden on IC outweighs safety benefit C. NOTES 1. PROTECTIONIST UNDERCURRENTS courts balancing test is more for show in this case court feels that Iowa is just trying to exert barrier to other states commerce, and therefore court gives little consideration to state safety interests. a. If they really posed a danger, they wouldnt be allowed ANYWHERE in Iowa but they are allowed at border cities to Court, this suggests that theyre reasoning is bullshit. Law would have been a lot more credible if it had been blanket for all of Iowa. 2. KASSEL v. BARNWELL 38

a. In Barnwell regulation was equally discriminatory to in/out of state interests, therefore its duty of legislature to repeal the regulation when everyone comes out bitching b. HERE the regulation effects almost exclusively out of state interests, b/c of permit allowing natives to sneak around it. i. LACK OF ACCOUNTABILITY: shrewd Iowa statutory li-l scheme to circumvent political culpability b/c legislature wont give a shit about adverse impact on non-voting out of state interests. D. Pike v. Bruce Church, Inc Valid state interest but inference w/ IC 1. FACTS Arizona statute requiring growers to pack containers of cantaoupes w/ name and address of Arizona shippers. While not specifically protectionist in intent- they just want their state name promoted through attachment to high-quality cantaloupes it creates a burden on IC b/c of extra cost of labeling and packing f/ ppl with out of state shippers P would have to relocate packing facility - $200 K. 2. HOLDING a. Balancing Test: i. Vague promotion of Arizonas cantaloupes v. huge IC burden ii. Substantial burden f/ P against slight interest nobrainer. 3. NOTES a. PROTECTIONIST IMPACT OF REGULATION- if AZ permitted to enforce regulation, BC will have to move its packing center to AZ, which will cause CA to lose jobs and AZ to gain them b. When you have state, pseudo-bullshit interest (with ulterior motive to promote state interests at expense of others), that is going to diminish the weight of states interest in balancing test and elevate level of judicial scrutiny. i. The point: if you discriminate equally between in and out of state interests, you have some chance of winning at court but if you discriminate purely against out of state interests, ur screwed. E. Philadelphia v. NJ Blatant discrimination against out-of-state interests 1. FACTS a. Philly dumping trash in New Jersey b/c of contracts with private operators of landfills. NJ noticed the extra garbage piling up in their state, and passes statute which bans importation of waste that originated outside NJ. i. NJs argument is that CC doesnt apply here b/c its garbage. 2. HOLDING a. First, court applies argument from Gibbons v. Ogden, and holds that even w/ garbage theres movment of items and $$ across state lines therefore CC applies. b. Under CC, this is blatant discrimination against OOS intterests therefore it is bogus. Court opines that even though their regulation isnt specifically geared to undermine out of state interests, and there are valid reasons for it, it cant be accomplished through specifically discriminating againjst OOSI. c. STRICT STANDARD f/ OVER DISCRIMINATION i. Case imposes EXTREMELY stringent standard virtual per se ruling negating statute when statute is found discriminatory 39

1. USSC-We have confidence in NJ legislature, that they will be able to come up with a solution that is less discriminatory. 2. Out right discrimination is too drastic a measure to achieve even an important goal as this was. d. LEAST RESTRICTIVE ALTERNATIVE TEST from Deans Milk i. When court categorizes regulation as discriminatory, they will apply this strict test, and ordinarily suggest alternative, less-restrictive solutions. 1. This was such blatant discrimination that the court just struck down the state w/o giving any alternatives. What happens when u have a statute that is neutral on its face but is still discriminatory? F. Hunt v. Washington Apple Advertising Commission Operational(nonfacial) discrim. 1. FACTS a. NC Regulation that requires that apple crates must either bear a USDA grade label or NO grade at all which precludes labels of superior, Washington-state grade apples. NC argues that regulation wa sto protect against apple marketing fraud. NC applies were trying to protect themselves against the influx of Washington apples. 2. HOLDING a. While not explicitly discriminatory on its face, in practice it discriminates against Washington, and is therefore operationally discriminatory. b. Whats wrong with this regulation? The Washington apple growers will now have re-label all the creates and that will cost money, and the people buying apples in NC wont know if the apples are from Washington thus hurting them in that market c. Court applies least restrictive alternative test, and provides an alternative: allowing labeling with BOTH grading systems. This will help NC aim in people not being confused with what apples they are buying and still not discriminate against Washington. i. **in a case like this they say on the face its not discrim. Then they look to practice to see if operationally discriminatory will the impact cause discrim, and the court said that the effect would be discrim against Washington which brought them to the least discriminatory alternative test 1. here there is an overwhelming presumption that a less discriminatory alternative exists; the court almost always finds one one of the consideration in the Barnwell cases was an instant of significant in state and out state interest were affected. You could expect in state political process will deal with this problem. The apple case is clearly the opposite, since this was an industry that has its way with the NC legislature. And the court takes this into account in is decision. FROM REVIEW SESSION DCC If the regulation amounts to discrimination and you cant always tell, then this triggers the least restrict alternative If it is just a burden on commerce, then it applies only the balancing test 40

ii. PROTECTIONIST MOTIVES - Downgrading of grading system offered the NC apple industry the sort of protection against competing out-of-state products the commerce clause was designed to prohibit 3. NOTES a. OUT-OF-STATERS GET PREFERENCE i. The court will more closely scrutinize legislation that imposes a burden on a party without the political power to affect legislative change in the state (i.e. out of state ppl that cant vote) 1. A factor in the courts analysis would be whether realistically the adversely affected party will have any recourse to the legislating body in the state G. Exxon Corp v. Maryland Facially neutral, operationally discriminatory statute 1. FACTS a. Court upheld regulation imposed by Maryland to prohibit producers and refiners of petroleum products from owning retail service stations within Maryland there were NO producers/refiners within the state! b. Case will hinged on perception of whether the restriction imposed a burden on out-of-state businesses, or whether the regulation was imposed on an interest that happened to contain some out-of-state actors c. The circumstances were that of an oil shortage, with the refiners and distributors favoring their own stations i. Crucial question of whether a statute that is facially neutral is in fact in operation discriminatory does statute DISCRIMINATE against out of state commerce? 2. HOLDING a. Since all petro products come from outside the state, theres no discrimination also b/c only SOME of the out-of-state actors would be effected by the ban, its not discriminatory. 3. DISSENT : Blackmun everyone injured by the regulation is out-of-state and everyone benefitting is in-state therefore protectionism and discrimination, which should trigger least-restrictive alternative test. a. Upon that test, def other ways of excluding out-of-state classes of companies that could harm in-state interests i.e. restricting predatory pricing and enforcing it. 4. NOTES a. Exxon argues that Maryland does not have the right to determine who shall engage in that market, to dictate the structure of the market i. The court counters, saying the Commerce Clause does not protect the particular structure or methods of operation in given market b. Regulation simply scrambles the identity of the out-of-state actors, which the majority says does not rise to the level of violation of the commerce clause, as long as the regulation does not interfere with the flow of interstate commerce c. NATIONAL SOLIDARITY ANALYSIS i. Decision illustrates that while we treat the dormant commerce clause as a free trade doctrine, it is really more of a political doctrine ii. Paramount value embodied is the notion of national solidarity 41

1. Cardozo quote found in dissent: the peoples of the several states must sink or swim together. iii. There will be a few instances in which a statute viewed economically would not appear to be a good idea, but as long as it does not violate the notion of national solidarity, it will be constitutional H. Minnesota v. Clover Leaf Cremery- Facially non-discriminatory, operationally disc 1. FACTS a. Ban on sale of milk in plastic containers i. Happy coincidence that out-of-state companies are the principles manufacturers of such plastic containers ii. Also happy coincidence that the beneficiaries of the ban, pulpwood industries, are Minnesota residents 1. facially nondiscriminatory, b/c it doesnt clearly differentiate b/w in-state and out-of-state interests 2. HOLDING a. Statutory ban upheld b. USC accepts argument that statute served its stated purposes of promoting conservation, easing waste disposal problems, and conserving energy c. NO PERMANENT IN-STATE ADVANTAGE - Immediate affect of the statute is to provide a disproportionate benefit to Minn. residents and disproportionate burden to out-of-state residents, but there is no reason at all why that disproportionate affect should continue beyond the immediate i. Out-of-state residents are free to up their production of pulpwood/paper containers ii. Not a regulation intended to create a permanent advantage to Minnesota producers, as it would be if Arizona required containers to be made of cactus, etc. iii. In addition, there are some Minnesota companies that had been manufacturing plastic containers iv. There are thus at least some in-state residents that will be adversely affected, and their voices could be heard in the state political sphere e. Preemption Issue is when state law conflicts w/ federal regulation, but there is no Congressional specification as to whether fed regs are supposed to override/negate state questgion of whether Congress intended Fed to preempt state statutes. o i.e. did Fed want more state regulations on the subject? o Express Preemption- fed reg does specifically override state still requires interpretation of extent to which it preempts. This is not usually the case/issue. o Implied Preemption - Congress does not enact a specific or express preemption clause, so it is typically left to the court to infer whether Congress intended to preempt a particular type of legislation.TWO TYPES OF IMPLIED PREEMPTION #1 Conflict Preemption if state statute conflicts with operation/purpose of fed statute, the federal statute preempts i.e. Gibbons v. Ogden This is the easier type of preemption to identify and apply. #2 Field Preemption where federal regulation is so sweeping and broad that court sees Congress as intending to preempt any state regulation in that ENTIRE field. o VALERIE ON PREEMPTION: Questions of characterization: 42

