Generally:

I. Constitutional Analysis a. The constitution(historical context, text, SC precedent, values that underlie const. provisions, some const. theory) i. interpretation b. Key facts i. Application of the doctrine in relation to the specific facts c. Produces a doctrinewhich you apply to produce a result i. Categorical reasoning (showing how the facts fit into the doctrine to produce a required legal result) ii. Analogy distinctiondevelop arguments that bring in prior cases iii. Policy implications d. Result II. Methodology a. Step 1: fundamental policy/value conflict (b/w rights of ind. and importance to societynormally different) b. Step 2: basic doctrine c. Step 3: application of doctrine to facts (what facts are imp and how imp to doctrine, categorical reasoning) d. Step 4: development of analysisuse case law and policy arguments that support categorical analysis e. Step 5: interconnectivitycertain doctrines cut across doctrinal borders III. Constitution a. Structural Featuresallocates power to the federal govt i. Federalismdivision of authority b/w the fed govt to the states (Art. I, 10th Am, Supremacy Clause) ii. Separation of powers 1. Horizontal authority (Art. I, II, IIIeach article begins with a vesting clause) b. Protection of individual rights i. TextArt. I, Sec. 9, 10 ii. BOR iii. Reconstruction Am. (13, 14, 15th Ams)

JUDICIAL REVIEW
Marbury and Judicial Review
I. Marbury establishes authority for judicial review of federal, executive and legislative acts Background on Marbury 1. establishing the rule of law SCs decision is the law 2. judicial review = courts as arbiters of constitution 3. other principles and ideas a. political question doctrine i. PQ is beyond the scope of the court to resolve b/c they are not legal in character ii. important limit on judicial power b. jurisdiction of supreme court a. originalArt. III, sec 2, cl 2 i. cases expressly listed in the constitution b. appellate i. clear federal issue ii. congress can limit (but not entirely), but not expand the Courts appellate power (Ex parte McCardle) c. removal of officers Key aspects of Marbury the rule of law & executive action a. govt of laws not men executive branch officials, no matter how high up, are still subject to laws i. govt actors/officials are bound by the law (constitution/statutes) ii. judiciary branch has authority to apply the law to govt officials b. Negative Proof (prove the opposite of that which you assume) i. Rule of law that requires there be a remedy for the denial of a right ii. if theres no remedy, then US wouldnt be rule of law state c. acts of political discretion/PQ doctrine i. distinguishes b/w acts of govt officials that are legally compelled and those that are political

II. 1.

2.

ii. focuses on nature of the act and not the status or nature of position of the officer Judicial review of legislation (courts authority to strike down legislative acts, court has final say on Constitution) a. Inference from prohibitions b. Oathjudges are sworn to uphold the Const, they cant apply a law contrary to the Const. c. Supremacy Clause this constitution and all statutes made in pursuance thereof are the supreme law of the land i. Constitution allocates power according to federalism & SOP Judicial Review of States hot issue at time of founding Generally a. The State Sovereignty Issue no immunity from judicial review b. Nullification and Resistance state legislatures would pass statutes saying a federal statute was invalid in state Key Cases re: power of federal govt to review state law a. Martin & Cohens i. Federal SC has judicial review over state laws and state judicial decisions and has the power to declare those decisions under the US Const ii. SC has power to review criminal and civil proceedings b. State not supreme over Fedpeople made the federal govt superior to the states i. McCullochMarshall says the source of the Const come from the people, then the federal govt derives its power from the people, therefore, the national govt gives power to the states c. Need uniform interpretation of constitution

III. 1.

2.

The Romer Case

I. Background a. Colorado Am. 2 violated EP Clause - ballot initiative b. Structure of Opinion i. Unequal Treatment (EP Trigger) (II) 1. Repeals existing anti-discrimination laws 2. Imposes obstacles to new ones homosexuals have higher burden to receive legal protection against discrimination ii. Fails Rational Basis Test (III) 1. Broad disability on group is invalid form of legislation (Levy sees no relation to RB test) a. Denies EP of laws 2. Breadth of disability suggests animus overinclusive Interpretation a. Text of the EP Clause i. Equal Protection Clause, U.S. Const. Am 14, 1 1. nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ii. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the govt is itself a denial of equal protection of the laws in the most literal sense. b. Ambiguity is unavoidable usually challenges more successful in as-applied method c. How should ambiguity be resolved? i. Original Meaning or Intent? (what did ratifiers mean in 1789?) (prevents judicial activ) ii. Precedent SC rarely overturns prior decisions iii. Underlying Values? (judges called activist when they go here; IDing values in constitutional provision) d. Can judges be prevented from activism? beliefs and morals part of decision-making process Countermajoritarian Difficulty a. Judicial Review is Antidemocratic i. Judges are not politically accountable ii. Invalidate actions of elected officials iii. Consider Romer judges invalidating public majority vote on initiative b. What Justifies This Intervention? i. Judiciary should preserve enduring values 1. Issues surrounding gay rights produce a lot of heat and the public tends to react strongly; may be appropriate for judges to step in to preserve values of equal treatment prevent mob rule

II.

III.

IV.

2. But must respect democratic processes ii. This is a counter-balance to the evils of democracypolitical trends come and go but it is the court to uphold enduring constitutional values in the face of fads Political Process Reasoning response to Bickel a. Justification for judicial intervention i. Distortion of political process discrete/insular minority need protection by courts ii. If there is a failure in the political process by the majority, intervention is appropriate by the judiciary b. In Romer i. Amendment 2 as process distorting: affect discrete/insular minority 1. When the law distorts the political process, preventing equal access to the processviolation of EP ii. If a law targets an unpopular minority in a way that adversely affects them, their minority status and lack of popularity make it difficult to draw coalitions and support and their ability to use the political process

Ends-Means Scrutiny I. Pervasive in Constitutional Law a. Ends (purposes) must be valid b. Means chosen must fit the ends II. Uses a. As evidence of pretext/bad motives bad fit b. Rough balance of competing interests requires govt justification re: burdens III. Levels of Scrutiny a. Rational Basis / baseline Test i. ends must be reasonably related to a legitimate purpose ii. usually results in law being upheld iii. tolerate a lot of over/underinclusiveness b. rational basis with biteRB with aggressiveness i. The court seems less willing to accept any plausible purpose and more likely to inquire into whether there is a real purpose behind the law that is improperanimus towards disadvantaged group, stereotypes c. Strict Scrutiny i. Narrowly tailored or sometimes necessary to serve a compelling purpose ii. almost always results in law being struck down d. Intermediate Scrutiny i. law has to be substantially related to an important purpose ii. Quasi-suspect classifications (gender) & some rights Levels of Scrutiny Chart Level Ends RB Legitimate Any Plausible End Presume Facts Means Reasonably Related May be Over/Under inclusive tolerant of loose connection IS Important Actual Purpose Examine Facts Substantially Related Over/Under prob.- not automatically fatal, but a problem SS Compelling Court doubts motives Proof Needed Narrowly Tailored Over/Under - Fatal Less RestrictiveFatal

Less Restrictive OK Less Restrictive? More Deference ------------------------------------------------------------------------------ Less Deference To state to state

Federalism
Introduction to Federalism I. Allocation of Governmental Authority (states retain some authority) a. Balancing of Interests

i. Effective National Government: powerful enough to be effective ii. Preservation of the States (rationales)
Counterbalance federal power a. serve as check on federal authority (diffusion of govtal authority) b. states reserved power under 10th Am. 2. Political necessity a. more politically responsive because more local in character 3. States are Laboratories of Experiment (Brandeis) a. idea of interjurisdictional competition: states and fed govt learning from each other b. states testing out new ideas b. Vertical Federalism (Federal/State) starting with McCulloch case i. Enumerated Federal Powers federal power must be enumerated; states have inherent power ii. Supreme within its Sphere federal law controls in conflict w/ state c. Horizontal Federalism - Deals with inter-state relations and movement from state to state Generally: states have general police powers, therefore, the question is not whether the Const. authorizes states to act, but whether it prohibits states from doing so Major areas of federal concern: a. Vertical i. State immunity from federal regulation (10th Am) ii. State immunity from suits to enforce federal law (have to sue in fed court) (11th Am) iii. Dormant commerce clause iv. Supremacy clause and federal preemption of state law 1. Only if fed has power to pass law (often a judgment call over whether laws conflict) b. Horizontal i. Privileges and Immunities Act 1. Art. IV, Sec. 2, cl. 1 2. 14th Am. 1.

II. III.

Vertical Federalism
I. McCulloch a. Marshalls Preliminary Points i. Holding 1. Bank was within power of US govt to create under principle of Enumerated Powers 2. State tax on the federal bank impaired the operations of the bank, thus violating the Supremacy Clause 3. Therefore, the state tax was preempted by federal law and declared unconstitutional b. Implied Powers i. Powers Imply Means enumerated powers carry with them the implied power to implement those powers enumerated 1. practical necessitypowers given to the federal government are not just those explicitly expressed in the Const., but also by implication, all those powers necessary to get the job done 2. there are explicit powers as well as implied powers ii. N & P Clause 1. N & P confirms implied powers (means for implementing enumerated powers) 2. Art. I, Sec. 8, cl. 18 a. . . . And, to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States; or in any department or officer thereof." 3. A law does not have to be Absolutely Necessary a. State argumenta law is only N & P if you couldnt exercise the enumerated power w/o itresponsetoo narrow 4. Textual argument: N & P clause is meant to expand the powers, not limit a. Placementclause is at the end of the enumerated powersmeant to expand b. Wordinguses the word and so it purports to expand and not limit McCulloch Test: for implied powers (where ends-means scrutiny derives)

II.

a.

End

i. Ends have to be legitimate (w/in the scope of enumerated powers) b. Means i. Have to be appropriate (plainly adapted to the ends) ii. Means cannot be inconsistent with the letter and spirit of the Const c. Consistent with the spirit of the Constitution d. Application i. 1st Step: Whether the power is within the federal scope? ii. 2nd Step: If there is a conflict with federal and state law, if determined that the federal law is within the federal powers, then the state law is preempted iii. In McCulloch, the federal law preempts the state tax, because the Bank is N & P to taxing and spending ends III. Federal Supremacy a. Supremacy Clause: Art. VI, para 2: "This Constitution, and the Laws of the United States shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, i. States retain the power to tax, but the power is limited by the Supremacy clause (any federal law defeats state law) ii. Federal law preempts state law: State cannot impair federal operations IV. Political Process Reasoning (originated in McCulloch) a. if the state taxes a federal institution, the burden of that tax falls on other states i. the state is burdening people that have no say in the political process b. by contrast, if the natl govt taxes a federal institution, then all states are affected, natl govt is politically accountable c. this burden export by the state is a political process failure i. judicial intervention is justified to stop this misguided situation

federal
taxes

State A
taxes federal

State A

Other states

State A

Other states

HISTORICAL EVOLUTION OF THE COMMERCE POWER

I. Enumerated Powers A. Constitutional Provisions relevant to idea of enumerated powers 1. Commerce Clause (Art. I, Sec. 8) a. (commerce clause) + (reconstruction amendments) 2. 10th Amendment power not granted to Fed reserved for states B. General Points 1. One Power is Enough to sustain a federal statute 2. States Have Police Power coined in Wilson v. Blackbird C. Judicially Enforceable Limits on Federal Power? 1. Enumerated & Implied Powers 2. preservation of state sovereignty Commerce Power Intro A. The Stream of Commerce - Congress can regulate use and channels of interstate commerce, including instrumentalities, persons and things in interstate commerce, activities w/ substantial effects on interstate commerce

II.

