Constitutional Law-1

Reeves, Inc. v. Stake

Under the market participant exception to the Commerce Clause, when a state government acts as a market participant rather than a market regulator, it may favor its own citizens in commercial dealings..

"Subject matter" test (older approach)

"Subject matter" test (older approach) Under an older approach used by the Court, if the subject matter involved does not require a uniform national rule, but is of local concern and permits diverse regulation, the state regulation was upheld if the state regulation had some rational basis (like this case) - requirement that ships receive a local pilot while entering or leaving the Port of Philadelphia upheld because piloting a ship within a harbor is a local concern. Test: (1) state has to identify end that is legitimate, by which then the court elaborates protectionist ends are invalid. (2) no other nondiscriminatory available means available to effectuate it (classic ends-means test commonly used in law esp. con law). Examples of subject matter test: Although state regulations that discriminate against interstate commerce almost always violate the Commerce Clause (unless there is congressional authorization, they are not automatically invalid. Rather, the Court has said that they may be upheld to protect health and safety (i.e., noneconomic) interests if there are no reasonable and adequate nondiscriminatory alternatives available.

Undue Burden =

"a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." -not a coherent test because states don't have to be neutral between childbirth and abortion.

The Contracts Clause - Home loans Association

(3) The Contracts Clause - Home loans Association Framers were worried about state adopting pro-debtor regulations at the expense of lenders. 3 question - (1) has there been a substantial or significant interference, if so (2) does govt have significant and legitimate purpose, (3) are the means for govt use reasonably related, IF YES than even a insignificant may work BUT only in two cases has Court upheld challenge to contracts clause

3. Hamdan v. Rumsfeld (2006)

3. Hamdan v. Rumsfeld (2006) a. President signs an Executive Order establishing a military court for hearings b. Congress has already established them, but the President's were different: Congress > President (Door #3) (1) The President may only convene military commissions in circumstances where justified subject to the "Constitution and laws," including the laws of war, the Geneva Conventions, and the Uniform Code of Military Justice. (2) Common Article 3 of the Geneva Convention applies to protect persons who are not involved in an international conflict and requires any judicial proceedings against them to be conducted in "regularly constituted courts" that provide certain due process protections.

3. Market Participan

3. Market Participant: When acting as a market participant a. There is a distinction between market participant and market regulator

3. Moose Lodge v. Irvis (1972)

3. Moose Lodge v. Irvis (1972) a. Moose Lodge is a private club and building that only allows white members and only serves white citizens b. Argues they can be racist because they are private individuals c. Issue: Does having a license to sell liquor make you a state actor? No. d. Merely receiving licenses from the government does not make you a state actor Private racist club sued for violating equal protection rights of Black people. Merely being the recipient of a government license to sell liquor doesn't make you a state actor BUT a grant of a liquor license to racist bar is probably a state action - racial discrimination is always forbidden, whether fundamental right, or really trivial thing. - come back to this case

Griswold v. Connecticut

(Connecticut forbids married couples from using contraceptives) - Right to privacy includes marital intimacy, which includes the decision to use contraceptives. >>RIGHT TO PURCHASE AND USE CONTRACEPTIVES Source of right to privacy? Not in text. There is a general constitutional right to privacy (inferred from other guarantees in the constitution). Doesn't use "liberty" as the justification but does so simply to avoid Lochnerizing. Fundamental rights so rooted in our society are rights that may be considered constitutionally fundamental. 1) Key Point: Watershed case for nontextual rights. Establishes right for married couple to use and have access to contraceptives as a constitutional methods and is built upon a theory of how to interpret the constitution that looks beyond just those rights enumerated in the text. 1) Challenge:for those who like Griswold Which rights are enforceable and which are unenforceable. (What separates Lochner from Griswold?); how can you keep courts from overruling any state action? 2) Challenge for those who disagree: 1) Does the constitution really permit something as private as contraception? That what you do with your body with regard that is legitimately within the right of the state to regulate (do you really believe that is the constitutional right we live in?) 2) How do you explain away the 9th Amendment?) b. Two questions: 1) Are there unenumerated rights? 2) If so, are they judicially enforceable? 1) Justice Black Dissent: No general right to privacy; but there are unenumerated rights; however, the process to protect them is not in the judiciary, it's in the political arena. (yes, no) 2) Justice Harlan: This is pure substantive Due process (9th amendment inapplicable) 3) Justice White: Even under a rational basis test, this law is irrational.////////////////////////////////// the Court specifically reaffirmed Meyer and Pierce, but found substantive due process problematical because of the legacy of Lochner v. New York. ///////////////////////////////////////////////////////////////////////Thus, Justice Douglas, writing for the Court, concluded that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," which create "zones of privacy." Id. at 484.

what clause allowed the creation of a national bank in McCullouch v MD

, Congress is also given general powers under the Constitution's Necessary and Proper Clause, which states that Congress may create laws it deems necessary and proper to help carry out its enumerated powers. The Necessary and Proper Clause functions to expand, not limit, Congress's enumerated powers. Congress decided that chartering the Bank of the United States was a necessary and proper method of raising revenue to carry out its overall taxing and spending powers.

Justice marshall's view of necessary and proper clause

-let the ends be legitimate and the means to those end be appropriate Wide view of necessary and proper. Art1 sec8.

. Limitations on the spending power:

. Limitations on the spending power: a. "Coercion" - Congress may use its spending power to encourage or incentivize states to conform to federal policies. But if it coerces states to do so, this amounts to a federal regulation, not voluntary acceptance of Congress's condition. Thus, it cannot be upheld under the spending power but only under one of Congress's regulatory powers (National Federation of Independent Business v. Sebelius).

reasoning in McCullouch v MD showing state can't tax fed bank?

. Maryland may not tax the Bank as a federal institution because federal laws are supreme to state laws. A federally-created institution may not be inhibited by a state law. The Bank of the United States functions to serve the entire nation. It is thus inappropriate for it to be controlled by one part of the nation (i.e. Maryland) through a tax.

Roe v. Wade - Possible approaches:

1) Is a fetus a person for purposes of the 14th Amendment (equal protection, due process, constitutional rights)? NO. (under structural, textual, or originalist theory, a fetus is not a person) a) under the constitution, is a fetus a person? Structurally, most of the other rights can be exercised only if you're born. If a fetus is a person, the fetus then has a host of constitutional rights it can call upon the government. 2) Is the right to abortion a fundamental right? Yes, right to privacy extends a woman's right to choose. a) State's interests: maternal health (make sure procedure is done safely); however, this interest does not start until the end of the first trimester (can't start regulating until end of first trimester) b. Black Letter 1 Prior to the end of the first trimester, the state does not have a legitimate interest in regulating abortion even in the interest of protecting the mother's health; afterward, they do have such an interest. (Woman can abort in first trimester) c. Black Letter 2: State has interest in protecting unborn children. After viability, the state can regulate abortion even to the prohibition of it; but, that interest in the fetus does not extend earlier than viability.

United Building & Construction Trades Council of Camden County v. Mayor & Council of the City of Camden

1. NJ municipal ordinance requires at least 40% of employees of contracts/subcontractors be Camden residents 2. Violates P/Is Clause a. Burdens employment b. No, substantial reason. Discriminates against non-Camden residents just as much as it discriminates against out-of-state residents. i. In-state (non-Camden) residents can vote against ordinances. Out of state residents cannot remedy. 3. Prevents states/municipalities from discriminating against non-residents if two elements are met (Camden Test) A state may not discriminate against out-of-state interests if those interests are sufficiently fundamental to the promotion of interstate harmony so as to fall within the purview of the Privileges and Immunities Clause, unless the state has a substantial reason for treating out-of-state citizens differently, and the discriminatory means it imposes are closely related to accomplishing that reason. Firstly, there is no real difference between state and municipal actions in relation to the Privileges and Immunities Clause. This is because any action by the municipality is ultimately approved by the state treasurer, and because cities are merely political subdivisions of states. The Privileges and Immunities Clause applies to discrimination by city actors because of these similarities.

1. Pike v. Bruce Church (1970) - Balancing Test

1. Pike v. Bruce Church (1970) - Balancing Test a. Are the burdens on interstate commerce clearly excessive in relation to the local benefits? i. If the burdens > benefits, then there is a burden on interstate commerce violates DCC ii. If the law doesn't discriminate (treats in and out of stators the same), but a challenge is brought under the DCC, use the Balancing Test For nondiscriminatory law, they are unduly burdensome and unconstitutional when: The burdens on interstate commerce are "clearly excessive" in relation to the putative local benefits. WE NEED TO QUOTE THIS RULE IN THE FINAL EXAM! elements of the rule: what are the local benefits what are the burdens on IC Are those burdens clearly excessive. You must analyze the 'clearly excessive' part after 'what are those burdens'

1. United States v. Curtiss-Wright

1. United States v. Curtiss-Wright (1936) a. President Roosevelt signs an Executive Order banning arms shipments to Latin America (foreign affair power vs. domestic in Youngstown) b. Constitutional: broad discretion in foreign affair powers i. President is the sole organ in international relations and does not require Congress' approval

i. Buck v. Bell (1927)

1. VA sterilized individuals who were "mentally infirm" 2. Held: Constitutional because it prevents mental infirmities from being passed on to future generations BAD LAW

1. Youngstown Sheet & Tube v. Sawyer

1. Youngstown Sheet & Tube v. Sawyer - The Steel Seizure Case a. President Truman issues Executive Order to seize all steel mills to keep up operation during Korean War b. Unconstitutional: Power has to come from the Constitution or Congress i. Article II: "to take care that the laws be faithfully executed" (Does not allow President to seize property) ii. Taking of property is by lawmakers, not the Commander in Chief Truman- OMG. If this strike happens, no bullets for soldiers He orders the seizure of the American Steel mills No steel mill seizure bill that went through Congress, he just acted Truman arg: I don't have time to go through Congress. Soldiers are dying Court: Unconstitutional Majority cannot agree on what made his action unconstitutional; each has a different understanding of when president can act Black: You have to have a source from Congress or Constitution saying you can act Truman points to the Commander in Chief clause as authorizing him to seize the steel mills. Commander in Chief clause- doesn't authorize him to seize steel mills, it authorizes the president to command soldiers; steel mills are not related to military services Faithful execution of the law No law that he is executing here Jackson concurring: Interdependent powers Instances where a president can act even when there is no constitutional authority and no congressional authority Where circumstances requires This is not an instance; Congress has implicitly rejected the seizure of private property. Inherent "emergency" power: Even without congressional authorization, the President probably has some "inherent" power to act in cases of great national emergency. It has been suggested that this derives from the aggregate of the President's constitutional powers and the need created by emergencies (in this case). Limitation - congressional denial of authority In the Youngstown case, President Truman's executive order seizing the steel mills to keep them operating during the Korean war was held to be a legislative act and thus beyond his power. Whether he had "inherent emergency power" in this situation was not at issue because some Justices read congressional statutes as denying the President the power of seizure.

Slaughterhouse cases in LA/ new orleans

1. Slaughterhouse Cases (1873) a. LA creates a monopoly in one slaughterhouse, putting all others out of business (including employees) b. P/Is claim: Louisiana is interfering with their right to a job c. Issue: Does the law violate the 13th and 14th Amendments? i. 13th: No, not being enslaved ii. 14th: No, P/Is only applies to National citizenship d. Duel Citizenship Duel Sovereignty Duel sets of P/Is i. Citizens of the United States (14th Amendment) ii. National P/Is ≠ Bill of Rights iii. National P/Is are few and inconsequential iv. No state shall pass a law that abridges a National P/I e. P/Is of Article IV protects state citizenship, but not applicable because there is not discrimination or interstate issue The competitors are being, but legislative fiat, being put out of business. By making a monopoly the gov't is restricting the liberty of the other slaughterhouses-- Is the right to earn a livelihood a privilege or immunity of the constitution? Not according to the court- 14th amendment didn't apply. The equal protection clause didn't apply to the slaughterhouse people, because they were white. The privilege and immunity clause doesn't properly apply: TAKEAWAYS: privilege and immunities clause of the 14th amendment why is the court saying the only privilege and immunity for Federal citizen is free travel? The rights guaranteed by the United States are very limited and historically do not include civil rights. >>BIG privilege and immunity issue: federal judiciary would be the final legislator for every single regulation in every single state. They court did not want to federalize civil rights: the states give u your civil rights. J. Thomas disagrees. Slaughterhouse set up the southern states ability to make jim crow laws. Slaughterhouse Case: Butchers go own of business because of state law. They say that the state sopped them from engaging in law. Privilege and immunities: they say the equal protection clause was really drafted just to protect Black people. The Supreme Court conceded that these amendments could possibly extend to persons other than blacks, but said that under any fair construction of these amendments one had to first look to the purpose of their enactment - In interpreting a provision of the United States Constitution (Constitution), it is necessary to look to the purpose for which the provision was enacted. Held that the guarantees in the Bill of Rights were not privileges or immunities of national citizenship protected Right to work is a privilege and immunity of state citizenship. The 14th Amendment does not apply to right to work. BUT: Article IV: why is there not article IV violation? Article IV only protects state citizens on the basis of state premise - no interstate discrimination - putting out 14th Amendment Privileges and Immunities Clause - held that the guarantees in the Bill of Rights (also right to work) were not privileges or immunities of national citizenship protected from state abridgment (curtail - reduce) P & Is of national citizenship would look a lot different than the P & Is of state citizenship (which included the right to work). National P & I must be smaller than of states - needs to be narrow in fashion so as to avoid policing state legislation on behalf of the court. Right to travel is the one right protected in the P & I clause of national citizenship Most of the bill of rights fit within the P & Is of the states but not national Dean Williams says that these cases were wrongly decided - it is due to concern of Federalism. Due process: does not apply here bc requires before the state deprives you of life, liberty, and property - here no deprivation of property so the Due Process clause does not apply. 3 different views about what Louisiana has done here, with what the justices believe. 14th Amendment - no right to work 14th Amendment - same as state citizenship there is right to work Due Process (this is what carries the day)

2. Dames & Moore v. Regan (1981)

2. Dames & Moore v. Regan (1981) a. President Regan issues Executive Order entering into an agreement with Iranians b. Constitutional: It was a necessary incident i. Congress has implicitly approved of claim settlements via International Claims Settlement Act c. Upholds President's authority to enter into executive agreements without Congressional approval Upheld the President's authority to enter into such executive agreements wo Senate or Congressional power. Facts. In response to the seizure of American personnel as hostages at the American Embassy in Iran, the President Regan issued various Executive Orders and regulations by which the President nullified attachments and liens on Iranian assets in the United States, directed that theses assets be transferred to Iran, and suspended claims against Iran that may be presented to an International Claims Tribunal. On December 19, 1979, Petitioner, Dames & Moore, filed suit in the United Sates District Court against Defendants, the government of Iran, the Atomic Energy Organization of Iran, and many Iranian banks, alleging that its subsidiary was a party to a contract with the Atomic Energy Organization and that the subsidiary's interest had been assigned to Petitioner. Petitioner alleged it was owed over 3 million dollars. Although the IEEPA did not specifically authorize the President's action, the President was acting within the power implicitly granted by the IEEPA, as evidenced by a long history of Congress acquiescing to similar presidential conduct (e.g., a 1949 Act allowed the President to settle claims with Yugoslavia. Court says where the settlement of claims has been determined to be a necessary incident to the resolution of major foreign policy dispute between our country and another, and where, as here, the Court concluded that Congress acquiesced (accept reluctantly with protest) in the President's action, the Court was not prepared to say that the President lacks the power to settle such claims.

2. Gonzales v. Raich (2005)

2. Gonzales v. Raich (2005) - Controlled Substances Act a. Exception to Morrison: Non-economic activity, but Congress can regulate because of its effect on supply and demand in the marketplace b. Congress may regulate a non-economic local activity if it is part and parcel (necessary and proper) to a Federal regulatory program governing economic activity (Controlled Substances Act) Isn't this noneconomic activity? Court says YES. Then, how is this distinguishable from Morrison? It is not absolutely clear. Both instances are noneconomic activity regulated. Maybe, that regulating homegrown marijuana is closer in the causal chain than gender-motivated violence in how it is related to commerce. Goes back to the question of Whether there is a substantial economic effect (can argue for both cases that there is a substantial economic effect, but Court did not say that for Morrison, and did here (possibly because part a comprehensive federal program to combat interstate traffic in illicit drugs, a quintessentially economic activity).

2. Hamdi v. Rumsfeld (2004)

2. Hamdi v. Rumsfeld (2004) a. Executive Order says he is an enemy combatant b. Wants a trial at Guantanamo - Fifth Amendment requires he get a hearing c. Constitution > President (exception to Door #4) >hamdi won, a US citizen held by the US is entitled to have their case brought before a neutral. The court specifically said that a military tribunal will satisfy this process. American citizen captured in Afghanistan was held as an enemy combatant. Hamdi is entitled to due process (some judicial process to challenge that he is an enemy combatant - not nes found in fed court). DP requires NOT that he gets his day in court immediately just within a reasonable timeframe. Matthews test - the ordinary mechanism that we use for balancing serious competency interests, and for determining the procedures that are necessary to ensure that a citizen is not 'deprived of the life, liberty, or property, without due process of the law is determined by weighing 'the private interest that will be affected by the 'official action' against the govt's asserted interest.

(4) Impeachment of President: Courts not capable of settling impeachment, however will police the process.