What subjects did Congress expressly preempt, or what is the field that Congress has occupied? Is the state regulation one that falls within the domain that Congress expressly preempted or occupied? Frequently the same concerns underlying dormant commerce clause analyses affect the courts decision E.g. national uniformity, interference with interstate commerce, preservation of a proper sphere for local regulation, etc. Overview: In dormant commerce clause cases, the court may say, leave the problem to Congress In preemption cases, Congress has acted, and saying, leave it to Congress amounts to imposing on Congress a requirement of explicitness o Preemption may be used to avoid other constitutional issues o Matter of statutory interpretation

A. the Market Participation Doctrine The courts have made an exception to CC restrictions on state regulation when the state acts as a market participant, the commerce clause becomes irrelevant and the state can restrict their conduct to the same extent as any private industry o i.e. NJ could have purchased the private landfills and restricted out-of-state waste constitutionally; Florida could not restrict export of oranges by PRIVATE growers, but having their state-owned growers refuse to export is Constitutional. o THIRD PARTIES state hires general contractor w/ K that specifies that when GC hires SCs, half of those SCs must be residents of Tally Court has said that lack of privity is not an issue SCs are state workers by association, and therefore state can use discriminatory measures. EXCEPTIONS TO MPD i.e. subject to dormant commerce clause analysis o #1 State attempts to affect parties BEYOND those theyre in K with- i.e. regulatory consequences outweigh market value consequences. o #2 States participation in market involves RAW NATURAL RESOURCES? 1. South-Central Timber Development v. Wunnicke a. FACTS
i. Alaska sells some timber from state-owned lands below market prices. Buyer is required to process timber inside of Alaska before exporting it. A non-Alaska firm with no Alaska processing facilities attacked the process as violative of dormant commerce clause. State defendant on grounds of market doctrine claiming it was selling a commodity it owned.

ii. Obvious discrimination in preference given to in-state lumber processors iii. Alaska was not in the market for the processing of timber, and instead was attempting to regulate the processing b. HOLDING i. No MPC, regulation violates dormant CC state cant impose conditions that have substantial regulatory effect OUTSIDE of the particular marketing area that theyre participating in! 1. Alaska was acting as a market regulator, not a market participant. Big effect on IC. ii. THE BIG PICTURE burdens on commerce went beyond immediate state transactions terms imposed by state prevented buyer from seling logs to out-of-state buyers unless they had been processed in Alaska state is a market participant in buying/selling timber once they started reaching into timber processing, they were trying to regulate other industries. B. Art. IV Privileges and Immunities Clause

43

Priv/Imm Clause of Article 4 : privileges of residents in each state have privileges of residents of all states o A state cannot discriminate against individuals in certain ways purely because they are nonresidents! RATIONALE based on political reality that state legislators dont give a shit about outof-state interests (theyre only concerned with the ppl voting to keep them in office). Also, broader notion that this is a united nation where rights shouldnt be compromised just by going across state lines. o 2- PART TEST FOR ARTICLE 4 ISSUE #1 Whether right restricted is a fundamental right in the eyes of the court i.e. fundamental to the promotion of interstate harmony Examples 20x higher price for out of state hunting licenses hunting NOT fund But hiring quota f/ Alaskans right to pursue employment is fund #2 Whether state can demonstrate that nonresidents constitute a peculiar source of evil, at which statute is aimed. Has to be a substantial justification. 1. United Bldg & Contruction Trades Council v. Camden- 2 step process f/ disc a. FACTS i. City of Camden NJ had minimum quota of residents you had to hire 40% Camdonites - i.e. GC hiring laborers. This challenged b/c ppl outside Camden and New Jersey wont b able to get work b/c of this quota. Ppl from Philadelphia commute into Camden to work. b. HOLDING i. Court held that an out-of-state residents interest in employment on public works contracts was fundamental to the promotion of interstate harmony, and therefore protected by the clause ii. States justification - it fails we have unemployment problems and ppl that live in other cities are coming in and taking advantage of our jobs and not giving back to the city, so we need to keep these jobs for our citizens court says this is a justification but it AINT good enough Not substantial enough. c. NOTES i. COURT: a situation that may be immune from dormant commerce clause DOES NOT MEAN YOU CANT BE CHALLENGED UNDER ARTICLE 4 PRIVILEDGES AND IMMUNITIES 1. Whenever a court gets to the merits, it should take into account that these ppl work for the state, but it doesnt short-circuit the analysis 2. ARTICLE 4 PI Clause provides another basis for suits brought
by people not getting jobs b/c theyre nonresidents, when they cant sue under dormant commerce clause

3. Cases tend to end when saying that either there is no fundamental right involved or there is a fundamental right and the state must show that they are the fundamental cause of the problem and this is unusual V.

Substantive Protection of Economic Interests from State Regulation: The Due Process and Contract Clauses SUBSTANTIVE DUE PROCESS
44

Based around the notion that there are fundamental rights entitled to judicial protection, that require greater scrutiny to make sure they are not infringed upon. o 14 Amendment - "Nor shall any state deprive any person of life, liberty or property w/o due process of law. (This clause is a limit on the substantive power of state legislatures to regulate various areas of economic and non-economic life.)

-Prior to the adoption of the 14th A, the Constitution imposed very few limitations on the states. - The Amendment adds the Privileges and Immunities Clause, The due process clause and the equal protections clause

Overview of debate over originalism and interpretivism - Underlying principles/attitudes o One debate - Question of Interpretevism v. Non-Interpretevism (Not a very wide gap) Interpretivism - stick very close to Constitution o Probably willing to draw a certain level of inferences; probably do not believe that government has carte blanche to do whatever it wants absent an express constitutional prohibition; A school of thought or mode of const. interp. that insists on sticking to the text of constitution in regard to whether it allows government to regulate. It is only the judges job to interpret the literal text; dont read individual rights into constitution; if its not there then there isnt a govt power to regulate Non-Interpretevism - more inclined to do certain things government is not allowed to do o more inclined to find certain things substantively that the government is not permitted to do, even though those limitations are not explicitly spelled out in the constitution; The constitution does not spell out every limitation on governmental power and every right and liberty under the const. and there are certain rights that can be inferred from cont. even if not spelled out in precise detail. o Another separate debate - Originalism v. Non-originalism Originalism - constitutional interpretation should be guided by the intent of the framers Non-originalism - greater willingness to look to other sources to determine constitutional intent - General Rule: High degree of deference is given to state law. Therefore, D has burden of showing there is no rationale basis. Law will be struck down if arbitrary and capricious. This applies to commercial things - zoning, businesss regulations, tax laws, etc. A. Slaughterhouse cases- took priviledges and immunities clause away as a way to strike down state legislation 1. FACTS a. State of Louisiana conferred by statute a monopoly in the slaughterhouse business on a certain slaughterhouse genuine health concern of wanting to secure quality of meat by ending cutthroat competition. b. Competing slaughterhouses challenged this as an abridgement of the right to own and use property. P content this was a right guaranteed by the Privileges and Immunities Clause of the 14th Amendment. 2. HOLDING a. Court held monopoly did not violate due process b/c reasonably related to a permissible state objective. Privileges and immunities clause was read out of constitution. Basically, for 100 years following it was like there was no PI clause. 45

i. Due Process Clause in slaughterhouse is interpreted as only imposing procedural limitations, not substantive limitations. This holding took the entire meaning out the 14th amend. b. As a result- judges couldnt use PIC because it was removed from the arsenal of the courts to attack a state economic program c. Since no PIC, they had to rely on SDP- to tell state how they can regulate the market Majority held that the 14th protects the rights of states as citizens of the US (Stern disagree) 3. NOTES a. COURTS REPLACE Privileges and Immunities Clause WITH DUE PROCESS f/ STATE REG i. Due Process clause: after Slaughterhouse, judges end up doing reading substantive limitations on state govt power on due process clause (which would have been added to priv and immunity clause, if slaughterhouse hadnt happened) b. SUBSTANTIVE DUE PROCESS There are certain substantive things that govt cant do! Govt cant redistribute property, interfere w/ contracts, compensate for unreasonable bargaining rights i. While this isnt explicitly set out in the const, they were read into the due process clause i.e. they were interpreted to be components of substantive due process c. SDP ALSO APPLIED TO ECONOMIC LEGISLATION i. Court also sees due process clause as justification for reviewing reasonableness of econ legis. if legislation was found to be unreasonable it was found to be a violation of substantive due process b/c SDP implied that legislation should be reasonable ii. B. Lochner v. NY Radical non-interpretivism, freedom of contract 1. FACTS a. NY imposed a limit on the number of hours a baker could work; 10 per day, 60
per week. Law was defended as being 1) valid labor law and 2) protected health and safety of workers AND will improve/protect quality of bread.