Congress can regulate Raw materials (mining, trees), manufacture (cars), interstate shipment (trucking), wholesale distribution, retail sales, ownership B. When we talk about commerce, what part of this process (above) is commerce? - Definitely interstate shipment - What about the rest? i. In the period before the new deal, the court said that raw materials and manufacture as well as retail sales and ownership (once items removed from original package) were removed from interstate commerce ii. No real answer to this question, it has changed over time iii. NOW court tends to view the entire process as at least potentially connected with commerce in a way that allows govt to regulate C. Gibbons (1824): broad view of CP - Broad Def. of Commerce: Power to regulate commerce included the ability to effect matters occurring within the state so long as the activity had some commercial connection with another state, includes navigation - Congress can regulate the use of channels - Congress can regulate in ways reasonably related to highways, waterways, and air traffic - Congress can do so even though the activity in question is intrastate (because it is a channel of interstate commerce) - McCulloch Test i. Is federal statute 1. Constitutional 2. If so, federal law supercedes state law IV. Evolution a. The Restrictive View (Lochner Era) court repeatedly struck down Fed regulation i. Reserved power 1. The idea of police power a. Court began to view the states police powers as immune to federal interference (tended to see the police power and commerce clause as mutually exclusive) b. If within the police power, then beyond the scope of enumerated powers i. Stream of Commerce: (enumerated powers)actual transportation and distribution of items of commerce ii. Police powerraw materials, manufacture, retail, and possession 2. As a restriction on federal poweryou cannot regulate something that has an indirect effect on interstate commerce (but adverse effect on interstate commerce is ok for fed. Govt to regulate) ii. Federal regulation is only allowed if there is a direct effect on interstate commerce (E.C. Knight) 1. But no idea what constitutes a direct effect iii. Prohibition of Interstate Shipment line of cases where court upheld ban on items shipped interstate; 1. Has to be a direct regulation of interstate commerce (Champion) 2. And not for police power purposes (Hammer) b. The New Deal Switch i. Switch to more expansive view of commerce power ii. Switch in time that saved nineFDR wanted to change the composition of justices from 9 to 15 (but didnt have to) c. Expansive View (post-new deal switch) i. Jones & Laughlin Steel (NLRA) upheld national labor relations act, upheld collective bargaining even in manufacturing arena 1. Distinguished Prior Cases 2. Departed from Direct Effects critical; doesnt matter if the effects were direct or indirect, only needed substantial effects for regulation 3. No more stream of commerce requirement ii. Darby (upheld Fair Labor Standards Act minimum wages, hours) 1. Overruled Hammer (child labor case) 2. 10th Amendment was but a truism all that had not been given to the federal govt was reserved for the states 3. The Darby Bootstrap anytime you want to ban something across the board, if youre congress, all you have to do is ban its shipment and then you ban the whole process (show its sufficiently commercial)

iii. Wickard v. Filburn allowed congress to apply federal statute putting quotas on production of wheat as
means for supporting prices; ok to apply quota system to farmer who had grown small amounts of wheat on his farm and fed to cow (connection to commerce through cattle) 1. Cumulative or Aggregate Effects each individual effect doesnt have to affect commerce, but if the aggregate effects does affect commerce, then congress can regulate 2. What Cant Congress Regulate? Era of Unlimited Power - court upheld Broad Assertions of Federal Power w/o much limits

iv.
I.

CURRENT COMMERCE POWER DOCTRINE

Rational Basis Test to decide whether law within scope of congressional power (matador review) a. Componentslaw invalid only if i. Ends (no rationale for congressional finding that the regulated effects interstate commerce) OR ii. Means (there is no reasonable connection b/w the regulatory means and the asserted ends) iii. Almost impossible to strike down a law, hard to prove there is no reasonable basis for a particular means b. Broad federal power i. Civil rights casesupheld civil rights actsprohibited racial discrimination in interstate commerce (included hotels and restaurants) (Heart of Atlanta) 1. State action doctrinelimited Congress to prescribing only rules to states, wouldnt allow Congress to prohibit private acts of discrimination 2. Court was more willing to uphold law under Commerce power than EP clause ii. US v. Perez (cumulative effects) 1. Maybe individual loan sharking doesnt effect IC, but combined, it might iii. Restaurant case: Congress can regulate activity if the food could potentially be moved to other states 1. Jurisdictional nexus provisions (unrelated to effect) New Federalismseries of decisions in 1990s that struck down federal law (restricting commerce power) The Lopez/Morrison FW Lopez is more significant of the two cases; court willing to limit CP a. Significance of Lopez (possession of gun in school zone) i. Restatement of Doctrine no more application of RB test, go toCategorical approach b. Confirmed in Morrison created new framework i. Categories of Permissible Regulation ii. Substantial Effects Test c. Implications of Raich i. Court uses the first prong of the substantial effects test to affirm regulation of growth and consumption of pot as an economic activity ii. Substantial factor test is not applied, uses the Wickard standard and not Lopez, because it deems pot as an economic activity iii. May be a sign that New Federalism is running out of steam, giving power back to Congress Categories of Federal Regulation 3 categories of regulation w/in scope of commerce power a. Regulate Use of the Channels roads, rivers, internet b. Regulate and Protect i. Instrumentalities things that make you move through channels (i.e. trucks, buses, cars, boats) ii. Persons & Things In interstate commerce those instrumentalities that carry people and things iii. Both A & B are economic actions so can cumulate effects (in order to achieve a substantial effect, you would have to treat A and B cumulative) c. Regulate Activities w/ Substantial Effects on interstate commerce (cannot use aggregate effects) (see 4 factors) d. Application on Facts i. Only Substantial Effects Category Plausible in Morrison and Lopez (guns in schools non-economic) ii. The only way a state can regulate something non-economic is through the substantial effects test Applied in Morrison 1. Activity (Gender Violence) Not Economic 2. No Statutory Jurisdictional Requirement 3. Extensive Findings, But Not Helpful

II.

III.

IV.

Four Lopez Factors 1. Activity (Gun Possession) Not Economic 2. No Statutory Jurisdictional Requirement 3. No Findings in Record

4. Traditional State Areas (Education & Crime) V.

4. Traditional State Area (Dom. Rel. & Crime)

Substantial Effects Factors a. (1) Non-Economic Activity i. Cumulative/aggregate effects not considered 1. aggregate effects only considered if activity is economic ii. Wickard does not apply because unlike farming in Wickard, gun ownership is not related to commerce, so not an economic activity iii. Application in Morrison 1. Domestic violence is non-economic; no aggregation necessary so go to next step iv. Relation to Jurisdictional Nexus/Findings b. (2) Jurisdictional Nexus i. Requires proof that there is a connection to interstate commerce ii. You dont need a jurisdictional nexus if you have cumulative effects c. (3) Findings i. If Congress has done research and shown the effects of the activity on interstate commerce, then the court will give deference to the research ii. Findings must be relevant to the inquiry iii. Lack of findings in Lopez 1. court says findings are not required 2. But aid the court in its independent evaluation iv. Findings in Morrison Unhelpful 1. findings showed aggregate effects but irrelevant b/c noneconomic activity 2. Would have to find that every act of gender-motivated violence has effect on interstate commerce d. (4) is it a traditional State Power (the argument proves too muchgive too much power to the federal govt) i. Problem if those findings were sufficient, then it would lead to congress having authority to regulate everything traditionally held as state power ii. i.e. weve reasoned to a contradiction through enumerated powers; congress able to regulate anything even police powers held for states iii. National Productivity Proves Too Much: 1. Lopez: Would convert congressional authority under the Commerce Clause to a general police power of the sort retained by the states. 2. Morrison: Suppression of violent crime has always been the prime object of the States police power. . . . Reasoning might allow Commerce Clause to completely obliterate the Constitutions distinction between national and local authority . . . .

General point re: commerce power What cant congress regulate o Small body of activitynon-economic activity in a traditional area of state authority without a jurisdictional nexus to interstate commerce unless each instance of that activity has a substantial effect on interstate commerce o Even if something is beyond the commerce power, congress might be able to reach it with other powers

STATE SOVEREIGNTY
PRESERVING STATE SOVEREIGNTY (Commerce Power) I. Background A. States as Sovereigns meant to retain sovereignty in constitution 1. Meaning of Sovereignty means the authority, independence of a nation to act on behalf of its people within its territory and be respected by other sovereignties 2. Attributes of Sovereignty the larger the federal govt gets, the more broad its power gets; the more important the court views it to prevent federal power from encroaching on state sovereignty 3. Dual Sovereignty creates problems b/c if states are sovereign, how can fed tell states what to do; court tries to place limits on federal power if interference with state power B. Implications for Federal Power (2 types of cases)

1. 2.

(1) 10th Amendment and State Sovereignty (no commandeering rule) where federal govt enacts laws for states; potentially inconsistent with state sovereignty (2) State Sovereignstates cant be subject to lawsuits for violating federal law (sovereign immunity) States as States Commandeering not OK

Direct Regul.

Fed

Fed

Fed states States

People

People

People
II. Commandeering States A. No commandeering Rule Congress may not commandeer states by compelling them to legislatively implement federal policy 1. Adopted in NY v. US 3 levels of requirements/ incentives: 1) if you meet certain deadlines, you got federal $ 2) if you did not comply with 1st deadline, then congress could authorize other states to refuse your waste 3) (invalidated by court) if you didnt meet 3rd set of deadlines, then anyone who had radioactive waste could give it to you and you had to take title of radioactive waste (violates no commandeering rule) take title clause 2. Extended in Printz held that Congress may not require state and local officials to enforce a federal statute requiring background checks prior to the purchase of handguns; expanded NY v. US to apply to state executive officers 3. Distinguish Garciafederal govt has general law that applies to both states and people (like wage and hour laws) a. improperif fed govt tells states what to do to implement federal policy to the people B. Source & Rationale of No Commandeering Rule 1. 10th Am Mirror Image Rule: end is legit and means are plainly adapted to the end, but the means are improper because they are contrary to the spirit of the Constpt. III of McCulloch (violates 10th) 2. Historical Argument: Const. took power away from fed. Govt to have power over the states 3. Political Process Argument: when fed govt tells state govt what to do, the political accountability of both govts are diluted, people are confused about who is really responsible C. Scope of No Commandeering Rule 1. Branches of state government which branches cant be commandeered a. cant commandeer Legislature Applies (NY v. US) b. cant commandeer Executive Applies (Printz) c. CAN commandeer Judiciary Does Not Apply (NY v. US); right to sue in federal court can be regulated in statute; but can also bring federal claim in state court and state court is obligated to hear it - big difference is supremacy clause 2. only applies to situations where fed law Compelled implementation, not: a. General federal mandates (Garcia) wage/hour laws; just command to state officers to comply with federal law b. Prohibition of action (Reno v. Condon) it is not commandeering when it prohibits state officials from doing somethinglike releasing private information c. federal govt can prohibit states from doing something, but it cant compel states to do things 3. & Other federal powers a. Conditional Spending OK (NY v. U.S) if you want fed $, must do X b. Reconstruction Amendments (?) not so clear from case law; but you could probably commandeer states under reconstruction amendments for same reason you can abrogate sovereign immunity State Sovereign Immunity

III.

