Con Law 3.0

Congressional Power: Commerce

The Commerce Clause à Art. I § 8 cl.3 · "Congress shall have the power to regulate commerce among the several states" · Three Central Questions: 1.o What is commerce? § Traffic of goods and intercourse, navigation 2. o What is amongst the several states? § Does the activity in question have an impact on interstate activities concerning more than one state? 3. o Does the 10th amendment limit Congress's power over State sovereignty? If Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the 10th amendment Four Eras of Commerce Clause Jurisprudence · 1790-1890s (Traditional) o Gibbons defines Commerce power broadly but it is minimally used · 1890s-1937 o Court narrowly defines Commerce power and uses 10th amendment as a limit · 1937-1990s o Court expansively defines Commerce Power and refused to use 10th amendment as a limit on Congress's power · 1990s-Today o Court again narrowed the scope of Commerce Power and revived the 10th amendment as an independent, judicially enforceable limit on federal actions Traditional Commerce Power · If state law conflicts with a congressional act regulating commerce, the congressional act is controlling (pre-empts) · Gibbons v. Ogden o Commerce is more than mere traffic § Includes traffic, intercourse, and navigations o Among the states is: § Concerning more than one state Congress can NOT control complete internal commerce within a state, but may regulate commerce if it has an impact on interstate activities · Direct vs. Indirect Effect o US v. EC Knight/Hammer v. Dagenhart § Manufacturing/production is not interstate commerce because not affecting other indirect aspects of the economy § It affects only incidental and indirectly other states and is completed before anything is out into interstate commerce · Commerce is different than production § Has to be direct effect on commerce for it to apply · Stream of Commerce Approach o Congress can reach into "intra-state" activities if they have a "direct effect" on the stream of commerce between the states § Shreveport Rate Case · RR runs intrastate as well as interstate lines. RR charges high rate for line b/w TX and LA. RR charges lower rate for same distance instead TX. · Can Congress regulate RR and require equal rates? o Yes, because the unequal rates have direct effect on stream on interstate commerce · Tenth Amendment as a Limit on Congress' Power o 1890s-1937 § Court used 10th amendment to protect State sovereignty over production and federal laws regulating intra-state production were declared unconstitutional · Even if the activity was "commerce" and "among the states," Congress still could not intrude into the zone of activities reserved to the states by the 10th amendment o Congress could NOT regulate intra-state mining, manufacturing, production · However, o Court allowed Congress to regulate intra-state production of inherently morally evil products (Lottery Case) o Example (10th amendment used to invalidate federal regulation on inter. commerce) § Hammer v. Dagenhart · Child labor regulation prohibited shipment in interstate commerce of goods produced in factories that employed kids under 14 o Court invalidated law because the production is not commerce § Production is within state police power · Court argues that is Congress can regulate production inside a state, federalism is destroyed Contemporary Commerce Power · Determinative TEST for commerce clause is simply: o Whether the activity sought to be regulated is commerce which concerns more states than one and has a real and substantial relation (rational basis scope) to the national economy in the aggregate (substantial effect) · 1937-1942 o Court overrules the earlier bar and expansively defines the scope of Congress' commerce power o From 1937-1995 à not one federal law was declared unconstitutional as exceeding the scope of congress's commerce power Substantial Effect on Interstate Commerce · Overruling "direct/indirect" effects and "transportation/production" distinction o Court broadly interprets CC as permitting Congress to regulate even small intrastate activities with negligible impact if the activity, looked at cumulatively, had a substantial effect on interstate commerce · Court rejects 10th amendment as a limit on Congress' commerce power · Courts surrender in reviewing the actions of Congress under the CC o Congress made decision to regulate on a REASONABLE/RATIONALE basis and feels that the aggregate effect of wheat growers will affect interstate commerce, then the court will not second guess that decision § Wickard v. Filburn · Regulation limit homegrown wheat for own use · The cumulative/aggregate effect of that wheat on the national market is substantial Broad Meaning of Commerce Among the States · 1937- 1995 o Courts enacted wide array of federal legislation under CC § Court's broad interpretation upheld all regulations · US v. Darby (Inconsistent with Child Labor, Mining) o Congress can regulate hours and wages of workers who are engaged in the production of goods destined for interstate commerce § It must have a substantial impact on interstate commerce § Manufacturing itself is not interstate commerce but has a substantial effect on interstate commerce § Overturns mining production and child labor not being able to be regulated by CC § Kills 10th amendment argument · Rational Basis Test o Court gives broad deference to Congress and asks only two questions: § (1) Did Congress have a "rational basis" for finding that the regulated activity had a substantial effect on interstate commerce? § (2) Are the "means" selected reasonably related to protecting commerce? o Ex. Civil Rights Laws Enacted under CC § Heart of Atlanta case · Motel operated near interstate highway discriminated against blacks · Could Congress have reasonably concluded that this kind of transaction, even if local, has a substantial impact on interstate com? o If yes, it has a real and substantial relation to national interest because commerce is diminished through discriminatory practices, then Congress may regulate the activity § Test met à substantial effect & reasonably related Contemporary Limits on Commerce Clause applying Wickard · Modern Court seems committed to limiting scope of Congress's Commerce power and protecting state sovereignty by invoking the 10th amendment · US v. Lopez (Congress passed gun free school zone) o The Act unconstitutionally exceeds Congress's commerce power because the law is a criminal statute that bears NO relation to commerce or any sort of economic enterprise o NEW RULE: § If the regulated activity is "non-economic," then the court will NOT look to "cumulative substantial effects" on interstate commerce § For non-economic activity: · Must show a clearer "nexus" b/w statute and commerce · Criminal law is traditional area of State sovereignty. There must be some limit to protect state's rights o Congress can regulate commerce when: § Channels: · Congress may regulate the use of the channels of interstate commerce such as interstate highways and airports (not purely intrastate roads) § Instrumentalities: · Congress is empowered to regulate & protect the instrumentalities of interstate commerce such as airplanes or commercial trucks o The person/things (even though the threat may come only from intrastate activities § Substantial Relation: · Congress can regulate activities having a substantial relation to interstate commerce in the aggregate (Wicker) · US v. Morrison (rape cape/sexual discrimination in office) o Crim law has traditionally been an area belonging to the states (spheres of powers) o Economic v. Non-economic action o Congress regulating intrastate violence (traditionally sphere of state power) not directed at instrumentalities, channels, or goods involved with interstate commerce o ***Congress has the power to aggregate activities that have a substantial effect on interstate commerce, but might not in their own right exclusively, but they cannot aggregate non-economic, violent, criminal conduct · Note: Lopez & Morrison appeared to limit the aggregation principle to activities that are commercial or economic - not violent, noneconomic, or criminal conduct · Gonzalez v. Reich o Marijuana case example where Congress's power to regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce, past interstate activity, or a predictable impact on future commercial activity · NFIB v. Sebelius o Inactivity (no commerce power) v. Activity o Main Points: § (1) can't use commerce clause as rationale for regulating inactivity in a market § (2) cannot use commerce clause to compel activity o The decision to forgo participation in an interstate market is not itself interstate commerce § Can't extend commerce clause to inactivity o Affordable Care Act does not regulate interstate commerce § Instead, is compels individuals to become active in commerce by purchasing a product on the ground that their failure to do so affects interstate commerce Modern Test for the Constitutionality of Congress's Commerce Power TODAY · Congress, under its commerce power, may regulate: o Channels of interstate commerce o Instrumentalities of interstate commerce (person/things within) o "Economic activity" having a "substantial effect" on interstate commerce § Rational Basis Test à Court will generally defer to Congress if they had a "rational basis" for finding that the regulated activity had a substantial effect on interstate commerce · That "means" chosen must also be reasonably related to the legitimate end of regulating interstate commerce · For economic/commercial activities o Congress may consider "substantial effects" on interstate commerce based on "cumulative/aggregate impact" across the nation · For non-economic/non-commercial activities o Congress may NOT look to "cumulative/aggregate impact" to determine "substantial effect on interstate commerce § Court requires a "clear nexus" b/w statute and interstate commerce Tenth Amendment as a Limit on Congress's Authority · Even if Congress acts within commerce power o 10th amendment bars Congress from "compelling" state gov'ts to implement federal laws § (1) Congress may NOT directly "commandeer" state legislatures to enact or administer a federal regulatory program · Congress MAY set standards, attach funding, and give incentives for state gov't to comply with federal laws · Ex. NY v. US o Radioactive Waste Act created a duty for states to safely dispose of waste o Act provided $ incentives to complying but also included a "take title" provision for undisposed waste making state liable § Unconstitutional because it impermissibly "commandeered" state gov't § Congress may NOT "commandeer" state executive officials to implement a federal mandate · Ex. Printz v. US · Brady Act temporarily required state officials to conduct background checks for handgun purchases o Unconstitutional, violates 10th am. because it conscripted state officials to do federal work § Congress may prohibit harmful conduct by state gov'ts, particularly if the law also applies to private entities · However, Congress may NOT impose affirmative duties on state gov't o Ex. Reno v. Condon § Driver's Privacy Act Prohibited states from disclosing personal info gathered by DMV § Did not violate 10th amendment because it prohibited harmful conduct