2. HOLDING a. Statute struck down based upon liberty of contract right inferred into the 14th amendment by the Lochner court i. Before, 14th amendment purely procedural NOW court imposed this into substantive liberty of K there is a fundamental, substantive liberty of K protected by 14 amendment implicit specific limitations exist within the text b. Govt has no right to interfere in Ks between willing workers and employer c. This is bad policy and not a sufficient government al interest in messing with the employer/employee relationship d. Court issues a diatribe against paternalistic legislation 3. DISSENT Holmes a. He objects to the court deciding this case on their own opinions 46

b. The act should not bring up the bakers social situation- said that this holding creates a survival of the fittest economic situation. c. While probably sympathetic to economic majority, he able to separate his own view from the Const seen here b/c he was a social Darwinist (no friend to welfare) d. Court in no way is relying on a rational relationship test e. He objects to the majority construing the constitution in the economic theory of laze fare f. Holmes Dissent - In the Holmes and Harlan dissent is the early articulation of the rational relationship standard which prevailed in the post Lochner era g. **Post Lochner Rational Relationship Test**This approach is that the court should sustain this kind of legislation that is being challenged if it appears that the legislature had reasonable grounds for some kind of good or whatever its articulated goal was (Reasonableness test) h. If the wisdom of a statute is within realm of judgment and sane people could find this decent legislation, this is where the inquiry should end i. This is lenient and if this standard were taken by the majority of the court then this legislation would have prevailed. 4. NOTES a. EXTREME NONINTERPRETIVISM - you really have to reach well beyond text of Constitution to infer liberty of k that restricts states from imposing regulations on bakers b. INFAMOUS OPINION i. Notorious b/c Walker is seen as epitomizing in worst way the way judges can infer/enforce their own preferences over that over the legislature 1. p. 714 in determining Constitutionality of statute, judges decide what is fair and reasonable EXTREMELY strong language in overriding state a. state interests not effect in the SLIGHTEST DEGREE for such an act b. state is grossly overreaching (in our view) c. COINED THE TERM LOCKNERISM i. Locknerism judges elevating their OWN person views social political economic into fundamental Constitutional principals fusing their own attitudes into the Const, and substituting their own judgment for the judgment of the legislature ii. Lochner stands for the notion that due process includes substantive liberty, such as freedom to contract, and also allows judges to pass on the reasonableness of legislation 1. One of the most condemned cases in US history, used to symbolize judicial dereliction and abuse d. CREATED LOCKNER ERA (1905-1934) i. The Lochner period was really the heyday of substantive due process, with the courts invoking broad clauses of the constitution to override decisions of the legislature 1. This led to a floodtide of such judicial behavior ii. Judicial behavior seemed to change in line with the New Deal progression as discussed in the Commerce Clauses cases

47

iii. From Lochner to mid-1930s, the court invalidated approximately 200 economic regulations, usually under the due process clause of the 14th amendment 1. Then, in the mid-1930s, the court changed composition, and the court was prepared to abandon Lochner, due in part to the economic realities of the Depression, which seemed to undermine Lochners central premises b. The Demise of the Lockner Era In a series of decisions, courts get out of the business of second-guessing/scrutinizing state legislation, represents a shift towards the modern approach courts currently take towards state economic policies A. Nebbia v. NY- beginning of the end of Locknerism, return of rational relationship test 1. FACTS a. NY tries to establish retail price of milk - minimum and maximum grocer found to be selling below minimum, so NY brings suit. 2. HOLDING a. Statute upheld under modern, post-Lockner approach instead of approaching issue in terms of abstract freedom of K way, court LOOKS at relevant facts to determine whether NY has factual foundation for thinking that setting minimum price of milk would support health of citizens and dairy industry i. Rational Relationship Test as long as theres some plausible basis for NY to think thisll help ppl and industry, court wont interfere 1. most lenient level of judicial review 3. NOTES a. TOTAL INVALIDATION OF LOCKNER i. court announces that its getting out of the business of secondguessing the policy decisions of the legislature b. PRESUMPTION/DEFERENCE TO STATE LEGISLATIVE VALIDITY i. state is free to adopt any legislation reasonably designed to promote public welfare ii. Legislature is the judge of such enactments all assumptions should be in favor of them c. COURT SPECIFIES WHATS UNCONSTITUTIONAL i. Court found that price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt 1. must be an unnecessary and unwarranted interference with individual liberty B. West Coast Hotel Co. v. Parrish, 1937 the legislature knows economic policy best 1. Court upheld a state law establishing minimum wages for women a. Court took into account that the bargaining power of women in that area was relatively weak; legislature was entitled to make that adjustment in the market under rational relationship test. 2. EXPRESS REPUDIATION OF LOCKNER a. The Lochner court would have thought it was entirely wrong of the legislature to make such adjustments in the market, as inequality/unequal power is the price of a free market 48

3. Standard of review was whether the legislative response to the situation was arbitrary or capricious a. Court found the legislature was entitled to its judgment 4. COURTS NEW PHILOSOPHY a. wholesale deference to legislature concerning commercial and economic policy-making- court totally avoids the question of what they would do, rather they examine whether it was rational that the legislature did what they did C. US v. Carolene Products, 1938- re-emphasis of judicial deference, even with bad legislation 1. FACTS a. Federal Filled Milk Act prohibits shipment of aduleterated milk mixed with veg oil from interstate commerce, D violates and is prosecuted b. D moves for demurrer claiming that act violates his due process rights. 2. HOLDING a. Act is constitutional Court holds that the burden of demonstrating the lack of any rational relationship is on the party challenging the legislation. i. The court deliberately closed its eyes to the fact that the legislation was based entirely on special interests, with no actual legitimate goal ii. This is a near impossible burden of proving a negative. 3. NOTES a. LIMITS OF COURT DEFERENCE i. This extreme deference applies only to specific areas of legislation, like economic/commercial ones. ii. *Only qualificiation when we talk of courts beingn so permissive, keep in mind the kind of legislation this applies to; they are talking about legislation in the areas of economic and social welfare (products, prices business, ) all of these courts will apply rational relationship std. iii. **Footnote #4 - when we start talking about individual rights and liberties like freedom of speech or the right of privacy then the approach is not so deferential and when the face of statute encroaches on one of these rights and liberties the court takes a less deferential approach and takes a stricter standard b. THE FAMOUS CAROLINA FOOTNOTE i. THIS case is an exception to the general rule when were dealing w/ legislation that on its face violations liberties, were going to look at it more closely 1. Court is cautioning that just because were deferring to legislation here, doesnt mean were going to let everything go by or stop watching shit. a. When it comes to deciding how economic pie is going to be carved up when it comes to specific rights that are in the bill of rights, we are NOT going be so deferential as the general rule implies ii. c. COURT FURTHER EXPANDS DEFERENCE IN SUBSEQUENT CASES i. Williamson v. Lee Optical- extreme rational basis 49