4) Impeachment of President: Courts not capable of settling impeachment, however will police the process. Art. II, 4 provides that "all Civil Officers" may be impeached for "Treason, Bribery, or other high Crimes and Misdemeanors." Need not be a statutory crime - e.g., refusing to organize defense against foreign invasion. Should every criminal offense be impeachable? Framers intended to mean political crimes when they wrote "other high crimes and misdemeanors." - serious abuse of power and serious breaches of public trust. - BUT wouldn't make sense to have a President committing crimes that they throw people into prison over. Unsure whether Senate can equit if P is factually guilty but it does not want to impeach.

4. Boumediene v. Bush (2008)

4. Boumediene v. Bush (2008) a. Detainee Treatment Act provides that military tribunals in Guantanamo can decide whether an alien is an enemy b. Does the detainee have a right to habeas corpus? Yes, United States maintains de facto sovereignty. i. Federal courts have jurisdiction over territory that is part of the U.S. ii. Suspension of habeas corpus by Congress is contrary to the Constitution Courts must provide detainees held as unlawful alien enemy combatants a writ of habeas corpus to challenge their detention, or, if a writ of habeas corpus is not available, provide an adequate substitute process to detainees that includes the same procedural protections and opportunities that would be provided in a writ of habeas corpus. Again, not America. Whether fed courts should have jurisdiction over G. Bay. Art. I, § 9, Cl 12: Suspension Clause - protects the privilege of the write of habeas corpus Now Congress has enacted the Military Commissions Act (to strip all United States courts of habeas corpus over the Guantanamo detainees - As a substitute for Habeas Corpus - by which courts have rules on the unlawfulness of executive detentions of persons not convicted of crimes by civilian courts - Congress provided a limited form of review by the DC Circuit (CSRTs). Can the government say that these CSRTs tribunals are sufficient - has Boumediene received all the rights they are entitled? At least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ. The CRST process MUST be supplemented by HC. Congress could suspend HC but is hasn't. Congress says "aliens" who are enemy combatants do have the right to HC under the constitution - and alternative procedures substituted by Congress were not sufficient or effective. Court distinguished this case from previous cases saying that G. Bay is not abroad - this case lacks precise historical parallel (never before had the Court held that noncitizen detainees in other territories have any rights under our constitution).

4. Garcia v. San Antonio Metro (1985)

4. Garcia v. San Antonio Metro (1985) - Congress's application of the Fair Labor Standards Act to the employment actions of a state municipal transit authority is a constitutional exercise of its Commerce Clause power. overturns Usery a. Congress can regulate state employment activities because state-run programs can interfere with interstate commerce, which Congress can regulate >Usery overturned. >the 'traditional gov't function' would vary heavily between the states. It invites the judiciary to make subjective politically manipulated decisions. >the usery rule was a problem because it required many lower courts to make these determinations and the rule bred inconsistencies in the application. >this moves the regulation and control on this issue from the judiciary to the congress (whom the people can vote for). Rule: a general regulation that happens to affect the states as well as others who engage in a certain activity, thus affording broad representation in the political process to those similarly affected, doesn't not violate the Tenth Amendment (unless showing of "some extraordinary defects" in the procedural safeguards for the states in the national political process). HERE, the court should only intervene where there are defects in the political process. W/o defects we should step back and let it happen. We only step in in areas where we do not trust the political process (for ex. Race - we do not trust the political process when it comes to race, bc old white men cannot truly understand the struggles of race and work to fix those problems). Here, the Court is saying there is a political process working, no defects, we should not intervene. Question becomes: do we trust Congress? This is the fundamental divide that explains why a justice will be with the majority or dissent - the first will say court does not have to intervene, the latter will say YES Congress should intervene. Central to federal jurisprudence. Court is deciding where to draw the line with the 10th Amendment.

4. West Lynn Creamery v. Healy (1994)

4. West Lynn Creamery v. Healy (1994) a. Law: Massachusetts taxes all milk from all states, but the subsidy only goes to Massachusetts farmers b. It is a non-discriminatory tax, but the subsidy only benefits in-state farmers; therefore, the tax is essentially only felt out of state (essentially equivalent to a tariff) c. How do you fund an in-state subsidy without creating a tariff? i. Every state distributes some sort of subsidy to in-state industries. Most of the money comes from taxes levied from income out of state. A regulation violates the Commerce Clause if the combination of a tax and subsidy discriminates against interstate commerce, even if each component would be constitutional if separated.

PRINZ

5. Printz v. United States (1997) a. Handgun Violence Prevention Act required state authorities to issue/perform background checks before issuing firearm permits b. Federal government may not commandeer States into enforcing Federal regulations of private individuals (they could put strings on grants - See Dole) c. Congress may not compel state EXECUTIVE officials to participate in the administration of federal programs.

6. Kassel v. Consolidated Freightways Corp. (1981)

6. Kassel v. Consolidated Freightways Corp. (1981) - Semi-trucks a. Law: Iowa prohibits the use of certain large trucks within the state b. Purpose: health and safety (not enough to deem a law constitutional); no evidence showing that one length is safer than the other i. Actual Purpose: deflect traffic = protectionist = unconstitutional 1. Regulation of length is irrelevant to this purpose c. Law caused more harm than good i. Increased costs to trucking companies ii. Smaller trucks More trucks on the road = more accidents = more miles Kassel v. Consolidated Freightways Corp. Burdens interstate commerce, not going to be huge safety increase Court doubted state's claimed safety interests because the limitation had exemptions, and it is less likely that local political restraints will serve as a check against abuse because the limitation placed a disproportionate burden on interstate commerce. This is opposed to the older Cooley test which said the regulation was upheld if the state regulation has some rational basis. - This "subject matter" test has not been employed in modern decisions, although its language is sometime uses with respect to regulation of interstate transportation facilities on state highways. NOW the "balancing test" is used!

7. Bibb v. Navajo Freight Lines (1959)

7. Bibb v. Navajo Freight Lines (1959) - Mudflap Case a. Law: Illinois required all trucks to have curved mudguards b. Not discriminatory because it applied to in and out of stators c. Burdensome? Yes, trucks would either have to avoid driving through Illinois or stop at the border to change mudguards d. Benefits? No, there is no benefit to the IL law. There is no evidence that curved mudflaps are safer. Hawai'i/guam/P.R. would be fine because it's an island. An Illinois statute required all trucks to be equipped with contour mudguards, instead of the flat mudguards permitted in all other states (contour mudguards actually being illegal in one state). The safety benefit was found to be minimal at best and was held outweighed by the costs and inconvenience to interstate carriers in complying (i.e., requiring truckers to change mudguards before entering Illinois). iii. Exceptions: (1) Congressional authorization, (2) sovereign protectionism, (3) market participant

1. Single most important footnote in American law:

: US v. Carolene (FN 4).. In socio-economic matters, only a rational basis for law is needed (presumption of constitutionality). But (FN4) higher scrutiny (no presumption of constitutionality) is given to certain laws: a. Laws that impact the bill of rights b. laws impacting political processes (i.e. right to vote) 1) they're historically rooted 2) if there is a defect in the political process, it can't correct itself; judiciary must correct it. 3) laws impacting Discrete and insular minorities (religious or racial). 2. The General rule: laws effecting higher fundamental rights are subject to higher scrutiny. So, yes, Lochner is repudiated but such scrutiny remains for these higher fundamental rights.

a) Steward Machine v. Davis (1937)

>>by having federal SocSec that means that all states will participate. Otherwise no state would assume this general welfare regime because they would assume they would have a serious disadvantage congressional program has been upheld solely under the spending power (the Court assuming no regulatory power available) where federal funds were granted to all states enacting unemployment compensation schemes conforming to federal requirements. The Court found that the federal program did not "coerce" state adoption of unemployment plans, but merely served as a "temptation." The Court also noted that the federal program satisfied a federal fiscal purpose, because if the states did not provide unemployment compensation, Congress could clearly do so for the general welfare. This theory could sustain broad exercises of the spending power that have substantial regulatory effects.

Pike Balancing test

A state law that furthers a /legitimate/ local public interest and only /incidentally/ affects interstate commerce will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a policy regulates even-handedly and does not facially discriminate against interstate commerce, a balancing test shall determine whether the burden on interstate commerce outweighs the local benefits to the state. The question is whether A STATE's interest in a case outweighs the burden imposed on interstate commerce. Generally speaking, courts will consider whether other, less burdensome means were available and sufficient to achieve the state's goals. A state law that furthers a legitimate local public interest and only incidentally affects interstate commerce will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

3. National Federation v. Sebelius (2012)

Affordable Care Act a. Is the insurance mandate in Congress's power to enact? i. Yes, pursuant to Congress's taxing power ii. No, with regard to Congress's commerce power b. Substantial effect on interstate commerce, but if you aren't a participant in a market, you shouldn't have to be forced to become a part of it v. Tenth Amendment as Independent Limit? 1. Tenth Amendment: provides that all powers not granted to the United States are reserved for the individual States a. Preserves State sovereignty and limits Congress's power to compel State actions 2. Fourteenth Amendment, Section 5: Tenth Amendment applies to all states 2. Medicaid Expansion is unconstitutional a. Would lose all Medicaid funding (as opposed to Dole) b. Obamacare is a comprehensive revision (vs. modification) i. Look at the type of change, not the degree ii. Court says it is an entirely different program because it covers people who haven't been previously covered iii. Can't say "cover the working poor or lose Medicaid funding" because they're different programs 3. "Inactivity" limitation: The scope of Congress's power under the Commerce Clause reaches only to the regulation of "activity." It does not extend to compelling persons not engaged in commerce to purchase unwanted products or to participate in a market they do not normally. (National Federation of Independent Business v. Sebelius: federal statute mandating that most Americans by health insurance - Affordable Care Act - ObamaCare: SC did uphold but using tax power not commerce clause power). - The federal Medicaid law, enacted in 1965, afforded states federal funds to assist them in providing medical care to the elderly and other persons with special needs. In 2010, Congress greatly expanded the program. States that did not accept the expansion would not only lose the new funding for it but all of their federal Medicaid funds. This amounted to over ten percent of an average state's overall budget. The Court held that this gave states no real option but to acquiescence (acceptance without protest) and thus amounted to "coercion." (Medicaid part of the act IS coercive) The fact that the 1965 Medicaid Act reserved Congress's power to "alter" or "amend" the program did not save the constitutionality of the Medicaid expansion in 2010 because it was a "shift in kind, not merely degree" and could not be anticipated by the state. the Medicaid expansion exceeds Congress's authority under the Spending Clause. U.S. Const. Art. I, § 8, cl. 1. While the federal government may condition receipt of money by the states on states' agreement with certain federal policies, the federal government cannot compel the states to enact or administer a federal regulatory program. States must have a genuine choice whether to accept the offer. The states are given no such choice here; they must either accept a basic change in the nature of Medicaid or risk losing all Medicaid funding. This provision is unconstitutional, but it is severable. Thus, the remainder of the Act does not fail. The Medicaid expansion is not a valid exercise of Congress's power to tax and spend. Same three factors that in Bailey led the court to conclude that tax was a penalty here point the opposite way: No scienter requirement, regulated/enforced by IRS, and it exempts those income is not taxable. b. "General welfare": Congress's power to spend must be exercised for the "general welfare"; i.e., the expenditure must be "for the common benefit as distinguished from some mere local purpose." - United States v. Gerlach Live Stock Co. (1950). However, the determination of what is in the nation's "general welfare" is left to Congress. - Helverving v. Davis (1937) c. "Individual rights": Congress may not use the spending power to violate an independent constitutional limitation, e.g., by inducing states to engage in activities that would themselves be unconstitutional (such as to inflict cruel and unusual punishment)

2. Hunt v. Washington State Apple (1977)

Apple Grading a. Washington and North Carolina compete in the apple industry b. WA has its own grading system > USDA system (NC uses) c. Law: Any apple container sold in NC shall only be USDA d. Discriminatory? i. Facially Neutral: applies to all states ii. In Effect: 1. Raises cost for WA growers in NC market, but cost in NC is unaffected 2. Strips WA of its competitive advantage of having a superior grading system 3. "Leveling Effect" - benefits local growers iii. Alternatives: Allow both grading systems e. Every tax, even if facially neutral, still burdens out of state interests to some degree; therefore, subject to heightened review The supposed discriminatory policy/law must fulfill the following requirements: 1-the aim of the law has a non-protectionist, legitimate end The expressed aim was non-protectionist, to prevent fraud 2-no non-discriminatory alternative means. In this case yes there is: u can allow a state grade+ the USDA grade, NC was 'supposedly worried' about fraud and quality, but it just banned a foreign grade even if it contained the USDA grade also. NC also just allowed no grade labelling, so their supposed aim to prevent fraud was insincere. Here, the NC apple growers already used the simpler USDA grading so there was no new cost for them, whereas WA and other growers would have to spend addition funds to change all their crates, but NC wouldn't

Article I, Section 8, Clause I

Article I, Section 8, Clause I provides that "Congress shall have the power to lay and collect taxes . . To pay the debts and provide for the common defense and general welfare of the United States." Congress may (i) tax subjects and (ii) spend money on activities that it could not regulate directly under any of its enumerated regulatory powers (such as the commerce power). i. Test: the tax will be upheld under the taxing power if its dominant intent is revenue raising (rather than prohibition or regulation). Phrased another way, the tax will be invalid only if its dominant intent is penal (i.e. regulatory) rather than revenue raising (fiscal) ii. Approaches: (1) The Court has sometimes applied this test very objectively. If the tax in fact raises revenue, it will be upheld: i.e., the dominant intent will be considered fiscal, despite the apparent regulatory purpose. (2) On other occasions, the Court has examined the statute more subjectively carefully, looking to the language and operative effect to determine its dominant intent. The following factors may be important: (focused on this in class). a. Who enforces the tax statue (if the treasury department enforces, this evidences fiscal intent; if the Labor Department, regulatory intent). b. How much detailed activity one must engage in to be subject to, or to avoid, the tax (The more detailed the activity, the greater the evidence of a penal or regulatory intent). c. Whether scienter (i.e., intent) is required. (A scienter requirement usually indicates a penal or regulatory intent.) d. Amount of the tax. (If the amount is so great that virtually all activity is structured to avoid liability - resulting in almost no revenue - this evidences a penal or regulatory intent.)

Bailey v. Drexel Furniture (Congress's reaction to Child Labor case).

Bailey v. Drexel Furniture ix. Bailey v. Drexel Furniture (1922) - The Child Labor Tax Case 1. Congress can't use its taxing power to enact a penalty (Congress's reaction to Child Labor case). Court says it is unconstitutional: it is distinctive because of several factors - (1) there was a scienter (mental component - knowledge of wrongdoing) requirement - intent (2) the tax was bias and exclusive, (3) regulated not by IRS but also by the Secretary of Labor Tax power is used as a way to get around restrictions of the commerce clause (think ObamaCare). Congress' tax authority is much broader than Commerce authority which might call into question courts felt need to draw a line around Congress's taxing power. Court says it is unconstitutional: it is distinctive because of several factors - (1) there was a scienter (mental component - knowledge of wrongdoing) requirement - intent (2) the tax was bias and exclusive, (3) regulated not by IRS but also by the Secretary of Labor Tax power is used as a way to get around restrictions of the commerce clause (think ObamaCare). Congress' tax authority is much broader than Commerce authority which might call into question courts felt need to draw a line around Congress's taxing power.

Skinner v. Oklahoma -

Clear holding that right to procreate is a fundamental right under "strict scrutiny." Forcible sterilization poses a severe threat to liberty. Reasoning: the ability to procreate is something I hold as a person that the state has no legitimate control over. There is no right to procreate expressly mentioned in the constitution. 1) Why can't the state use sterilization on criminals like it uses incarceration? The statute shows the state's professed interest as it applies arbitrarily; it is underinclusive/discriminatory. (Equal protection argument) 2) Concurring: it's not about equal protection, it's about due process...states simply cannot sterilize people.

Reno v. Condon

Congress may regulate states' activities, using its Commerce Clause powers, provided that the regulation does not require the state to enact any laws or regulations and does not require state officials to assist in the enforcement of federal statutes regulating private individuals. a. Reno v. Condon (2000) i. Driver Privacy Protection Act prohibited the DMV from selling client information ii. Congress is not imposing a duty on the States, but prohibiting harmful commercial activity iii. Congress can regulate behavior of State officials as long as it is the object of the regulation Reno v. Condon: The SC upheld the federal Driver's Privacy Protection Act, which bars states from obtaining a driver's license. Tells you the limitation of the Pritz rule - we can tell state officers what to do, but we cannot tell them what to do in how to regulate private individuals..

The Contracts Clause (Art. I § 10)

Contracts clause: 1-substantially impairs 2-substantial+legitimate interest 3-reasonably related The Contracts Clause (Art. I § 10) - since 1937, one method for protection of economic rights. Difference from Due Process Limitations: It's narrower in two respects: 1) Applies to only state or local laws that 2) interfere with performance of existing contracts—not future contracts. (challenges to federal laws must go through due process clause); not used during Lochner era because due process, as defined during that era, subsumed content of contracts clause.

Harris v. McRae

Court upheld laws denying public funding for medically necessary abortions except where necessary to save mother's life. MORAL (from both Harris and Maher): Government need not remain absolutely neutral on the issue of abortion. They can have policies that encourage child birth over abortion.