Federal Judicial Power - Source - Authority of Federal Judicial Power

- Source of Federal Judicial Power: Article 3, section one. Creates the Supreme Court and gives congress the ability to create the lower courts - Authority: A court can hear a case only if there is constitutional (matter that the constituion authorizes the court to hear) and statutory (has to be federal law that authorizes courts to hear that case) authority;

Authority for Judicial Review - What is judicial reivew - Marbury v. Madison

. Judicial Review · - What is it? The power of the Supreme Court (& federal courts) to invalidate the actions of the legislative and executive branch (or state statutes & state court judgments) if they collide with the Constitution. Marbury v. Madison, Key takeaways: - Article 3 is the ceiling, not the floor for federal court jurisdiction. - Authority for Judicial Review of Executive Actions - Authority for Judicial Review of Legislative Actions - Judiciary is supreme in interpreting the constitution; must preserve seperation of powers and system of checks and balances

Restraints and Limits on Court Power

1. Judicial Selection (Nomination/Confirmation) · Private lives of nominees come into play; ideological vies, temperament and past; how they view the constitution · Court packing 2. Impeachment · Art. II § 4: treason, bribery, high crimes/misdemeanors 3. Congressional Structural Interference · Congress sets the size & budget of the court · Can limit when the court sits and hears cases/salary of the justices · Judicial stripping gives Congress the power to limit the Court's appellate jurisdiction: Art. II §2 o Except if it violates the constitution · Court Packing 4. Constitutional Amendment/Judicial Drafting · An amendment changing a court's ruling binds the court and supersedes its prior decisions · Court required to explain every decision to the public

What courts look at in overturning a decision. 4 Factors

1. Quality of reasoning of earlier decison 2. Consistency with previous decisions (is it an outlier?) 3. Legal developments since that time; other decisions of lower courts, etc. 4. Reliance on the decisoin. (probably public reliance on the decision; are there expectations set?)