1. Oklahoma statute requiring that anyone wanting a lens had to obtain scrip from optician/opthamologist a. no legitimate purpose f/ this legislation other than benefitting opticians 2. But court doesnt say that dances around real purpose of legislation (special interest grps that got to legislature) instead, Crt comes very close to saying Ok Oklahoma, u thought this was a good idea and thats good enough for us a. This is an extreme form of rational basis test OK doesnt have any pronounced reason for this, but court in speculation can think of how a leglislature could have possibly formed this. 3. Court says they will no longer use the DP clause to strike down laws because they may be unwise or improvident ii. Ferguson v. Skrupa, 1963 ULTIMATE rational basis test 1. Kansas passes law that says if you wanna be a debt adjustor, you have to be a lawyer blatant favoring of lawyers. 2. Court goes further than Lee Optical court says here are some reasons that might work, so legislations are ok - if legislation thought it was a good idea, thats good enough for us a. up to legislatures, not courts, to decide on the wisdom and utility of legislation b. *there is vitually no chance that the court will strike down under substantive due process c. ***lawyers still try to raise substantive due process challenges which is surprising b/c theyll def fail D. Duke Power Co. v. Carolina Env Study Group- a final reiteration of judicial deference 1. Congress imposes $60 million ceiling on nuclear accident liability damages its challenged. a. Court considered the regulation a legislative effort to structure and accommodate the burdens and benefits of economic life 2. That the measure may have profound and far-reaching consequences was seen as an argument for greater deference to congressional judgment unless demonstrably arbitrary or irrational a. Court thought any figure used as a cap would be necessarily arbitrary because based on imponderables c. The Contracts Clause Article 1, section 10 no state shall pass a law impairing the obligations of private contracts o Limitation it imposes on govt actions is different from Lockner Era substantive due process Libery of K state cant prevent willing private parties from entering Ks Contracts Clause - Once you pick your K rules what rules are going to govern formation and enforceability of Ks you cannot retroactively change those rules. It does NOT prohibit in advance what that regime may be it tells the state you pick the tules, you just cant change them once theyre in place for a specific K or whatever o EXAMPLE: If Florida wants to say, from here on, every K has to have Ashton Kutcher seal they can do that court is just sayin that 10 years later you cant say that in K where rules are followed, that its invalid 50

HISTORY OF K CLAUSE death and rebirth o After K clause was adopted, it was evoked occasionally to strike down legislation but the kind of legislation it was used to strike down was exactly the kind that it was designed for debt easement But language of K clause is much broader than that but over the last 150 yrs, a lot of legislation that seemed to meet language of the K clause, but SC struck down challenges POLICE POWER EXCEPTION Hypo- parties A and B have a K where A supplies cocaine to B for X # of years for $X. o once cocaine is outlawed as a state law, you cant protect coke deals through contracts police power exception to the K clause o Blaisdale case in 1954 signaled demise f K clause b/c the court decided that they werent going to look closely at economic Ks. Majority nullified K clause. Dissent said that this case was exactly the kind that the K clause was designed to comabt. From notes - In the very same term another decision Blaisedale case (pg 992) came down where a Minn. Law in depression allowed under certain circ. Memoritroium on the foreclosure of mortgages (if fail to pay, bank forecloses); during height of depression lots of people couldnt pay so tons of foreclosures which states were concerned about; they didnt cancel mortgages but made them easier to pay off with a court order allowing you to strech out your schedule of payments (2nd opp to pay off); o If originalism means anything this is what should be struck down under K clause b/c this is exactly the type of law that framers had in mind when they inserted the K clasue into the cont. of putting in laws to make it easier to pay debts o However, the court upheld Minns laws; this is coincidental that in 1934 is they come down almost simulteneouslly and the signal that seems to be admitted is that the court is getting out of the business completely the substance of economic legislation whether under the K clause or under substantive due process The court backing out all together out of any time of review of economic legislation and would sustain anything like this This was a valid interpretation of events that was valid for a couple of decades; for over four decades after these decisions the court did not invalidate any leglislation under the K clasue even though there was challenged legislation that did seem to challenge the validation of Ks In 2 big cases, courts resurrected K clause and said it will be used to strike down legislation in certain instances A. United States Trust Co. v. New Jersey courts are startin 2 take KC seriously again 1. FACTS a. NJ wanted to divert revenues to support mass transit system, changes K legal rules. The money was coming from money that was agreed w/ bondholders would NOT be used particularly for this purpose i. NJ is violating its contract w/ bondholders to use money for other purposes 2. HOLDING a. Court strikes down NJs law, which was an attempt to weasel out of their K. 51

i. This decision signaled a new life for the K clause, but was considered at the time to be a flash in the pan Wrong. b. UNFORESEEABLE EMERGENCY EXCEPTION: i. NJ tried to argue that the money was used and laws changed b/c mass transit problem was an unforeseeable emergency had this been the case, the changes might be justified. 1. BUT NJs attempt to control where this money went failed,, b/c it was foreseeable that NJ would have mass transit problems NJ was NOT responding to an unforeseeable problem. 3. NOTES a. STATE SHADINESS UNDER THE K CLAUSE i. US TRUST is an easier case for the court b/c state was a party in the case when you have a case where a state, as a party, is trying to change their own obligations, etc, it looks more dubious to the court and seems like the state is breaking its word for its own benefit. 1. Other than the courts, there isnt much of a political check on states b. REMAINING QUESTION i. How seriously were courts going to apply the newly-resurrected K clause, and how would it apply when a private party, NOT a state, was trying shade out of the contract? B. Allied Structural Steel Co. v. Spannaus 1. FACTS a. Minnesota law provided that under certain conditions, the amount of money that a minnesota employer had agreed to pay in a pension agreement would increase i. Original formula was that employer owed $5 million to employees, new formula increased all those agreed upon Ks to $10 million 2. HOLDING a. State does not have a general right to increase the employers contractual obligations legislation struck down. i. While underfunded pensiosn are a problem, this is not the kind of widespread severe problem that warrants this drastic a changee in the contractual obligation of Allied Steel. b. Factors considered by the court i. How substantially law will affect K terms? 1. Is it a drastic change to term or is it a modes change to K? 2. It amount to sliding scale where the more severely the legislation alters the terms the more stringently the state will enforce 3. If its not a big alteration, then the court is much more likely to sustain the terms of Ks ii. How necessary was states need to change K? 1. not enough need to merit this severe alteration there were many alternative solutions to this problem. 2. The court will clelarly take into account the scale or magnitude of problem that will be addressed by altering terms of K 52

3. The court draws the comparison of the broad and desperate emergency conditions in depression in that pension is problem but pale in comparison to conditions in depression and therefore the state has far less justification than in Blaisdale case than they did during the great depression 4. Magnitude far less than depression iii. Foreseeability both state and employer if prob was unforeseeable, state might be given more slack. 1. Prob was foreseeable there were known problems b/w employers and employee pensions NOT emergency. 2. employer indicated that he didnt expect changed K terms iv. Compromised Interests state was a party in this Kwhen state is trying to break its own K. this weighs against court support of change. 3. NOTES a. DIFFERENCE b/w K CLAUSE AND SUBSTANTIVE DUE PROCESS i. Here is a very specific provision in the constitution concerning Ks, as opposed to courts making up shit like liberty of contract under Lockneristic methodology. b. SPECIFICITY OF STATE LEGISLATION IMPORTANT i. Courts are particularly hostile to states picking out particular types of Ks and changing them legislatively, esp in their own interest. 1. when it comes to state legislation that simply happens to have impact of affecting private contracts, but wasnt designed specifically to TARGET those kind of Ks, court will uphoild that sort of legislation. c. REAL MEANING OF THESE DECISIONS i. These cases were really more warning shots to the government/states, rather than an indication that the court would consistently strike down such legislation 1. were really more warning shots to the government/states, rather than an indication that the court would consistently strike down such legislation a. If the states take a really egregious regulation, particularly if aimed at particular contracts, the court is prepared to strike them down d. Modern Contracts Clause Review BROAD RATIONAL RELATIONSHIP TEST A. Modern review under the contract clause is substantially identical to modern rationality review under the due process and equal protection clauses 1. In all three contexts, the court engages in the same inquiry a. The court identifies the state interests and requires a rough relation between the legitimate state interests and the measure under review 2. Class of legitimate state interests is extremely broad, including everything other than raw political questions a. Idea seems based on existing distributions never being prepolitical and are often unjust, and therefore a matter for democratic control i. The fit between the legitimate interest and the measure under review need not be close