Dean Milk Co. v. Madison

Dean Milk Co. v. Madison - The ordinance [Discriminatory against any milk more than 5miles away from Madison wisc. Discrimination of local commerce is viewed as similar or a subset of interstate discrimination. ] was held invalid as it discriminated in favor of local pasteurizing businesses and there were nondiscriminatory alternatives available to assure milk's quality "not trying to raise milk prices - trying to monitor safety." - STILL invalid because it creates an undue burden and other nondiscriminatory means are available. Being a health measure DOES pass part 1, but NOT part 2 bc there are other reasonable alternatives. uses old subject matter test Test: (1) state has to identify end that is legitimate, by which then the court elaborates protectionist ends are invalid. (2) no other nondiscriminatory available means available to effectuate it (classic ends-means test commonly used in law esp. con law).

Exam Tip: A lawyer's choice of words can greatly affect an argument. To this end, you should note that it would be imprecise simply to write that a state has violated a person's First, Fourth, Fifth, etc., Amendment rights, because those amendments, on their face, do not prevent the states from doing anything. A better answer will

Exam Tip: A lawyer's choice of words can greatly affect an argument. To this end, you should note that it would be imprecise simply to write that a state has violated a person's First, Fourth, Fifth, etc., Amendment rights, because those amendments, on their face, do not prevent the states from doing anything. A better answer will acknowledge the doctrine of selective incorporation; e.g., "Plaintiff will argue that the state has violated his First Amendment right to freedom of speech, applicable to the states through the Due Process Clause of the Fourteenth Amendment."

City of Philadelphia v. New Jersey

Discriminates against interstate commerce. The nj statute on it's face against interstate commerce. The environmental justification was somewhat illusory and cloaking a protectionist statute....because otherwise they should have restricted new jersey trash as well. Test: statute should be 1.non-protectionist, legitimate interest, 2. No non-discrimination alternative. (there were non-discriminatory alternatives available). - Trash a. Law: New Jersey bans trash from out of state to be brought in state (import ban) b. Discriminatory? Yes, burden is felt exclusively out of state c. Ends-Means Test: i. Health, Environment = Legitimate, but protectionist 1. If you were truly concerned about the environment, the law would restrict in-state trash too 2. Harm arises after disposal, so there is no way to differentiate between origin of waste ii. There are other means: Restrict in-state trash too d. Held: A state may not prohibit private landfill from accepting out of state garbage or surcharge the waste

Dormant Commerce Clause three-prong test

Dormant Commerce Clause three-prong test In order to uphold state of local regulations: 1. State law must have a legitimate public interest 2. Must be an incidental effect on interstate commerce, 3. Burden on interstate commerce must not be excessive. DCC Exceptions 1. If the municipality can show under strict scrutiny it had no other mean to advance a legitimate local interest, then the regulation on interstate commerce is ok. 2. if the state is a market participant as well as a market regulator, then the DCC restrictions do not apply. 3. The 21st Amendment prohibits the regulation of state restriction of the sale of alcohol. 4. Preemption

Exam tip: Article I, Section 8

Exam tip: Article I, Section 8, Clause I DOES NOT give Congress the power to /legislate/ for the general welfare. The "general welfare power" belongs to the states. The phrase "general welfare" in Article I, Section 8, Clause I is actually a limitation on the federal taxing and spending power. Congress may tax and spend only to provide for the common defense and general welfare of the United States. But the Court has left virtually complete authority with Congress to determine what constitutes spending for the general welfare.

Exam tip: Be sure to remember that treaties are subject to

Exam tip: Be sure to remember that treaties are subject to constitutional limitations on the government's power to interfere with individual rights. Thus, no treaty may confer on Congress authority to take property without due process of law, deny freedom of speech or religion, etc.

B. Framework for Analyzing Fundamental Rights

Four Issues 1. Is there a fundamental right? - If fundamental, gov'mt must meet strict scrutiny. If not, only the rational basis test applies. a. Originalism: fundamental rights are only those that are explicit in the text or clearly intended by framers. b. Non-Originalism: doesn't have to be enumerated or intended by drafters. c. Moderate Originalism: judiciary should implement the framers' general intent, but not necessarily their specific views. d. History/Tradition: those liberties that are deeply rooted in this Nation's history and tradition. (at an abstract level, any right might be argued to be in our tradition) e. Others: Court has role of determining non-textual rights; Use natural law; deference to moral consensus in society. 2. Is the right infringed? - Still unclear; however, relevant consideration: "the directness and substantiality of the interference." 3. Is there sufficient justification for infringement? If fundamental, government must show it had a compelling interest (winning a war; protecting children). 4. Is means related to purpose? Is the law necessary to achieve the purpose? No other means were available that were less restrictive of right. (as opposed to rational basis in which the means must simply be reasonable).

Concept of Fundamental rights

Gov'mt cannot infringe these rights unless strict scrutiny is met. Except for the right to vote (15th and 14th Amend.), most of these rights are not mentioned in the constitution. b. Protected by Due Process (14th and 15th) and Equal Protection Clause (14th). Some by both, some by one or the other. Under either provision, the court must decide whether a claimed liberty is important enough to be a fundamental right. 1) Due Process: issue = whether the government's interference is justified by a sufficient purpose. 2) Equal Protection: issue = whether the government's discrimination as to who can exercise the right is justified by a sufficient purpose.

Government interference with government K's. 1) Gov'mt Contracts Test:

Government interference with government K's. 1) Gov'mt Contracts Test: Same 3-prong Contracts Clause Test, but Gov'mt K's will receive greater scrutiny. This implies that the state may still impair at least some of its own contracts.

Footnote 4

In footnote 4 [in carolene products] the Supreme Court indicated that this presumption of constitutionality might not apply to certain categories of noneconomic legislation. Legislation that restricts political processes, discriminates against minorities, or contravenes a specifically enumerated constitutional liberty, the Court said, may be subject to "more searching judicial scrutiny."

How do you reject argument that in-state tuition is just a subsidy? • West Lynn Creamery

How do you reject argument that in-state tuition is just a subsidy? • West Lynn Creamery- just a way of taxing out of state residents to help fund the subsidy for in-state residents, because the same money that out of staters are paying is going into the same fund. Operates in practice just like a tariff does. Struck down in West Lynn Creamery • This is not a cash subsidy- it's a discriminatory pricing structure How do you reject argument that in-state tuition is just a subsidy? West Lynn Creamery- just a way of taxing out of state residents to help fund the subsidy for in-state residents, because the same money that out of staters are paying is going into the same fund. Operates in practice just like a tariff does. Struck down in West Lynn Creamery This is not a cash subsidy- it's a discriminatory pricing structure

(2) Political Questions:

If a case presents a "political question" rather than a justiciable (subject to trial) controversy, the Court will not decide the question (on the basis of separation of powers). Final determination of such question is left to the political branches--i.e. Congress and/or the executive branch. a. Criteria: The basic criteria for determining whether a question is "political": (i) A "textually demonstrable" constitutional commitment of the issues to the political branches OR does the case present a case where there is a lack of judicially manageable standards (issue is to vague). Baker v. Carr The lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch. i. Nixon v. U.S.: Nixon's claim presented a nonjusticiable issue bc the Impeachment Clause [Art. I, § 3, cl. 6] states that "the Senate shall have sole power to /try/ all impeachments."; ii. Lack of manageable standards for judicial resolution; iii. A need for finality in the action of the political branches; and iv. Difficulty or impossibility of devising effective judicial remedies. NOTE - the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch. (Nixon) a. Determined on a case-by-case basis Below extra information: Suspension Clause - limits Congress' authority to shut down the Supreme Court. b. Application i. Foreign relations: turns on standards that (1) defy judicial application (i.e. there are no judicially manageable standards), (2) involve the exercise of discretion demonstrably committed to Congress or the President, or (i3) uniquely demand a single voiced statement of the government's views. ii. Military Organization: composition, training, equipping, and disciplining U.S. military forces are "political questions" committed to Congress. iii. Constitutional amendments: Details respecting proposed constitutional amendments (how long they remain open to ratification, or what effect a prior rejection by the state legislature will have on subsequent ratification) have been held as PQs. They are committed to Congress by Article V, and there are no manageable judicial standards. iv. Impeachment: Article I, Section 3, Clause 6 states that the "Senate shall have the sole power to try all impeachments." This provision commits the Senate the determination of procedures for trying an impeached official, which are unreviewable by the courts (Nixon). Needs 2/3 vote. Specifically talked about this in class.

Cooper v. Aaron, 1958

JUDICIAL REVIEW POWER Upheld the BROWN decision. Federal courts have the authority to review the constitutionality of state laws and the actions of state officials under the Supremacy Clause. 1. The Supreme Court's constitutional interpretation has power over all state officials and state legislators. a. Uses "supreme law of the land" language from art3 §2 State officials and state legislatures are bound by orders of the United States Supreme Court based on its interpretation of the United States Constitution.

Lochner Era Overturned

Lochner Era Overturned 1. West Coast Hotel v. Parrish (Washington min. wage act upheld for woman hotel employee) - a. Adkins view of a legitimate end is changed (expanded). b. Court will not accept that a free market is the optimal allocation of resources. c. Different view of min. wage law that Adkins: this court views a min. wage law as a protection of society as a whole from unscrupulous employers. d. No more narrow Lochner view of a legitimate government end. It's legitimate for gov'mt to disrupt freedom of K purely for the reason of ensuring a livable wage. The Appellee was a maid who worked for less than the state minimum of $14.50 per 48-hour week. She brought suit to recover the difference in pay from the Appellant . Here they defer to the legislature more than before. The Legislature & Court insert this to protect women from themselves application of test reveals far more - government's intervention is legitimate.

Maine v. Taylor - EXCEPTION

Maine v. Taylor - EXCEPTION It may be discriminatory (facially), BUT Maine had legitimate and substantial interest in prohibiting out of state baitfish bc they may bring in parasites and harm Maine. Also, no other nondiscriminatory way to prevent. Testing the fish individually would be noneconomical. • Case opens the door to state discriminatory laws. a. Law: Maine bans importation of baitfish from outside state b. Discriminatory? Yes, on its face (import ban) c. Ends-Means Test: i. Environment, concerned about parasites of baitfish and its effect on unique wild fish = legitimate, non-protectionist ii. At the time, no less discriminatory alternative 1. Could test the fish, but that is unreasonable d. Held: One lone instance where Court has upheld a discriminatory law (Hard to inspect each individual minnow. can be used for Mulch(as in practice question), or other very hard to check small item).

Market Participant: (universities charging different rates for in-state v out of state)

Market Participant: Even if it fails, Oregon can invoke the market participant exception, even if it is found to be discriminatory • Cite as support: Reeves v. Stake o Courts have rejected challenges to tuition differences

Baldwin v. Seelig

Milk price a. Law: Milk can't be sold at a higher price in New York than it is sold in Vermont b. Held: NY can't regulate the price of milk in VT (like a tariff) i. Discriminates against out of staters ii. Can't project legislation on another state iii. Can't use police power to rid of competition Under the Commerce Clause, a state may not pass restrictions that overly burden interstate commerce for the purpose of reducing competition between the states. 1. Under the Commerce Clause, a state may not pass restrictions that overly burden interstate commerce for the purpose of reducing competition between the states. 2. The dormant commerce clause can be used to prevent protectionism. 3. This use of the dormant commerce clause creates the American common-market. 4. Laws that discriminate against interstate commerce are virtually per se invalid...

Minnesota v. Clover Leaf Creamery Co.

Minnesota v. Clover Leaf Creamery Co. Court found, "this burden is not 'clearly excessive' in light of the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems." They found these "local benefits ample to support Minnesota's decision under the Commerce Clause." And found "no approach with a 'lesser impact on interstate activities.' Cases reviewing state transportation safety measures raise many of the same issues as the previous section, and are frequently address within the same analytical framework, as other dormant Commerce Clause Cases. BUT, they can be usefully studied separately b/c the sometimes involve distinctive regulatory interests in safety, as well as distinctive national interests in permitting the free flow of commerce across state lines. 3. Minnesota v. Clover Leaf Creamery (1981) - Milk cartons a. Law: Minnesota prohibits milk retailers from selling products in non-recyclable milk containers i. Ends: energy conservation, ease disposal b. Discriminatory? i. Facially Neutral: applies to all milk retailers ii. In effect? Is burden greater than benefit? No. c. Held: Law upheld as a valid environmental protection method (least restrictive means, benefits > discriminatory effect)

Lucas v. S. Carolina Coastal

Must have taken %100 of the property. The lucas rule applies only to permanent takings. a. Under Penn Central, this probably would have been a severe disruption of investment-backed expectations. Per se rule: a regulation that denies all economically viable use of the land, regardless of the purpose, is a taking. Exception: Its only a taking if it's property; if land use constitutes a public nuisance, then S.C. comes in and prohibits it and even destroys all economic value...it's not a compensible taking. State has legitimate police power to prohibit and preventing public nuisances because they pose a threat to public welfare.

National Federation of Independent Business v. Sebelius

National Federation of Independent Business v. Sebelius - The federal Medicaid law, enacted in 1965, afforded states federal funds to assist them in providing medical care to the elderly and other persons with special needs. In 2010, Congress greatly expanded the program. States that did not accept the expansion would not only lose the new funding for it but all of their federal Medicaid funds. This amounted to over ten percent of an average state's overall budget. The Court held that this gave states no real option but to acquiescence (acceptance without protest) and thus amounted to "coercion." (Medicaid part of the act IS coercive) The fact that the 1965 Medicaid Act reserved Congress's power to "alter" or "amend" the program did not save the constitutionality of the Medicaid expansion in 2010 because it was a "shift in kind, not merely degree" and could not be anticipated by the state. Same three factors that in Bailey led the court to conclude that tax was a penalty here point the opposite way: No scienter requirement, regulated/enforced by IRS, and it exempts those income is not taxable.

New Energy Co. of Ind. v. Limbach

New Energy Co. of Ind. v. Limbach: creates tax credit to users of ethanol that was produced in Ohio. Does not make Indiana happy. Court said this law was protectionist. Ethanol Tax a. Ohio gives a tax credit if ethanol is produced in state (help its local ethanol industry) b. Indiana ethanol producers claim tax credit is unconstitutional c. Discriminatory? Yes, on its face i. Help local industry = legitimate ii. Should award tax credit to all producers, not just in state = Alternative d. Cash subsidies to domestic industries aren't discriminatory, but tax credits strictly to in-state industries are discriminatory 3. Direct cash subsidy = constitutional, even if solely at in-state industries Protectionism is the economic policy of restraining trade between states (countries) through methods such as tariffs on imported goods, restrictive quotas, and a variety of other government regulations designed to allow (according to proponents) fair competition between imports and goods and services produced domestically The negative Commerce Clause (also known as the Dormant Commerce Clause) prohibits economic protectionism in the form of regulatory measures designed to benefit instate economic interest by burdening out of state competitors. If the statute is discriminatory, it is a per se violation unless the State has a justified reason unrelated to economic protectionism and the method it chose was the least restrictive way to achieve that goal. They assume that if it was in state tax credit it could be constitutional - so what is diff between tax credit and cash subsidy? Economically the same. Why is one constitutional and NOT the other? f/o where do you draw the line between the two? New Energy Company of Indiana (plaintiff) filed suit in the state courts of Ohio to challenge an Ohio law that awarded tax credits to dealers of automotive fuel for each gallon of ethanol-containing fuel sold, but only if the ethanol was produced in Ohio or in a state that granted reciprocal tax credits. New Energy asserted that the law violated the Commerce Clause of the United States Constitution by discriminating against interstate commerce.

3) Penn Central v. New York City THE BALANCING TEST:

Penn Central v. New York City THE BALANCING TEST: Use test in Regulatory taking only. Mere diminution in value does not constitute a taking. This test is ad hoc, it depends on situation. a. economic impact on claimant (is there economically viable use remaining?); even if a regulation leaves some economically viable use on a land, compensation may still be required if the interference with distinct investment backed expectations is sufficiently severe. b. extent of interference with reasonable investment-backed expectations (geared to doing fairness to individual parties; regulation may be unfair to one party but not unfair to another). c. character of the governmental action. (the breadth of the ordinance shows its purpose is to benefit the general public).

Pike Test - balancing test - modern test

Pike Test - balancing test - modern test: are the burdens to interstate commerce clearly excessive in relation to local benefits. We will ask the question if we should even apply this to nondiscriminatory measures. Modern approach = balancing test: The fact that state regulation has some "rational basis" is not enough. Rather, burden on interstate commerce imposed by the regulation (i.e., difficulty and cost compliance, inefficiency involved, etc.) is weighed against the strength of the state interest in the regulation, with the Court deciding whether the regulation imposes a unreasonable burden on interstate commerce, and whether there are reasonable, less burdensome alternatives. Application of "balancing" test: In balancing the burden imposed on interstate commerce against the state interest served, the Court gives greater weight to statutes that further local health, safety, or social welfare interests that to statues that seek to protect local economic interests.

What constitutes a taking:

Possessory-when gov't takes possession-loretto, permanent physical occupation of land by gov't is per se a taking. Example: Oregon state capitol. What abt temporary: airplane in your airspace regularaly?.... Regulatory possession-regulates how u use your property. Mehan rule: it's a taking when the regulation goes too far:

Katzenbach v. Morgan, 1966

Puerto Rican literacy test in order to vote in NYC. Allowed under §5 power.

Campbell v. Clinton

Pursuant to Article I, section 8 of the Constitution, only Congress has the power to declare war.