A. Background a. SI Generally sovereign cannot be sued and not subject to suit w/o its consent b. 11th Amendment i. Judicial power shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the US by citizens of another state or citizens of a foreign country ii. (also Art. III, sec. 2, part of diversity jurisdiction, but doesnt include citizens suing another state) iii. specifically overrules Chisolm case (individual can sue state) and restores sovereign immunity iv. Text of 11th does not protect a state from being sued in federal court by its own citizen but: 1. Hans v. LA : 11th Am provides immunity against all suits which states are implicated in federal courts (including those by its own citizens) B. Abrogation a. 14th Am: Under Fitzpatrick, Congress may abrogate 11th Am. immunity pursuant to the 14th, which came later in time and contemplates remedies against the state (doing away with state sovereignty) i. 14th imposes obligations on the states and authorizes Congress to enforce these obligations through legislation b. Commerce Power? cannot use to abrogate i. Pennsylvania v. Union Gas court did uphold congresss power to abrogate SI but overruled by Seminole ii. Seminole Tribe: held that Congress cant abrogate sovereign immunity under the Commerce Power 1. Overturns Union Gaswhich said that Congress can abrogate 11th Am. immunity under the Commerce Power 2. (height of new federalism); 14th can abrogate; commerce power cant c. State Courts: Alden i. Congress cant abrogate the immunity of states in state courts ii. 11th Aminapplicable because it applies only to cases arising in federal court iii. when constitution adopted, SI for states was well established and was background legal principle that people understood would continue after the adoption of the constitution; so constitution approved with assumption that sovereignty of states would continue d. Limitations on Sovereignty Protections i. Abrogation 1. under the 14th 2. Bankruptcy power (Katz) (allows you to sue states or states to sue individual in fed court) ii. Conditional Spending 1. You can get federal funds if you implement the law the way the feds want, not commandeering because the state voluntarily accepts the money and enacts the laws (i.e. speed limits) 2. Waiver of sovereign immunity as a spending condition is allowable but must be an be expressly expressed iii. Injunctive relief against officers 1. Ex Parte Young a. even though you cant sue a state, you can sue a state officer; so if you want to challenge a constitutional amendment, you would have to sue the atty general and seek injunction against enforcement of statute (only injunctive relief, not money damages) b. No money damages or equivalent iv. Conditional preemption: 1. Fed govt may threaten to preempt the area of law by adopting a fed law in the same area 2. Given the choice, most states would rather do it themselves than be preempted

RECONSTRUCTION AMENDMENTS
I. Other Powers a. Connection w/ Commerce Power i. Under Pre-New Deal Reserved Powers Doc., court had narrow version of CP 1. Traditional state police powers were immune from federal intrusion. (see Hammer) ii. When the court starts to interpret the commerce power narrowly, it limits the other powers because the limit on the commerce power will be for nothing because the other powers can do what the commerce power does

10

iii. Expansion of Commerce Power limitless under mid-90s, no one cares about justifying other Fed powers;
easy to justify under Commerce Clause b. New Limits on Commerce Power i. Non-commercial/non-economic Activity w/in Police Power ii. No Commandeering iii. Sovereign Immunity c. Other Powers Have Renewed Importance (induce states to give up power) i. New federalism in the 1990s started to restrict the CP, preventing Congress from commandeering states and abrogating state sovereign immunity 1. Because of this, other federal powers became increasingly important ii. 14th Amendmentallows Congress to create revenues against the state (Spending power) 1. Taxing and spending powers represent an all-purpose alternative to the CP 2. may be used for Congress to enact legislation that may not be justifiable under the CP Reconstruction Amendments a. Rights and Power i. Historical Context 13-15th adopted immediately after war 1. 13thprohibits slavery (has an enforcement clause) 2. 14th: Source of congressional Authority for Civil Rights Acts 3. 15thprohibtis racial discrimination (has an enforcement clause) ii. Scope (text) 1. 14th Am: P&I, DP, EP, citizenship clause 2. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. iii. The fundamental issue concerning the power to enforce the 14th am (granted by Sec. 5) is how closely a statute must be linked to a 14th Am violation as defined by the court 1. Narrowest viewcongress may only provide remedies for specific violations 2. Broadest viewcongress might be able to give consent to or recognize new components of these rights 3. Mediumcongress might have authority to regulate some conduct that does not constitute a violation because of its connection to an actual or potential violation iv. Abrogation of Sovereign Immunity lawsuits can be against states in both state and federal court; b/c 14th comes later in time and it speaks to violations by the states of federal rights given; so if youre talking about violations by the state, then there has to be remedy against the state 1. Must Be Explicit b. Evolution of Ends-means scrutiny Test i. Katzenbach v. Morgan: court held that Sec. 5 incorporated the McCulloch implied powers test so that Congress may choose means that are plainly adapted to remedy or prevent a 14th Am. violation. 1. Although the court had previously rejected an equal protection challenge to an English literacy requirement for voting, in Morgan, it held that a statute banning such requirements was plainly adapted to remedy or prevent a 14th Am violation 2. Morgans McCulloch Variation a. Whether the act may be regarded as an enactment to enforce the Equal Protection Clause, b. whether it is plainly adapted to that end and c. whether it is not prohibited by but consistent with the letter and spirit of the constitution 3. Enforces w/appropriate means a. Prevent future violations congress can reasonably decide that prohibiting literacy requirements would prevent discrimination against immigrants from other countries b. Finding of discriminatory intent if there was discriminatory purpose behind literacy test, then congress could decide on basis of factual determination that would decide violation 4. Key idea: when congress uses the phrase appropriate legislation it incorporated by reference the N & P clause from the McCulloch interpretation 5. Contrast w/ new federalism approach in Boerne

II.

11

ii. City of Boerne v. Flores (New Federalism)(Relig. Freedom Restoration Act strict test reqd re: Fed
interference w/ religion) 1. Court struck down RFRA as an excess of legislative power and adopted a congruence and proportionality test for the 14th Am. power 2. Test (Morgan test as modified by Boerne) a. for an end to be proper, it has to be directed at a violation of the 14th Am, as directed by the courts, NOT BY CONGRESS i. because Congress cant create new rights b. the means chosen must be congruent and proportional to the underlying violation that Congress is seeking to remedy/prevent c. consistent with the letter and spirit of the Constitution d. important test for New Federalismrestricts Congress ability to use the 14th Am when it cant use the Commerce Power 3. congruence and proportionality test a. in order for a law to be appropriate or plainly adapted, the remedy Congress provides has to be congruent and proportional to the underlying violation (tightly tailored standard) c. Regulation of Private Actors: i. The State Action Requirement congress cannot regulate private conduct, only states 1. 14th Am. Sec. 1 2. The Civil Rights Cases a. Congress can enact laws under the 14th towards the states, but it has no authority to regulate private conduct (Court invalidated statutes prohibiting discrimination in hotels, restaurants, and other public accommodations) ii. US v. Morrison (VAWA) 1. Federal law that created a right of action against private parties in cases of domestic violence 2. Court: This is beyond the scope of the commerce power a. Lopez framework: Congress was regulating a non-economic activity w/o a jurisdictional nexusso there could be no cumulative effects 3. Reaffirms state action requirementpreserves the division of authority b/w natl and state 4. Remedies vs. Private Actors (not Congruent & Proportional to remedy and prevent a violation of the 14th Am) a. Underlying violationstates failure to protect against domestic violence b. Remedy not directed against state failure, but a private party 5. Under the commerce power, Congress can regulate private parties 6. Under the 14th, Congress can only regulate states d. Remedies Against States i. Generally 1. b/c the 14th Am creates rights against states and empowers Congress to enforce them, it implicitly repeals the sovereign immunity of states as a limit on Congressional power. 2. The 14th Am has therefore taken on new importance as a source of power to create remedies against states. ii. Interaction with level of scrutiny 1. Classifications (suspect/non-suspect) a. Disability and age are not suspect classifications b. Gender is suspect 2. Age (Garrett) and Disability (Kimel)subject to RB test a. Cant support abrogation of SI under the age and disability provisions because not suspect classifications b. Garretfederal remedies against states for age discrimination were not congruent and proportional to an underlying EP violation c. Kimelcourt invalidated remedies against states for disability discrimination 3. Gender (Hibbs) & Access to Courts (Lane)remedy was constitutional (sufficiently related, congruent and proportional to an EP violation) because gender is a suspect classification and subject to heightened scrutiny

SPENDING POWER 12

I.

Taxing and Spending a. Introduction i. Art. I, Sec. 8, cl. 1: (taxing and spending power): 1. Taxing power: Congress shall have the power to lay and collect taxes 2. Taxes have to be uniform throughout the US 3. Spending power: to pay debts and provide for the common defense and general welfare of the US a. General welfare: not limited to other enumerated powers, general welfare is any issue that affects the country as a whole 4. Regulatory effects: taxing and spending have regulatory effects a. can regulate to encourage general welfare of the country ii. Pre New Deal (Butler) 1. Court held that the powers to tax and spend for the general welfare were not limited by the DIRECT grants of legislative power found in the Const. but concluded that Congress could NOT DIRECTLY regulate crop production, it could not accomplish those ends indirectly by taxing and spending to purchase compliance a. Congress could not infringe upon the states police power 2. Court had to distinguish b/w taxing and spending measures that were really taxes and taxes and spending measures that were intended to regulate 3. TEST pre-new deal, look to see if purpose was regulatory then invalidated law iii. Post New Deal 1. Rejected idea that you had to worry about intruding into states police power 2. The Court upheld the exercise of taxing and spending powers to accomplish regulatory objectives 3. Broadly Construed (Steward Mach. Co. & Helvering) a. court upheld provisions of Social Security Act providing for taxation of employers to fund federal unemployment insurance under the Commerce Power 4. But Moot since you could get everything under commerce power, you didnt need to use spending power iv. New Federalism? this becomes the hot issue again; we have limits on scope of federal power (at least on commerce power and 5 of 14th); court recognized that congress can condition funding on abrogation of sovereign immunity b. Necessary & Proper i. In Sabri, the Court upheld a federal statute prohibiting bribery of state, local, and tribal officials in programs receiving federal funding, w/o any requirement that the bribery relate to the administration of federal funds. 1. Govt punishes the entire city because of a bribe that has nothing to do w/ federal funding 2. No jurisdictional nexus to $ a. Just needs to receive some federal funding; doesnt have to be much more of a connection to federal govt than that ii. Necessary and Proper to Spending 1. Prevent misappropriation 2. $ Fungible Once you start having someone messing around with $ and they have some authority over federal funding, then you can go after them whether they misused federal funding or not iii. Relation to underlying enumerated power to which the N & P clause attaches 1. Power + N & P (Sabri) a. N&P additional power to the enumerated power b. Two separate ?s in any federal power case adopting Sabri approach i. Is it w/in the enumerated power ii. If not, it is N&P to the enumerated power 2. Power x N&P (Lopez, Boerne) a. You have the power to enact N&P laws to regulate commerce b. the two combine as a single entity with respect to each enumerated power c. Lopez (p. 7): Court says nothing about N&P, but that under the CP there are three categories of authority d. Boerne (p. 11): test for the enforcement of 14th is the McCulloch test i. So you dont ask if this is a regulation to enforce the 14th, and then if it is N&P ii. It is all one thing

13

iv. Dole inapplicable test for conditional spending; SC said dont apply b/c bribery statute was not condition
on spending; state didnt voluntarily accept it as condition of receiving money 1. Direct Regulation 2. Implications? If all you need to do is show that federal govt had some interest in regulating state programs that receive federal funds, then spending power + necessary and proper clause means federal govt can regulate state activity Conditional Spending/Dole make you an offer you cant refuse; federal govt has deep pockets and states dependent on fed for funding for programs i. Funding Condition: Drinking Age of 21 if you want federal hwy funds ii. Test (very broad) conditional spending is permissible if: 1. condition is for the general welfare (ends) 2. condition is unambiguously expressed in regulation 3. condition is not unrelated to program (means) key part* 4. cannot violate other constitutional provisions 5. possible 5th part: coercion a. It is possible that a spending condition might be so severe and restrictive that is effectively coerces states b. Dole sets the threshold for coercion very high loss of federal hwy funding would be huge loss to states (if it wasnt coercive in Dole, then its hard to imagine what would be coercive) iii. The New Federalism & Dole opinion written by Rehnquist; pioneer of new federalism; hard to imagine what wouldnt come under Dole Test Commerce Lopez p. 7 3 Categories (replaces ends/means scrutiny) Has to be a RB Noncommercial activity (reqs substantial effects and jurisdictional nexus) 1. commandeer 2. abrogate state SI 14th amendment Violation defined by court Congruent & proportional (more narrow than RB test) Private action to RB State actiondepends on classification None Spending General welfare (broad) Not unrelated

c.

Power Ends Means

Hard to reach subjects

None

Improper means

Coercion?

Federal PREEMPTION
I. General Framework a. The Supremacy Clause (Art. 6, Sec. 2) i. States have no power to impede the operations of Const. laws enacted by congress ii. Is the fed law w/in the scope of the enumerated powers? (it is most always w/in the scope) b. McCulloch i. Is there a conflict w/ the state law? ii. States have no power, by taxation or otherwise, to retard, impede, burden, on in any manner control, the operations of constitutional laws enacted by Congress. Three types of supremacy a. Express b. Implied (conflict preemption) c. Implied (occupation of field) Statutory construction a. Preemption is a matter of legislative intent b. Presumption against preemption i. Start w/ presumption that statute is against preemption, b/c assume that Congress wont take away states power unless absolutely necessary Express Preemption

II.

III.

IV.