VI. The Right of Privacy (or Personhood)

53

The right to privacy deals with judicial protection of peoples non-economic rights within their lives these rights have been classified as fundamental interests. Courts apply a heightened scrutiny to any law infringing upon these basic human rights and life choice, which include voting, access to the courts, procreation, and welfare. Initially, two cases created protections for certain types of rights; however their relevance is undermined by the fact that they were decided under substantive due process, not right of privacy A. Meyer v. Nebraska 1. Struck down a state statute banning the teaching of modern foreign languages other than English in any public or private grammar school 2. Court found that no emergency had arisen which rendered such knowledge harmful enough to justify infringement of the right to acquire useful knowledge B. Piece v. Society of Sisters 1. Struck down a state statute forbidding parents from sending their children to private schools (also discussed in standing) 2. Court found the statute interfered unreasonably with parents right to direct the upbringing and education of their children C. Skinner v, Oklahoma Procreation is an implied constitutional right, precurson to Griswold 1. FACTS a. People convicted 3 times of moral terpitude crimes will be sterlized. P was a chicken thief up to be sterilized i. Conn legislature wrote the statute so that the pertinent crimes were all poor peoples crimes crimes involved politicians and other high class crimes didnt involve sterilization 2. HOLDING a. Court strikes down this statute on equal protection grounds because it discriminates against poor people sterizilies blue collar criminals but not white collar i. The statute was actually found to infringe on the fundamental right of having offspring, though that right is not explicitly protected in the Constitution 3. NOTES a. SUBSTANTIVE DUE PROCESS IN DISGUISE i. Court doesnt really mean this logic they didnt want to call doctrine by its real name substantive due process what they were really doing was the same sort of thing from Meyer and Pierce Substantive process they couldnt address it b/c of collapse of Lockner era court comes up with Equal Protection rationale to cover up their application of substantive due process b. EQUAL PROTECTION, BUT NOT REALLY i. Formal application of equal protection, but actual application of noneconomic fundamental rights (such as that of procreation, ,marriage, childrearing) under Constitutional substantive due process 1. This decision advanced the evolution of the protection of noneconomic fundamental rights through constitutional substantive due process. c. STRICT SCRUTINY STANDARD OF REVIEW 54

i. Court is clearly demonstrating, indicating a willingness to apply strict scrutiny to legislation that effects peoples fundmental noneconomic rights d. CONCURRING OPINIONS PROCEDURAL DUE PROCESS POINT i. Due process was violated b/c D was given hearing to acertain whether sterilization would be detrimental to his health, but NOT as to whether his criminal tendencies were inheritable! D. PREFACE TO GRISWOLD 1. By the time of Griswold, it is pretty well accepted that one has a corpus of rights surrounding the family, but it is not yet solidified how they are constitutionally justified E. Griswold v. Conneticut- Personal Const rights defined as Right to Privacy 1. FACTS a. Challenge to Conn statute prohibiting use of contraceptives by everyone married couples included. What we have here is state invasion of personal, fundamental rights concerning procreation and children and family rights 2. HOLDING a. Statute struck down. What state has done here is to infringe upon body of rights w/ presumptuve right to make life decisions when state infringes upon these rights of privacy, were going to apply strict scrutiny - state must prove that statute serves legitimate state interest i. Its easy to see how this statute fails that test this is a very difficult standard to prove state will almost always fail that test, esp when the statute is totally insane. 3. NOTES a. CREATION OF RIGHT OF PRIVACY (i.e. SUBST DUE PROCESS) i. Court wants to recognize these intensely personal rights the courts decide to call it right of privacy 1. Court held that this right of privacy came from various provisions in the bill of rights 1st, 3rd , 4th, 5th, and 9th -just kind of mentioned them all without going into specifics ii. Penumbra each of these amendments has a privacy aspect, and together they emanate a penumbra of privacy that encompasses rights to have access and to use contraceptives b/c it falls into life decisions about personal matters that court has been protecting since, Meyer Pierce, and Skinner. 1. This is essentially the same substantive due process application from Skinner but court again is reluctant to call it that, and instead make up right of privacy label so they dont touch on Lockner shit b. THEORETICAL DEBATE INTERP. V. NONINTERP i. Goldberg (concurring opinion) extreme noninterpretivism doesnt even use penumbra analysis, just thinks its there ii. The rights are reasonably implied from the constitution. iii. Douglas Qualified non-interpretivism because he at least makes an effort saying that it does arise out of the specific provision. iv. Blacks (dissent) militant interpretivism says court is Locknerizing, using vague reasoning/formulas to advance their own agendas if it wasnt in text, it doesnt exist! 55

1. Black hates basing the existence of a right, you need to find it in an explicit guarantee in the constitution. If you dont do it like this, you will be left with Lochnerism. c. MODERN VIEW ON RIGHT OF PRIVACY AND SUBST DUE PROCESS HARLANDS CONCURRING OPINION i. We are applying substantive due process, stop bullshitting around the issue with constitutional penumbra reasoning! Taboo a/b Locknerism is dead and buried, lets just call it what it is. ii. In response to Black: SDP doesnt give justices free reign to put their own personal beliefs into decisions these rights being protected under substantive due process the vague formulas Black talks about establish limitations that disallow judicial abuse of power. All SDP does is protect against violations against order and liberty. d. STERNS VIEW- BROADER HOLDING ON GOVT INTRUSION i. Harlands view convening substantive due process is the modern view ii. Griswold isnt just about the rights of married individuals what Griswold REALY embodies is broader right AGAINST govt intrusion into decisions regarding procreation reinforced in Eisenstadt. 1. Griswold applies to broader decisions regarding rights of procreation, not just married people. F. Eisenstadt v. Beard Reiteration of Griswold protection of bodily rights 1. FACTS a. Involved a Mass. statute prohibiting the distribution of birth control to unmarried persons - State claimed the purpose of deterring premarital sex 2. HOLDING a. Court struck the statute down based on the equal protection clause, as the statute provided different treatment for married and unmarried persons b. Court found the statute could not possibly meet the states purported goal: i. Contained too many exceptions, e.g. not outlawing distribution of contraceptives to prevent the spread of disease c. Also, unreasonable for the state to punish premarital sex with unwanted children 3. NOTES a. This case is another indication that the court has embraced the idea that there is a substantial body of rights under substantive due process to protect individual autonomy to make their own decisions on home, family, childrearing b. Abortion Most controversial issue in modern constitutional, b/c peoples personal views are intertwined morally/socially/ethically/religiously with the issue if one feels its a fundamental right, more likely to feel like a constitutional right History from Griswold Compelling State Interest Test -if a right is recognized then the state is to show that any restrictions upon that right are justified A. Roe v. Wade legalized abortion womans right to choose=fundamental privacy right 1. FACTS 56

a. Involved a TX statute that prohibited abortion unless the mothers life was threatened. b. Historic bases for criminality of abortions: i. Discourage illicit sexual conduct ii. Procedure was hazardous iii. Protection of fetal life 2. HOLDING a. Under Griswold, Meyer, Skinner and Pierce, a womans right to decide whether to end a pregnancy was part of the fundamental rights of privacy. 3. NOTES a. ESTABLISHED COMPELLING STATE INTEREST TEST i. Once you start with that position, the state cannot invade or restrict that right unless it is necessary to achieve a compelling state interest 1. Compelling state interest was the premise from which the whole trimester basis flowed a. System was rooted in what was thought at the time as medical fact; medically, not a whole lot has changed since Roe b. ESTABLISHED TRIMESTER SYSTEM BALANCING TEST BETWEEN STATE INTEREST AND WOMENS RIGHT TO CHOOSE i. First trimester - risk of abortion is same as carrying the baby state has no real interest in womans decision its between her and her Dr. ii. Second trimester - balance changes b/c health risks substantially increase state can impose regulations governing abortion reasonably related to protect womens health iii. Third trimester- weight of states interest dramatically increase and state has compelling interest to protect life, and it overrides mothers right to make a free choice 1. Rule is that from that point on, state can prohibit abortions except when abortion is necessary to protect health of mother B. Between Roe (1973) and Casey (1992) 1. First Abortion Era 73-87 - Strong Version of Roe no longer good law a. Between 1973 and 1987, there were always 5 justices on the court to strike down state attempts to outlaw/impede abortions very pro-choice court. i. Strict adherence to trimester system b. Struck down statute requiring woman to be informed of negative effects of abortion and characteristics of fetus while on its face this wasnt direct inhibition of abortion, it was excessive interference in the womans dialogue with her Dr. and her choice. c. Abortion Qualifications during Strong Era: Parental Consent with Judicial Bypass i. Minors cld b treated differently f/ adultsSTILL GOOD LAW. 1. State could require for dependant minors seeking abortion that she obtain parental consent OR if you didnt want to go to parents, you could get judge authorization. a. If judge thought it was in her best interests, he could give it to her in practice this is usually granted. 57