Seperation of Powers

Has · Separation of powers adopted not to create efficient, but to safeguard against tyranny Presidential Power · Art. II doesn't set out specific powers of the presidency o Vested in the president (vesting clause) o Commander in chief o Take care that the laws are dutifully executed o President has certain inherited powers · Presidents rely on what prior presidents have done Youngstown v. Sawyer (inherent presidential powers acting without congressional authority · Deals with inherited powers · Truman wanted to take over steel industry because worried about strike interfering with Korean war efforts · Court did NOT say the president's activity here was supported by the commander in chief power · Justice Jackson Concurrence (**Critical Part of Decision**) -Tri-Part Scheme o (1) if congress authorizes the president to do something, there is a presumption he has the power to do it o (2) if congress has NOT allowed or permitted a president to do something then there is a presumption against the legality of the president taking that particular action - Only allowed if the law passed by Congress is unconstitutional or if the President independently has the power to do this. o (3) there is a zone of twilight governing everything in between § Have to look at what congress was trying to do and what the president was trying to do and then come up with an analysis about which one would prevail - 'Zone of Twilight' where President and Congress may have concurrent authority, test may largely depend on 'contemporary imponderables' and 'imperatives of events' rather than 'abstract theories of law.' - Hypo: Drug cartels south of the border...raiding cities of the US. President wants to send troops to take care of them. Debate over whether he has the authroity via the invasion clause. The Expansion of Presidential Power Why is it that presidential power expands? 1. The constitutional terms for the presidency a. Very vague provisions 2. The role of executive branch lawyering a. Who interprets the scope of the clauses? 3. The precedential effect of executive branch actions a. Have previous presidents done this? 4. The growth of the executive branch a. By its very nature expands power 5. Presidential control of the administrative state 6. Presidential access to and control of information 7. The media popular culture and control of information 8. Military intelligence capability 9. The need to act quickly a. Only executive branch can act quickly 10. Expectation game a. Because we expect the president to have power, we give him power 11. Less separation of powers and more separation of parties 12. When presidents are aggressive when exercising power Checks and Balances in Response to Presidential Power "Congressional Investigative Power" What are the congressional checks on the presidency? 1. The budget "power of the purse" a. Congress appropriates money and doesn't have to give president money 2. The power of advice and consent with regards to appointments a. Can refuse to confirm nominees 3. The decision to not enact president's agenda 4. Impeachment 5. Congressional oversight a. Where does this come from? i. Not in constitution that congress has power to investigate Formalism v functionalism Formalism: Takes sepearotin of powers literlaly. tries to formally decide what powers of president are and apply it that way (Chadha case). Likes rigid, flexible rules. Decries judicial activism. Functionalism: "Reason for sepration of powers is to check and make no side exceeds its power.....so looks it how it actually plays out and if it accomplishes this purpose." Flexible, takes into consideration historical practices and what branches have done in the past. Adjusts to meet practical concerns. The real world cannot be nearly put into boxes and doesn't conform to strict rules. - What does Separation of Powers try to accomplish? Does this further that? Presidential Powers: International Relations U.S. v. Curtiss-Wright Export Co. (1936) Upheld a delegation of power from Congress to the President, based on the special considerations in the area of international affairs. Noted that Congress may allow the President more deference in foreign affairs than in domestic affairs. Extra deference to President in International Affairs POTUS is the 'sole organ' in international relations Zivotofsky v. Kerry (2015) Congress had passed law saying you could put Israel as place of birth on passport President Obama did not want this Fell under Youngstown category when Presidents went against Congress POTUS won even though he was acting contrary to congress since court said POTUS had exclusive power to recognize foreign countries Nowhere explicitly in Constitution How does this effect other Presidential powers/times when POTUS acts against Congress' wishes? There could be arguments that certain things are only under the power of the POTUS Could possibly affect commander and chief situations (however slightly diff. because congress can declare war) -The 'Vesting Clause' and elsewhere in Art. II means that Congress cannot initiate diplomatic relations with a foreign nation, while the President can. The President has the exclusive power to recognize foreign nations and governments. War Powers The Prize Cases (1863) Affirmed Lincoln's seizure of cargo and ships from neutral parties that violated his blockade of Southern ports. The war 'sprung forth' suddenly The 'degree of force' the President used was not justiciable Mora v. McNamara (1967) Refused to hear challenge to Vietnam War. - Courts have been reluctant to get involved in questions about whether president can send troops; political question....don't want to make president look bad on the world stage. Relied on two doctorines: (1) Lack of standing (2) Political questoin; also, "rallying around the flag" effect would make the court unpopular to go against the president. - At end of Vietnam War, congress passed "war powers act"......requires that if president sends troops or engages in conflcit, must notify congress within 48 hours and then must withdrawl within 60 days if don't get approval Giutanmo Bay Examples **Look up** McGrain v. Doughty (precedent) · Teapot Dome Investigation o Court said congress can engage in factual investigations § Can potentially be used in aid of legislation · If legitimate object then court authorized to let there be an investigation What Policies Support This? 1. Information is needed to make good choices/legislation 2. Informing function a. All forms of government to be looked at so congress can inform the people 3. Checks and balances What Constraints on Congressional Oversight? · Not much with substantive limitations · Process limitations o How they can subpoena, etc. What is the Political Check on Congress? · Executive privilege · Separation of parties Can be intertwined with impeachment Article II gives the President the power to veto legislation · Not really an executive action in essence Delegation doctrine: as long as "intelligible principal" (ex. EPA could set certain air quality standards to protect the public health) congress could delegate authority to EPA.....court upheld this Anti-Delegation Problem à can delegate to executive branch: rules & administrative decisions · Theory o Legislature makes laws and they can't delegate that power to the executive · Why would Congress want to delegate? o (1) they don't have the time to go over every law/regulation o (2) expertise § Other agencies have more expertise on certain areas o (3) they don't want to take the political heat of coming up with solutions to certain problems · In order for something to be struck down: o Broad but fine as long as it gives us enough of an intelligible standard § Whitman v. American Trucking Congress can Give Power but Can they Take it Away? · Legislative veto o We will give you all this power but if don't like what you're doing then we're going to allow one branch acting individually, give a legislative veto where congress can just state that it is repealing something it granted § Doesn't have to go to president § By repealing, it's a workaround of the presentment clause o If congress gives executive power it can only take it back by passing laws that the president himself must concede to § Strikes down legislative veto INS v. Chadha - Chada is a definitive formalism case. Foramlly comply with this....not looking at any underlying tug-of-war. Initial delegation cases were functionalism cases ("For all theese reaons congress can't do all of this, so gotta delegate some of this too be function). Main point: delegation gives a lot more power to the president....and this won't work as a checking mechanism...now they're gonna have to deal with the possibility of a veto Line Item Veto (President is given a huge appropriation bill.....president can either veto or pass the whole thing. o Clinton v. NY § Line Item Veto · Congress has developed a statute that would grant the president the ability to essentially cancel particular kinds of appropriation matters without vetoing the entire appropriation bill o Can pick and choose what he wants · Court says you can't give the president this kind of power o Violates presentment clause . Appointment & Removal of Federal Officers · Who can hire and fire? o President has power to appoint superior offices (with senate's approval) but congress can set up mechanisms to appoint inferior officers · Morrison v. Olson o Held § Since special counsel worked under attorney general, he was an inferior officer · Doesn't have to be appointed by president · Removal - Special Counsel can be removed by attorney general for cause (adds an additional burden) Myers: Presidnent has power of removal. End of story. Humperies:Consitution does not give president absolute power of removal - Two cases that seem contradictory but are both good law. In this case, court decided more like Humperies ("On the humperies side of the line").....but AG could with good cause. Note: still doesn't overturn humpereis o Is it constitutional to create agencies that are independent? § (1) is there a good reason for a particular office to be independent · Would it interfere with the ability of the president to do his duties if a particular office was independent or not? § (2) in any case the removal of an officer must be done by the president, congress can't give to itself the power to remove officers · Requirement of good cause · Recess Appointment o Appointment that takes place while congress is not in session o This is not an unlimited power Theory of Unitary Executive: Executive Privilege and Immunity -No textual basis in constituion. Privledge of president to withold certain info from congress and judiciary. What is the Scope of Executive Privilege at least in the Constitutional Sense? · Usually mean the president's actual conversation with an advisor United States v. Nixon 1. Recognizes the validity of executive privilege 2. Presumptive privilege that can be overridden a. In Nixon case, it was overridden because it was in the context of a criminal case and the need for evidence overcame the president's presumptive privilege Presidential Immunity · Immunity from damaging suits · So, if the president does something to violate somebody's constitutional right can that person collect damages from the president? · Nixon v. Fitzgerald o Suggests no § The president has absolute immunity from suits for damages for actions that the president undertakes in his official capacity while in office § Reasons · 1. Harassment · 2. President might be distracted by having to respond · 3. Deter president from making hard decisions to presidents often have to make · Clinton v. Jones o Damages action but not one that addresses conduct in office o With respect to suing president for private actions, predating his presidency there is NO IMMUNITY and there will be NO delay during his time in office Impeachment is for high crimes and misdemeanors

Limits on State Power (Dormant Commerce Clause; Pre-emption; Privileges & Immunities Clause)

Four Topics 1. When are state and local gov't preempted by Federal law? 2. When do state and local laws violate the dormant commerce clause or the privileges and immunities clause? 3. When are state and local taxes unconstitutional? 4. What are the requirements of full faith and credit? Pre-Emption (Art. 6 -Supremacy Clause) · Federal laws wins if conflicts with state law and state/local law is deemed preemptive · Pre-emption can be found in three ways: o (1) Express Pre-emption § If fed. statute explicitly states that federal law is exclusive in a specific area then state/local law are pre-empted o (2) Implied Pre-emption § Even if fed. statute is silent about pre-emption, implied pre-emption can be found in one of three ways: · A. If Fed. law & state law are mutually exclusive then state law is preemptive o Exception: § State can set stricter environmental laws than fed. gov't · B. If a state/local law impedes the achievement of a fed. objective then state law is deemed preemptive · C. If Congress evidences a clear intent to preempt state law, then state laws are deemed preempted o (3) States cannot Tax or Regulate Federal Gov't Activity § McCulloch v. Maryland · Maryland couldn't tax federal bank Dormant Commerce Clause · State and local laws are unconstitutional if they place an undue burden on interstate commerce even if Congress is silent on the matter o **Supreme Court has inferred this · States are affecting interstate commerce in ways the fed. gov't haven't addressed yet o Limits state regulatory power even in the absence of Congressional action Test Approach · Is Congress the actor? o If so, is it within their power? · Or · Is it a challenge to something the state or local gov't is doing? o Then dormant CC Three Modern Categories of Dormant Commerce Clause Challenge · Look at form and purpose of state laws 1. State laws that facially discriminate against out-of-state commerce are almost always struck down under a per se rule of invalidity (presumptively invalid, use strict scrutiny - must be a compelling gov't interest that is narrowly tailored) o Look to see if there are protectionist motives for the local community in the ordinance, if so, probably discriminatory and facially invalid § Exception: · Market Participant o When the state, acting as a market participant, chooses to deal directly with in-staters rather than out-of-staters in direct transactions o If the state is literally a participant in the market, such as with state-owned businesses o Make sure really acting as a participant and not as a regulator o Ex. United Haulers § Ordinance where all trash must be routed into one state facility from certain cities § Here, discriminating against in-state & out-of-state private trash facilities § Congress can authorize state to engage in discriminatory activities § If doesn't allow to go to other states, most likely facially discriminatory o Ex. Philly v. NJ § NJ law prohibited the importation of trash that was originated or was collected from outside of the state § The stated purpose of the statute was to protect the quality of the environ. § Law treated out-of-state differently than trash produced in NJ · Clear that NJ had overtly moved to slow or freeze the flow of commerce for protectionist reasons against other state waste § Law held INVALID § Only PERMISSIBLE facially discriminatory law that met strict scrutiny was Maine v. Taylor · Legitimate environment purpose stemming from uncertainty about ecological effects on possible parasites in out-of-state fish and it could only be remedied by discriminatory measures o Ex. Baldwin v. G.A.F. Seelig, Inc. § Worried if price of milk isn't regulated, especially out-of-state milk, then the price will be depressed and hurt NY milk producers § Court struck down the Milk Act · Acknowledges the intent · Applying strict scrutiny 2. State laws that are facially neutral between in-state and out-of-state interests, but that have an impermissibly protectionist purpose of effect is typically invalidated on the ground that they in fact favor local economic interests at the expense of out-of-state competitors a. If it does, it is considered facially discriminatory and this presumptively invalid b. If not, then go to Pike Balancing Test · Effect of the legislation, presence of possible alternatives, legislative intent for purpose · Be skeptical when regulation where the objective is to promote State's own economic interests 3. State laws that are facially neutral, but that have a disproportionate adverse effect on interstate commerce may also be struck down under the Pike Balancing Test · Pike Balancing Test o Take burden on interstate commerce and weigh it against the state's safety/health benefits § The state regulation must not discriminate against interstate commerce so as to "substantially impede" to free flow of commerce across state lines o Where the state statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld, UNLESS the burden imposed on such commerce is clearly excessive in relation to the supposed local benefits Privileges & Immunities Clause (Art. IV § 2) · Citizens of each state shall be entitled to all privileges and immunities of citizens of several states o No state may deprive citizens of other states of the privileges and immunities it accords its own citizens · **Anti-discrimination prohibition o Limited the ability of a state to discriminate against out-of-staters in regard to fundamental rights or important economic activities Privileges & Immunities Clause of 14th amendment · Has been used only by the Supreme Court to protect the right of interest to travel · Slaughterhouse Cases gave it a very narrow interpretation as to effectively root it out of the Constitution. This still stands today. · Can't be used to strike down state acts