Roe changes that occured due to Planned Parenthood v Casey

Roe reaffirmed: b.1) post-viability, state can prohibit abortion. b.2) pre viability, state cannot prohibit abortion. b.3) pre-viability regulation OK as long as it does not produce an undue burden. Roe thrown out: c.1) Trimester approach 1) Roe undervalues woman's interest); Casey hurts woman's rights. Interest is not to be free of all regulations, her interest is only to be free of undue burdens upon her right to choose. (limited version of her autonomy) 2) Roe undervalues state's interest: by confining it only to the third trimester when, in fact, that interest extends back to conception. c.2) Roe applied strict scrutiny. Casey uses undue burden test.

Richard Nixon v. A. Ernest Fitzgerald

Rule of Law The President of the United States is entitled to absolute immunity from suits for damages based on actions taken in his official capacity. >he was sued after he was no longer president, but the occurrence took place while he was acting president.

iii. Do all of the rights in the bill of rights apply to the states - overview ? Slaughterhouse case

Slaughterhouse case - says privileges and immunities clause does not apply to the states. ONLY recognized the right to travel across state lines. SC basically wrote out the P & I clause out of the Constitution. Due process of law Says before we take your life, liberty, or property we have to give you due process Look to Palko "Due Process" as protecting rights beyond those enumerated in Bill of Rights Modern decisions by the Court indicate that the "due process" guaranteed by the Fourteenth Amendment goes further than merely incorporating various rights enumerated in the first eight amendments. Rather, it reaches various rights that are not expressed in the Bill of Rights (or anywhere else in the Constitution) - for example, that proof in a criminal prosecution must be "beyond a reasonable doubt", or that the conduct of government agents may not shock the contemporary conscience.

Substantive v. Procedural due process:

Substantive: gov'mt must justify an infringement by showing that its action is sufficiently related to an adequate justification. b. Procedural: When the gov'mt takes away a person's life, liberty, or property, it must provide adequate procedures.

Takings Clause

Takings Clause - 5th Amendment: "nor shall private property be taken for public use without just compensation." Four Questions: 1. Is it a taking? a. Possessory Taking: government confiscates or physically occupies property permanently.

Tahoe Sierra v. Tahoe Reg. Planning Agency

Temporary moratoriums are sometimes takings under Penn Central Anything less than 12 months, the court will assume that it's tied to some legitimate interest. A temporary possessory taking, is a taking per se. There is no per se rule for temporary regulatory taking because the government cannot pay for every permit delay that occurs. "Background Principles of State Property Law"- Citizens who purchase real estate that if you buy property it is subject to some regulations by the state.

Champion v. Ames

The trafficking of lottery tickets across state lines constitutes interstate >>> Congress can prohibit certain types of commerce under the under the Commerce Clause of the Constitution.

The Commerce Clause: SC has changed its mind over time. Cases need to be synthesized.

Today: There are constitutional limits on the power of Congress to regulate pursuant to the Commerce Clause. It has long been established that the commerce power does not reach activity that merely 'affects' interstate commerce. There must be instead a substantial effect on that commerce. Moreover, simply bc Congress may conclude that a particular activity substantially effects interstate commerce does not necessarily make is so. Congress' findings must be supported by a 'rational basis' and are reviewable by the courts.

Philadelphia v. New Jersey

Trash being brought to NJ - invalid - not constitutional Court says if you are really worried you should restrict your own residents from creating trash - fails part 2 of the test - suggests that its real purpose is protectionist - NJ just really did not want Philly trash. uses old subject matter test Test: (1) state has to identify end that is legitimate, by which then the court elaborates protectionist ends are invalid. (2) no other nondiscriminatory available means available to effectuate it (classic ends-means test commonly used in law esp. con law).

United States v. Butler

United States v. Butler - (ii) spending clause: Article 1, Section 8. Farmers get paid by govt not to plant an acreage, then get the benefit of land value - double benefit. Can Congress spend for programs beyond the ambit of its regulatory powers? Congress may tax and apportion for the general welfare, but Congress may not use taxation as a means to exercise powers retained by the States. The tax in this case was levied to discourage production of crops beyond the limits set by the Act. This is beyond the powers delegated to the Federal Government. Specifically, the regulation of agriculture is, absent a nexus with interstate commerce, delegated to the states. Hamilton, however, says yes because it is beneficial for general welfare. Court actually endorses Hamilton's spending power, but problematic because not just encouraging farmers not to plant wheat but having a regulatory effect -"court says this is a regulation/coercion." - that is State power.

What's wrong with Lochner?

What's wrong with Lochner? 1. Substantive component to due process? this is STILL GOOD LAW 2. Expansive definition of liberty? STILL GOOD LAW (including freedom of K) 3. Ends/Means test as formulated (pg. 457)? DEBATABLE 4. Application of Ends/Means Test? BAD LAW; application/scrutiny of Lochner was far too rigorous.

Burton v. Wilmington Parking Authority

When a state leases public property to a private entity and forms a relationship of interdependence with that entity, the private lessee must comply with the Fourteenth Amendment's prohibition of discriminatory conduct.

1. Williamson v. Lee Optical of Oklahoma

Williamson v. Lee Optical of Oklahoma (Oklahoma law forbidding opticians from fitting or duplicating lenses without prescription from optometrist or ophthomologist upheld) a. "It is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement." b. "The law need not be in every respect logically consistent with its aims to be constitutional." c. The Remedy for bad laws is not the court; it's in the political process.

b) South Dakota v. Dole (1987)

b) South Dakota v. Dole (1987) - Assuming (but not deciding) that the Twenty-First Amendment would bar Congress from enacting a national minimum drinking age, the Court has held that Congress may condition some percentage of federal highway funds on a recipient state's adopting minimum drinking age.

ex parte v mcCardle

congress can reuc S.CT's appellate Jx over certain types of cases (motive irrelevant).

US v Klein

congress cannot tell court how under a prior statute to a particular case,

i. Deshaney v. Winnebago DSS (1989)

d. Protection against Harm i. Deshaney v. Winnebago DSS (1989) 1. Mother/Child sues the State alleging it violated child's rights for failing to protect him against his abusive father 2. Held: State as not violated a constitutional right a. Due Process does not impose an affirmative duty for the government to act proactively to protect you b. Due Process obligates the government to protect prisoners i. State does not have a duty to protect the public against private actors if the State did not create those harms Child abuse. Reported over and over but the father was never convicted; child suffers permanent damage. • Constitutional due process imposes no affirmative duty to protect individuals; negative liberty (as opposed to positive liberty = affirmative duty). o DP protects people from the state/government - not from private actors/individuals. • The government does have some obligation to protect a specific group of people: duty arises out of certain "special relationships" created or assumed by the State with respect to particular individuals - certain limited circumstances the Constitution imposes upon the state affirmative duties of care and protection with respect to certain individuals when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being: Incarceration, institutionalization, or other similar restraint personal liberty is the "deprivation of liberty" triggering the protections of the Due Process Clause. o But, Joshua position is not worse off bc of the State (courts argument) - if the State had never intervened it would have stayed the same. • But by allowing the abuse to continue they did. • The State has created social services and claimed its duty is to protect children - and here it failed its duty. o Court rejects that reasoning and holds: While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. • Reasoning: could possibly violating parental rights, making it so case workers may be too quick in the future to take away children. Too broad: where does the government's duty stop. • E.g. Fire department fails to come to put out fire: but state did not create the fire. Also, political question to be regulated by legislature. • Justices disagree about what special relationships trigger the duty to protect: Majority = those held against their own will (incarceration) and Minority: extends to all of those who the State has claimed they will protect. o Majority rejects Brennan (Minority)'s opinion because it may lead to the negative - where the government is discouraged from taking the role of protecting individuals because it is afraid of liability. • Close down child protective services, the police dept, fire dept, etc. • Different that tort duty - more narrow - this is a constitutional duty. Think of an argument for someone else to be deemed like prisoners who should be seen like prisoners and not like Joshua. • Need to be able to respond to the argument that this would lead to the got not protecting individuals at all.

san antonio board of educators. v rodriguez

education is not a fundamental constitutional right. property tax-to-education.

a. C&A Carbone Inc. v. Clarkstown (1994

a. C&A Carbone Inc. v. Clarkstown (1994) i. Flow Control Ordinance requires all solid waste from within the town be processed at a designated facility Unconstitutional ii. Ordinance favors waste within the town limits and deprives out of state access to the local market iii. Ends-Means Test: 1. Protect environment = legitimate, non-protectionist 2. There are other means (require that waste be disposed somewhere, instead of specific) Facts: Required all wastes collected within the town to be deposited at a designated private waste station USE Maine v. Taylor TEST: (1) state has to identify end that is legitimate, by which then the court elaborates protectionist ends are invalid (2) no other nondiscriminatory available means available to effectuate it. Concede prong (1) - could be argued it has environmental ends that are non-protectionist, however there ARE available nondiscriminatory available means - prong (2), therefore this law fails the Maine v. Taylor test. Supreme Court says that this is unconstitutional (fails the (2) part of the test, and there is a non-discriminatory alternative). However, the town of Clarkstown has one last argument - "it is still constitutional because discrimination in favor of government owned entities are permissible - later the SC agrees (United Trash Haulers Ass'n v. Oneida v. Herkimer Solid Wast Management Auth.), but during the time of this litigation Carbone was privately owned (difference).

1. War Powers Resolution (1973)

a. Limits President's Power as Commander-in-Chief (A II) b. Congress has the power to declare war (Article I) c. Elements: i. President must consult with Congress before introduction of troops into military situation ii. After consultation, within 48 hours, a repot must be submitted iii. Way to End War: If Congress does nothing, war is over on the 61st day iv. Way to End War: At any time if Congress passes a concurrent resolution, the war is over

o Rasul v. Bush:

o Rasul v. Bush: held that those being detained in Guantanamo Bay, Cuba have the right to have a habeas corpus petition heard in federal court o Specific to Guantanamo bay, others have not be addressed

viii. Exceptions 1. Congressional Authorization: Congress can authorize action that runs afoul to the DCC

a. Prudential Ins. Co. v. Benjamin (1946) i. Law: State imposed a 3% tax on out of state insurance companies, but not on in-state insurance companies ii. Tax upheld because Congress had adopted an act permitting the states to regulate insurance, as long as it didn't conflict with a Federal statute iii. Congress and States can work together to exercise regulatory authority they otherwise might not be able to exercise alone iv. One instance where Congress can overrule a constitutional decision

b. Privileges and Immunities Clause of Article IV sec 2 cl1

b. Privileges and Immunities Clause of Article IV: protect people's rights i. "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States." (2) Privileges and Immunities Clause of Article IV § 2, cl. 1: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." - The relationship between the dormant Commerce Clause and the Privileges and Immunities Clause is "mutually reinforcing." Many claims brought under the dormant Commerce Clause could equally well be brought under the Privileges and Immunities Clause and vice versa. One clear difference is that corporations cannot sue under the Privileges and Immunities Clause because they are not "citizens." Undermines significance of market participant exception to dormant Commerce Clause. Other differences - no market participant exception, P and I clause does not permit discrimination, as it can under the dormant Commerce Clause, by clearly delegating that power to the state

Eisenstadt v. Baird

addressed a statute that allowed married persons to obtain contraceptives to prevent pregnancy from doctors or druggists with a prescription, but did not allow single persons to obtain contraceptives from anyone to prevent pregnancy. The Court in Eisenstadt applied/// rational basis scrutiny///// under the Fourteenth Amendment's Equal Protection Clause and found that the state's interests were not legitimate and were not being rationally served. Justice Brennan's opinion for the Court, however, is best known for this passage: <<It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and individual makeup. If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. 405 U.S. at 454 (emphasis in original).>>

b. Reeves, Inc. v. Stake (1980)

b. Reeves, Inc. v. Stake (1980) - Cement shortage i. Cement shortage in South Dakota ii. Law: Supply SD customers first before out-of-stators iii. Discriminatory? Yes, on its face iv. Protectionist ends by states, when acting as a market participant, is permissible Facts: When a cement shortage hit South Dakota, the legislature ordered that the cement plant must first supply all of South Dakota's customers before honoring out of state contracts The state was unable to find a non-protectionist end. Violates Maine v. Taylor test. It is a protectionist, discriminatory measure. BUT, it still holds up because South Dakota is a market participant and NOT a market regulator. Supreme Court says that when the state is acting as a market participant, protectionism is okay. WHY? Businesses can decided to sell to whoever they want, so we shouldn't subject the state, when it owns a business, to stricter regulations.

b. United Trash Haulers v. Oneida-Herkimer (2007)

b. United Trash Haulers v. Oneida-Herkimer (2007) i. Similar to C&A, but government entity (here) vs. private company (C&A) ii. Government is protecting the health, safety, welfare 1. Benefits the public, treats all private the same a. Enhanced incentives b. Increased enforcement 2. Everyone must use the facility iii. Waste disposal is a traditional government function iv. Government/Public functions are not subject to the Commerce Clause Diff. from Carbone is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. The Court found this difference constitutionally significant. Court held that the Counties' flow ordinances, which treat instate private business interests exactly the same as out-of-state ones, do not discriminate against interstate commerce for purposes of the dormant Commerce Clause. BE CAREFUL with this case, because Williams says that it likely will be challenges. The Counties' objectives were protectionist, however it was not as apparent as in Carbone. Later down the line when the municipal's motives are more apparent this decision will likely not hold up. carbone v. Clarkstown, 511 U.S. 383 (1994), held that laws passed to channel all waste to a private processing plant were invalid. The present case is distinguishable from Carbone because the waste is channeled to a public benefit corporation, not a private plant. This difference is significant because the government is benefiting from any burden placed on interstate commerce. Laws favoring local government cannot be based on economic protectionism in the same way as laws favoring local businesses. Local governments have the right to make decisions and enact laws to better provide for the health, safety, and general welfare of their citizens, whereas private businesses are generally solely concerned with economic profits. Additionally, because waste disposal is both typically and traditionally a government function, interference with these local government actions based on the Commerce Clause should be avoided. Under the standard articulated in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), a nondiscriminatory statute should be upheld "unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits." The benefit of increasing the local government's ability to provide for the waste disposal needs of its citizens outweighs the burdens placed on out-of-state waste disposal plants. The "flow through" laws are a constitutional exercise of the OHSWMA's regulatory powers. The decision of the court of appeals is affirmed.

Sabri v. United States (2004

c) Sabri v. United States (2004) - Assuming arguendo that Congress may not have the power to make bribery of state or local officials a crime, Congress does have authority under the spending power to bar bribing such officials if their state or local government agency recived federal funds in excess of $100,000 in any year. Rationale: Under the Nec and Prop clause, Congress may seek to assure that federal expenditures are used for their intended purpose and not wasted on corruption - to regulate them! (Note: the fed statute involved in Sabri applied directly to individuals and not to state or local governments. Thus, there was no need to determine whether federal funds were being used to "coerce" state policies.) did not really focus on this.

c. Dept. of Rev. v. Davis (2008

c. Dept. of Rev. v. Davis (2008) i. Tax exemption on state-issued bonds, but not on out-of-state bonds (akin to a tariff) ii. Held: Run by a governmental agency, not a private company; therefore, it is constitutional 1. Benefits the public, treats all private the same 2. Protectionist ends by government = okay iii. Discriminatory? Yes, on its face 1. Ends-Means Test: fails, but government functions aren't subject to commerce clause a. Raise state revenue b. Alternatives: don't exempt just KY bonds; raise income tax rate Facts: Kentucky income tax statute that exempted interest on bonds issued by Kentucky and its political subdivisions, but not on bonds issued by other states or local governments. "Unconstructional - this is just a tariff." Tariffs are unconstitutional under the dormant Commerce Clause. It IS discriminatory on its face, so go to the Maine v. Taylor test. (1) legitimate end - to raise revenue. (2) BUT, there are alternatives - raise income tax rate. It is discriminatory and there are alternatives. FAILS test. There is no forbidden discrimination because Kentucky, as a public entity, does not have to treat itself as being 'substantially similar' to the other bond issuers in the market

c. Executive Privileges and Immunities

c. Executive Privileges and Immunities: protects Presidential papers and conversations, but such privilege must yield to overriding needs for the information xecutive privilege is derived from the separation of powers - not specifically mentioned in constitution. EP is recognized to protect against the disclosure of presidential communications made in the exercise of executive power. Scope: where the presidential communications relate to military, diplomatic, or sensitive national security interest, the claim of privilege is given the utmost deference by the courts. However, other presidential communications are only presumptively privileged.

i. United States v. Nixon (1974)

c. Executive Privileges and Immunities: protects Presidential papers and conversations, but such privilege must yield to overriding needs for the information i. United States v. Nixon (1974) 1. Watergate scandal 2. Nixon invoked executive privilege to keep tapes secret 1. S.Ct. said this privilege is not absolute. Need for evidence in a criminal trial outweighs executive privilege. Privilege given to Pres by Congress, as head of state and commander-in-chief; court departs from textualism; The constitution does not itself contain an executive privilege clause. It's implied supposedly. Nixon argued that he for national security reasons should have privacy for conversations that occur in the oval during the president's decision making process..... but this was actually looking for conversations about the illegal break-in of the Watergate. Hypo-congress subpoenas trump for plans to fight isis. ---denied, b/c national security Hypo-congress subpoenas trump for conversations w/ obergruppenfurher bannon...then he may have to comply. Presidential assertion of privledge extends to those talking to the president... and also in communications the advisors have in serving the interests of the president as well. he special prosecutor in the Watergate scandal subpoenaed tape recordings made of President Nixon (the "President") discussing the scandal with some of his advisers. President claimed executive privilege. EP does not apply here - Nixon has to turn over the tapes. In this case, need to balance the importance of general privilege of confidentiality of presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. Confidentiality of presidential communication weighed with courts need for the information. Also the reason for EP is for national security - this is not a case of national security.

c. South Central Timber v. Wunnicke (1984)

c. South Central Timber v. Wunnicke (1984) - Timber i. Law: Alaska required timber taken from state lands be processed in-state before being exported/sold out of state ii. Alaska using its power/leverage from its participation in the timber market to regulate the processing market, in which it is not a participant Unconstitutional Facts: Alaska says we are operating as a market participant - "We own the timber, therefore we can discriminate" - requiring all purchasers of the state's timber to partially process the timber in Alaska before shipping the timber out of the state. Supreme Court disagrees. Alaska is a participant in the raw timber market, BUT they are not in the processing market. It CANNOT use its power in the timber market to regulate the processing market. For purpose of analysis - you have to determine what market the state is a participant in Rationale - If we read the market participant exception too broadly it can swallow the dormant Commerce Clause.