the judge would have to grant consent if the judge found 1) minor woman was mature enough to make the decision for themselves or 2) if the judge found that it was in the womans best interest to have an abortion c. (over the years in practice that has meant if she can muster courage to approach a judge, the judge will almost always find one of the 2 conditions exists) ii. Govt Refusal withholding of funds to poor women was upheld even in free health programs court said that this was a govt value choice, and that theres no constitutional duty in Roe v. Wade to aid women, as long as they werent actively blocking her. 2. Webster Case Signified end of Strong Era right to privacy now mere liberty interest a. one justice changed - court upheld Missouri restrictions on access to abortion what was scary was that there was no longer 5 justices that qualified it as right to privacy there was now a majority that characterized it as a mere liberty this means that govt restrictions on exercise of that interest only have to rationally further a state interest. 1. MUCH lower standard of scrutiny than the strict scrutiny used for right of privacy decisions 2. Very Alarming for pro-choice advocates 3. PREFACE TO CASEY a. Heading Into Casey, the composition of the court and their noncommittal attitudes towards the Roe decision had everyone thinking that Roe was going to be overturned but it WASNT, b/c three judges expected to vote against it actually wrote a joint opinion upholding Roe. C. Planned Parenthood v. Casey- rejection of trimester f/ undue burden and viability 1. FACTS a. State requires 24 hr waiting period before abortion, during which antiabortion information is distributed to mother-to-bed. Joint opinion states that in some cases 24 hr period is going to act as an inhibition f/ abortion in itself. 2. HOLDING a. Court says that while this is a plausible speculation, you didnt bring enough evidence within the record that proves this therefore they upheld the restriction i. 24 requirement DOES NOT act as complete deterrent to significant number of abortions ii. The reality this acts as a defacto ban on many womens abortion rights think women with husbands, parents secret abortions you cant get away for 24 hrs. iii. Overrules or rejects the original trimester test of Roe and replaces it with an undue burden standard. b. UNDUE BURDEN REQUIREMENT i. State regulations that do not outright ban or bar a woman from aborting a non-viable fetus will be presumed to be valid, unless challenger can make strong evidentiary showing that regulation will create undue burden on women seeking abortions. 58

b.

ii. (notes) In practice this means that if the state imposes a limitation on the availability of abortion that does not amount to a prohibition prior to viability then whoever is challenging the limitation must overcome the evidentiary burden of showing that in fact the limitation amounts to a ban or insurmountable obstacle on abortion 1. When the court applies this approach, most are upheld; most tellingly the court overturns a decision from when Powell was on court and upheld a mandatory 24 hour waiting period for abortion in PA (with exception of emergency) and during this period you need to be informed of health risk from abortion all with the purpose of dissuading women from abortion 2. This shows how strong the validity of provision that is not an outright ban is; there are circumstances where the 24 hour delay could provide an obstacle like if they live far away from the clinic and the expense of having to go to the clinic twice; the court says this is possible but has not been demonstrated the this delay represents an undue burden or insurmountable argument for abortion 3. They use the same reasoning in the provision in statute requiring parental consent with the judicial bypass option we discussed yesterday 4. As a practical matter even having to go to a judge for a woman is going to be a deterrent and is hard and if the pregnancy is from incest is going to make it hard for her too 5. Also there is a certain amount of delay in the system. In PA for the whole process to operate takes about 8 business day; under the circumstances here 8 days is a long time; these are all arguments that a pro choice advocate could make against the provision 6. However, under this standard this does not amount to an intrinsic insurmountable obstacle; it is not an undue burden it doesnt make the abortion inherently unattainable c. It is a strong presumption for the statute, but it can be overcome with an adequate record, which is what happens with the spousal notification statute, requiring telling husband 3. NOTES a. ROE v. WADE SURVIVESBARELY i. Upheld the essence of Roe v. Wade the substantive liberty of the Due Process clause concerns marriage, family and procreation therefore abortion falls within it as well. 1. Tone of joint opinion is kind of halfhearted theres an implicit lack of support for Roe. b. SPOUSAL PERMISSION STILL DISALLOWED i. Spousal Permission/Notification requirement for a substantial number of women, spousal notification statute will function to disallow abortion in a lot of these cases women dont want their husbands to KNOW - for fear of beating, or other retaliation 1. Operates as substantial burden/undue obstacle to abortion. 59

c. UPHOLDING BASED ON COURT RESPECT/LEGITIMACY i. If court gets into habit of routinely changing its mind, public will become cynical of court operations and question their principals think theyll be like other political organs and change their principles every time new members come into power. Inappropriate. ii. The court again avoids using the words, right to privacy but choose liberty right. iii. The court draws distinction between Roe and overruled past decisions like Brown v. Board, Lockner iv. Says that Lockner different b/c understanding of underlying facts changed and it was made on idea that Laze Faire was best way to run economy and in new deal/depression people came to understand differently v. Thus, there had been a change to the factual underpinnings of Lochner and the Lochner doctrine had already substantially eroded. vi. Also by the time got to the court for overturn, it had already been taking bit hits vii. Conversely, in reference to Roe, our basic understanding of liberty hadnt changed much, neither had the medical facts underlying Roe, and whatever we would have thought if on court in 73 it is more important to uphold precedent to preserve the sanctity of the court; looks like this was more important for justices than that the Roe v. Wade liberty was something they really believed in d. CASEYS IMPACT ON ROE i. Most important part of opinion is that right of woman to have an abortion BEFORE viability without undue right of interference from the state state cant impose undue burden or substantial obstacle to a womans right to choose prior to viability. ii. undue burden isnt the same thing as rigid trimester system of Roe v. Wade rejection of the trimester system in favor of undue burden and prior to viability standard if pre-viability state poses restriction that amounts to less outright ban, there is a favor in presumption of that restriction. 1. To prevail under undue burden standard, you must broke that restriction would prevent significant # of abortions standard amounts to ban somewhat. 4. Camps on Court in Making Determination a. Descending Order i. Privacy Super heightened liberty interest Blackmun and Stevens ii. Liberty Interest (joint opinion) liberty with punch if were just garden variety liberty than would not have struck down the spousal notification When the joint opinion uses the word liberty they are talking about a heightened form of liberty but not as heightened as privacy iii. Dissent Rehnquist, etc. 1. even they dont deny that there is a liberty interest of sort in deciding, its just a low level of liberty interest that can be overridden if the state has a rational relationship to the government interest (which almost everything passes) iv. When the court categories as right to privacy applies strict scrutiny and will be struck down 60

v. Liberty - If the court categorizes as having a vanilla liberty interest, (Rehnquist dissent), then if the state has a rational reason to undertake liberty and less likely to strike vi. Liberty with Punch when they say liberty but look closely at the actual impact they are applying a stronger level of scrutiny than dissenters; they call the same thing , but the punch is the higher level 5. In Critiquing joint opinion as questionable, Rehnquist mocks the joint opinion with tribute to Stare Decisis, he says you say you are adhering to stare, what do you mean? a. Roe said that the right to choose is a right of privacy and youre not calling it this anymore b. Roe says if encroach on interest must pass strict scrutiny which youve done away with and youve also done away with the trimester system c. How is this Stare decisis is what Rehnquist is saying given that youve altered everything? 6. You have the collision of the 2 fundamental principals the courts countermajoritarian aim v. the substantive due process aim of the traditions and collective consequences of people and what does society as a whole think which is also important a. Scalia would say that if we are talking about extrapolating from broad language of liberty the right to have an abortion, this needs to be measured against the traditions of society and if the broad majority of people havent recognized such a right than it cant be teased out of the constitution c. Family and Lifestyle Interest Privacy of family life is a fundamental right. Court applies strict scrutiny to govt interference with personal privacy in these areas. INTRO CASE f/ Mooreo Veltaire v. Boras - zoning ordinance allows only single-families. Challenged as violating substantive due process. Court upholds ordinance under rational relationship test govts justification of single families will prevent congestion/overcrowding is not a perfect fit b/w rationale and justification huge family of 9 ppl allowed, but 3 single ppl CANT live there! Heightened scrutiny would overturn. A. Moore v. City of East Cleveland Crazy Ass Zoning Ordinance Rejected 1. FACTS a. Another city zoning ordinance f/ narrowly-defined categories of families puts grandmother living with grandsons charged w/ criminal violation b/c they dont fit the statutory definition of a family. 2. HOLDING (Powell) a. Court applies strict scrutiny, as govt is intruding on choices of family living arrangements and relationships statute struck down, as it at BEST works only minimally, if at all, to reduce overcrowding/traffic. b. Invokes substantive due process c. Distinguishes from Veltaire ordinance because this invades or encroaches on the family in which the Veltaire opinion had. 3. NOTES