Jusiticability Limits

Justibility Doctrines: Limits the matters that can be heard in federal court. Article 3/ Constitutional Requirements 1. Injury in fact: Actual injury...not just "I think this law in Idaho is unconstitutional" 2. Causation: 3. Redressability: remedy from court that can redress the injury Prudential Requirements: - Limitations on constituonal standing created by the courts: 1. 3rd party harm: o (1) Is it a 3rd party harm? § No 3rd party standing is allowed · - The P cannot present the claims of others · -P who meets other standing requirements may present the claims of a 3rd party if any of the exceptions are met o Exceptions: 1. Sufficiently close relationship with P and 3rd party (ex. Abortion Doctor and Patient) 2. Injured 3rd party can't assert their own rights 3. Associational standing o Can assert the rights of members if 3 requirements are met: § Individual members must have standing to sue § Interest must be important to org's purpose § Neither the claim nor the relief requested must require the individual's participation 2. Generalized Greviance: No Generalized Greviences are Allowed; Exceptions - Something is not a generalized grievance just because a large # of people suffer the injury (Mass. v. EPA) - Generalized grievance refers to particular claims · P must not be suing solely as a citizen or tax payer to get the gov't to follow a law - Narrow Exception: · Taxpayer standing is permitted to challenge government spending in if there is a violation of the Establishment Clause (Flast v. Cohen) o Flast Test § Taxpayer may only challenge expenditure of funder under the "Taxing & Spending" clause · Not incidental spending under regulatory statute § Taxpayer must show Congress's spending violates a specific constitutional provision 3. Mootness ·- Legal proceeding no longer affects the resolution because of loss of controversy · Exception: o When the issue is capable of repetition but evading review 4. Ripeness: ·-Timing issue - Is the claim sufficiently ready to be adjudicated? 5. Political Question: · Certain allegations of unconstitutional government conduct should not be ruled on · Instead, should be left to the other branches because inappropriate for judicial review o Baker v. Carr § Criteria for deciding what subject matter presents a political question § The court will dismiss a case as a "non-justiciable political question" if there is: ·- A textually demonstrable commitment of the issue to a separate political branch o Does text of the constitution specifically assign the issue to a political branch? ·- An absence of judicially manageable standards to decide the case o Are their rules to guide the court's inquiry? If no rules, court should dismiss · A need to defer to the final decision of Executive or Legislative Branch (show deference) o If the decision requires making a political determination, court should dismiss § Some issues better decided through political process (elections) o Respect for coordinate political branches. Avoiding conflicting decisions

Individual Rights: Incorporation of the Bill of Rights Before Civil War, Bill of Rights only applied to the Federal Gov't