Strict scrutiny=

compelling governmental interest and narrowly tailored. <<To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest>>

6. Hughes v. Oklahoma (1979)

hughes v. Oklahoma (1979) - Fish export a. Law: Oklahoma bans fish caught in-state to be exported out of state b. Discriminatory? Yes, on its face (export ban) c. End-Means Test: i. Protect minnow population = legitimate ii. Limit number of minnows caught = Alternative

. Concurrent [commerce clause] Power

i. Concurrent Power: The federal power to regulate interstate commerce is concurrent with the state power over transactions within the state. Thus, the Court has frequently been called on to determine the respective scope of federal power and state power in regulating interstate commerce. The modern rule: is that Congress has plenary (absolute) power to regulate the "channels" of interstate commerce. This includes power over interstate roads, waterways, airways, transmission facilities, among other things). Congress also has plenary power to regulate "instrumentalities" of interstate commerce, which include the people, machines, and other things that carry objects of commerce.

i. INS v. Chadha (1983)

i. INS v. Chadha (1983) - Legislative Veto, court found unconst. b/c it goes over bicameralism and takes the power of the pres.; Art I § 7 art1 it requires that acts must go thru both houses, and presentment must occur (presenting the bills to the president so s/he can approve it or veto. (bicameralism didn't properly occur in this case). o Art1 sec7. Req's- apply to legislation. What are legis acts: acts that affect rights and duties of those outside of the legislative realm. Even a 2 house veto lack presentment portion. 1. Section 244(c)(2) allowed one-House disapproval of executive actions 2. Why is there a legislative veto? For Congress to control bureaucratic rulemaking 3. Legislative in character, where it alters legal rights, duties, and relations of persons 4. Article I: all legislative powers vested in Congress a. Congress can implement Bicameralism (H+S), then Presentment (H+S+P), cannot pass or take action without presenting to Pres. b. Constitution > Law

tax spend power test

i. Test: the tax will be upheld under the taxing power if its dominant intent is revenue raising (rather than prohibition or regulation). Phrased another way, the tax will be invalid only if its dominant intent is penal (i.e. regulatory) rather than revenue raising (fiscal)

ii. Clinton v. Jones (1997)

ii. Clinton v. Jones (1997) 1. President does not have immunity from civil suits for acts done prior to taking office and unrelated to office Trump could be sued for sexual assault and rape. Private acts versus official>>official acts=acts necessary for the job of president. If he cheated during president then that should be considered a private act. But he can postpone it in certain cases for national security reasons. He's not immune but he can delay. The United States Constitution (Constitution) does not automatically grant the President of the United States immunity from civil lawsuits based upon his private conduct unrelated to his official duties as President. The immunity for "official" conduct - in contrast to personal, private acts - is to enable the President to perform his designated functions without fear of personal liability. Ex. Of divorce seeking injunctive relief not damages - takes place outside the oval office, obviously Clinton v. Jones To determine need to know - what is the conduct (if pre-presidential obviously Clinton v. Jones), if it is during the Presidents term needs to be determined whether it was within the Presidents official conduct (does this mean sexually harassing his intern would fit? - Grey area). Court, however, may have been wrong that this didn't affect the Presidents role (distracting him).

ii. Clinton v. New York (1998)

ii. Clinton v. New York (1998) - Line Item Veto 1. Does line item veto power violate Article I? Yes. a. Power violates the Presentment Clause and essentially turns the President into a lawmaker (power for Congress) b. You have to veto before it is a law and you have to veto all, not parts [no line item veto authority, violated art 1 section 7. he Supreme Court noted key differences between the Veto Act and standard constitutional procedure. Art. I, § 7: statutory cancellation occurs after the bill becomes a law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Constitution does not specifically ban a line-item veto, but since Congress has been silent (on such an important issue) this is the equivalent to a prohibition. Congress cannot alter the procedures set out in Art. I, § 7, without amending the Constitution.

ii. United Building of Camden County v. City of Camden (1984

ii. United Building of Camden County v. City of Camden (1984): 1. NJ municipal ordinance requires at least 40% of employees of contracts/subcontractors be Camden residents 2. Violates P/Is Clause a. Burdens employment b. No, substantial reason. Discriminates against non-Camden residents just as much as it discriminates against out-of-state residents. i. In-state (non-Camden) residents can vote against ordinances. Out of state residents cannot remedy. 3. Prevents states/municipalities from discriminating against non-residents if two elements are met (Camden Test) camden test: does discrimination burden fundamental privilege>>>yes>>> is there a substantial reason for discriminating>>>yes>>> does it bear a substantial realtioship to the state's objective >>. yes... then constitutional. if no to any it is not constitutional. May a city enact an ordinance that discriminates on the basis of municipality and not state residence in regards to the Privileges and Immunities Clause? Holding and Reasoning (Rehnquist, J.) No. hether the ordinance violates the Privileges and Immunities Clause. The P and I clause imposes a direct restraint on state action in the interests of interstate harmony (as opposed to the CC acting as an implied restraint upon state regulatory powers). States ownership of the property with which the statute is concerned IS a factor (although not often the crucial factor) to determine whether the statute's discrimination against noncitizens violates the Clause. And whether it is funded with public money (Camden is). Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents entails a two step inquiry. (1) the Court must decide whether the ordinance burdens one of those privileges and immunities protected by the clause. - Only w respect to those 'privileges' and 'immunities' bearing upon the validity of the nation as a single entity must the State treat all citizens, resident and nonresident, equally." (2) HERE, whether an out-of-state resident's interest in employment on public works contracts in another state is sufficiently "fundamental" to the promotion of interstate harmony so as to "fall within the purview of the Privileges and Immunities Clause." The Pursuit of common calling (a job) is one of the most fundamental of those privileges protected by the clause. However, there is NO fundamental right to government employment for purposes of the Equal Protection Clause. Need to come back to this. A state may not discriminate against out-of-state interests if those interests are sufficiently fundamental to the promotion of interstate harmony so as to fall within the purview of the Privileges and Immunities Clause, unless the state has a substantial reason for treating out-of-state citizens differently, and the discriminatory means it imposes are closely related to accomplishing that reason.

Cooley v. Board of Wardens

iii. Cooley v Board of Wardens—whether if something is of a national interest it should be uniform and if something is of local orbit then the states should be allowed to regulate it. 1. This test causes a lot of inconsistent rulings In the absence of definitive congressional regulation, federal rules apply to business that requires uniformity of treatment among several states, and business characterized by local peculiarities is governed by legislative decisions passed by the states.

Ninth Amendment -

not a source of rights; it is used to textually justify the Court's protection of non-textual rights/unenumerated liberties. This is the nail in the coffin of those that contend there are no unenumerated rights (i.e. "no right to abortion, contraceptives). 9th Amendment demonstrates that our constitution is committed to liberties other than just those expressly mentioned in the constitution.

Missouri v. Holland

the Court noted that while an act of Congress must be made "in pursuance of the Constitution," a treaty need only be made "under the authority of the United States." This suggests that the only limitations on the federal treaty power and congressional legislation pursuant to a treaty are the formal requirements of presidential proposal of Senate ratification. "Proper subject of negotiation" - It seems clear that treaties dealing with matters such as control of wildlife that moves between our country and another concern "proper subjects of negotiation." And the Court has states that the cession of a portion of a state without its consent is not a "proper subject of negotiation" with foreign power. Exam tip: Be sure to remember that treaties are subject to constitutional limitations on the government's power to interfere with individual rights. Thus, no treaty may confer on Congress authority to take property without due process of law, deny freedom of speech or religion, etc.

x

x

*Levels of Scrutiny* Ends-means test

*Levels of Scrutiny* Ends-means test 1. Rational Basis Review: a law is upheld if it is rationally related to a legitimate governmental purpose a. Is there a legitimate governmental interest? i. Needs to be a conceivable purpose, not an actual purpose b. Is the regulation rationally related to that end? c. Challenger has the burden of proof (usually loses) 2. Strict Scrutiny: a law is upheld if it is necessary to achieve a compelling governmental interest o Is there a compelling governmental interest? Needs to be an actual purpose/objective o Is it narrowly tailored to that interest? o Government has the burden of proof (usually loses)

Hudgens v NLRB 1976

- picketing of store in shopping center by a union w/ a grievance against the sotre's warehouse. (located elsewhere) over-rules logan valley- "the owner of the shopping center complex by dedicating his property to public use as a business district to some extent displaces the state form control of hx'l 1st amendment forus, and may acquire a virtual monopoly of places suitable for effective communication. "the roadways, parking lots, and walkways of the shopping center may be as essential for effective speech as the streets and sidewalks in the municipal or company owned town" 5. Shopping Centers are not State Actors a. Lloyd Corp. v. Tanner (1972) i. A shopping center is not a state actor if it refuses handbill distribution that is unrelated to mall practices b. Hudgens v. NLRB (1976) i. Shopping mall is not a public forum; therefore, it is not a state actor

vii. Michael H. v. Gerald D. (1989)

1. CA presumption: A state may create an irrefutable presumption that a married woman's husband is the father of her child; does not matter that child is biologically related to adulterer 2. Held: Court used presumptive law to deny real father visitation and parental rights 3. Footnote 6: a. Need to take the narrowest form of generality because it avoids subjective decision-making Michael H. v. Gerald D. (1989): Carole had an adulterous affair with Michael while married to Gerald. A child was born while Carole and Gerald were together, but was likely Michael's child. Michael and the child by guardian ad litem brought suit to establish paternity and a right to visitation. Michael does not get his parental rights here because Michael must establish not that society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights. To provide protection to an adulterous natural father is to deny protection to a marital father. Marital father's right is more valued than the "adulterous father's" right. Right to biological child where parent is fit and where non-biological "parent" is not married to the mother at time of birth. Scalia looks to law of bastardy - treatise. Dissent: Presumption of paternity is out of date in a world which blood tests can prove. Once again battle between conservatives and liberals about defining the fundamental right to parent. Footnote 6: we have to take the narrowest level of generality in defining fundamental rights to prevent subjective decision making; BUT Brennan says the most narrowest view will not allow the court to challenge noxious regulations - same-sex marriage, inter-racial marriages, etc. The majority does not sign on to this footnote because it is too narrow. Battle = how do you define fund right in scope of history and tradition.

Lawrence v. Texas

1. Prosecutes two gay men for engaging in sodomy 2. Is there a fundamental right to engage in sodomy/sexual freedom? a. Court doesn't explicitly say "fundamental right" b. looks at history and tradition, existence of laws that criminalize sodomy, but were not enforced between two consenting adults (supposed to protect minors, animals, coercion, rape, and other similar situations) c. Court says there is a liberty interest (presumption of liberty, requires gov't to justify restriction) d. Expansion of Casey and Griswold applied same-sex couples, privacy interest under due process clause e. Court fails to determine if there is a right and which standard of review to use i. Majority asserts a privacy interest here (strict scrutiny), but uses rational basis review ii. dissent asserts that Maj. is wrong on state decisis 3. If there is a right Identify the sources a. If not fundamental, then use rational basis (Gov't wins) b. If fundamental, use strict scrutiny (Gov't loses) c. If no right at all, don't need a good reason to regulate 4. Two ways to read the opinion: a. Fundamental right to sodomy > Strict Scrutiny i. Morality is a legitimate for non-fundamental interests (Bowers), but is not a compelling fundamental interest > Law is unconstitutional b. There is no fundamental right > Rational Basis i. TX can't come up with sufficient justification for why it is criminalizing sodomy Does not really show a clear opinion/holding. • Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. • Why is this not just subjective decision making? o Liberty? How do we determine that liberty includes sodomy/sexual freedom? o Court looked to who the law was being enforced against. • Trend in democracy is to allow sodomy - to not criminalize it. Has to be a "big enough" trend?! Why did the court step in? • Reread on this points: what sources of law does Kennedy point to and are those sufficient to announce a fundamental right. • How far does Lawrence go? Types of sex? Anal sex? Narrow and broad understandings of Lawrence, which ones are right? Is it that there is no fundamental right, or that the state has a better justification? • One reading of Lawrence is that morality is insufficient basis for prohibiting acts. But this reading causes issues. • Another reading of Lawrence Reading 1 (1) fundamental right to sodomy, morality is a legitimate interest for regulating non-fundamental rights but not fundamental right (2) how do you then distinguish all of the other sex laws? Reading 2 No fundamental right, but TX has no legitimate rational basis for the law. How do you distinguish TX's sodomy law from other (animal cruelty, incest, etc.) and use one of those readings to defend your argument.

1. Rational Basis Review:

1. Rational Basis Review: a law is upheld if it is rationally related to a legitimate governmental purpose a. Is there a legitimate governmental interest? i. Needs to be a conceivable purpose, not an actual purpose b. Is the regulation rationally related to that end? c. Challenger has the burden of proof (usually loses)

Obergefell v. Hodges

1. Same sex couples have a fundamental right to marry one person, under due process clause of the Fourteenth Amendment, triggers strict scrutiny 2. Modern understanding of marriage, recognizes tradition and history 3. No harm done by same sex marriage and great harm when it is banned Same-sex couples have a constitutional right to marry protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Right to marry: can be broad or narrow, Narrow-loving v VA(race restrictive) Too broad- anyone can marry (too broad). The scope of the fundamental right to marry: Right of two people of adult age, not genetically related, to marry. Irrespective of race and gender. Ultimately, the four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples: (1) the right to choose whether and whom to marry is "inherent in the concept of individual autonomy"; (2) the right serves relationships that are equal in importance to all who enter them; (3) assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation and childrearing; and (4) lastly, marriage is the very "keystone of our social order" and foundation of the family unit.

Zablocki v. Redhail

1. WI prevents marriage if he has a child not in his custody and has an obligation to pay child support (burdens the right to marry), unless he can prove compliance and that his child will not become a public charge (ward of the state) 2. Held: Unconstitutional 3. Is the right to marry fundamental? Yes (Loving) Strict Scrutiny a. Compelling Governmental Interest: i. Protect welfare of out-of-custody children b. Is it narrowly tailored? i. Applies to any resident of the affected class ii. Some will never be able to get married for lack of money or can't prove child won't become a public charge iii. Essentially allows the rich to marry, but not the poor iv. Doesn't take into account that marriage might make improve the financial situation "By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny." The right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, 'critical examination of the state's interest [strict scrutiny] advanced in support of the classification is required. Griswold and Loving: the decision to marry = personal decision protected by the right of privacy. Law burden is the right to marry; court said it is fundamental (Loving) so triggers strict scrutiny TEST. (1) This statute clearly does interfere directly and substantially with the right to marry. (meets first prong of strict scrutiny analysis - does the statute deprive individuals of a fundamental right). NEXT, it cannot be upheld unless (2) it is support by sufficiently important [compelling] state interests and is (3) closely [narrowly] tailored to effectuate [meet] those interests. Goal of statute: protecting welfare of out-of-custody children.

NY v. US, 1992

10TH AMENDMENT & COMMERCE POWER First of the cases where SCOTUS said that Congress went too far. Invalidated the "take title" provision, finding that the power of Congress to order a state to enact a law was not a power conferred on Congress through the commerce clause. If congress wants to regulate radioactive waste in a particular way, it can (1) regulate directly and take accountability, (2) reward states with monetary grants, (3) let states prohibit the importation of radioactive waste from states that don't meet the federal safety guidelines. Vertical separation of powers problem

Printz, 1997

10TH AMENDMENT- IMMUNITY Held that the Brady Bill (requiring states to do background checks on people buying handguns) was unconstitutional. You cannot commandeer the legislative process and you cannot commandeer state executive officers to carry out federal objectives. Both a vertical (forcing the state to succumb to the fed) and a horizontal (taking power from the President) separation of powers problem

Seminole Tribe v. Florida, 1996

11TH AMENDMENT- STATE SOVEREIGN IMMUNITY Limits on suing a state in federal court- cannot authorize the state to be held liable for damages based on the commerce clause.

Alden v. ME, 1999

11TH AMENDMENT- STATE SOVEREIGN IMMUNITY Limits on suing a state in state court- Extends state immunity from federal to state suits Federal court cannot compel a state to take a case against the state for a federal violation in state court. Federalism idea of a state's autonomous decision making ability.