61

a. MUCH more heightened strict scrutiny in this plurality is read to raise rights b/c they fall under substantive due process rights that fall under childrearing and other protecting procreative rights. i. A slightly unusual instance where 4 members of the court are willing to call it substantive due process instead of talking around that term B. Zablocki v. Redhail The Right to Marry 1. ISSUE May state protect welfare of out-of-custody children by denying marriage license to persons who fulfilling their support obligation to those children- i.e. prove that child is not a public charge? 2. HOLDING NO marriage is a fundamental right, and significant interference w/ it is allowed ONLY if closely tailored to protect SUFFICIENTLY. IMPORTANT state interests. a. Even if state interests in protecting kids are valid, the means used by state unnecessarily impinge on fundamental right to marry. 3. NOTES a. Confusing - court strikes this down on Equal Protection Grounds b. CONCURRING OPINION Stewart Cmon its substantive due process! Lets call it that! Once again state trying to intrude too deeply into intimate personal rights covered under substantive due process, and we have a duty to protect under that. i. In cases which affect substantive due process rights, courts will apply strict scrutiny c. LIMITATIONS ON MARRIAGE HOLDING i. Were not saying that ANY restriction on marriage will result in strict scrutiny traditional state age requirements and forbidding bigamy/incest are ok. d. Keep in mind for exam that we have not taken up officially the doctrine of equal protection; even though they call these equal protection we can use cases to back up substantive due process C. Lawrence v. Texas- Sex is a fundamental right 1. FACTS a. Texas statute bans gay sex. Issue is whether sexual relations w/n the home fall within the cluster of non-economic substantive due process rights that the court has been protecting since Meyer? 2. HOLDING a. Court first retraces the history of decisions concerning intimate conduct and rights Griswold = right of privacy/use of contraceptives. Roe and Casey court held that Casey broadly recognized personal, non-economic rights as having protection from govt interference. (Seem to assume the conventional family) b. This is NOT a case about merely the right to engage in this specific act the real question here that we should be confronting is whether the govt may whether govt can define the meaning of a personal relationship absent an injury to a person or the law it protects- NO i. This holding overrules Fowler, an earlier decision where they upheld a ban on homosexual sodomy as an individual act (even though statute disallowed ALL sodomy, court interpreted it as only banning homosexual sodomy) 62

ii. White: observes that protection of homo conduct has not been a mainstay of civilization which he is right about; it is a historically accurate fact to say that official tolerance or laws recognizing the right to gay conduct are of recent vintage; therefore his conclusion is that there is nothing const. defective about Georgia giving effect to a long standing moral philosophy about moral conduct. iii. Blackmun dissent: if all this statute has going for it is that the law has been around for long time and represents majority beliefs it must fail in assertion of the liberty interest being asserted in this case; if all it took to sustain law is that represented moral view point of majority then every law would be up to challenged b/c nearly every law or statute embodies a moral judgment (education good, drugs bad; this is what laws are). Blackmun says there needs to be something more than this to sustain a law.

3. NOTES a. DEBATE OVER JUDICIAL AUTHORITY TO DETERMINE VIABILITY/MORALITY OF STATUTES i. Lawrence majority keeps going back to Hardwick dissent if the moral choice of the majority alone is a sufficient reason to uphold a law, than virtually ALL laws are going to survive constitutional challenge 1. There are relatively few laws that are going to be n violation, since most are the representation of the majority ii. Opposite is ALSO true laws are expressions of moral viewpoint education is good, clean air is good. Criminal law murder is bad, etc. Obviously, the fact that a law embodies a moral preference cant be grounds for invalidating a law b/c then ull strike down ALL the laws b. SEX REGULATIONS OK AS LONG AS THERES COERCIVE HARM i. Lawrence does not mean that all sex regulations are going to be invalidating b/c they violate substantive due process i.e. polygamy, incest, prostitution. ii. STERN: Court would reject challenges to these statutes and distinguish them, b/c in all these other categories you can indentify a HARM that is created, and the state can justify that the right/interest in the intimate association isnt NEARLY as compelling as in lawrence. c. LAWRENCE AND GAY MARRIAGE i. Majority says no this case has nothing to do with gay marriage dissent of COURSE it does! All the sodomy arguments can be just as easily applied to state prohibitions on gay marriage! Lawrence opinions leads to conclusion that bans on gay marriage can invalid. ii. STERN: ct. will not strike down legislation that refuses to acknowledge gay marriage. 1. Logic will be distinction b/w intrusion into lives of ppl 63

iii. Scalias dissent what are the implications on Gay marriage or states refusal to accept (i) Majority opinion says has nothing to do with this (ii) Scalia says that is does; every single argument to strike down law can be applied to evoke states refusal to section gay marriage (iii) Its ironic that this is one thing that gay advocates and he would agree with (iv) However, safe prediction that court will not do this; they will ldistinguish between law struck down in Lawrence that actively interfered with relationship and a state law that withholds a particular benefit from people that engage in conduct 1.this will not be unprecedented abortion in Mayer and , court upheld provision for not giving medical aid for those in abortion; the govet does not have to help you pay to get abortion 1. the court will likely engage in similar d. CONFUSING ASPECT OF LAWRENCE OPINION i. Its not really clear what level of scrutiny the court is applying here at face value, its merely aplyingh raitonal relationship test other structiny heightened liberty with punch scrutiny not STRICT, but higher than normal

VII.

Revival of 14th Amendment Priviledges or Immunities Clause (Saenz v. Roe); Procedural Due Process
A. Saenz v. Roe 14th amendment P+I Clause RESURRECTED! 1. FACTS a. California statute said that when you moved to the state the first year you got the welfare payment you would have received in your last resident state (BUT only when the prior state paid less in welfare benefits i. Calis official stance reason we have to delay welfare to ppl from other states is that Were trying to deter fraud i.e. people come to cali saying theyre gonna stay, but really just want our higher welfare benefits, after which theyll leave ii. Calis real stance: keep poor ppl from coming to Cali. 2. HOLDING a. Statute struck down because of the ends, not the means. Court acknowledges states valid justification of protecting their welfare system from crooks, but hold that these restrictions on welfare benefits impinge on constitutional right to travel (one of the components of P+I clause). i. Const right to travel: travelers from other states have right to be treated like members of that state 1. Cali regulation treats out-of-state travelers DIFFERENTLY from residents. 64

Distinguish Article 4 Privileges and Immunities Discriminating against out of state residents in favor of in-state residents

- The states cannot create a hierarchy between its residency. The exception with this is that they can distinguish portable benefits like in-state tuition 3. NOTES a. P+I A GOOD FIT INSTEAD OF DCC i. Explicit discrimination under dormant commerce clause STERN feels that court adopted priviledges and immunities clause route for a few reasons 1. #1 DCC tacky to equate movement of people w/ movmt of goods weird to treat them w/ same doctrine 2. #2 - In DCC, Court is making a guess as to what Congress would do in this situation in theory and practice, even tho courts can decide one way, Congress can always specifically override them after the fact- here, they wanted their decision to stick b. RIGHT TO INTERSTATE TRAVEL = STRICT SCRUTINY TEST i. Slaughterhouse cases completely destroyed 14th amendment priv and immunities clause this court revived it this court held that Slaughterhouse decision left that Privileges and Immunities clause left ability to move from state to state w/o undue discrimination 1. When a state adopts a measure like this that so directly impinges upon right to interstate travel under Priv and Immunities clause, we will apply strict scrutiny rest a. SS is there an EXTREMELY TIGHT FIT between the means chosen and end (the goal) - when court applies strict scrutiny, its expecting almost a PERFECT match b/w rationale and statute therefore almost all statutes brought before the court under strict scrutiny fail this analysis. c. STATUTES INCONGRUITY UNDER STRICT SCRUTINY i. STERN: i.e. you have someone coming from NJ, and they DIDNT need welfare when they got to Cali, but something terrible happens after they get there and then they need it in this case, even tho they dont even remotely fall into the freeloader category, they will get fucked by this statute by making them get the NJ level of welfare THIS IS THE INCONGRUITY b/w RATIONALE AND STATUTE = a lot more ppl would be adversely effected than just those that are the target of the statute. d. WELFARE PAYMENTS = NONPORTABLE i. The Question is WHAT is the distinction b/w these two categories of statutes? 1. Portability state can require reasonable waiting period f/ benefits like college aid- b/c their education is a portable asset that will benefit them wherever they go! 2. Non-portability welfare benefits you cant take it with you, they are consumed immediately in a practical sense, when you go to Cali and get those benefits, you are going to consume them within California (i.e. welfare money for food) B. WHAT IS COURT TRYING TO SAY ABOUT 14th AMENDMENT ? 1. Theres a general principle in 14th P and I clause that state CANNOT distinguish among different categories of residents - new and old , etc theres a general 65

presumption against treating sub-classes of residents who havent been there as long as being inferior on the totem pole a. HOWEVER, state CAN show that a reasonable waiting period is a reasonable means to protect against people trying to take advantage of the system i.e. welfare gypsies but its difficult to prove this, b/c the court is applying a strict scrutiny test i. Dividing line is courts notion of portability education = portable, welfare = non-portable 2. State cannot maintain a caste system amongst its residents once you move to a state, state cant put an asterisk next to your name and hold you at a lower level than settled residents this is the lasting effect of this case concerning the Privileges and Immunities clause limited exception of student tuition. Extra-textual Right Example of courts simply inferring right to travel out of the14th Amendment. Stern says you can also draw this from the larger context of the Constitution and its fundamentals. Individuals should be free to choose their state without encountering restrictive barriers.