Post Civil War Amendments—Incorporation of Bill of Rights Lead up to Civil War Amendments · Constitution originally meant for gov't structure, not to protect individual rights · Barron v. Mayor of Baltimore o Before Civil War, Constitution guarantees Bill of Rights only applied to the fed. gov't, except for things like privledge and immunity clause. · Dred Scott v. Sanford o Diversity Case. Ruled slaves were property, not citizens (so wasn't a proper diversity case) and thus not privy to the protections of the Constitution § Can't deprive citizens of property under 5th amendment (Due Process Clause) 13th Amendment: Abolished slavery 14th Amendment: Not limited to race, made all persons born in US citizens equal · Privileges & Immunities Clause of 14th Amendment o No state shall make or enforce law which shall abridge the privileges or immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, without due process of law; equal protection of the laws 15th Amendment: Disavowed racial discrimination in voting Post Passage of Civil War Amendments—Privileges & Immunities Clause 1. Slaughter House Case (1873) · Rights were meant to apply in the context of the framers of the amendments in freeing black slaves · (Narrow reading of the amendments) o SCOTUS held that Civil War Amendments did not grant citizens protection from the actions of state gov'ts o 14th amendment P&I clause does not control the state gov'ts power over their citizens except to require a state grants equal rights to its own citizens and citizens of other states within their jurisdiction · Essentially rendered the P&I Clause a "nullity" o Rejected P&I Clause as a means of applying the Bill of Rights to state gov'ts § Effectively wrote P&I Clause out of Constitution · STILL GOOD LAW TODAY · Interpreted "due process clause" and "equal protection" clause as applying ONLY to protect black freedmen 2. Saenz v. Roe · In 1999, for the first time in American history, the court used the privileges and immunities clause of the 14th amendment to invalidate state law · P&I Clause protects the "right to travel" and the newly arrived citizen's right to be treated equally in her new state of residence · Case about: o CA enacts law that limited welfare benefits for new residents in the state to the level of the state that they moved from for one year Contemporary Incorporation of the Bill of Rights through the Due Process Clause · To incorporate Bill of Rights provision through due process clause of 14th amendment through selective incorporation o Does it lie at the base of our fundamental traditions and history? o Is it fundamental to our scheme of ordered liberty or is deeply rooted in this Nation's history & tradition? o Does it lie at the base of our civil and political institutions or systems of jurisprudence (right to fair trial/7th amendment is not)? o Total and selective incorporation debate 1. Duncan v. LA · Test for determining whether a right extended by the Bill of Rights is also protected against state action by the 14th amendment has been phrased in a variety of ways by SCOTUS o (1) Selective Incorporation (Palko) § 1. Whether a right is among those fundamental principles of liberty, justice which lie at the base of all our civil and political institutions (i.e. right to vote) · Not every Bill of Rights guarantee incorporated to the states § (2) System of Jurisprudence § (3) Fundamental right to a fair trial o (2) Fundamental Fairness (Adamson) § Essence of scheme of ordered liberty § Very open ended and broad as to apply where Bill of Rights amendment that affects fundamental fairness is selected and incorporated to the States through Due Process of 14th amendment o Whether that provision of the BoR's is essential to fundamental fairness such that it should be made applicable to the states through selective incorporation 2. McDonalds v. City of Chicago · 2nd amendment is incorporated in the concept of due process if the right to keep and bear arms is fundamental to our scheme of ordered liberty or is deeply rooted in this nation's history and tradition o DC v. Heller recognized that self-defense is a basic right and that individual self-defense is the essence of the 2nd amendment § Deeply rooted in nation's tradition based on historical practice · Essential to fundamental fairness such that it should be made applicable to the states through selective incorporation Today pretty much all bill of rights have bene incorporated to states ecept for a few like right ot trial by jury and quatering troops. 2.17.22 Lochner v. New York - Struck down labor law with 14th amendment. - Reconized consitutonal right to contract (implicit; not explicity in there). Also looked at state's interest in interfering in that right? Didnt say government couldn't; just ask if legitimate reason for them to. Rejected regulating labor relations rationale (Didn't even weigh it...just rejected outright and said couldn't do it). **Look up 3 (or 4) test court used** Then the 30's came...when court dramatically changed their reading of commerce clause. Side note...does commerce clause apply to Locher? Can't make commerce clause objection to it becuase its a STATE law (might could make some commerce clause exception). Back to main point. - Nebbia v. New York: Changed perspetive from Lochner. Court upheld Great Depression era price floor on milk. Court didn't ask if appropriate goal or an appropriate way to accomplish what legislature wanted to do....court just said "we'll run with it" and let legislature do what they want. Rejected due process challenge and upheld this law. - **question to ask, does this just apply to economic decioins like this?** - Williamson v. Lee Optical: An Oklahoma state law made it unlawful for any person not licensed as an optometrist or ophthalmologist in the state to fit lenses to a face or fashion existing lenses into a frame unless given a prescription by a state-licensed optometrist or ophthalmologist. Court upholds this law. Ferguson vs. Skrupa Kansa has law limiting debt adjusting to just lawyers. Court upheld it; used a standard of review called "minimum rationality." - Another example (class): City has helath inspection law for resteraunts for every two years and a food truck for every 6 months. This would be upheld. If law instead said resteraunts every 6 months and food trucks every two years. Would be upheld. Can come up with minimum rationality to uphold these laws....minimum rationality is an extreme deference to legislation like this. Don't use any of the test in Lochner....just extremely deferential. US vs Carolene Products - Law that prohibits "filled milk" shipped across state lines (note: jurisdiction hook for sake of commece clause[would also pass aggregate effects test aside from that]). Court said this met minmum ratioainlity test (as long as can be supported be reasonbly rationale basis, its fine) Minimum Rationality Standard (replaced Lochner for the standard of scrutiny for economic legislation and possible 14th amendment violations) - Why so deferential with economic legislation? Court said this is legilsatures job. However, despite presumption of constitutinality with most legislation, might be a different outcome, taking a harder look at things, if it effects a "discreet and insular minority(." Logic is maybe polical process isn't working in tyranny by the majority type situations so don't need to give as much deference. Are opticians discreet and insular minorities? No. Court also provides another situation for more scruitinty...when if effects matters contained in the Bill of Rights. Gives a third exception for more scuritinty....things that disrupt political process, like voting. Pierce v. Society of Sisters - Reformindom in OR,where people didn't like private schools ran by Catholics. Tried to prohibit these institutions. - Different from liberty of contract cases? Griswalk v. Connecticut - Griswold (defendant) was Executive Director of the Planned Parenthood League of Connecticut. Buxton was a licensed physician and professor at Yale Medical School who served as Director for the League at its Center in New Haven. The Center was open and operated from November 1 to November 10, 1961, when Griswold and Buxton were arrested for giving information, instruction, and medical advice to married persons for preventing conception. Buxton and Griswold were arrested and convicted as "accessories" pursuant to Connecticut statutes that prevented using contraception or assisting someone else in using contraception. Griswold and Buxton challenged the convictions and brought suit against Connecticut, (plaintiff), alleging that the statutes violated the Fourteenth Amendment. The Appellate Division of the Circuit Court affirmed their convictions, and the Supreme Court of Errors affirmed. Griswold and Buxton appealed to the United States Supreme Court. - Holding: Yes. A "right of privacy" protecting the intimate relations of married couples is implied in the Bill of Rights. For example, the First Amendment protects the right to association. The Third Amendment prohibits the quartering of soldiers in a person's house without their consent. The Fourth Amendment protects against unreasonable searches and seizures. The Fifth Amendment protects against self-incrimination. The Ninth Amendment provides that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The protected activities in each of these Amendments are "penumbras" that are not specifically enumerated in the Constitution, but instead represent various "zones of privacy" into which the government cannot intrude. The marital relationship is located within a "zone of privacy" impliedly created by these various fundamental constitutional guarantees in the Bill of Rights. The Connecticut law seeks to prohibit the use of contraceptives in the marital relationship and in doing so violates this area of protected freedoms. The right of privacy in marriage is a concept older than the Bill of Rights that should necessarily be kept sacred and free from intrusion by the state. The Connecticut law is unconstitutional and Griswold's conviction is reversed. - Would survive minimum rationality analysis. Legilsaure would think up some rational basis. Married people aren't a discreet and insular minority. Not a voting law. Court found a "zone of privacy." Court explitvitly said that they are not brining back Lochner. What about the freedom to contract and other economic rights....what's different for this? East Cleveland The City of East Cleveland (CEC) (plaintiff) enacted a housing ordinance that limited the occupancy of a dwelling unit to members of a single family. The ordinance narrowly defined the term "family" as encompassing only a few categories of related individuals. Inez Moore (defendant) lived in East Cleveland in a home with her son and two grandsons. Under the housing ordinance, this arrangement was outside the legal definition of "family." Moore received a notice of violation of the ordinance from the CEC and when she refused to modify her living arrangement, Moore was charged with criminal penalties. Moore was convicted and sentenced to a fine and five days in jail. Moore appealed to the Court of Appeals of Cuyahoga County, Ohio, which sustained her conviction. Moore then appealed to the United States Supreme Court - Holding: Yes. The CEC argued that its housing ordinance should be sustained based on the Court's previous decision in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), where a housing ordinance limiting occupancy in single residences was sustained because it bore a rational relationship to permissible state objectives. However, the present case is distinguishable from Belle Terre because the Belle Terreordinance expressly allowed all who were related by "blood, adoption, or marriage" to live together. It prevented only unrelated individuals from living together, while the CEC ordinance limits blood relatives from living together. When a city attempts such an intrusive regulation of family as that present in the CEC ordinance, the court must carefully examine the importance of the government's objective and the extent to which the objective is advanced by the ordinance. CEC seeks to justify its ordinance as a means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on the CEC's public school system. Although these are all legitimate public purposes, the housing ordinance serves them only marginally and is not necessary to their accomplishment. The right of family members to live together is fundamental and protected by the Constitution. The CEC's argument that this right extends only to nuclear family members is rejected. The tradition of uncles, aunts, cousins, and grandparents sharing a household along with parents and children has strong historical roots and is worthy of constitutional recognition. The CEC's housing ordinance improperly limits this right, is therefore unconstitutional, and the decision of the court of appeals is reversed