2. Harris v. McRae (1980)

2. Harris v. McRae (1980) a. Hyde Amendment withholds funding of certain medically necessary abortions (non-therapeutic abortions) b. Gov't actively funds childbirth and rearing, but not abortion, problematic? No, no unqualified right to abortion, Roe v. Wade only limits interference with choice to abort, but gov't do not need to remain neutral or favor it c. Difference between negative (prohibition or ban or not allowing someone to do something) or affirmative (gov't provides or enforces a right) constitutional rights d. Held: Constitutional because the burden comes from women's indigence, not from the government Harris: "The Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had to subsidize no health costs at all." Dissent: Not simply the woman's indigency that interferes with her freedom of choice but the combination of her poverty and the government's unequal subsidization of abortion and childbirth. Also, people are not poor because of their own faults. Dissent: Individuals who satisfy two neutral criteria - financial need and medical need - are entitled to equal access to that pool. Whether certain persons who satisfy those criteria may be denied access to benefits solely because they must exercise the constitutional right to have an abortion in order to obtain the medical case they need.

Reitman v. Mulkey (1967)

2. Reitman v. Mulkey (1967) A state may remove an amendment to its constitution passed by initiative and referendum if the proffered amendment encourages or promotes racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. CA has a fair housing law that its legislature had adopted forbidding discrimination in housing, which angers white Californians. • State was only encouraging - was this enough? • YES. § 26 expressly authorized. Now, the right to discriminate on racial grounds, was embodied in the State's basic character. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources. • BUT, the court has never attempted the "impossible task" of formatting an infallible test for whether the State "in any manifestation" has become significantly involved in private discriminations a. CA Constitution says you can rent your property to whoever you want (authorizes discrimination) b. The adoption of the provision is state action because it would involve the State in private racial discrimination to an unconstitutional degree i. Change in legal norms enabled/encouraged racism

2. Strict Scrutiny:

2. Strict Scrutiny: a law is upheld if it is necessary to achieve a compelling governmental interest o Is there a compelling governmental interest? Needs to be an actual purpose/objective o Is it narrowly tailored to that interest? o Government has the burden of proof (usually loses)

3. "Inactivity" limitation:

3. "Inactivity" limitation: The scope of Congress's power under the Commerce Clause reaches only to the regulation of "activity." It does not extend to compelling persons not engaged in commerce to purchase unwanted products or to participate in a market they do not normally. (National Federation of Independent Business v. Sebelius: federal statute mandating that most Americans by health insurance - Affordable Care Act - ObamaCare: SC did uphold but using tax power not commerce clause power).

3. Philip Morris v. Williams (2007)

3. Philip Morris v. Williams (2007) a. Punitive damages awarded based on jury's desire to punish defendant for harm to others (not just to plaintiff) amounts to a taking without due process b. Jury can consider harm to others, but cannot punish for it because "others" are not before the court c. Due Process assures that juries aren't asking the wrong question Injury to nonparties: Although injury to nonparties may be used as evidence of "reprehensibility," thus justifying punitive damages, due process forbids basing the punitive damages amount on such injury. To do so deprives Ds of the opportunity to defend against the alleged injuries and adds a "near standardless" element that risks arbitrariness, inadequate notice to Ds., and imposition of the forum state's policies on other states. (Philip Morris USA v. Williams).

3. Undue Burden Test:

3. Undue Burden Test: a state may regulate abortion, so long as it doesn't place an undue burden on the right a. If purpose of regulation is to place a substantial obstacle + undue burden Invalid b. Undue Burden is not defined c. Examples: i. 24 Hour Waiting Period is not an undue burden; does not impose a real health risk ii. Spousal Consent and Notification are undue burdens; cannot condition abortion on notice (interests: domestic violence case/wellbeing) iii. Parental Consent is unconstitutional, unless it creates a judicial bypass (judge approved abortion for best interest or minor is mature enough) Why stare decisis allow the majority to uphold the central holding in Roe, but not the trimester framework and strict scrutiny undue burden: (1) cannot make decisions under fire; (2) cannot take away a fundamental right; (3) reliance interest, women rely on Roe to be able to choose abortion; (4)

united States v. Carolene Products (1938)

3. United States v. Carolene Products (1938) - Rational Basis a. Congress bans the sale of "filled milk" b. Held: Constitutional for public health reasons; Was not arbitrary or irrational (Rational Basis Review) c. Statues have a presumption of constitutionality d. Footnote 4: Exceptions to Rational Basis i. If Bill of Rights Strict Scrutiny ii. Laws that infringe on political process Strict Scrutiny iii. Law that target discrete and insular minorities Strict Scrutiny "Filled (Coconut oil) Milk Act." Prohibited shipment in interstate commerce of this skimmed milk. In upholding the indictment, the SC noted the results of a congressional investigation supported the law, but absent the investigation, "the existence of facts supporting the legislation is to be presumed, for regulatory legislation affecting ordinary commercial transaction is not to be pronounced unconstitutional unless [facts are shown that] preclude the assumption that it rest on some rational basis. Court changes doctrinal test to rational - is there a rational basis.

4. Adkins v. Children's Hospital (1923)

4. Adkins v. Children's Hospital (1923) a. D.C. passes a minimum wage law for women b. Held: Unconstitutional because it was not a reasonable exercise of police powers c. Nineteenth Amendment: women's right to vote i. Indicative of women's equality with men (not wards of the state)

4. Burton v. Wilmington Parking Authority (1961)

4. Burton v. Wilmington Parking Authority (1961) i. Public owned garage, for the public, built by the city ii. City leases commercial space (of garage) to a diner, who refuses to serve African Americans iii. Held: there is a sufficient relationship between private racism of the diner and the city building b. When there is a symbiotic relationship between the government and private actor, the government becomes responsible for the private actor's conduct and it can then be deemed a state actor Background for moose lodge- Burton there was a publicly owned building w/ a restaurant that discriminated against minorities. It was a private restaurant but because it was in a state-owned building. It was a bit broad [if someone benefits and performs action on state land/property] and was narrowed by moose lodge. (symbiotic relationship): State action has also been found where the private discriminator was a lessee of public property (restaurant operated as "integral part" of a public parking structure in which It was located). The private restaurant benefited from cars parking in the public building and vice versa. When there is a symbiotic relationship between the government and a private actor, the government becomes responsible for the private conduct, and the private actor can be deemed a state actor

5. Weaver v. Children's Hospital (Shodding case)

5. Weaver v. Children's Hospital (Shodding case) a. Eeeeeeeeeeeeeeeeew b. Unconstitutional to prohibit industry, but should be able to regulate it

Jackson v. Metropolitan Edison Co.

7. Jackson v. Metropolitan Edison (1974) a. Utility company is not a state actor (it is a private company) b. Test: Is the function traditionally and exclusively provided by the government? LIMITATION OF THE DOCTRINE - Jackson v. Metropolitan Edison Co.: Utility company denied utilities to woman who says it was because ofher race (she did also have late bills - but seemed sketch). Court sais that the utility company WAS NOT a state actor. A heavily regulated electric company that had been granted a monopoly by the state was not held to have engaged in "state action" when it terminated a user's service without notice or hearing. The Court reasoned that "the supplying of utility service is not traditionally the exclusive province of the state." Test - (what distinguishes utilities from public parks). The function must be traditionally and exclusively performed by government such that when a private individual becomes a state actor.

Moor v east Cleveland.

>1. Ordinance restricts the number of people living in one home 2. Prevents a grandmother from living with her son and two grandchildren who are cousins, not brothers 3. Held: Unconstitutional because it limits related persons in a household (unlike Belle Terre) a. Interests are legitimate (under Rational Basis), but marginal b. History and tradition extends to the nuclear family and those in the extended family have historically been included (e.g. grandparents, aunts, uncles, cousins, and children thereof) c. Cannot be social relationships, like girlfriends, fiancé, or other significant other/friends d. In times of adversity, one should be able to live with family members and rebuild a secure family life

Brentwood Academy v. TN Secondary School Athletic Assn.

An action taken by a private regulatory association within a state that is composed of public school members and governed by public school administrators constitutes state action for purposes of the Fourteenth Amendment because the state is sufficiently entwined with the private association.

Brentwood Academy v. Tennessee Secondary School Athletic Assn.

An action taken by a private regulatory association within a state that is composed of public school members and governed by public school administrators constitutes state action for purposes of the Fourteenth Amendment because the state is sufficiently entwined with the private association.

Heart of Atlanta Motel v. US, 1964

COMMERCE CLAUSE- LATE/POST NEW DEAL Test: regulated activity must affect more than one state and go to the national interest Upheld the constitutionality of Title II of the Civil Rights Act, which prohibited discrimination by places of public accommodation. Said that as long as there was a rational basis and if the means were appropriate, then the Court can regulate. In Civil Rights cases, the Court can still regulate since it still affects interstate commerce, regardless of whether the issue is moral on its face. 1. Passage of the CRA is a constitutional use of Congress's plenary power to regulate interstate commerce >>Hotels are looked at as a class - aggregate effect - court looked at how banning black people will effect black people as a whole and hotels as a class. Congress can use its commercial power not just for commercial ends but for moral ends as well. BUT, it is not just enough to show moral reason, however, there also needs to be a connection to commerce. Rational basis is the standard review - Congress had a rational basis for making the connection. Rational basis is the most deferential test you will see the Court using. Congress always enacts laws for reasons. Congress is never irrational. Criticism of this test is that it is not strict enough.

Wickard v. Filburn, 1942

COMMERCE CLAUSE- LATE/POST NEW DEAL Test: substantial effect- aggregation principle Aggregation principle. Filburn exceeded the max quota for wheat bushels set by the Agricultural Adjustment Act (set up to regulate interstate farmed commodities around the country). Upheld the Act, saying that Congress can regulate anything that has a substantial economic effect (part of a complex regulatory scheme), in the aggregate. Promoting/stimulating commerce can be regulated just as much as prohibiting commerce. Court rejected distinctions between commerce and production and between direct and indirect effects that were used before 1937. Congress may regulate intrastate activity if it substantially affects interstate commerce.

Gonzalez v. Raich, 2006

COMMERCE CLAUSE- MODERN Test: regulated activity economic in nature Gonzales v. Raich: upholding federal prohibition against intrastate cultivation and possession for home consumption of marijuana (permitted by state law for medicinal purposes). Isn't this noneconomic activity? Court says YES. Then, how is this distinguishable from Morrison? It is not absolutely clear. Both instances are noneconomic activity regulated. Maybe, that regulating homegrown marijuana is closer in the causal chain than gender-motivated violence in how it is related to commerce. Goes back to the question of Whether there is a substantial economic effect (can argue for both cases that there is a substantial economic effect, but Court did not say that for Morrison, and did here (possibly because part a comprehensive federal program to combat interstate traffic in illicit drugs, a quintessentially economic activity). **Fuel for noneconomic/test seems political (liberal/conservative conflict).

US v. Lopez, 1995

COMMERCE CLAUSE- MODERN Test: substantial economic effect; aggregation limited to commercial activities Held that the Gun-Free School Zones Act making it a federal offense to have a firearm at school exceeded CC powers since "the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." First time in 60 years that a court held that an act of Congress exceeded the scope of the CC. Put forth the Channels, Instrumentalities (trains, planes, automobiles) and Substantial Relation (Does the regulated activity "substantially effect" interstate commerce?) rule. Resulted in (1) the diminution of deference to Congress's judgment and (2) the idea that economic activity, aggregation, etc. can still be regulated

US v. Morrison, 2000

COMMERCE CLAUSE- MODERN Test: substantial economic effect; aggregation limited to commercial activities Held that the Violence Against Women Act exceeded the CC power because the length of the causal chain was too great and the activity regulated wasn't economic/commercial. It further held that you cannot aggregate if the activity is not economic/commercial. Rejected the findings of Congress. Only modern case where SCOTUS has said something is outside the scope of Congressional control. Court said rape on college campuses is too far removed. It is noneconomic activity, unlike previous cases where Congress regulated business which was economic activity. Violence Against Women Act (VAWA): provides a federal civil remedy for the victims of gender-motivated violence. Court said rape on college campuses is too far removed. It is noneconomic activity, unlike previous cases where Congress regulated business which was economic activity. • In striking down the civil remedy, the Court noted that the Constitution distinguishes between national and local issues. And that the police power(the general power to regulate for health, safety. Welfare, and morals) belongs to the states. Congress has no authority to regulate noneconomic, criminal conduct based solely on the conduct's aggregate effect on interstate commerce

Gibbons v. Ogden, 1824

COMMERCE CLAUSE- PRE-NEW DEAL • Congress alone has the power to regulate interstate commerce, it is exclusive power (Marshall, from Hamilton fed paps 32). One might worry that this leaves the states with very little power. • However, states have police power: Only where no police power where congress's commerce power is exclusive (not very helpful of a test). One of the most important decisions in history. Marshall laid the basis for later Justices to uphold a federal power to deal with national economic and social problems. Held that (1) the power to regulate commerce includes the power to regulate all phases of business (including transportation/navigation) (NY monopoly was preempted by federal law); (2) that "among" means intermingled with and gives Congress power to regulate commerce concerning more than one state (middle definition, requiring a line-drawing case-by-case inquiry as to effects); and (3) that Congress had complete authority to regulate all commerce among states (rejected the 10th Amendment argument that some powers were reserved for the states).

Child Labor Case- Hammer v. Dagenheart, 1918

COMMERCE CLAUSE- PRE-NEW DEAL Test: interstate- commerce prohibiting technique Court voided the Child Labor Act banning the interstate shipment of goods produced by child laborers, holding that since the act dealt with the ages of children working, rather than the actual transport of goods (pretext), and since production regulations fall under local authority/regulation (police power), Congress does not have the power to regulate. Allowing the regulation would give Congress a power delegated to the states. (Limited the commerce prohibiting technique is limited to commercial purposes.) 1. Congress may not use its Commerce Clause power to regulate child labor in the states as this is a purely local matter. (no longer good law).

Garcia v. San Antonio MTA, 1985

Congress's application of the Fair Labor Standards Act to the employment actions of a state municipal transit authority is a constitutional exercise of its Commerce Clause power. 10TH AMENDMENT - PROCEDURAL IMMUNITY : The SAMTA, a municipal mass-transit company, informed its employees that after National League of Cities, the FLSA no longer applied to them. Garcia, a transit employee, brought suit seeking overtime pay. When the case reached the SC, it overruled National League of Cities, upholding the FLSA and reasoning that nothing in the act destroys state sovereignty or violates any constitutional provisions. Rule: a general regulation that happens to affect the states as well as others who engage in a certain activity, thus affording broad representation in the political process to those similarly affected, doesn't not violate the Tenth Amendment (unless showing of "some extraordinary defects" in the procedural safeguards for the states in the national political process). HERE, the court should only intervene where there are defects in the political process. W/o defects we should step back and let it happen. We only step in in areas where we do not trust the political process (for ex. Race - we do not trust the political process when it comes to race, bc old white men cannot truly understand the struggles of race and work to fix those problems). Here, the Court is saying there is a political process working, no defects, we should not intervene.

Federal "police power": Congress's plenary power over the channels and instrumentalities of interstate commerce includes the authority to exclude from shipment or travel in the channels of interstate commerce any goods, persons, or activities found by Congress to be harmful to the public health, safety, welfare, and morals. Congress's motive in enacting the legislation is irrelevant. Thus, Congress may exclude from interstate commerce:

Congress's motive in enacting the legislation is irrelevant. Thus, Congress may exclude from interstate commerce: Goods harmful to interstate commerce itself - e.g., diseased animals that might infect other animals in interstate transit Commercial items generally- e.g., lottery tickets (Champion v. Ames (the Lottery Case - upheld law that said it was unlawful to transfer lottery tickets in interstate commerce - at this time the lottery is seen as immoral bc target poor. Does congress have the power to control commerce for moral purposes? Congress may arbitrarily exclude from commerce among the states any article, commodity, or thing of whatever kind of nature, or however useful or valuable, which it may choose, no matter with what motive)), or goods produced under substandard conditions (United States v. Darby Lumber - overruled Hammer v. Dagenhart BUT court begins to use substantial effect test).

Contemporary analysis (of N/P clause): United States v. Comstock

Contemporary analysis: United States v. Comstock: upheld a federal civil-commitment statute that authorized the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. Looked at whether the statute constituted a means that was rationally related to the implementation of a constitutionally enumerated power. Congress may use appropriate means: Congress is not limited to those means that are absolutely necessary. Rather, it may use any appropriate means to achieve the ends specified in the enumerated powers. This has come to be understood as any means not prohibited buy the Constitution. The need for a particular means is for Congress--not the Supreme Court--to determine

McCullouch v. Maryland, 1819

FEDERAL POWERS- N&P Federal power comes from the people. N&P gives Congress wide scope to implement enumerated powers. Because the state law interferes with the exercise of federal powers, it is invalid i. Also, this argument brings about the idea of implied powers (necessary and proper clause of the constitution) ii. Additionally, states can't tax federal entities (second part of Marshall's opinion) The Constitution specifically delegates to Congress the power to tax and spend for the general welfare, and to make such other laws as it deems necessary and proper to carry out this enumerated power. Additionally, federal laws are supreme and states may not make laws that interfere with the federal government's exercise of its constitutional powers. a state may not tax the a federal institution because federal laws are supreme to state laws. A federally-created institution may not be inhibited by a state law.