14

a. It has to be specifically stated within the federal law for a state law to be preempted by federal law
b. I: i. Scope of preemption (Cipollone) ii. State law w/in scope? (if it doesnt fall w/in the scope, it isnt preempted) c. Lorillardthe law as it relates to cigarettes is preempted d. Negative implication i. From preemption provisionsexplicit ii. From savings clauses Conflict preemption a. State law is also preempted if there is a conflict b/w federal and state law which may arise when i. It is impossible to comply with both or ii. The state law is an obstacle to accomplish the federal objectives b. Impossibility of compliance i. Impossibility of compliance arises only when compliance w/ fed law would violate state requirements (Florida Lime Growers) c. Obstacles to purposes i. Even it is possible to comply with both federal and state law; there is a conflict if state law is an obstacle to accomplishing the objectives of federal law. ii. Examples of federal govts preemptive purposes: 1. Careful balancing of policies-if state law is contrary to purposes of fed law or if state regulation is likely to upset careful balance, then it is an obstacle to the federal laws purpose 2. Uniform standards 3. Overriding national interestforeign policy Occupation of the Field: fed law is so pervasive and dominant in the area, that it completely displaces any residual authority of the state a. Is the field occupied? (Hines) 1. Pervasiveness of federal regulation A field of law may have been completely occupied by federal law. Thus, any state law in that field is automatically preempted. EX: Labor and ERISA The larger the federal presence, the more likely that it is pervasive. 2. Dominant federal interest The greater the need for a uniform action, the greater the federal interest. EX: Foreign relations and foreign policy. 3. Object and purpose reveal intent Catch-all In most cases, the occupation of the field by federal law is well established. Not many cases of uncertainty. b. W/in the field?: (does the state law fall w/in the field, more common question) 1. Pacific Gas (not Assigned) - Regulation of nuclear power plants. 1. Safety and conditions for licensing nuclear power plants is occupied by federal law. . 2. Safety Occupied - CA adopted a moratorium on the construction of nuke plants. Court upheld the moratorium because it decided that it was an economically based moratorium and did no address nuke plant safety, even though it would, in effect, regulate nuke plants in CA 3. Economically based Moratorium OKsaves it from preemption because it is econ in character and not safety oriented like the federal law

V.

VI.

Can basically make the same arguments for obstacle and occupation of the field

Horizontal Federalism
I. II. Relations between states Constitutional principles a. Historical contextconcern that states where engaged in retaliatory measures against each other that undermined the cohesive nature of the country b. Provisions i. Dormant commerce clause ii. Privileges & Immunities (Art. IV, 2) iii. Full faith and credit (Art. IV, 1)

15

iv. Contracts clause (Art. I, 10, cl.1)no state can impair the obligations of Ks v. Right to travel (14th Am. P & I)
vi. Equal protection (Illegitimate purpose) vii. Due Process (minimum contacts) c. Competing Interests National interests State interests Freedom of movement Serve and protect citizens Benefits of free trade Local problem, local solution National unity Define political community d. DCC general principles i. Under the DCC, courts may invalidate state laws that conflict with the Commerce Clause even though Congress has not acted (i.e. the Clause is dormant) ii. DCC has a preemptive effect 1. Invalidates certain state laws by its own force and effect 2. Doesnt limit states, but empowers Congress iii. Rationales: 1. CP is indivisible and exclusive and can only be given to one sovereign (given to fed, taken away from states) 2. The court is making an inference from what Congress intended when Congress failed to act or didnt act (ex. if Congresss failure to act was for the intent to leave the field unregulated, then the states regulation is invalid) 3. Purpose of CPprevent states from being protectionist Overview of Dormant Commerce Clause I. History of the DCC a. Exclusivity Rationale (Gibbons) i. Marshall suggested that the CP was a unitary and indivisible one so that by granting the power to Congress, the Const. necessarily w/drew the power from the states ii. On this exclusivity theory, the states couldnt regulate interstate commerce because they had no authority to do so b. Commerce/Police Power distinction i. Willson: Court says dam wasnt a regulation of commerce, it was built because the river was slow, caused disease, therefore it was enacted pursuant to the police power and not the commerce powerso VALID ii. Overlap b/w subjects of regulation c. Selective Exclusivity (Cooley) i. Significance - 1850s decision, court says the commerce power restricts the states from regulating interstate commerce; but not ALL interstate commerce ii. Local vs. National Subject Matter if subject matter local, then states can regulate; if subject matter is national and requires uniform regulations, then states cant regulate iii. Other testsdont reflect current doctrine, but have not be overturned 1. Direct & Indirect Regulation states may not directly regulate interstate commerce, but they can regulate activities that affect interstate commerce 2. Implied preemption (congressional intent) 3. Anti-protectionism 4. Political-process reasoning: state law that reflects a political process failure is invalid d. Open-Ended Analysis (ad hoc balancing) somewhere in the 1930s-50s i. Balanced the burden imposed by a state law against the local safety concerns said to justify it 1. Not supported by exclusivity rationale from Gibbons and Cooley Case Result Safety benefit Burden Political process Barnwell Brothers Truck width limit Valid Roads too narrow (deference) Reload or reroute In and out of state, trucks burdened Southern Pacific Train length limit Invalid Slack action offset (no deference) Reconfigure or reroute Mostly interstate trains burdened

16

Local/national II.

Highway peculiarly local

Railroads national/uniformity needed

Current Doctrine a. General statement of doctrine: i. Identify the commerce ii. Is the law discriminatory 1. On its facedoes it discriminate against interstate commerce or out of state business and people 2. In practical effect iii. If yes, then apply strict scrutiny (nearly per se invalid) 1. Legitimate, non-protectionist reason 2. Narrowly tailored (no alternative means) iv. If not discriminatory, apply balancing test (apply Pike test, p. 18) 1. Balance b/w burden on interest commerce and local benefits 2. Valid unless the burden is clearly excessive in light of putative local benefits v. Exceptions to the DCC 1. Congressional authorization 2. Market participation 3. Subsidies

yes

State regulation or tax affecting commerce? no

Discriminatory? no yes Apply strict scrutiny

b.

DCC does not apply

Burdens/benefits balancing

Consider other provisions

United Haulers i. Flow control ordinancelocal law required citizens to only use the public trash company and prevent citizens from sending trash elsewhere (controlled flow of trash by channeling it to local plant) ii. Application of benefits/balancing test (because it is not discriminatory) 1. Minimal burden on IC (mostly local) 2. Recycling incentives (benefit) a. Easier to enforce if there is only one place to dispose trash b. These benefits are sufficient to outweigh the burdens iii. Police power justification outweighed the DCC iv. Distinguishable from Carbonne because it is a public trash processing company and in Carbonee, the trash company was private

DCC: Discriminatory Measures I. Is there interstate commerce?? Threshold Requirement a. Philly v. NJ i. State statute that banned out of state trash ii. States argno commerce involved, so DCC is not implicated

17

iii. Court heldtrash is an article of commerce, commerce in trash disposal services 1. Court treats this as an import ban (banning trash coming in) iv. Facially discriminatoryeasy case 1. Ban on import which is clearly discriminatory (protectionist), virtually per se rule of invalidity v. The Court emphasized that even legitimate purposes cannot be accomplished by discriminatory means II. What is discrimination? a. Law is discriminatory if it discriminates against interstate commerce either on its face or in its practical effects b. Facial (if it employs certain classifications, easiest to recognize, strict scrutiny is applied) i. Classifications: (law that distinguishes b/w in-state and out-of-state residents or distinguishes b/w goods originating in state or out of state) 1. Residency 2. Point of origin ii. Barriers 1. Import/Export Ban (Philadelphia, Maine, Hughes) - Rule that erects a barrier at the state line so that product cant cross it iii. Local processing requirements (functional barriers) (Carbonne, Dean Milk) 1. Local discrimination (discriminating against rest of state as well as out-of-staters) 2. Treated as if they are state based discrimination and not local iv. Neutralization of competitive advantage: serve in-state interests at the expense of out-of-state 1. Min/max priceslargely discriminatory b/c they wipe out the competiveness that out-of-state companies may have c. Practical Effects (harder to recognize) i. Facially neutral: but constructed in a way that attempts to discriminate 1. has effect of discriminating out of state residents even though the language itself isnt facial ii. Gerrymandering: (most often used in reference to political districts) 1. Not facially discriminatory b/c lines drawn on geographic features, but when the shape becomes such that its not explainable for any reason other than racial, political, then its gerrymandering 2. Hunt: State says that apples cant have certification program other than US, Washington has its own heightened certification program. a. State intentionally passes law banning other certification programs, hurting Wash b. So it is discriminatory c. Only have to show effects of the law and not the purpose (usually need to show adverse effect on minority group and discriminatory purpose to apply SS) 3. Burden/export: burden falls mostly on out-of-state and not is not represented locally a. Whether a protectionist motive standing alone w/ an otherwise neutral law is enough to trigger strict scrutiny III. Strict Scrutiny a. Nearly Per Se rule against discriminatory laws (Philadelphia) i. in Philadelphia, court doesnt even really go through the steps b. legitimate, non-protectionist purpose for the state law(ENDS) i. Easy to Identifytalk about health, safety, common state goals, etc ii. Fit is the Keywhat almost always leads to violation of the law c. Necessary means (means have to be necessary to meet the purpose articulated) i. Over/underinclusiveness 1. must be narrowly tailored to meet that interest ii. No LDAa less discriminatory alternative cannot be present to pass strict scrutiny iii. Hughes: state defended a ban on exporting minnows in terms of protecting ecosystems and threatened species, but it could have accomplished these goals with even-handed regulations. (e.g. a limit on the total number of minnows captured by one person) iv. Dean Milk: city advanced health reasons to justify local processing but the court said the city could send its officials out to inspect processing facilities elsewhere or rely on federal inspections v. Maine: however the test was met because there were no non-discriminatory ways to alleviate the ecological concerns (parasites and non-native species) of importing live bait fish 1. Rare case that satisfies SS

18

DCC: Neutral Measures

I.
II.

III.

Neutrality: discriminatory measures are per se invalid under SS, but neutral (evenhanded) measure are subject to less stringent burdens/benefits balancing. a. Critical issue: how to tell whether a measure is truly neutral or should be treated as discriminatory Overview a. 1st Step: Non-discriminatory/incidental effects i. The effects on commerce arent the purpose/goal of the law, but they are a by-product of the law ii. Exxon, Clover Leaf, CTS involve facially neutral laws whose burden concerns almost exclusively out-ofstaters, but even though the burden fell primarily on out-of-state firms, the court did not consider these to be discriminatory in practical effect b. Apply the Pike test: i. if the law is neutral, it is still subject to DCC scrutiny ii. law is unconst if: 1. burdens are clearly excessive 2. in light of the putative local benefit iii. if you are going to win under Pike test, you have to show burden on IC is severe and you have to go after the benefits the state purports to gain and show they arent real iv. test usually (but not always) results in sustaining the state law and relatively few laws struck down Balancing a. Burdens i. Relevant burdens? 1. Commerce is relevant to markets not firms (Exxon) a. Not all burdens that state regulations cause are burdens on interstate commerce 2. Pike seems to be the opposite of Exxon because the excessive weight fell entirely on one firm ii. Weighty burdens two kinds of burdens that are always significant 1. Obstruction of flow (Bibb, S. Pacific) a. Obstructs movement of goods across state lines 2. Extraterritorial regulation (Mite) a. Regulations of activities that occur out of state 3. Burden export (discrimination and neutral laws) (Exxon) a. Less significant, but still needs to be considered b. Benefits (burdens must outweigh putative local benefits) i. A state may legitimately pursue (through non-protectionist means) the health, safety, and economic well being of its citizens. The critical question in the balancing cases is how much deference the state receives in its assessment of these benefits. ii. Types of Benefits 1. Health, Safety, Environment usually better off 2. Economic Concerns may look like protectionism iii. Deference to Local Judgments? 1. Normally, a lot of deference is given, upholding the state law (Exxon, Cloverleaf, CTS) 2. No deference, Pike & Bibb a. Court questions whether law will be of any real benefit

How do you treat these cases? 1) treat law as discriminatory and apply strict scrutiny (hunt) 2) ignore burdened export and apply balancing (Exxon)

DCC: BURDEN EXPORT I. Burden Export Generally

a.

b. c.