b. Procedural Due Process 14 and 15th Amendments protect against the deprivation of life, liberty, or property WITHOUT DUE PROCESS OF LAW procedural due process protects a range of liberty and property interests outside the criminal context. Courts have abandoned definitional approach of whether interest can be term a right or privilege the scope of liberty and property rights protected by due process is broad. o the epitome of PDP is where govt has given you some benefit i.e. welfare, social sec benefits, govt employment etc and NOW govt has says youre no longer eligible and they yank it away from you question is WHAT PROCEDURES, if any, is govt obligated to follow before it takes that benefit away from you in court this is a snapshot of PDP as we will cover it in this course. These are reviewed on a case by case basis.
th

TWO QUESTIONS INHERENT IN PROCEDURAL DUE PROCSS (based on P+I clause) o #1 Is interest govt is taking away qualify as a liberty or property which is protected under PDP? o #2 (if yes to Q1) What type of process/procedure are you entitled to if you want to CHALLENGE that taking of liberty? REPUTATION UNDER PDP (Liberty Interest?) o Reputation alone is not a liberty protected under PDP. i.e. Paul v. Davis- if govt wants to send out fliers that say youre a shoplifter your liberty interests under PDP are NOT harmed o STIGMA-PLUS EXCEPTION - Harm to reputation accompanied by ANOTHER harm does fall under PDP. In this scenario, you are entitled to some process. i.e. government sends out press release- Were releasing P from his job because hes a filthy drunk there is reputation harm plus a physical liberty harm (being fired from job plus being insulted). o PROPERTY INTEREST UNDER PDP 66

Property interests, unlike liberty interests, are NOT directly protected/created in the Constitution. Property interests are usually created by independent sources such as state law, and include interests already acquired in specific benefits (i.e. govt jobs). i.e.- Stern example if you have govt job, you MAY have property interest in that job May, not MUST just having a job doesnt necessarily mean u have property interest in order for you to have a property interest in that job for PDP, govt/state must have given you an EXPECTATION that youll continue in that job until there is cause for dismissal. o There is no property interest until govt specifies that you will continue to receive that benefit until you give them good reason to terminate it. IF property interest does qualify as property interest, procedural due process is triggered and govt has to give SOME sort of hearing or process before depriving you of that benefit. o IN SHORT Step 1 State decides whether they want to create property interest in the first place (by determining what kind of position its going to be) Step 2 Once this expectation has been created by the state on the part of the recipient, the COURT gets to review the process situationally and determine if it meets due process i.e. if states process grants person due process for terminating their state benefit. A. Board of Regents v. Roth Limits on termination obligations of govt under PDP 1. FACTS a. Teacher hired for a one year fixed term at a public university, and was not rehired at the end of that term and given no reasons why not. Tenure doesnt kick in until 4 years, and leaves all lower hiring decisions to university officials. b. P brings suit, claiming he was deprived of life and liberty w/o a constitutionally-required hearing, 2. HOLDING a. D had no obligation to rehire or provide termination obligations to P liberty and property interests under the 14th amendment are broad BUT NOT INFINITE gotta draw the line somewhere! i. Concept of liberty does not extend to an otherwise NONEXISTENT right to be employed by a certain employer. ii. There as no expectation or promise to rehire which is required 3. NOTES a. NO PROPERTY INTEREST i. Court holds that P had no property interest P was given no specific contractual interest in being rehired, NOR did state law recognize any such property interest. 1. Ps abstract concern in being rehired is NOT a valid property interest to be protected under 14th amendment. ii. Best known example of interest tenure in a public university; once one gains tenure you can continue in the position until such time as there is cause to dismiss; this is conspicuous b/c the threshold of what is cause for taking away the property interest in the position is very high 67

1. review gotten benefit from govt and they have communicated that have benefit until cause to take away B. Arnett v. Kennedy(overruled in Loudermille) 1. FACTS a. Challenge by former federal employee to the procedures by which he was dismissed. 2. HOLDING a. Plurality: where the legislation conferring the substantive right ALSO sets out the procedural mechanism for enforcing that right, the two cant be separated. i. B/c state law created the property interests, Ps property right is conditioned on the legislatures choice of procedure for the termination of the right. ii. If property rights flow from exclusively from state related mechanism, why cant the state govt determine the set of procedures that they will take.

C. Cleveland Board of Educations v. Loudermill- 2 Step process re-emphasized. 1. FACTS a. Govt-hired security guard hired after writing on application that he had never been convicted of a felony 11 months later employer discovered he was a felon, and fired him. i. Applicable state law was that he could only be fired FOR CAUSE 1. i.e. property right created. 2. HOLDING a. State law created property rights in Ps job by allowing him to only be fired for cause under the due process clause, once property right exists it cant be taken away unless constitutionally adequate measures are taken (i.e. termination hearing of some sort). 3. NOTES a. DIGNITY REQUIRES DUE PROCESS i. We have due process not just to determine whether this person deserves to lose benefit, but b/c due process is an important fundamental value in and of itself 1. Dignitary interests its part of basic concept of due process that if you are dismissed from your job for being chronically late, it is fundamental to individual dignity that you have a power to respond to that charge and tell YOUR side of the story. 2. When it comes to determining what sort of property or procedure is valid, the courts are the best suited to address this question. b. JUDICIAL BALANCING TEST FOR AMBIGUOUS CONST PROVISIONS i. one of the modes the court employs is to weigh one consequence v. the opposite if you do that in this instance it comes out pretty 68

strongly in favor that state doesnt have unrestricted plenary power to determine whatever positions or none at all employee has concerning his termination or taking of benefits 1. Unlimited state power could be bad: well hire you as a teacher until we decide that theres cause we decided cause exists b/c we looked at crystal ball. i. It is up to the state in first instance whether to confer an property interest of benefit or public employments, BUT once having done so it is up to the court to weigh whether the process has been provided for whether the cause exists measures up to due process c. PART II Now that a property right has been established, its time to decide whether the states termination procedure is adequate. MAIN QUESTION - what kind of procedure features does that kind of hearing have to have? What will court require? o i.e. HEARING SPECIFICATIONS - how formal must it be? How much does state hearing f/ termination have to resemble a real trial? OR how informal must it be whats the timing for this hearing? PREFACE MATERIAL o Goldberg v. Kelley- as demanding as the court ever got in this area Anytime the state proposed to terminate welfare benefits, they had to hold a live, formal evidentiary hearing to determine whether there was cause to terminate benefits. Formal, trial-like witness, cross-examination, etc Since Goldberg v. Kelley, trend has been towards creating more informal hearings trend has been towards giving state more leeway in what sort of hearing they gotta do

d. Matthews v. Eldridge MODERN COST/BENEFIT WEIGHING TEST FOR PROCESS 1. FACTS a. Disabled person gets social security benefits revoked by letter. 2. HOLDING a. Govt does NOT have to conduct formal, goldberg-ish hearing f/ termination of welfare benefits i. As long as terminated person gets a chance to be heard, you dont need to give them a complete live hearing. Adequate notice is fine. 3. NOTES a. Court applies COST /BENEFIT ANALYSIS were going to weight 3 major factors to determine whether termination process is adequate i. #1 How import is the prop interest how much will person suffer from losing benefit ii. #2 Look at how much of a risk of erroneous deprivation if process doesnt have specific feature OR how much more likely is it going to be that we will have a accurate factual procedure if we add the process the claimant is looking to add iii. #3 Public Interest Burden on govt. of having to include the particular procedure that claimant is demanding i.e. cost, or just hassle time, etc. 69

1. This is a weighing/balancing test the court looks at in this situation 2. Requiring live cross examination could raise the cost to the gov. of running the program significantly which could reduce the benefits to the people. b. TEST REPRESENTS MINIMUM REQUIRED PROCEDURE i. These factors and the conclusion the court reaches tell what is the MINIMUM procedure require by the 14th amendment and the due process clause state can decide to provide MORE than what court requires 1. This is just a floor the least- that the state can provide. c. STERN: Factor court takes into account in hearing is is the injury the person is going to suffer as a result of the benefit deprivation i. Represents a high threshold f/ liability 1. Principal question is what process govt has to provide at a minimum 2. If your kid was in public school and the teacher breaks his leg, then you can sue and that $ will make you whole. d. Criticism: due process is not just about accuracy in factfinding; also about dignity & treating individuals fairly when making important decisions about their lives; test doesnt recognize this

70