Federalism & Sovereignty/Necessary & Proper Clause

Sovereignty and Federalism Congress & Its Authority to Act · Congress may act only if there is express or implied authority o Lacks general police power · -Necessary & Proper Clause (Art. 1 § 8) o Congress can take all acts that are necessary and proper to carry out its authority · - Taxing, Spending, & Commerce Clause Powers o Congress may tax and spend for the general welfare of the public o Commerce Clause § Gives Congress the power to regulate commerce · - 10th Amendment o All powers not granted to the Federal government are reserved to the States o States can act unless the Constitution prohibits the action § States possess police power o Congress cannot compel State legislative or regulatory activity § But they can try to induce state & local gov'ts to act by putting conditions on things, so long as they are clearly stated, relatable, and not unduly coercive McCulloch v. Maryland · Sovereignty given to the people NOT the states because the people ratified the constitution and in effect the people created the Federal gov't o Compact Theory: once States ratified the Constitution, they have some of their authority to the Federal gov't · Federal Gov't represents the whole country o Silence in the Constitution does not necessarily the States a right to a reserved power not specified in the Constitution § The 10th amendment can only reserve that which existed before the constitution was enacted and there was no congress at that time § Therefore, the States have no reserved powers over the composition or operation of the Fed. Gov't because the power may not be reserved over what did not yet exist at the enactment of the Constitution Necessary & Proper Clause · Art. I § 8 à gives Congress the authority to carry out other enumerated powers elsewhere in the Constitution o Judiciary decides whether the means are legitimate or not o N&P Test: § Look to whether the statute being discussed constitutes a mean that is rationally related (needs to have a little more than minimum rationality) to the implementation of a constitutionally enumerated power · If it doesn't contradict the Constitution = probably fine · As long as the purpose is not restricted by the Constitution, Congress can create a method to carry out an enumerated power that cannot be excluded · "Necessary" o Needs to be interpreted broadly · N&P Clause should grant more powers, not take powers away · If the end goal is Constitutional, it should be up to Congress to determine the means if not otherwise restricted

2nd Amendment (DC v. Heller)

Struck down DC law prohibiting possesion of handguns and requiring firearms in the home to be rendered and kept inoperable. - Reconized an individual right to possess and carry weapons in case of confrontation. - Does not include "those weapons not typically possesed by law abiding citizens for lawful purposes." - Did not set a specific standard; merely stated that the law would fail any standard of reivew excpet rational basis test and, if rational basis is applied, 2nd amendment is has no effect - Handguns are a "quessential self-defense weapon" - Requirement that guns be kept inoperable makes self defnese impossible - Rejected interests balancing as a novel approach - Some policy choices are off the table Takeaway: - Use history, text, and abstration. No good rule from this case

Congressional Power: Taxing Power

· Congress shall have the power to lay and collect taxes, duties, imports, and excise, to pay the debts and provide for the general welfare (expands taxing/spending power greatly), common defense of the US · Madison Approach (tax powers limited to those specifically granted) vs. Hamilton Approach (tax for general welfare as long as it does not violate Constitution · Notes: o Taxes are for obtaining revenue, but can have incidental motive of discouraging § Congress can tax to promote the general welfare, but Mere Punishment is a regulation and not allowed purely as a tax § A motive to discourage a sale of an article by putting a higher tax on it is within the tax scope and is not a mere punishment o Can't regulate under the guise of taxation, must have a reasonable relation to taxing o Look at: § Does the tax impose an exceedingly heavy burden? § Does it punish those knowingly doing something, because Congress often has a knowing requirement in punishment regulations, not tax policies? § Enforced by a dept. often involved in regulating and punishing violations, not collecting revenue? o NFIB v. Sebelius (affordable care act case) § Less burdensome than actual insurance § No knowing requirement violating the mandate § Collected by IRS, a revenue collecting service § More to entice/induce to buy insurance than punishing those who don't § There is a choice involved, not the same as a penaltyc