Court has experienced the greatest difficulty in evaluating state laws that are neutral on their face but disproportionately burden out of state interests These laws suggest a political process failure because they export the burdens to other states whose citizens arent represented in the political (under this type of reasoning, if the burden falls evenly on in and out-of state interests, then the in-state interest may serve as a proxy for the out-of-state interest) Cases so far suggest several possible outcomes when the burden is exported (Kassel illustrates all three)

19

II.

III.

i. Treat law as discriminatory (Hunt) ii. Treat law as neutral and invalidate (S. Pacific) iii. Treat law as neutral and uphold (Exxon, Cloverleaf) Problem Case a. Facially Neutral Law b. Impact i. Burden On Out of State Interests ii. In State Interests Benefit c. 3 Implications i. Suspect Protectionism like Hunt v. Washington Apple; purposed to target out of state apples to benefit of in state apples ii. Political Process Failure out of state interests may not get attention when they lobby state legislators like in states interests iii. Particular Burden on Commerce laws imposed on out of state interests only are larger burden on interstate commerce than those laws that equally burden both in state and out of state interests Implications for BE & DCC Framework a. Discrimination can use burden export to make argument law is discriminatory in practical effect i. BE and Gerrymandering ii. Evidence of Protectionism b. Balancing use burden export in burdens/benefits analysis i. Particular Burdenexcessive because it so predominantly effects interstate commerce ii. Benefits Receive Less Deference? 1. Burden is political process failure so you give less deference to the states (Kassel plurality) 2. Key idea here you defer to legislative judgments re: health and safety b/c legislature is politically accountable a. But if theres a burden export so that the legislature is not really going to be held accountable by voters in the state, then the court doesnt necessary show the same deference (So. pacific case) c. Uncertainty burden export situation creates uncertainty, most likely treated as nondiscriminatory and subject to balancing i. Divisions Within Court (Kassel)inconsistent results Neutral rule Train length Apple Certification Refiner owned Non-returnable plastic Tender offers Tender offers Burden Interstate trains Washington Growers Out-of-state refiners Plastic makers Tender offerors Tender offerors Benefit Local crews (?) N.Carolina growers Independent owners Paper companies Local management and shareholders Local management and shareholders Rationale Discriminatory or fails B/B Discriminatory Non-discriminatory and survives B/B Non-discriminatory and fails B/B Non-discriminatory and fails B/B Non-discriminatory and survives B/B

Inconsistent Results? Case So. Pacific Hunt Exxon Cloverleaf Edgar v. Mite CTS

d. Possible Explanations i. Smell Test look for some sort of legitimacy to what the state did; dont overestimate the importance of the smell test ii. Development of Record success may be because the s were careful about putting in the right evidence to support their arguments iii. Other Interstate Competition in some, court seems satisfied (like in Exxon and Clover Leaf) if theres still going to be some kind of interstate competition iv. Some In State Burdens in Clover, court focused on the milk producers that were objecting to the law as an in state interest that provided a process check

20

v. Directness of Competition in Hunt, it was apple growers and apple growers in direct competition;
whereas in Exxon, it was refineries which were burdened and individual owners benefited

vi. Instrumentalities of Commerce roads, railroads, etc.. court is particularly sensitive vii. Evolution of Doctrine these cases come from different time periods and the doctrine has changed over
time;

viii. Composition of Court liberals and conservatives IV.

Kassel Illustration a. Regulation of truck length (60 ft. doubles), exceptions adopted to border cities, trucks built in IO could be sent out of state, and mobile homes i. Makes it harder to ship goods through IO, burden falls primarily on out-of-state interests, exacerbated by the exceptions which are even more favorable to IO b. Law is non-discriminatory but fails B/B balancing (Plurality, 4) i. Court treats law as a facially neutral/non-discriminatory law ii. Burden: 1. Obstruction of Flow of interstate commerce mobile homes and trucks had to reroute or reconfigure to deal with IA (excessive) iii. Benefit 1. Evidence at trial showed the regulations did not make highways safer 2. Political Process Failure = Less Deference to safety concerns b/c falls largely on out-of-state interests c. Facially Discriminatory (concurring opinion, 2) i. Court should not weigh safety benefits, instead should find actual purpose ii. Actual purpose is protectionism 1. By diverting safety to other states, reduce the traffic w/in Iowa, and save money on road repairs iii. Discriminatory in practical effect because, with all of the factors, intent is visible d. Facially neutral and satisfies B/B balancing (Dissent, 3) i. This is a neutral law whose safety benefits outweigh the burden on interstate commerce ii. Safety Purpose Sufficient 1. right Q is, is it reasonable to have length limits in order to promote safety YES 2. Dont second guess legislature (no need to find actual purpose)s Plurality (4) NA (fn 26) NA (hints) Evidence contra BE = PP failure Reconfigure or reroute Kassel Holding? Concurr. (2) NA Actual purpose protectionist Dont weigh: actual purpose impermissible Evidentiary battle wrong NA b/c per se invalid Dissent (3) No; exceptions limited Dont look for actual purpose Real; Marginal actual benefit Dont Q Defer unless pretext Not required to follow other states

Issue Discrim.

Facial Purpose and Practical effect Weight Defer?

Safety benefit

Burden

DCC EXCEPTIONS (3 recognized exceptions)

I. II. Not all state laws that discriminate against out of state interests or serve protectionist purposes are invalid under the DCC Congressional Authorization a. General power of Congress to permit state regulation of interstate commerce, even in discriminatory ways that would violate DCC b. Reverse Preemption: law would ordinarily be violative, but Congress gave state permission to discriminate in IC i. Historical uncertainty: used to be unclear whether or not Congress could permit states to violate DCC ii. Opposite result than Boerne iii. Examples: In re Raher: upheld law that authorized sates to ban the import of liquor and reversed a SC decision which held that it violated the DCC

21

III.

IV.

Market Participation i. As Reeves indicates, the DCC does not generally prevent a state from discriminating in favor of residents when it acts as a market participant (buying and selling goods) rather than as a regulator ii. Rationales: state is not taxing and state is like other market actors iii. Regulatory Effect state may not use its role as a market participant to regulate 1. United Haulers: local flow ordinance didnt just buy and sell, it required people to turn their trash into a particular entity 2. South Central Timber: Timber Ks required in-state processing which was a condition of the K when the state sold timber. Post-purchase regulation because it burdened beyond immediate market. SubsidiesWest Lynn i. Subsidies for in-state entities are generally regarded as permissible under the DCC, even though they discriminate ii. No one would expect a state to subsidize the commercial activities of non-residents iii. Rationales 1. Less damaging to free trade/less coercive 2. Not w/in historical purposes 3. Dont have to subsidize nonresidents 4. No BE (taxpayers bear burden) iv. Limits/West Lynn general tax of milk providers 1. Neutral tax is valid 2. Rebate is a subsidy and valid 3. But tax + rebate = discriminatory tax a. Each by themselves is ok, but the fact that the rebate from the general pool goes only to local milk producers makes it discriminatory b. Subsidy is valid by itself 4. Political process failure v. Scalias Typology (concurrence) 1. Discriminatory taxinvalid 2. Neutral + exemptioninvalid 3. Neutral tax + subsidyclose but invalid 4. Subsidy from general revenuesvalid a. Because it is a general tax
S1
GT

State Tariff
No Tariff In State Interests Less Net Tax Tariff GT

S2 Neutral Tax + Exemption

GT No Tax In State Interests Less Net Tax Tax GT

Out of State Interests

Out of State Interests

S3

Neutral Tax + Subsidy

Tax Subsidy Tax GT

S4

General Revenue Subsidy

GT Subsidy In State Interests Less Net Tax GT

GT

In State Interests Less Net Tax

Out of State Interests

Out of State Interests Back

Other horizontal Federalism provisions I. DCC is most important of the horizontal federalism provisions II. Express Provisions clearly directed toward state actions a. Privileges and Immunity (Art. IV, Sec. 2, cl. 1 and 14th Am. Sec. 1) 22

III.

IV.

V.

VI.

i. Art. 4protecting state citizenship 1. Establishes a norm of equal treatment by a state b/w its own citizens and nonresidents ii. 14th Amfederal and national citizenship 1. Establishes a constitutional minimum of rights b. Full faith and credit (conflict of laws) (Art. IV) i. Requires that each state give full faith and credit to other legal acts of other states; ii. Enforces judgments from other states; iii. Apply other states laws if action arose under those laws c. Extradition Clause (art. IV) i. Requires each state to extradite prisoners that are sought in another state ii. Accompanied fugitive slave clause (prohibited by 13th Am) d. Contracts Clause i. Prohibits states from not enforcing debtors to pay out of state creditors Implicit Federalism Rights: have an implicit federalism component a. Right to Travel freely from state to state (Saenz v. Roe) b. Equal Protection (Met Life v. Ward) c. Minimum Contacts requirement under Due Process i. Limits states ability to assert long arm jurisdiction outside of its own territory over persons out of its state P & I Generallyonly protects persons, not businesses a. Article IV, 2, Cl. 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. i. does not create any immediate rights of state citizenship ii. whatever rights state gives own citizens, it has to give on same terms to nonresidents b. Discrimination (1st step) i. In order to trigger the P&I protection, you have to show that there has been a discrimination on the basis of residency c. Fundamental right (1st Step) i. The P&I clause only applies if the state discriminates against nonresidents with respect to a fund right ii. The fundamental character of a right for P&I purposes depends on the importance of the right to interstate harmony and not the individual d. Substantial reason test (ends-means scrutiny)(2nd step) i. Laws that discriminate against nonresidents w/ respect to fundamental rights may nonetheless survive if 1. There is a substantial reason for the discrimination 2. The discrimination bears a substantial relation to the states purpose ii. In applying this test, the court has suggested that discrimination may be permissible if non-residents represent a particular source of evil e. No Exceptions ( like DCC) What Constitutes Discrimination? a. For discrimination to be triggeredlook at relative treatment and not minimum rights i. Each state is obligated to provide the same P&I to other citizens as it does to its own citizens ii. It has to be against physical people and not corporations b. Discrimination is found when i. Differential Treatment of Nonresidents ii. Proxies (compare Practical Effect) iii. Local Discrimination Dean Milk, Carbonne, United Haulers Fundamental Rights fundamental to the vitality of the nation; different than the way we think about fundamental rights like due process (fundamental b/c of importance to individual development, values of nation, deeply rooted in collective conscious and traditions) a. In P&I analysis, look at how much this will disrupt comity w/in the states b. Example: right to vote in local elections fundamental for purposes of equal protection analysis, but state can deny right to vote to nonresidents re: local elections not fundamental right re: PI c. Corfield v. Coryell: rights protected under P&I i. Protection by the govt ii. Enjoyment of life and liberty iii. Right to pass through or reside in another state iv. Obtain benefit of habeas corpus

23

v. Institute an action in the courts of the state vi. Take hold and dispose of property vii. No discrimination in taxes d. Fundamental rights must be fundamental to the vitality of the Nation i. Denying the right to nonresidents would disrupt the federal structure ii. Doesnt include the right to vote in in-state elections e. Pursuit of Calling (i.e. business)every person has a fundamental right to work in any state i. Toomer (shrimping) ii. Camden (construction) iii. Friedman (law) VII. Substantial Reason Test: close to strict scrutiny, but not quite there; somewhere between intermediate and strict scrutiny; but if court doesnt like what state is doing, easy to strike down law a. End (substantial reason) (Camden) i. requires that the nonresidents that state is targeting are peculiar source of evil ii. Factual basis b. Means (substantial relation to the problem) i. Over or under inclusive? not a lot of indication in courts analysis, though some cases talk about it ii. Some discussion of Less discriminatory alternatives usually fatal to states law c. Piper Illustration i. In deciding whether the discrimination bears a close relationship to the states objective, the Court has considered the availability of less discriminatory means DCC / P & I Differences 1. 2. 3. DCC Applies to corporations has standing Requires affect on commerce (Phil v. NJ) Applies to all kinds of commercial activity Discrimination or burdens (Pike et al) Even non-discriminatory burdens may violate the DCC Discrimination in practical effect (Hunt) Seems broader but who knows Congress may waive Strict scrutiny (Hughes, Maine v. Taylor) Much more stringent test if found to be discriminatory Market participation exception (White) P&I Does not apply to corporations (only real people) Requires fundamental right (Baldwin) Confined to the pursuit of calling Only discrimination

4. 4. 5.