Furthering state law: The federal "police power" includes

Furthering state law: The federal "police power" includes congressional power to further state laws of policies - e.g., the federal statute banning interstate transportation of convict-made goods into a state where the receipt, sale, or possession is unlawful

Penn Central Transportation Co. v. New York City

In determining whether a state regulation constitutes a taking under the Fifth and Fourteenth Amendments, courts should consider the economic impact of the regulation on the owner, the extent to which the regulation has interfered with the owner's reasonable investment-backed expectations, and the character of the government action involved in the regulation. 4 elements to any taking analysis 1-whether it's property 2-what constitutes a taking 3-whether there's just compensation=fair market value of compensation. 4-whether this a public good. ii. Penn Central v. New York City (1978) - Regulatory Takings 1. 3 Factor Test: a. Economic impact on property owner b. Disruption of investment-backed expectations: how is the law impacting what the person thought they were going to able to do with the property when they acquired it? c. Character of government regulation ///"Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. Rather it focuses on both the character of the action and on the nature and extent of the interference with rights in the parcel as a whole - here, the city tax block designated as the "landmark site." The application of NYC's Landmarks Law has not effected a "taking" of appellants' property of the general welfare and not only permit reasonable beneficial use of the landmark site but also afforded the appellants opportunities further to enhance not only the Terminal site but also other properties.

In sum: Virtually every activity can be said to affect commerce under substantial effects test—

In sum: Virtually every activity can be said to affect commerce under substantial effects test—conservatives push back on this test. They accept that these things effect commerce, but they say there needs to be further requirements - economic/noneconomic activity, etc Exam tip - remember: Note - diff for criminal activity - bc of federal statute that allows always!

Marbury v. Madison, 1803

JUDICIAL REVIEW POWER establishes judicial review and the power of SCOTUS to review the constitutionality of federal executive action and federal statutes. The unconstitutional law that the M v M decision over-ruled was one to expand the supreme court's original jurisdiction(Jx). The constitution gives the supreme court Appellate Jx i. The federal US supreme court has the power to judge whether a law passed by another branch of government is in agreement with the limits on power set forth in the constitution. a. MvM used the Supremacy Clause in the reasoning to show they should review whether a law is constitutional.

US v. Comstock

NECESSARY AND PROPER SCOTUS upheld a law giving the AG the power to place a sex offender in a federal treatment facility until either the prisoner is deemed to no longer be a danger or until the state assumes responsibility for his custody. N&P gives broad authority to enact legislation, long history of federal involvement in this area, reasonable extension of longstanding civil-commitment system, statute properly accounts for state interests, and statute isn't too narrow or too broad.

Nebbia v. New York

Nebbia v. New York: the New York legislature established a Milk Control Board that was vested with the power to "fix minimum and maximum retail prices" for milk sold within the state Differs from Lochner: • Lochners jurisprudence: does due process have a substantive component - liberty includes more than freedom of restraint - liberty of contract o The state may infringe on liberty of contract when it is reasonable to do so? Yes. • Is Nebbia applying the same test as Lochner? • Nebbia test: The guaranty of due process demand only that law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. • It is the same test!!! • There can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any aspects, including the prices to be charged for the products or commodities it sells. • So far as the requirement of due process is concerned, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. BUT, This is a shift from Lochner (which said the govt should only be regulating the economy in limited ways. NOW, the court has an entirely different view - there is a legitimate role for displacing voluntary transactions if those transactions in the aggregate produce a socially undesirable outcome. - SC is holding that it is the government's job to stop (in this case) unrestrictive over competition (which it views as a bad thing). They were stricter in Lochner - the court now perceives the legitimacy of interference with the market differently. Dissent: believes the milk distributor is actually the one who benefits the most. If your goal is to raise farm income - this is not the way to do it. Not a reasonable law. ///

Stenberg v. Carhart -

Nebraska's ban on partial birth abortions is unconstitutional because: a) No health-of-mother exception b) is an undue burden on woman's access to abortions by limiting the safest choice. c) No procedure can be categorically banned. d) Now, majority of the court affirms the undue burden application.

test for necessary and proper clause application

Necessary and Proper Clause: Article I, Section 8, Clause 18 provides that Congress has the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the U.S., or in any Department or Officer thereof." Test: What is a necessary means? Let the end be legitimate, and the means plainly adapted to the ends.

Note for exam: Remember that the N and P clause, standing alone, cannot support federal law

Note for exam: Remember that the N and P clause, standing alone, cannot support federal law. It must work in conjunction with another federal power. Thus, if an exam question involves the source of power for a particular congressional action, be sure to discuss some specific grant of federal power before discussing the N and P clause.

Parental consent requirement: not an UB, valid.

Parental consent requirement: not an UB, valid. • It is unconstitutional, unless there is a judicial bypass. • Prevents abusive parents from harming pregnant children. • Differs from spousal consent because parental consent is needed for majority of medical procedures. Spousal consent is needed in property manners. • Availability of judicial bypass - make it constitutional for spousal consent? Adult women are not kids.

Martin v. Hunter's Lessee, 1816

REVIEW OF STATE COURT JUDGMENTS Conflicting claims over land in VA, Martin's based on state grant and Hunter's based on a will. SCOTUS reversed VA's ruling for Hunter and awarded land to Martin. Story: SCOTUS had the jurisdiction and authority to review all state acts under the Constitution. Power over state judiciary- SCOTUS is the final interpreter of federal law and the Constitution. Established the power of the court to review state court decisions. 1. The Supremes have judicial review over the rulings of state supreme/highest courts a. Key arguments used as to Why that is true: i. Again art 3 §2 "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction" ii. Structural Arg.If they didn't have this power we'd have 50 different versions of the constitution. We should have a uniformity of law iii. the constitution didn't foresee the other federal cts besides the supreme court then the constitution assumes the appeals would NEED to come from state courts. Because from where else would those appeals come if the constitution didn't foresee the lower federal courts?

Houston, East & West Texas RY. V United States: [Shreveport rate case

Railway lowered rates unfairly and w disparity on intrastate lines. The Supreme Court upheld the Interstate Commerce Commission ("ICC") 's ruling, finding that Congress' power over interstate commerce necessarily extends to all other operations have a close and substantial relation to interstate traffic.

Rational basis is the standard review -

Rational basis is the standard review - Congress had a rational basis for making the connection. Rational basis is the most deferential test you will see the Court using. Congress always enacts laws for reasons. Congress is never irrational. Criticism of this test is that it is not strict enough.

Kelo v. City of New London

Relying on previous decisions, the Connecticut Legislature's plan unquestionably serves a public purpose, satisfying the public use requirement of the Fifth Amendment. Kelo's argument, that a true public use cannot confer only economic benefits on the public, is rejected—an economic benefit conferred on the general public can still constitute a viable public purpose. Additionally, Kelo's argument that the proposed public benefit needs to be "reasonably certain" to occur is rejected as well.>>evidence the court relied on>>carefully formulated economic development plan from the city of new London. Existance of the plan is the central evidence that causes the court to defer to the public benefit and not just private plan. 1. Issue: Can a city condemn a private home and convey it to a private company as part of economic development? Yes. 2. Is the taking rationally related to a public purpose? 3. Development will create jobs, increase tax revenue, and revitalize the city (economic rejuvenation) Public use requirements prevents the gov't from intervening when the wealthy wants to take property for the poor c. Contracts Clause (Article I, Section 10): only applies to States and existing contracts

SD v. Dole, 1987

SPENDING POWER COTUS can withold funds; Congress can attach conditions on receipt of funds reasonably related to its purpose State claimed that a federal statute withholding 5% of the federal highway funds otherwise payable to a state from any state failing to prohibit people under 21 from purchasing/possessing alcohol violated state autonomy limits on the spending power. Held that Congress can regulate as long as: o Promotes the general welfare o Unambiguous o Federal interest o Independent constitutional bar (what the federal government asks the state to do must itself be unconstitutional) o Condition cannot be compulsion or corercion In this case, the regulation was not considered coercion because it was only a 5%

Griswold v. CT, 1965

SUBSTANTIVE DUE PROCESS - PRIVACY CONTRACEPTIVES- MARRIED COUPLES Director of and physician at PP gave a married couple information about preventing contraception. Ps were charged with violating a CT law criminalizing using drugs, medicinal articles, or instruments to prevent contraception and penalizing those who assist, abet, counsel, cause, hire or command another to use contraception. Held that the right to privacy in the marriage relationship was within the penumbra of peripheral rights under the 4th Amendment, and this right to privacy protected the right to of married couples to use contraceptives. 9th Amendment: does not protect rights, but is used as a textual justification to protect nontextual rights (e.g., right to privacy)

Lawrence v. Texas, 2003

SUBSTANTIVE DUE PROCESS - SEX CHOICES TEST: rational basis test + Overruled Bowers and held that a TX law prohibiting sodomy between persons of the same sex violated the 14th Amendment. Morality is not enough of a basis on which a state can exercise a police power to trump a fundamental right. "fundamental right lite" situation. Two men get criminally charged for engraining in sodomy. Court overrules Bowers. What right does Lawrence establish and how far does it go? Does not really show a clear opinion/holding. Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. Why is this not just subjective decision making? Liberty? How do we determine that liberty includes sodomy/sexual freedom? Court looked to who the law was being enforced against. Trend in democracy is to allow sodomy - to not criminalize it. Has to be a "big enough" trend?! Why did the court step in? Reread on this points: what sources of law does Kennedy point to and are those sufficient to announce a fundamental right. How far does Lawrence go? Types of sex? Anal sex? Narrow and broad understandings of Lawrence, which ones are right? Is it that there is no fundamental right, or that the state has a better justification? One reading of Lawrence is that morality is insufficient basis for prohibiting acts. But this reading causes issues. Another reading of Lawrence Reading 1 (1) fundamental right to sodomy, morality is a legitimate interest for regulating non-fundamental rights but not fundamental right (2) how do you then distinguish all of the other sex laws? Reading 2 No fundamental right, but TX has no legitimate rational basis for the law. How do you distinguish TX's sodomy law from other (animal cruelty, incest, etc.) and use one of those readings to defend your argument.

BOWERS v. HARDWICK, 1986

SUBSTANTIVE DUE PROCESS - SEX CHOICES *Later overruled by Lawrence v. Texas* TEST: rational basis (rational relation to a legitimate government interest) Held that there was no fundamental right for adults to engage in private consensual homosexual activity and upheld a law criminalizing sodomy because the right to engage in sodomy fails the Constitution, deep American traditions, and ordered liberty tests. Meant that only a rational basis review could be used for this issue. Dissent: sexual intimacy is at the heart of constitutional privacy interest. *Today's dissent becomes tomorrow's majority opinion*

MOORE v. CITY OF EAST CLEVELAND, 1977

SUBSTANTIVE DUE PROCESS- FAMILY RIGHTS Test: Strict scrutiny Zoning ordinance limited the number of unrelated people who could live together in one household and defined "unrelated" to keep a grandmother from living with her two grandsons who were first cousins. Held that DP protected extended family rights and not just immediate family rights. *Powell decision* based on text and tradition.

ROE v. WADE, 1973

SUBSTANTIVE DUE PROCESS- PRIVACY ABORTION Strict scrutiny. Held that a woman's right to abort a pregnancy was protected to an extent under the zone of privacy and put forth the trimester theory based on its analysis of mortality rates First trimester: woman's choice, fundamental interest Second trimester: woman's choice, but the state has more regulatory authority (abortion might be riskier)- state can regulate in ways reasonably related to maternal health Third trimester: state has a compelling interest- potential for life is much more significant and the state makes the call, except to protect the health and the life of the mother CRITICISMS: judicial review and traditions- raw judicial power state interests should always be the most important

Carhart I- Stenberg v. Carhart, 2000

SUBSTANTIVE DUE PROCESS- PRIVACY ABORTION- NOTICE & CONSENT SCOTUS applied the undue burden standard from Casey and struck down a Nebraska law which essentially criminalized D&X and D&E abortions Court was more JUDICIALLY LIBERAL (PRO-abortion)

GONZALEZ v. CARHART, 2007

SUBSTANTIVE DUE PROCESS- PRIVACY ABORTION- NOTICE & CONSENT TEST: Was it an undue burden? (Yes --> invalid; No, -->) Is it rationally related to a legitimate government interest? Facial challenge. Held that because the federal partial-birth abortion act did not totally restrict a woman's right to choose, the government could enact the act to promote moral and ethical concerns. Thus, a law can be justified by ethical/moral concerns as long as it doesn't restrict a fundamental constitutional right or employ a constitutionally significant classifying trait! Court was more JUDICIALLY CONSERVATIVE (ANTI-abortion) *Kennedy Opinion* Constitutional significance over why some of these are deemed UB? Different layers not discussed behind decision. (1) Majority applies undue burden test - application of Casey (2) But in doing so the majority bans abortion procedure. They conclude that you are not preventing abortions, only requiring a different procedure. No undue burden. Q: What is the state's interest in preventing partial birth procedures. Psychological effect on woman. Dissent: Health exception Think of different scenarios - what types of regulations that a state may try to enact will be struck down as undue burden.

Planned Parenthood v. CASEY, 1992

SUBSTANTIVE DUE PROCESS- PRIVACY ABORTION- NOTICE & CONSENT Invalidated a PA spousal notice requirement even though it excepted certain cases Upheld medical emergency, informed consent within 24 hours, parental consent with judicial bypass, and public filing requirement provisions of the PA Abortion Control Act, and invalidated the provision requiring a married woman to get her husband's consent because it placed an undue burden on the woman. *compromise, with the political situation coming into play.* Facial challenge, but the court still looked at the balance of burdens, with regard to the people being burdened.

Spousal notification: UB, not valid. why?

Spousal notification: UB, not valid. • "Millions of women" fear domestic abuse. • Women don't loose constitutional rights when they marry.

Loving v. Virginia

Statute that prohibited the marriage of two persons of different races violates the due process clause of the fourteenth amendment. Right to marry is fundamental right. Being denied this liberty is unconstitutional. The first prong of strict scrutiny is not satisfied because gov't has no interest in preserving some BS racial purity. iii. Loving v. Virginia (1967) 1. The right to marry has always been a fundamental right, historically and traditionally 2. The government can interfere with the right to marry if it meets Strict Scrutiny

Roe v. Wade

T1. TX bans abortion, except when necessary to preserve the right of the mother 2. Women's decision to terminate pregnancy falls within a right to privacy (Griswold) 3. Strict Scrutiny a. Does the state have a compelling state interest? i. Protection of women's life for maternal health ii. Protection of prenatal life (potential life) b. Are the statutes narrowly tailored to those interests? 4. Expansion on the right of privacy, women should have the right to decide when to reproduce, to form a family, and more 5. Trimester Framework: a. State always has an interest in the mother's health, but can only regulate certain things in each trimester b. First Trimester: Woman's choice (liberty interest) i. State can regulate procedure, but not decision c. Second Trimester: Health of the Mother i. State can regulate, but not ban d. Third Trimester: Prenatal Life i. State can ban, as long as there is an exception for life and health of the mother

Text of Footnote Four from Carolene products.

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious . . . or national . . . or racial minorities . . . : whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. . . . [Italics added]

Troxel v. Granvill:

Troxel v. Granvill: mother wanted less visitation to grandparents - controlling statute. Not constitutional - fundamental right to your children Liberty interest = interest of the parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interest protected by due process in the Fourteenth Amendment. Statute is so broad concerning visitation - takes away from parents liberty. Also, parents not given deference to argue visitation would not be in "the child's best interest." Cannot infringe on the fundamental right of parents to make childbearing decisions because the judge believes a 'better' decision could be made. Problem: plurality identifies it is a substantial interference with the parents right to care, custody and control of their children. No deference to the parent to argue visitation would not be in the child's best interest. Too broad to include too many people. The problem is not who we are allowing to sue it is whether the state is deferring to the parent's view of the child's best interest. What about unfit parents. Still have to go through due process, but the right can be taken away if there is proof of harm. Right to biological child where parent is fit i.e. laws that takeaway parents rights where the parent is unfit do not go to strict scrutiny. Are there cases where the State can overrule a fit parents right to parent? Divorce. The right is that a fit parent gets some deference NOT that they are never subject to regulation.

Terry v adams (1953) (we spend more time on this)

a. Democratic Party created a private organization (Jaybird), exclusively for Whites, excluding African Americans and Latinos from voting b. Jaybird holds its own election and winning candidate runs in the Democratic primary election (essentially, whoever wins the Jaybird election, wins the Democratic election) c. Issue: Is Jaybird a private organization to which the Constitution doesn't apply? No. i. Elections are government functions ii. Private entities participating in government functions are state actors Involved exclusion of af-ams from pre-primary elections of 'jaybird' dem association, a weird all-white tx political party. It's a party that always ran unopposed. It caucused and worked as the dem party. Despite the record showing 'complete absence of any compliance w/ the state law or practice or cooperation by or with the state' the s.ct. held that election was still subject to 15th amendment. The 'admitted party's purpose' was to escape the 15th's command. The state allowed a duplication of normal election processes by a separate racist political group whose design was pretty much done to prevent the 15th from applying. Jaybird Democratic Association excluded members based on their race. Held election which they chose their own candidate for democratic primary - always wins - excludes Black people from elections. For a state to allow what the Defendant wants is to defeat the purpose of the Fifteenth Amendment. The Defendant's primary is the only part of the election that determines who governs the county, which strips blacks of their right to vote for elected officials if they cannot join. Terry stands for the proposition that when you conduct a state election you are a state actor - difficult part is was this an election rather than a formal endorsement poll or a private organization. Here, the purpose of the Jaybirds was to avoid the Fifteenth Amendment - the members were ALL members of the democratic party except people of color. Makes this case distinguishable

Lochner v. New York

a. New York law regulates working hours of bakers for the health, safety, and welfare b. Held: Law is null and void because it is unreasonable, unnecessary, and arbitrary i. Bakers are not wards of the state c. Life, Liberty, and Property can be regulated if in a reasonable fashion (Reasonable Man Test) i. If a reasonable man (state legislature) finds it constitutional, then defer to that judgment d. Takes the "right to contract" from Article I, Section 10 and puts it into "Liberty" in the Fourteenth Amendment e. Substantive due process, must have reason for legislation >>the majority is basically putting all state regulations into question...and protects laisse faire economics. It should be the political process that decides this. >>we are not going to allow NY to restrict the bakers in making their own decisions. The ct. believes that ny was being overly paternalistic. The paternalistic justification is not proper in the Court's eyes. Rule of Law A state may not regulate the working hours mutually agreed upon by employers and employees as this violates their Fourteenth Amendment right to contract freely under the Due Process Clause. >>we are not going to allow NY to restrict the bakers in making their own decisions. The ct. believes that ny was being overly paternalistic. The paternalistic justification is not proper in the Court's eyes.