. Non-Economic Substantive Due Process and Privacy

· Constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, & education o Matters involving the most intimate and personal choices a person may make, central to personal dignity and autonomy · Different than equal protection challenge, because here arguing that the restriction as a whole violates the Substantive Due Process Clause of the 14th amendment as a fundamental right o Not looking at the classification - that is for Equal Protection · Looking at if there is a fundamental right in play o 1. Look to see if it is a fundamental right § Originalism v. Non-originalism · Basic liberties need not be tied to a specific word in the constitution · Is it deeply rooted in the nation's history and tradition? · Basic rights implied in the constitution through the penumbra · Moral consensus in society o 2. Is the right being infringed upon by government action o 3. Does the government have a justified, compelling interest in restricting the right that will get past strict scrutiny o 4. Are the means narrowly tailored to that specific interest § Is there an alternative that state could take to bring the same result? Childbearing and Contraception · Skinner v. OK (1942) o Basic liberty discussed that was not tied to a specific constitutional guarantee (penumbras) o Strict scrutiny to protect court defined fundamental right o OK statute requiring mandatory sterilization after third conviction of a moral turpitude crime violated substantive due process o Marriage and procreation are fundamental to the very existence and survival of humans · Griswold v. CT o Does a constitutional right of privacy exist that prohibits states from making use of contraceptives by a married couple a crime? § Yes o Specific guarantees in the penumbras of the BoR give rise to the right of privacy § 1, 3, 4, 5, 9 o Procreation and married couples so protected in the tradition of the nation o Invalidated state law prohibiting use of contraceptives because of the protected right to privacy placed and emphasized on marriage and protected space of the marital bedroom o State's interest secondary until certain point o Dissent: § While the law is offensive, not prohibited by any specific guarantees by the constitution, social policy should have a place in constitutional law, constitutional amendments and not judges made alternatives should the correct way to alter the constitution to add rights, right of privacy limited in the constitution to certain places and times and activities, government can invade right to privacy unless limited in constitution (search and seizures) East Cleveland **look up** Housing ordinance that limits dwelling to a specific list of family members. In previous case, Belle Terre v. Morris, said ordinance limiting number of people per house was rationale. Is the East Cleveland ordiance rationale? Note: Issue of how you distinguish between economic and personal libertires is a hard one. No clear line on what court is gonna protect and what it isn't gonna protect Class notes: - Loving v. Virginia struck down interracial marrgiage ban based on due process and equal protection grounds - Also, gay marriage case, **look up** Michael H v. Gerald D - 98% chance from DNA test that child was Michael's, raised in part of the time. Gerald is the marital father. Court says praternal father doesn't have due process right to raise child. Falls back on reasoning that courts have tradtioinally protected marital families. Would this pass the minimum rationality test? Yes. - Holding: No. Due Process Clause jurisprudence governing "liberty" interests requires such interests to be both "fundamental" as well as traditionally protected by society. An asserted liberty interest of certain parental rights must be rooted in history and tradition. The Due Process Clause of the Fourteenth Amendment traditionally protects only relationships developed within the unitary family. Here, Michael's paternity interests should be upheld only if the relationship between people in a similar situation as Michael and Victoria has been treated as a protected family unit under the historic practices of society. No such historical protections exist, but history is more inclined to protect relationships among traditional family units (i.e. Gerald, Carole, and Victoria) Troxell v. Granville - A Washington statute permitted any person to petition a superior court in the state for visitation rights at any time and authorized the court to grant such visitation rights whenever visitation might serve the best interest of the child. Jenifer and Gary Troxel (plaintiffs) petitioned a Washington Superior Court for the right to visit their paternal grandchildren after their son, the children's father, committed suicide. Tommie Granville (defendant), the mother of these children, opposed the petition. The Washington Superior Court granted visitation rights to the Troxels, but the Washington Supreme Court reversed and held that the Washington statute unconstitutionally interfered with the fundamental rights of parents to rear their children. The United States Supreme Court granted certiorari. - Abortion (Test is no longer strict scrutiny and instead Undue Burden) · Roe v. Wade o Women's decision to terminate a pregnancy, found in right of privacy inherit in 14th o Right of privacy in a person autonomy sense with the right to choose mental or physical bodily integrity o Not an absolute right § Still room for state's interest in preserving life (if passes strict scrutiny) · At some point during pregnancy, (end of 1st trimester), these interests to preserve life of citizens, protecting mother's health become sufficiently compelling to sustain strict scrutiny for regulating abortion · Must start t "viability" because a fetus is not a person recognized by the constitution o bring back to Griswold, personal autonomy protected by due process covers more than freedom explicitly laid out in constitution o abortion is a matter fundamentally affecting a citizen · Dissent: court should use rational basis not strict scrutiny · Planned Parenthood v. Casey (Undue Burden Test) o PA law requiring certain check list needed before an abortion can be given o Undue Burden Test - Reconcile the State's interest with the woman's protected liberty § If undue burden is found in state regulation, then shorthand for the regulation having the purpose of effecting a "substantial obstacle" in the path of the woman seeking the abortion § If regulation doesn't have a substantial obstacle the state measure designed to persuade the woman to choose childbirth over abortion will be upheld if reasonably related to that goal § Statute invalidated when the means of the state's interests in preserving life hinders women's free choice rather than informs o 1. Doctor 24 hours before abortion inform the woman of the nature of the procedure and the health risks involved and the estimated gestational age of the unborn child à fine § A state may further its legitimate goal of protecting the life of a fetus by enacting legislation aimed at ensuring a decision that is mature and informed, even when in doing so the state expresses a preference for childbirth over abortion o 2. Mandatory 24-hour waiting period à fine § Troublesome because it is a substantial obstacle to a woman's choice to have to drive far twice, take off from work, etc. o 3. Spouse Notification à Not OKAY § Prevent a significant number of women from obtaining an abortion because certain unhealthy, violent relationships o 4. Minor Informing Parent à Fine/No (really no) § If neither parent nor guardian provides consent, a court may authorize an abortion upon a determination that the young woman is mature and capable of giving informed consent and has in fact given her informed consent, or that an abortion would be her best interest § State may require a minor seeking an abortion to obtain the consent of a parent, provided there is an adequate judicial bypass o Summary: o Women's right to choose is a realm of personal autonomy/liberty which the gov't may not enter o Constitution places limits on a state's right to interfere with a person's most basic decisions about family, parenthood, as well as bodily integrity o Violability makes the earliest point at which the state's interest in life is constitutionally adequate to justify a legislative ban on non-emergency abortions o Lots of deference to stare decisis -wanting to protect the legitimacy of the judiciary upholding Roe o Dissent: § Abortions not existent before 14th amendment so not completed being protected against, don't rely on social values over constitutional text · Whole Women's Health v. Hellerstedt - Frist time undue burden found and really questioning whether what legislature was doing was an undue burden or not o Texas tries to further regulate abortion by trying to make abortion safer § (1) physicians must have 30-mile hospital privileges § (2) minimum standards similar to ambulatory surgical centers o Regulations without context sound okay § With context can see how harshly they impact abortion facilities o Not much health benefits actually coming from the regulations o Court decides: § Must consider burdens of law with the benefits Marriage and Family Relations · No constitutional right to live with as many people as you want o Family members are different than non-related people o Minimum rationality standard · Loving v. VA o Deprive the Loving's of liberty without due process of law in violation of the due process clause of the 14th amendment · Obergefell v. Hodges o 1. Marriage inherent in concept of individual autonomy o 2. Supports important committed union o 3. Safeguards children o 4. Keystone to social order - Why is there a right to same sex marriage? Why does right to marraige automatically mean right to same sex marriage? Court says argument in favor is autonomy, social order, safe guard kids, important, etc. Against is that the court is legislating from the bench and its a slippery slope and no historical basis...nothing in history and tradition to suggests that this is a right. Sexual Liberties · Fundamental rights · Implicit in the concept of ordered liberty · Deeply rooted in the nation's history & traditions · Penumbras · Lawrence v. Texas (sodomy) o Liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matter pertaining to sex o Individuals have a constitutionally protected right in creating a personal sexual relationship § Right to retain dignity § Autonomy of self that includes freedom of thought, belief, expression, and certain intimate relations o Extends Griswold privacy rights to non-married couples o Extends Casey to protecting the most intimate and personal choices central to a person's dignity and autonomy o The laws purpose was to touch upon the most private human contact (sex), in the most private place (the home) o There may be an equal protection clause issue here too because the classification between same sex couples and not · Dissent: · Whole view of stare decisis argument for not overturning Roe thrown out the window for overturning Bowers · Homosexual rights not fundamental rights and rational basis is the way to go o Think about how Lawrence conceptualized dignity as inherent in the individual, and explained that restricting a person's choice of sexual partner an invasion of that right by the state · Obergefell v. Hodges o Right to marry is a fundamental right in the liberty of a person, under Due process clause of 14th couples of same sex must not be deprived of that fundamental right o Exclusion of same-sex couples from the right to marry violates due process of 14th o Same-sex couples barred from exercising an individual right 1. Right to personal choice regarding marriage is inherent in the concept of individual autonomy (Lawrence/loving) 2. Right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals (Griswold) 3. Marriage is a safeguard for children/families and this draws freedom from related fundamental rights (Pierce/Myers) 4. Marriage is a keystone of American social order a. Government rights affected by it Dissent: electorates should decide based on voters will; judicial precedent clearly recognize the right to marry but not to define marriage for the states; makes it more difficult for the people to accept because 5 lawyers declared it and no open debate ; political change should occur through the voters and legislatures; Constitution doesn't address it so up to the states to decide if they want to differ from the traditional definition of marriage; infringe on religious freedom; extends court's power beyond what constitution allows. Right to Die · Washington v. Glucksberg (9-0) o Assistance to committing suicide is not a fundamental liberty protected in the due process clause for terminally ill or not § Therefore, minimum rationale, and state's interest is preserving and protecting life meets that · Preservation of human life · Protecting ethics of the medical field · Protecting elderly, poor, disabled · Learning more about the illness · In Cruzan o Competent patient can refuse medicine that will save their life o Ceasing action · In Glucksberg o Assisting in actual death o Actively helping action