Discrimination by proxy (Hillside daity) Congress may not waive Substantial relation (Piper, Bach) No market participation exception (Camden)

6.

A litigant challenging a state law will rely on the DCC before the P&I

SEPARATION OF POWERS
Introduction I. SOP: Basic Concepts a. The theory of separation of powers i. Combination of powers = tyranny 1. Political componentby dividing power you limit the ability of anyone to abuse power ii. SOP essential to rule of law 1. legal authority for govt action 2. all govt officials are bound by the law, regardless of position

24

3.

courts may declare actions in excess of authority or contrary to law invalid

b. The theory of checks and balances (counterpart to separation of powers)

II. Constitutional Implementation a. No express provision in the Const. that says power shall be separated, instead each branch is given specific powers w/in the Const b. Lack of detail i. Art. 1 is pretty specific (shows that framers were capable of being specific when the wanted to be) ii. Little on executive powers below president iii. Lots of discretion regarding courts c. Overlapping powers i. Boerne policing the borders, judicial and legislative power over application of 14th amendment ii. Steel Seizure intersection between legislative and executive; iii. Military courts intersection between judicial and executive iv. Agencies administrative agencies sort of do a little of everything; they makes decisions like judiciary, make laws like legislative, and oversee like executive Power Nature Body Selection Character Rationale Checks & balances Legislative Make Laws Congress Election by state or district Bicameral (2 houses) & representative Maximum political accountability Executive: veto & prosecutorial discretion Judicial: judicial review & interpretation Executive Implement Laws President & officers Electoral college & appointment Unitary and national constituency Prompt, coordinated action Legislative: impeachment, override, rule of law Judicial: judicial review and rule of law Judicial Apply Laws SC & lower courts Appointment w/ consent Independent (life tenure & salary protection) Apolitical, deliberative judgment based on law Legislative: impeachment, amend and jurisdiction Executive: appt. & prosecutorial discretion

III.

Steel Seizure (Youngstown) (one of the most SOPs decisions) a. Context i. Korean War Background; labor unrest threatened steel industry; Truman seized mills ii. Court invalidated, held it as unlawful seizure b. Sources of Exec. Power (majority opinion) i. Court begins with the premise that executive action must be authorized by either a statute or the Const. ii. There was an existing statute not authorizing president to do this and evidence that congress had considered giving president authority, but rejected doing so iii. No constitutional authorityno Commander in Chief power because on the home front where no threat c. Nature of Exec. and Legis Power i. President does not get to make the law, he can only recommend or veto laws ii. In this case, president is making his own policy according to his own direction 1. When you are executing a law, you must point to the law and specify what you are implementing, cant simply create it 2. President does not have the authority to establish legal consequences 3. Legislation encompasses both end and means to accomplish policy authority a. In this case, Pres. established ends (keep steel going ) and means (overtake production of steel mills) iii. Seizure is not executive 1. Does not implement congressional policy, makes and implements own policy 2. Executive power is derivative to the laws enacted by Congress iv. Emergency powers? 1. Question to whether the pres gets to implement own policy in case of emergency d. Jacksons 3 tiers (concurring opinion that has become influential) i. Scope of press power is not static, it depends on what congress has done regarding a specific action

25

Congress Authorized Silent

Prohibited

Executive Power Broad: independent power + congresss power (power Congress gives to Pres) Zone of twilight: independent power (depends on politics) (Pres has independent power but whether he can get away with it is likely to depend on the politics of the moment) Only if law invalid: independent power (const. pwr) congresss power Only if Congresss law was invalid

LEGISLATIVE & EXECUTIVE POWER Delegation & Admin. State

I. Headless 4th Branch combines all 3 branches a. Growth of Administrative State i. New Deal programs of FDR (growth period) 1. Agencies were tool of choice for regulatory/administrative programs b/c they could act more quickly than courts and legislature 2. Also more insulated from political pressure in theory ii. Great Society/Environmental Movement (1960s-70s) - medicare/Medicaid; expansion of welfare 1. Environmental movement creation of EPA and other regulatory agencies b. SOP Problems/Legitimacy - since the switch in time that saved 9, legislature has accepted pretty much all of the administrative agencies that have been created w/o really investigating them Agencies & Delegation starting point to think about how agencies develop and work a. Non-delegation Doctrine Art. 1 vests the legislative power in Congress, which implies that Congress may not give it to anyone else (executive therefore may not exercise legis power) b. Legislative Power question arises whether agency has been delegated legislative power i. whenever congress legislates, it is inherently delegating power to executive for enforcement and judiciary to decide violations c. Intelligible Principle Test/Standard used to determine permissible delegation of legislative power i. Delegation of power is permissible to an agency if the statute contains and intelligible principle or standard to guide and control agency discretion (gives agency authority) d. Rationales i. Congress must make fundamental policy choice to delegate authority ii. principle must Guide or Control and limit what Agency can do iii. principle must provide basis for judicial review, must be able to ask if agency complied with congresss delegation of power Rise & Fall of Non-Delegation (ND) doctrine a. New Deal Cases (only 2 cases where SC relied on ND doctrine to invalidate a statute) i. Schechter and Panama Refining: court has never overruled these cases (always distinguishes), even though it has not found a statute unconstitutional under the ND doctrine since the New Deal b. Acceptance of Delegation i. Standards Upheld (using intelligible principle test) 1. For holding company restructuring: not unduly or unnecessarily complicated and do not unfairly or inequitably distribute voting power. (American Power & Light) 2. For wartime price controls: will be generally fair and equitable and effectuate purposes of the act. (Yakus) 3. For allocation of broadcasting licenses: allocate them in the public interest. (NBC v. United States) a. agency can decide whats in public interest American Trucking most recent SC pronouncement on non-delegation issues a. Suggests that court has little interest in reinvigoration ND doctrine unlike it has reinvigorated Federalism b. Although the court has been reluctant to invalidate a law under the ND doctrine, it has sometimes used the doctrine to justify a narrowing construction of a statute so as to ensure that it contains the necessary standard c. Pollution regulation by the EPA d. Statutory standards Congress directed agency to adopt standards on emissions that are:

II.

III.

IV.

26

V.

i. Requisite to Protect Public Health; and ii. Adequate Margin of Safety e. Key Points i. Agency Narrowing Construction 1. Agency does not have the authority to narrow the construction of a statute, only the court does 2. Agencies do not have the power to determine how much authority the statute gives them, because implies legislative authority ii. Scope of agency authority 1. Specificity of the standards in the statute varies in proportion to the scope of the agencys high authority a. If the scope is broadthen the standard has to be narrow or else ND doctrine has been violated b. If the scope is narrowthe standard can be more open-ended Agencies & Separation of Power a. Other issues i. Executive Oversight executive control over agencies, particularly strong with regard to independent agencies which are insulated from executive control ii. Variations on Legislative Process legislative veto, line item veto iii. when congress has Delegated too much Judicial Authority b. in looking at SOP questions, you can look at courts General Approaches 1. Formalism constitution expects them to be kept separate and delegated only to specific branches when court takes formalistic approach, the result is usually the invalidation of whatever legislative arrangement is in question Chadra decision re: legislative veto 2. Functionalism Boils down to question of whether the essential functions of a branch have been taken or given away by the branch - Lots of gray area at the margins; court allows some intermingling and interference with branches, but at certain point, it goes too far o Usually results in upholding the law

Executive Oversight I.
Who Controls Agencies? a. Legislative Power pre-agency power i. Establish and Empower Agencies; includes power to amend the statute ii. Agencys Bound by Standards & Procedures B. Unitary Executive president has a lot of power (implies oversight) 1. Vesting Clause executive power is vested in president 2. Take Care Clause take care that the laws are properly executed (Article II); everyone in executive branch is subordinate to president with president having oversight powers 3. historical purposea single individual who was capable of prompt and coordinated action C. Judiciary post-agency power in compliance w/ statute Means of ControlPres can control or influence the exercise of administrative discretion through: A. Appointment (of political allies) explicit provisions re: selection of officers by president; by selection, the president can control the direction of agencies (Art. II, 2, cl. 2) (Take Care Clause) - Inferior officers can be appointed differently than other officers B. Direct oversight i.e. order people in your department to do what you tell them to do 1. Const has very little on direct oversight a. but, pres may demand opinions from officers under Art. 2, Sec.2, cl 1 2. executive orders: treated as effectively binding w/in the executive branch 3. emergency of regulatory oversight a. no authority dealing with the scope and validity of the Press oversight of agency b. only thing that is clear is that the Pres cannot direct an agency to violate the law C. Removal from office or threat of removal from office (most important power re: motivation) 1. Impeachment 2. Implications of Silence 3. SC held that president has inherent authority to fire executive branch officials D. Practical Advantage Over Congress

II.

27

III.

These mechanisms (appointment, removal, etc..) give president more power than congress gets President has the big advantages in terms of agencies, but Congress has tried to limit those advantages including drafting limitations re: appointments and removal of officers of US

Appointment A. Under Buckley v. Valeo, Art. II, Sec. 2, cl. 2 is the exclusive means of appointment for officers of the US which includes anyone wielding significant govt authority 1. Excludes staff, informational functions; excludes people who do law enforcement B. Two types of officers 1. Principal officers (superior or major) must be appointed by president w/ advice/consent of senate 2. Inferior officers can be appointed by president alone, congress, or head of agencies C. Appointment in Morrison of an independent counsel 1. Independent Counsel Appointment Provisions a. Named By Special Division of Ct. b. Upon Atty Generals request 2. Independent Counsel is inferior officer says SC (FOUR FACTORS) a. officer could be removed by AG (< the President) now court pretty much treats this as only factor b. Doesnt make policy all IC does is investigate and prosecute; not in policymaking role c. Limited jurisdiction - IC could only investigate matters assigned to them by appointing court d. Limited tenure once investigation over, office ceased to exist 3. Interbranch Appointment OK (Art. II says nothing) a. congress can vest the appointment of inferior officers as they see proper to other branches 4. if they are an officer of the US, they must be appointed pursuant to Art. II a. if their appointment is by the pres, head of dept, court (has to be an inferior officer) Removal Power more complicated b/c SC addressed issue more often A. Pre-Morrison (since been invalidated) 1. Myers Under the statute, the postmaster could by removed by the Pres only w/ consent of Congress. Invalid because it interferes w/ Press inherent power to fire inferior executive officials 2. Humphreys Exec. and Weiner a. removal only for cause 1. FTC is not an executive agency, it exercises quasi-legis/quasi-judicial functions as an aid to Congress and therefore the functions of the FTC are not at the core of executive power, so Press authority can be limited 2. QL & QJ not at core: functions are executive but not at core of exec power and where the pres doesnt have absolute control Whats at core of executive power? Investigation, prosecution, foreign relations This case, in practice, allows congress to create independent agencies If president cannot remove member of agency on basis of policy disagreements, then the agency becomes independent of direct presidential control 3. Bowsher (invalidated) case in 80s that took formalistic approach a. Cong. fires comptroller (F.C.) b. SC said statute was invalid b/c congress could not control the firing of an officer performing executive functions - i.e. congress may not participate in removal of purely executive officer 4. The Morrison Issue removal function Core executive functions Congressional control when congress fires or gives consent Invalid (Myers; Bowsher) President limited to cause; president gets to make decision, just limited The Issue in Morrison (officer performing core legislative functions but issue is limited to cause Valid; (Humphreys; Wiener)

IV.

Quasi-legislative or Pure legislative functions valid Quasi-judicial (Bowsher) B. Morrison and Removal 1. For cause removal provisions permissible even though IC performs executive functions because:

28

a. b. c.