Williamson v. Lee Optical of Oklahoma, Inc

a. Oklahoma bans unlicensed optometrists/ophthalmologists from fitting eyeglass lenses; Prescriptions from licensed ophthalmologists needed b. Oklahoma courts invalidated law, but Supreme Court holds constitutional despite how wasteful or dumb it is c. State laws affecting businesses should be afforded Rational Basis review (Interest: public welfare, encourage eye exams) A state may regulate a business if its legislature determines there is a particular health and safety problem at hand and that the regulation in question is a rational way to correct the problem. >>rational basis test>is there a legitimate end?>> protecting consumers from having outdated Px lenses. It's a legitimate end according to the court>>therefore this was a rational means to promote eye-health. EVEN AN OUTRAGEOUSLY STUPID LAW LIKE THIS SURVIVES DUE PROCESS REVIEW.

Muller v. Oregon

a. Oregon law regulates working hours for women b. Held: Constitutional because data shows that women are weaker and are dependent on men (women are wards of the state) c. Fair, Reasonable, and Appropriate d. Lochner is the rule; Muller is the exception Under the Fourteenth Amendment, a state may constitutionally limit the working hours of women and not men because of the state's strong interest in promoting the health of women as the "weaker sex." Some sexist BS ....it helped women,...but it's reasoning was ironically super sexist.

Evans v newton[1966]-

a. Park is private property deeded to the town on the condition that it is for Whites only b. African Americans sue. The town argues it can be racist because park is private property for private individuals c. Held: Predominant character and purpose of the park is municipal; therefore, it is a state actor Mass recreation thru the use of parks is plainly in the public domain and state courts that aid private parties to perform that public function on a segregated basis implicate the state in conduct proscribed by the 14th amendment. Like the streets of the company town in marsh the elective process of terry and the transit system of pollack the predominant character and purpose of this park were municipal. Held-State Actor.

Amalgamated food employees union v logan valley plaza 1968

a. Picketing was directed at a store in the shopping center b. Picketers had no other reasonable way to reach their audience c. Picketing in an area open to the public is protected Large mall. Functionally equivalent of a business district in Marsh, therefore count not enjoin peaceful union picketing on property against a store location w/in the shopping center. 4years after 1972- Lloyd corp v turner- shopping center refusal to permit anti-war handbillin gon premises was not state action. Logan valley distinguished b/c picketing there has been specifically directed to a store in the shopping center and the pickets had no other reasonable opportunity to reach the audience

BMW of North America, Inc. v. Gore

a. Punitive damages are constitutional as long as they are not grossly excessive i. Reprehensibility: How reprehensible is the defendant's conduct? ii. Ratio between Punitive and Compensatory damages iii. Ratio between Punitive and other comparable sanctions (civil, fines) b. $2 mil in punitive damages was excessive to "harm" done to customer (car was repainted, but still new) A state's assessment of "grossly excessive" punitive damages against a defendant violates substantive due process. Firstly a consideration is made of the "degree of reprehensibility" of BMW's conduct. None of the usual circumstances that make conduct particularly reprehensible are present in the instant case. This is largely due to the fact that any injury suffered by Gore from BMW is purely economic and does not evince BMW's indifference to or reckless disregard for the health and safety of others. Secondly, there is an assessment of the ratio of the punitive damages award to the actual harm inflicted on Gore to see if the punitive damages bear a "reasonable relationship" to the compensatory damages. In the present case, the award of $2 million in punitive damages was five hundred times the award of $4,000 in compensatory damages. By any standards, this is not a "reasonable relationship" between the two awards. Finally, there is a comparison of the punitive damages award with the civil or criminal penalties that can be imposed for comparable misconduct. In the present case, the $2 million economic sanction imposed on BMW is substantially greater than the statutory fines available in Alabama and elsewhere for similar malfeasance. Considering these three factors, and the fact that the trial court makes no effort to consider whether a less drastic remedy could have been imposed with the same deterrent effects, Alabama's award of punitive damages is "grossly excessive." The judgment of the Alabama Supreme Court is reversed.

Allgeyer v Louisiana-

a. Says Article I, Section 10 is part of "Liberty" in the Fourteenth Amendment b. Louisiana statute exceeds police powers and violates Liberty to Contract Liberty includes freedom from incarceration, BUT it also includes a lot of other things, INCLUDING the bill of rights, right to contract (i.e., right to work). And when the state interferes with your right to work it has to provide you with due process. State has to give you due process if they are going to put you in jail, BUT it also has to do so if iti is to take certain rights that give liberties away. Lochner era begins in response to state regulation that are a response to the industrial revolution and the progressive era that rejected the laisse-faire economics from before. the states became concerned with basic public safety and work safety and economic fairness principles. The freedoms protected by the Due Process Clause of the Fourteenth Amendment include economic freedoms and prohibit a state from preventing its citizens from contracting with foreign insurance companies to insure property located within the state. Due process of law: blackletter rule: for due process always requires a substantial reason for depriving the life-liberty or property. The restriction must be reasonable. This launches an entirely new doctrine: substantive due process.

1. Smith v. Allwright (1944)

a. States can't restrict African Americans from voting because the Democratic Party is a state actor b. Can't allow a private organization to practice racial discrimination and exclude African Americans from voting

Marsh v alabama 1946

a. Town owned by a shipbuilding company (private property) b. If you are a private person operating a municipality, you are a state actor Someone attempted to distribute religious paperwork and the private police officer employed by the shipbuilding company arrested the person for trespass on a publicly accessible street in the 'business block' of the town. The town had 'all the characteristics of any other American town' 'ownership [of the town] does not always mean absolute dominion'. An ordinary municipality could not have barred appellant's activities and the fact that a single company had legal title to all of the town may not result in restricting/impairing 'channels of communication' to and from its inhabitants.

b. Takings Clause (Fifth Amendment

b. Takings Clause (Fifth Amendment): "Nor shall private property be taken for public use without just compensation" i. Elements: 1. Eminent Domain: taking private property, paying just compensation, and transferring the use of that property for the benefit of the public 2. What is Public Use? "Public Purpose Test" a. The property can be taken if for a legitimate public purpose that is within the scope of the government's power 3. What is a Taking? a. Possessory Taking: government confiscation or physical occupation of property (size is irrelevant) b. Regulatory Taking: government regulation is a taking if it leaves no reasonable, economically viable use of the property i. Diminution in value is not a taking ii. Sentimental value is not a taking 4. What is Just Compensation? Fair market value

i. Home Building & Loan Ass'n v. Blaisdell (1934)

i. Home Building & Loan Ass'n v. Blaisdell (1934) 1. Minnesota Moratorium Law postpones payments to prevent widespread foreclosures during the Great Depression 2. Held: Constitutional because relief was temporary and conditional a. Emergency furnished an occasion to exercise a power to protect vital interests of the community b. For the protection of a basic societal interest (not geared towards a particular group) c. Relief was afforded and justified by emergency d. Reasonable e. Legislation was temporary 3. Emergency doesn't create power, but it may furnish the occasion

i. Right of privacy

i. Right of privacy The right of privacy is nowhere mentioned in the Constitution. Nevertheless, the Court has recognized that a right of personal privacy, or at least a guarantee of certain areas or zones of privacy, is constitutionally protected. Some Justices have found the right recognized by the Ninth Amendment ("The enumeration of certain rights shall not be construed to deny or disparage (regard as being of little worth) others retained by the people"), while other Justices felt it was within the "penumbras (surrounding)" or "emanations (abstract)" of various provisions of the Bill of Rights. [Griswold v. Connecticut]. More recently, the Court has simply held that the right of personal privacy is implicit in the concept of "liberty' within the protection of the Due Process Clause; i.e., it is one of those basic human rights which are of "fundamental' importance in our society [Roe v. Wade].

ii. Skinner v. Oklahoma (1942)

ii. Skinner v. Oklahoma (1942) - recognition of substantive due process and the fundamental civil rights 1. OK will forcibly sterilize certain convicted felons, but not all 2. Held: Unconstitutional because there is a right to reproductive freedom (Preventing "criminality gene" from being passed down is not enough) 3. Equal protection problem, cannot arbitrarily chose which felon to sterilize

ii. Washington v. Glucksberg (1997)

ii. Washington v. Glucksberg (1997) 1. WA bans physician-assisted suicide 2. Can it prohibit physicians from assisting in a terminally ill competent adult's death? Yes. a. Rooted in history and tradition (700 years) b. Commitment to the preservation of life c. Slippery slope to euthanasia 3. Not a fundamental right, so Rational Basis a. Legitimate Interest? i. Preservation of human life ii. Protect integrity of the medical profession iii. Protect the vulnerable iv. Prevent slippery slope Cruzan: recognized the right to reject life-saving medical treatment (gave notice to the living-will to make intent clear). • As a result each state can now make statutes to allow for living-wills. Court upholds WA ban on physician-assisted suicide. • Not a fundamental right because no history and tradition to support - need h & t to define fundamental right wo would just leave the court to subjective decision making. • By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. • The outlines of the "liberty" specially protected by the Fourteenth Amendment - never fully clarified, to be sure, and perhaps not capable of being fully clarified - have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. o This approach tends to rein in subjective elements that are necessarily present in due-process judicial review. o i.e. it leads to subjective decision making (wo h & t analysis)

iii. Griswold v. Connecticut (1965)

iii. Griswold v. Connecticut (1965) - establishes the Right to Privacy 1. Under Strict Scrutiny 2. CT argues that the Constitution doesn't speak to contraception, so banning it should be legitimate 3. Douglas (Total Incorporation "Plus"): There are a set of penumbras from which one can create the right to privacy a. First Amendment: lays the foundation, right to receive and distribute info b. Third Amendment: prohibition against quartering soldiers c. Fourth Amendment: protection against unwarranted search and seizure d. Fifth Amendment: protection against self-criminalization to his detriment e. Ninth Amendment: 1-8 are enumerated, but there are others that are unenumerated that suggest a "right to privacy" Dissent: Language is fuzzy, majority is writing in a right that does not exist, should allow the legislative process deal with this Concurrence: J. Goldberg, rights not expressly enumerated within the 9th Amendment, family and reproductive rights fundamental right; J. Harlan, 14th Amendment, due process clause under strict scrutiny, it stands on its own to protect fundamental personal liberties; J. White, no connection between contraceptives and illicit sexual relationship, must have a "rational basis"

iii. United States v. Windsor (2013)

iii. United States v. Windsor (2013) 1. DOMA defines marriage as between a man and a woman a. Federal ban on same-sex marriage is struck down and declared unconstitutional 2. Is there a fundamental right to marry a person of your choice? Yes. 3. Court's distinction between opposite sex and same sex is based on hostility and animus, which aren't compelling governmental interests DOMA is too global - for all federal statutes this is what we deem as "marriage." Is there a fundamental right to marry a person to your choosing? Federal ban on same sex - possibly opens the door to states to have another option for states people to say that they have a fundamental right to be in same-sex relationships (Kennedy). Read family autonomy materials. Which ones are constitutional and which ones are not? To what extent do you have a federal constitutional right.

iii. Vacco v. Quill (1997)

iii. Vacco v. Quill (1997) 1. NY bans physician-assisted suicide, but allows you to refuse life-saving medical care 2. Held: Constitutional based on cause and intent 3. Causation and Intent argument a. Pulling feeding tube (this case) i. Intent: respect patient's wishes by refusing care ii. Cause: disease b. Administer drug i. Intent: respect patient's wishes with drug ii. Cause: drug 4. Common Law tradition = forcing medication is battery 5. Rational Basis Review rejected the argument that because NY permits competent persons to refuse lifesaving medical treatment, and the refusal of such treatment is "essentially the same thing" as physician-assisted suicide, the state's assisted suicide ban violates the Equal Protection Clause. • If a patient refuses medicine the patient is killed by the disease; if given pain-killers to aid to die - the drugs are what kill the patient. • Talk about the physician's intent by giving the pain-killers to ease her patient's pain but o It would be a grave mistake for the fed courts to leap in an attempt, prematurely, to resolve the issue or to accelerate the pace of change.

Shelley v. Kraemer

iv. Exception: Entanglement 1. Shelley v. Kraemer (1948) a. Covenants run with the land. Racially restrictive covenants are unconstitutional. b. Private restrictive agreements alone don't violate the Fourteenth Amendment, but when the Court interferes, then there is state action (government enforcement of a racially neutral common law principle of covenants) State court enforcement of a racially restrictive covenant constitutes state action that violates the Equal Protection Clause of the Fourteenth Amendment. (state action once court gets involved). . In this case, state court enforcement of the restrictive covenants against the Shelleys would deny them equal protection in the exercise of their property rights. States may not "ma[k]e available...the full coercive power of government" to allow private individuals to deny the Shelleys' rights on the basis of race. The highest courts of Missouri and Michigan gave effect to these discriminatory provisions on the basis of state common law. There was state action here, and judicial enforcement of the racially restrictive covenants violated the Equal Protection Clause. The rulings of the state courts are reversed. functionally, makes any privee individual a state actor because they cannot use the courts(state actor) to discriminate. But it hasn't been broadly applied because it would make the enforcement very broad. restrictive covenants on the right of occupancy based on race (being Black) created by private agreements. The action of state courts in imposing penalties or depriving parties of other substantive rights without providing adequate notice an opportunities to defend, has, of course, long been regarded as a denial of the due process law guaranteed by the 14th Amendment. State Action comes in because the covenants are being enforced by the state. But all private conduct relies on the state at some level - is there any limit? E.g., calling police to have minority student removed from racist dinner party (still requiring state to enforce - question to whether it would hold up).

Lucas: v south Carolina

regulatory taking case: owner has possession but cannot build on it. Possession was not taken by the gov't. 100% elimination of all economic value. If it's 99% or 95% then it's not a real regulatory taking.

US v. Darby, 1941

the commerce power includes the authority to prohibit certain types of commerce, such as the shipment of goods manufactured using labor that does not comply with minimum wage and maximum hour regulations. COMMERCE CLAUSE- LATE/POST NEW DEAL Test: substantial effect Fair Labor Standards Act (FLSA) set max hours and min wages for workers producing goods for interstate commerce and prohibited the interstate shipment of goods produced other than in conformity with FLSA's wage and hour provisions SCOTUS overruled Dagenhart, saying that the Dagenhart distinction limiting regulatory power to times when an act is innately harmful is not supported by the Constitution and is no longer followed. This freed the commerce-prohibiting technique to serve any purpose desired by Congress...together with Wickard, created a sort of doctrinally limitless commerce power.

v. State Funding: Can a state refuse to fund non-therapeutic abortions? 1. Maher v. Roe (1977)

v. State Funding: Can a state refuse to fund non-therapeutic abortions? 1. Maher v. Roe (1977) a. Medicaid will reimburse for childbirth and medically necessary first trimester abortions, but not for elective abortions b. Held: Constitutional because the State has an interest is encouraging childbirth Compare to free speech - government is not required to give you money to support your candidate of choice Maher: It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds. Dissent: A distressing insensitivity to the plight of impoverished pregnant women." The disparity in funding operates to coerce indigent pregnant women to bear children they would not otherwise choose to have, and just as clearly, this coercion can only operate upon the poor, who are uniquely the victims of this form of financial pressure.

vi. Planned Parenthood v. Casey (1992)

vi. Planned Parenthood v. Casey (1992) 1. Reaffirmed from Roe: a. Women have a right to choose before viability (Essential part of Roe) b. State's power to regulate abortions after fetal viability c. States have legitimate interest in protecting the health of women and fetus 2. Distinction to Roe: a. Upholds the woman's right to choose before viability i. Abortion is still a fundamental right b. Eliminates the trimester framework i. Misconceives the nature of pregnant woman's interest ii. Undervalues the State's interest in potential life c. Strict Scrutiny is rejected (Roe) Undue Burden Test 3 Parts of Roe Court reaffirms: (1) The right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. (2) The confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. (3) The State has legitimate interest from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

What is the undue burden test? • Exists if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. What are you looking for in the statute?

• Whether it would convince a number of women not to have an abortion. o Isn't that going to be true of every regulation? o The court attempts to draw a line o Regulations will be not be held invalid if their purpose is to persuade the woman to choose childbirth over abortion. • There has to be something else. • What is that?