14th Amendment Equal Protection Clause

· For Equal Protection the challenge is the classification of people/classes not getting equal protection of the law o Different that substantive due process claims because those are on the restriction as a whole violating the constitution · Answer the Basic Question: o Is the government classification justified by a sufficient purpose based on the level of scrutiny used? § 1. Strict Scrutiny(i.e. race discrimination, national origin -inherently suspect) · Requires the regulation or legislation to serve a compelling governmental interest and be essential to those interests (least restrictive means possible) o Suspect Classifications § Race/ethnic/religious · Immutable characteristics o Fundamental Rights § Carolene Productsfootnote 4 § 2. Intermediate Scrutiny(i.e. Sex discrimination) · Requires that a regulation or legislation serve an important governmental objective and be substantially related to achievement of those objectives § 3. Minimum Rationality(i.e. not inherently suspect -age, disability, poor) · Requires only a rational relationship to a legitimate end Minimum Rationality Review · For economic regulations that do not involve racial classifications, or other classifications subject to strict scrutiny o Court applies minimum rationality to determine whether the regulation bears a rational relationship to a legitimate government interest § Just be reasonable, not arbitrary, and rest on some ground of having a fair and substantial relationship to the object of the legislation so that all persons similarly circumstanced shall be treated alike o Defer to economic/social regulations unless infringes on another constitutional right How to Determine Discriminatory Intent · Facial Discrimination · Discriminatory Application o Neutral on face but applied discriminatorily · Discriminatory Motive o Neutral on face and in its application may still result in a disparate impact § Disparate impact is not sufficient to trigger heighten scrutiny Tolerance of Under-inclusiveness · Laws are underinclusive when they do not regulate all who are similarly situated · Allowed because government make take one step at a time in addressing itself to the phases of the problem (Lee Optical) Tolerance for Over-inclusiveness · Over-inclusiveness if it regulates individuals who are not similarly situated o It covers more people than it needs too in order to accomplish its purpose § Risk burdening a politically powerless group Rational Basis with Bite - Cases failing minimum rationale · The court may add "bite" to rational basis when dealing with a classification that would present further legal problems if considered a suspect class and moved into strict scrutiny US Dept. of Ag. V. Moreno(Impermissible end and thus failing rational basis) · Provision in food stamp program that excluded households that contain an individual that was unrelated to other house members (unconstitutional) · A legislative classification must be sustained if it is rationally related to a legitimate government interest o The purpose of the food stamp act was to raise the levels of nutrition among low-income households § Classification was irrelevant to the statute's purpose o No other rational interests that the statute covered · When discern the actual purposeto harm a particular classification, as opposed to what the statutes states as its intent · A bare congressional desire to harm a politically unpopular group cannot constitute a legitimate government interest o No general objective for safety, efficient Strict Scrutiny for Race Discrimination · Primary purpose of the 14thamendment was to protect blacks from inequality · Long history of racial discrimination · Carolene Productsrationale: o Prejudice against discrete minorities may be a special condition which tends to seriously curtail the operation of the political process § Race is an immutable trait Two Ways to Demonstrate Race/National Origin Discrimination in the Law 1. Purpose/Intent to Discriminate Racially on the Face of the Law · i.e. Brown/Loving 2. Facially Neutral Laws with Discriminatory Impact/Effect · Laws that are facially neutral that are administered in a manner that discriminates against minorities or has a disproportionate impact against them · There must also be proof of a discriminatory purpose in order for strict scrutiny to be met WA v. Davis(necessary to show purposeful discrimination) · Challenged promotion policy of police dept. that measured verbal and writing abilities for promotions that disproportionally promoted more white than black officers o Law is facially neutral with an adverse effect § As almost every law has a disproportionate effect in some way, purpose must be shown also · Government action is not unconstitutional solely because it has a racially disproportionate impact o There must be a racially discriminate purpose also § Need not be express o Difference between de jure segregation—blatant racism (meant to) and de facto segregation—institutional racism (just happened because of non-racist circumstances)—de jure segregation has the purpose o Racial discrimination through an improper purpose can be implied through circumstantial evidence as to how it was applied · Procedurally: when a disproportionate racial impact is proved, the govt must then shift to show that the law is neutral on its face and serves a proper end, but this burden is not high. Once racial discrimination is shown to have been a substantial or motivating factor behind the enactment of the law, the burden shifts to the law's defender to demonstrate that the law would have been enacted without the factor o i.e. here the rational that was accepted was the desire for competent police officers, and the force made efforts to recruit black officers Yick Wo: · Impact of the law may be so discriminatory as to allow no other explanation than that it was adopted for impermissible purposes o Facts shown establish an administration directed so exclusively against a particular class as to warrant the conclusion that purpose was there § Show a statistical pattern that can be explained only by a discriminatory purpose · Rare and must show something like Yick Wo o All Chinese Waivers denied - Look at the history surrounding the decision to enact the statute o Particularly if it reveals a series of official actions taken for invidious purposes o Specific sequence of events leading up to the challenged decision also may shed some light on the decisionmakers purpose Racial Discrimination against Racial Minorities · Korematsu v. US o A classification based on racial minority survived strict scrutiny o All legal restrictions which curtail the civil rights of a single racial group are immediately suspect, that is not to say all such restrictions are unconstitutional o Pressing public necessity may sometimes justify existence of restrictions with racial classifications o The law was over-inclusive o And under-inclusive as it didn't include those people with German descent Race based Segregation in Schools · Plessy v. Ferguson o Separate but Equal o Although 14thamendment provides equality under the law, not intended to abolish distinctions based on race or to enforce social equality o Not the place of the courts to equal the races o Harlan dissent brings up that the constitution is colorblind § There is no caste system · Brown v. Board of EducationI o Even if tangible physical factors are equal, segregation deprived children of equal education opportunities § More than a comparison of physical factors (i.e. classrooms, textbooks), looked instead to the effect segregation can have on a feeling of inferiority which effect a child's motivation to learn § Education critical to succeeding in life o Look at the 14thamendment through present lenses o Four Theories of Brown § 1. Color Blindness · Race is never a permissible bias on which to distribute benefits · Anything separate based on race is inherently unequal § 2. Caste System · Race is an impermissible basis for distributing public benefits and burdens when it has the social and psychological effect of stigmatizing or subordinating a racial group · Feeling on inferiority § 3. White Supremacy · Trying to limit white supremacy, put disenfranchised groups on level ground § 4. Integration · Importance of education (or whatever is being discussed) to the democratic principles of America · Integrated facilities would produce better educational results to increase social welfare · Brown v. Board of EducationII o Integration of public schools given to the lower courts and to be done with all deliberate speed § Can be slowly done to not shock society o Require that they make a prompt start toward full compliance with Brown I, but once start begins, may find additional time necessary · Bowling v. Sharpe o 14thamendment applies to the states o DC is not a state o Court says discrimination is so unjustifiable as to violate due process of 5thamendment which does apply to the states Race Segregation for Marriage and When Disadvantages Races Equally · Loving v. VA(interracial marriage) o Classification based on race o State argued that because white/blacks are punished equally under the statute, it does not violate Equal Protection even though classification based on race § Equal application does not immunize the statute of strict scrutiny o Equal protection demands that racial classifications (especially those with a criminal statute) be subject to strict scrutiny, and if ever upheld must be necessary to the accomplishment of some permissible state objective § No legitimate purpose or objective here o Can't draw distinction based on race § This statute accepts conduct if done by members of the same race o Not permissible just because both whites and blacks are disadvantaged Palmore v. Sidoti - REversed court judgement taking child from bio mother because she married a black man - No signs of mistreatment; "social stigma" against child was not a permissible consideration of the cuort is it custdoy decision

Congressional Power: Spending Power

· Is a possible way around commerce clause restrictions · South Dakota v. Dole (Main Spending Power Test) o Fed. law seeking to create a 21-yr-old drinking age by withholding 5% of federal highway funds from states that did not raise the drinking age à UPHELD § Congress could indirectly raise the drinking age by withholding funds because permissible within spending power to encourage uniformity · States interest in regulating local affairs not outweighed by the national interest in uniformity in an integrated national economy § Congress is allowed to attach conditions on the receipt of federal funds and is allowed to further broad policy objectives by conditioning states receiving money upon compliance with directives · Main Limits (Dole Test) o (1) Must be in pursuit of general welfare § Courts generally defer to Congress o (2) If Congress conditions States receipts of funds, it must do so unambiguously and without discrimination on a particular sate § Not coercive à can't be compulsion (real choice must exist) § State must have the real choice accept funds or pay the tax o (3) Conditions of federal grants might be illegitimate if the condition is unrelated to a federal interest (in particular projects or programs) § Drinking age is directly related to a main purpose behind federal highway safety · Broad views for relatedness o (4) Other Constitutional provisions may provide independent limit o Note: argue other side § That withholding funds not reasonable related to issue at hand · NFIB v. Sebelius (affordable care act case) o Medicaid Expansion Provision: citizens under poverty line is now covered automatically, and if states choose not to adopt this, States will lose ALL Medicaid funding o States claim this to be coercion —no real choice— feds may not compel states to enact or administer a federal regulatory program (commandeering) § Cut 10% state budget § Backlash of not complying hurts states, not congress § *no real choice existed o *conditions such as this, that do not govern the use of funds allocated, cannot be justified as providing for the general welfare o When for example, such conditions take the form of threats to terminate other significant funding, the conditions are properly viewed as a form of coercion o "Gun to Head Test" § 1. Limits how states use the finds § 2. Removal of an already existing grant, rather than future denial of potential find (large state burden) § 3. Lacks any real choice