Executive Function is not controlling Inferior officer Lacking policymaking discretion

C. Decision Tree for Morrison

a. b. President cannot remove w/o cause President can remove for cause i. Core executive officer 1. Principal policy making officerneeds consent of Congress 2. Inferior officercan remove w/o consent ii. Quasi legislative/quasi judicial officer 1. Can remove w/o consent Step 1: removal provisions

Congressional consent invalid (except purely legislative body)

For cause removal, pres can remove for cause (go on)

Step 2: functions
QL or QJ functions Valid (except very high level?); can be limited to for cause removal

Core executive functions (go on)

Step 3: level of officer Principal, policymaking officer invalid

Inferior, nonpolicy officer valid

Variations on Legislative Process

I. Bicameralism & Presentment a. Legislative process prescribed by Art. I requires i. Bicameralism: approval by the House & Senate of an identical bill ii. Presentment = Opportunity for Veto; congress can override veto by 2/3 b. Functionslegislative process serves both representative and deliberative purposes i. Representation 1. Senate and house represent the people in different ways a. bicameralism represents the great compromise b/w large and small states 2. President represents the whole nation a. Lends natl perspective to legislative process ii. Deliberation 1. 3 different bodies all have to agree on same bill; makes it slow and difficult to pass laws; forces debate and deliberation by legislature before adopting a statute Legislative Veto made invalid by Chadha; a. Allows congress to veto decision by administrative agents to whom congress has delegated QL power in first place, indirectly, by adopting legislation to overturn agency action or control agencies by adopting more specific standards b. Popular Variation on the Legislative Process used by Congress to counter accumulation of power in President through delegation agencies i. Once you delegate lots of discretion to agency, its hard for congress to exert control b/c president controls agency and can veto any statute reversing agency

II.

29

c.
d.

e. III.

ii. By adding in legislative veto, much easier for congress to reverse the agency 1. Widely Used Legislative veto became invalid after Chadha i. Extended to All Forms ii. Severability Issue sever invalid portion, but rest of statute OK; otherwise invalidates entirely Chadha i. Syllogism 1. Legislation must follow Art. Imust follow procedures 2. Veto is legislation w/o Art. Ithe Court said that the exercise of the veto is legislation because it does not comply with Art. I and is therefore unconstitutional a. Because it doesnt have presentment and/or bicameralism ii. Why is the veto legislation? 1. legislative veto changed legal status of Chadha, attorney general, and others in the case 2. when any branch of govt acts, it is presumed to be using its own power, in this caselegislative 3. Unpersuasive argument says Levy b/c by that analysis, the courts decision was legislation b/c it too changed the legal status of Chadha, atty general, etc. a. Truth not all government acts are legislation 4. the veto undelegates authority given by statute a. Since it takes legislation to delegate authority, should take legislation to undelegate authority b. Also unpersuasive to Levy calls the veto a condition subsequent After Chadha, all forms of legislative veto are invalid and the only question is whether the entire statute containing one is unconstitutional, or whether the veto provision should be severed to preserve the remainder of the statute

IV.

Line Item Veto a. Permits the state governor to veto particular items of appropriation in large budgetary and appropriation measures i. Thought to help prevent the use of riders (attachment of provisions that could not otherwise pass to necessary or popular legislation) and logrolling (combinations of pork barrel spending designed to elicit majority support) b. Federal i. Contract w/ America / Line Item Veto Act Allowed president to veto items of spending in a budget measure 1. Expansion of Presidential Power ii. Clinton v. New York line item veto violates Art. 1 b/c not w/in veto power 1. this is a case where Congress has altered the legislative process itself, by allowing for a modification 2. violates Art. I because Art. I doesnt give pres power to amend or repeal part of a law General Observations a. These are Formalistic Decisions (hard/fast rules depending on characterization of action/issue)b/c i. Strict Rules legislation must follow Art. 1 ii. if characterized as legislation, then its invalid; if not legislation, then its got a chance b. Implications of Jackson i. Chadha: Restricts President 1. Congress is trying to restrict presidents authority by taking power for itself 2. Aggrandizes its own authority at presidents expense ii. Clinton v. NY: Empowers President 1. Under Jacksons analysis, thats where presidents authority should be at its broadest c. Apex of constitutional structure i. Distinguish Chadha and legislative vetoinvolve SOP at the very top 1. these decisions so formalistic because dealing with congress and president apex of structure ii. In contrast, things like the ND doctrine and independent counsel tend to be at a lower levelmore operational

Foreign Relations
I. Foreign Relations Powers President Constitutional Allocation (basic division of authority) Area Congress

30

National Security Diplomacy Legal Relations

Declare war and regulate military (Art. I. Sec. 8, cl. 11-16) Consent to appointments (Art. II, Sec. 2, cl. 2)

II.

III.

Regulate commerce with foreign nations, immigration, piracy (Art. 1. Sec. 8, cl. 3, 4, 10) Senate consents to treaties (even though President negotiates the treaties) (Art. II, Sec. 2, cl. 2) a. Curtiss-Wright (Non-Delegation Case) i. Backgroundpres has power to make it a crime to export weapons to certain areas if he deemed it contrary to natl interest ii. Distinguish Schechter Poultry 1. If this law was domestic, it would violate the non-delegation doctrine (Poultry) 2. But we are dealing w/ foreign relations, President has own Const. authority in foreign realm 3. Broad language that implies that all foreign relation authority is vested in the Pres. iii. Court is saying that foreign authority is implicitly granted to Pres. iv. Rationales: Speed, Secrecy, Expertise b. Judicial role i. SC frequently has declared that issues concerning foreign policy are non-justiciable PQs and lack standing; matters for the executive and legislature to resolve w/o judicial review President is Representation of US to other nations a. Implicit in express provisions i. Appoint and Receive Ambassadors (Art. II, Sec. 2, cl. 2 (appoint) Art. II Sec. 3 (receive ambassadors)) ii. Negotiation of Treaties president acts as agent for US in negotiating treaties (Art. II, Sec. 2, cl.2) b. Scope of power i. Power to recognize governments 1. Power to settle individual claims w/ foreign nations ii. Historical Gloss president been doing it for a long time c. Relation to executive agreements i. Belmont v. Pinkexecutive agreements are valid to aid in recognition of foreign govt Executive Agreements a. Because constitution discriminates between treaties and agreements in Art. I 10, then there must be a difference between a treaty and another type of agreement i. but theres no law to tell us what a treaty is as opposed to an agreement ii. treaties accepted as being more important; more important subject matter iii. lack of express authority relating to executive agreements implies that they are not subject to the treaties law that requires a 2/3rds consent by the Senate (according to Art. I, Sec. 10) b. Pre-Garamendi Cases i. Prior to Garamendi, the Court had upheld particular executive agreements that were 1. Grounded in some specific executive power like the power to recognize govts or settle claims; 2. And approved or acquiesced by congress ii. Belmont & Pink (Litvinov Assignment) 1. USSR was claiming assets held in US and US claiming assets held in USSR a. After assignment, the countries agreed to just leave the assets where they were each relinquished claims within other country 2. In Belmont, Pink upheld Litvinov assignment 3. President had authority to enter into these agreements for 2 reasons: 4. agreement was pursuant to recognition of soviet government 5. congress has known about this and, at least, acquiesced to executive authority iii. Dames & Moore (Iranian Claims) created tribunal in Hague; court said just like Belmont & Pink 1. Dealt with claims outstanding in Iran-Contra hostage crisis c. Garamendi potential expansion of executive power i. Backgroundinsurance claims of holocaust survivors decedents

Commander in Chief (Art. II. Sec. 2, cl. 1) Appoint & Receive ambassadors (Art. II, sec. 2, cl. 2) Represent (implicit) Negotiate Treaties (Art. II. Sec. 2, cl. 2) Executive Agreements (Implicit)

31

IV.

CA wanted the insurance companies to open up books so people would have better authority to support their claims 2. I: whether the CA statute was preempted by the executive agreement ii. Scope of Power 1. Language suggests that there is a general power to enter into executive agreements w/o congressional consent a. Expansion of power iii. Preemptive Effect 1. If the president enters into a valid executive agreement, it is the supreme law of the land (BINDING) and preempts state law iv. Every federal law is higher than an executive agreement 1. EA may be able to override a regulation because it is another executive branch action War Powers a. Basic Division of authority that framers clearly thought about i. Once congress has decided we are going to war, the conduct of that war is under the power of the president ii. President is Commander in Chief b. Presidential Use of Force w/o declaration of war by congress i. Repel Invasion doesnt need declaration of war for this ii. Suppress Insurrection/rebellion 1. Prize Cases Civil War re: blockade a. Lincoln could blockade ports and vessels to the South to stop insurrection iii. Protect Citizens and Interests overseasover time the powers have expanded 1. In practice, it seems the pres can put us into battledifficult to undo iv. Armed Action Short of War Vietnam, Korea v. Formal declarations of war are a thing of the past c. Whether congress has the power to Terminate wars, use of force against President? i. War Powers Resolution adopted by congress over veto of Nixon 1. Background a. when president sends troops overseas into hostility, the president is required to notify congress hes doing that b. then president has 60-90 days; and if no formal authorization from congress, president reqd to remove troops 2. Impact? NONE, presidents have reported but said they werent going into hostilities, so clock doesnt run ii. The War in Iraq 1. raises question of where power to terminate war lies a. congress? b/c of power to declare b. president? Commander in chief; part of conduct of war d. Incidental Commander in Chief Powers i. The Laws of War 1. Field of Command (Steel Seizure) - Yes, commanders have power to requisition necessary materials for troops, but ONLY in the theater of war / field of command (i.e. in Korea) 2. treatment of Spies and Saboteurs ii. Military tribunals (Hamdan) 1. General idea a. President can use military tribunals to try military combatants for violations of laws of was 2. Context of Cases (Terrorism Cases) a. HamdiUS citizen has to have a reasonably opportunity under DP to contest enemy combatant status b. Hamdan v. Rumsfeld: Pres lacks authority to establish military tribunals to try enemy combatant for conspiracy because not with statute i. Statute authorizes use of military tribunals for laws of war and military justice, but not conspiracy, only applicable to overt acts c. Congressional Authorization (Quirin) i. Seems like congress still has more authority than the Pres.

1.

32

Executive Privileges and Impeachment I.

Interbranch Conflict situations in which legislative and executive branch are in conflict a. some conflict is Inherent in Separation of Powers b. Extreme Measures nuclear option i. Prosecution of Legislators/Judges for executive against legis/jud. ii. Investigation & Impeachment for legis against exec/jud. c. Privileges & Immunities recognized protections for each branch against the use of the nuclear options by other branches i. Legislative P&Is are expressly included in Art. I, but there are no comparable provisions for either the Pres (and other exec officers) or the courts ii. Express Congressional P & I Article I 1. Members of Congress are absolutely immune from investigation and reprisals based on speech or debate any kind of legislative act 2. Also privileged from arrest while going to and from legislative session except for felonies or breaches of the peace iii. Implied Executive P & I (Focus) 1. Implied privilege to not disclose confidential communications 2. Implied immunities executive branch officials immune from lawsuit iv. Implied Judicial 1. Judges are immune from suit for their decisions Executive Privilege (confidential docs) a. United States v. Nixon i. H: tape recordings of Nixons convos with high level staff were not protected by executive privilege b. Key Points i. No absolute privilege (court rejected Nixons argument of absolute privilege) ii. Qualified privilege (court did recognize) 1. Pres needs to have candid and confidential advise from advisors 2. Exposure of that information would impair that function iii. Essential Functions Balancing Test 1. In general: claims of executive privilege are to be resolved by weighing the competing interests in a manner that preserves the essential functions of each branch 2. Weigh the need for the info by other branches against the press need for confidentiality and candor to protect the press executive functions c. Application of balancing

II.

33

i. Criminal prosecution is a core judicial function and each D has a right to a fair trialbalanced against secrets that would reveal the intimacies of the presidencyjudicial function outweighs presidential secrets ii. Cheney v. US D. Ct: 1. Need for disclosure is smallcivil litigation, no const right for evidence in civil case 2. Need for privilege is greatvery broad discovery request

III.

IV.

Executive Immunity a. Different from privilege i. Privilegeright to refuse to turn over information when it is requested ii. Immunityprotection against legal process of various kinds, including lawsuits b. Nixon v. Fitzgerald i. H: Presidents have absolute immunity from civil suit for official conduct ii. Official conduct Absolute immunity b/c 1. Threat of suit might impact judgment should be thinking about whats right for country and not worrying about whether hell get sued 2. by virtue of being president, he might be lightening rod for suit c. Clinton v. Jones not claiming absolute immunity; just delay of suit i. H: Presidents are not immune for conduct before taking office ii. Private conduct pre-office No immunity b/c: 1. Threat of suit wont affect official conduct 2. Wont directly interfere with functions d. Lesser officials Qualified immunity i. (including state officials) can only be sued if there were clear violations of clearly established law ii. If law is in state of flux, its impossible to sue for violation Impeachment really only means accusation (equivalent of an indictment) a. Process i. House Impeaches (equivalent with indictment); issues articles of impeachment ii. Senate Trial; 2/3rds vote for conviction or acquittal (strip president of office) 1. Conviction of treason, bribery, or other high crimes and misdemeanors iii. Chief Justice Presides when president being tried b. History i. Presidents 2 have been impeached: Johnson following Civil War and Clinton 1. Neither was convicted 2. Nixon resigned prior to any formal vote of impeachment ii. Judges larger number; some have been convicted and removed from office c. Issues i. High Crimes and Misdemeanors 1. Constitution listed treason, bribery and other high crimes and misdemeanors 2. Is lying under oath a high crime/misdemeanor? ii. What kind of trial 1. Judges dont get formal senate trial like president, the trial is assigned to a committee to research, the research is presented to the senate, who then votes to convict or acquit d. The Clinton Case the cases come together in perfect storm i. Confluence of Decisions 1. Independent counsels Investigation (Morrison) a. Power of IC to investigate upheld in Morrison b. Investigation kept expanding from Whitewater to Jones case 2. Immunity (Jones) a. Allowed discovery process to go forward and led to alleged perjury during deposition 3. Executive Privilege (article not approved in House) a. argued that Clinton has not properly asserted executive privilege ii. Impeached but not Convicted 1. Debate over whether charges were impeachable offenses

JUDICIAL POWER 34

Cases and Controversies

I. Judicial Power a. Judicial Independence i. Life Tenure actually what Article III says that they serve on good ii. Salary Protections salary cannot be lowered; not subject to political reprisals b. Nature of Judicial Power i. Interpret and Apply Law responsibilities of judges in order to resolve Cases and Controversies ii. Very little constraint, there is not much other branches can do in response to judicial rulings on const issues c. Limits i. Internal (Justiciability doctrine) self enforced 1. Inherent in the judicial power itself 2. Collectively referred to as justiciability a. Includes cases and controversies b. Political question doctrine 3. Self-restraint on own power ii. External jurisdiction 1. Originate in political branches 2. Most controversial is jurisdiction stripping Congress could correct courts by stripping away their jurisdiction Cases or Controversies (power of courts limited to C&C) a. Def: Art. III vests the courts only with jurisdiction to decide C&C which are concrete legal disputes b/w adverse parties b. Components i. Rule against advisory opinions ii. Must have Standing iii. Ripeness (Not Yet) limits courts from hearing cases prematurely; case has not yet ripened into concrete case or controversy iv. Mootness (No Longer) no longer a case or controversy; may have been a concrete case, but things have changed and theres no longer a controversy Advisory Opinions a. Judicial decisions require a real dispute b/w adverse parties, judges may not offer opinions on abstract questions i. Under the rule against advisory opinions, judicial resolution much be final, in the sense that it cannot be reviewed by nonjudicial officials b. Early Precedents i. Letter of Justices to Pres 1. Dont want to give legal advice on something and then potentially have to decide a case later on 2. Compared to other countries which have separate constitutional courts ii. Hayburns Case 1. Under the statutethe Court of Appeals (circuit courts) would decide whether a member of the military was entitled to a pension, then it would go to the Secretary of War and he would approve or reverse it 2. Invalid: This made the courts decisions merely advisory because the SoW could either accept or overturn the determination c. Abstract Questions i. No basis for judicial power, judges cant give advice ii. Must have concrete facts for judicial decision d. Judicial decisions are final i. No possibility for revision ii. Decisions are independent of statutes Standing a. Limits on who can bring suit; Can only bring suit if YOU are the one who has a stake in the outcome; youve been affected b. Two ways standing issue can arise i. D challenges the standingcourt can address only to reject or affirm the argument ii. Court challenges the standingstanding is jurisdictional and court has a duty to bring it up if D did not c. Components i. Constitutional (possible support in Art. II)all factors must be present for standing

II.

III.

IV.

35

 must suffer injury in fact a. Injury must be distinct and palpable i.e. not abstract injury i. Sierra Club v. Morton Sierra Club has no standing b/c it only had abstract injury ii. But case opened up the door for injury doesnt have to be injury for legally protected interest just a measurable injury iii. i.e. if members were using wilderness area and their aesthetic enjoyment would be harmed; that would be sufficient for distinct & palpable b. actual (has occurred) or imminent (at any moment) c. s must have geographical and temporal nexus to events that were occurring i. You have to show that you will be there (or had specific plans to go there soon) and will be injured ii. Have to show injury is going to happen to YOU 2. Causation must be fairly traceable a. Caused by the action of the person you are suing b. Lou Han case challenge was to govt action which approved loans for construction of dam to be built in another country which would destroy elephant habitat. Causal chain and construction of dam was too remote. 3. Redressed by favorable ruling a. Curable by a positive judicial decision ii. Prudential limitations 1. Generally judge made requirements that are in addition to constitutional requirements that can be dispensed with (waived), or Congress might confer standing and dispense w/ a prudential requirement 2. No right of third parties a. even if youve been injured by illegal govt action, you cant ordinarily assert the rights of 3rd parties b. If you have necessary legal relationship, you can (parent for child) c. Miles v. Georgia Miles owned cat named Blackie who could talk. Miles wanted to charge admission for people to see Blackie. There was a live entertainment tax. Argued this violated cats free speech rights. Miles has no standing to assert cats rights b/c cat can speak for itself. 3. No generalized grievances a. Should rely on the political process b. If the injury is the same one shared by a large swath of people, it is really a political dispute rather than a legal one c. but the mere fact that an injury is widely shared, does not equal a generalized grievance 4. Substantive Nexus a. Injury must connect w/ constitutional/statutory provision that was violated b. Zone of interest test i. If injury is type of injury statute/constitution is meant to protect and you are in class of s statute is meant to protect c. Taxpayer much tighter reqt for cases dealing with taxpayer standing i. You have standing to challenge IRS tax assessment ii. But if you want to assert injury by virtue of some general govt conduct, theres a very tight nexus reqt thats only been met once d. Allen v. Wright i. Ps claimed that the private school tax break made it cheaper and provides more incentive for white kids to go to the private school ii. Victims didnt apply to the school, so they werent denied on the basis of discrimination 1. This is a speculative claim, in order to claim discrimination, you have to be discriminated against Injury general interest in RoL Stigma from discrimination Lack of integrated schools Standing Problem too abstract to be injury in fact Ps did not personally suffer discrimination Not fairly traceable, redressability issues

1.

36

Political Questions
I. Introduction to Political Question Doctrine a. Origins in Marbury i. Marshall indicated that acts of political discretion could not be reviewed by the court 1. some questions are political and nonjusticiable ii. Rationale for judicial review 1. Courts have JR b/c they have jurisdiction to resolve disputes by applying the law 2. In circumstances where they dont have law, where its not a legal dispute, then the power of JR does not apply b. Justiciability Doctrine i. PQ doctrine is usually grouped with C&C doctrine under the justiciability doctrine 1. Levy sees it as separate, some see it as part of case/controversy ii. Operation/Effect usual action of court is to dismiss the case 1. Usually D will claim that court lacks jurisdiction 2. Possible that PQ is embedded in case which also has legal controversies; just refuse to resolve PQ c. PQ doctrine Elements (like the standing doctrine) i. Constitutional (Baker ) separation of powers argument 1. Some elements of PQ doctrine seem to flow directly from the constitution ii. Prudential courts should stay away from politically charged cases Baker v. Carr a. Background i. EP challenge to unequally sized districts, not consistent with principle of one person, one vote ii. State responded that this was a PQ and relied on two cases b. Luther & Colgrove legitimacy of state govts and unequal districting under guarantee clause = PQ i. Two ways to look at these cases 1. Constitutional limit on courts that grows out of the nature of the judicial power to apply the law so as to resolve C&C. a. If the Const ascribes certain political decisions to other branches of govt or provides no legal standards for the courts to apply, there is no legal basis for the exercise of judicial power. 2. Prudential restraint that grows out of the precarious political position of the courts, whose institutional viability depends upon the acceptance of their decisions. a. Under this view, courts must preserve their institutional capital by staying out of intense political disputes

II.

What Was the PQ?

State Government Legitimate? Luther (and Colegrove) Violate Guaranty Clause?

State Government Legitimate?

Baker

Violate Equal Protection?

Controlling

Not Controlling

c.

Separation of Powers Basis of PQ i. PQ doctrine is a doctrine of Political questions, not cases 1. One way you can understand is that some cases are too hot to handle 2. if you understand it prudentially, you might argue that court should stay away from politically charged cases b/c if the court decides too many politically charged case, it might undermine its own legitimacy

37

III.

IV.

V.

H: Reapportionment issues present justiciable questions. Issue here is whether the guarantees of EP found in the Const are being met. Thus, in this issue, the Court is being called upon to judge the constitutionality of the system under attack, something squarely w/in the Courts power and duty. Bakers 6 Strands (reformulation of PQ doctrine) (listed in order of importance) a. Constitutional (const reasons why the court cant decide these cases b/c the const gives this responsibility to another branch, so the court has no legal basis) i. Textually demonstrable commitment to another branch 1. GC clause says the US and the court has viewed that as meaning the congress and the president ii. Lack of judicially discoverable/manageable standards (relevant to foreign relations) 1. *Constitutional (from Art. II) 2. If we are in an area where there arent any legal standards for a court to apply, there is not legal basis for the dispute (there has to be a law to apply) b. Prudential (cases are too hot to handle, tend to be most relevant in foreign policy and foreign relations contexts) i. Initial policy decision 1. that has been made by another branch that is clearly not for judicial discretion 2. exdecision to go to war ii. Lack of respect for other branches iii. Need for unquestioning adherence to political decision already made iv. Potential embarrassment if parts of govt give different answers to same Q (foreign affairs) Scope of Commitment a. If there is textual commitment, it is still necessary to determine the scope of the unreviewable discretion committed by the provision in question. b. Powell i. In Powell, the court held that Art. I Sec. 5 only committed to each House the power to determine whether the constitutional qualifications had been met and not the power to impose new qualifications ii. Powell was flamboyant figure, big anti-war guy; pissed off other members of the House; members of House voted to exclude him from his seat iii. House said it was political question b/c: 1. Textual Commitment - Art. I, 5: Each House shall be the judge of the elections, returns and qualifications of its own members 2. Judicial Determination of Scope a. Court says - minimum age reqt; reqt that rep be a citizen of US and resident of district i. Thats the only qualifications standing qualifications for office b. House does not have authority to adopt additional qualifications c. Nixon (Senate Tries Impeachment) i. Nixon (judge) argues that he never got a trial in the senate; senate referred case to committee which took evidence and reported back to senate; senate voted on recommendations of committee ii. SC not going to look at whether this process constituted a trial b/c PQ applies iii. Why would court determine scope of commitment in Powell but not in Nixon? 1. try has no constitutional meaning a. Doesnt make sense to Levy b/c SC knows what a trial is iv. Textual Commitment - Art. I, 3: The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present. Manageable standards a. In Vieth, there is no textually demonstrable commitment and the issue is whether there are judicially discoverable standards to determine the constitutionality of political gerrymandering. b. Pluralityit is a PQ c. Concurrenceno standard yet, but not prepared to foreclose the possibility of a future standard PQ Application a. Areas (where the court has decided not to rule because it was a PQ) i. Foreign Affairs (Goldwater) 1. Who has the power to terminate a treaty? If president and senate signed can the president alone terminate? 2. Court determined that it was a PQ and made no decision.

d.

VI.

38

b.

ii. Operation of Congress 1. Impeachment (Nixon) 2. Legislative process (Powell) iii. Amendment Process (Coleman) Factors i. Plausible Textual Commitments ii. Lack of Judicial Competence iii. High Stakes

External Constraints JURISDICTION STRIPPING

I. Political Controls a. Under Art. III, judges have life tenure and salary protection. These safeguards are intended to secure judicial independence. b. Amendment (Change the law) i. Common law and statutory decisions can be corrected by ordinary legislation. ii. Even constitutional decisions can be reversed by constitutional amendment. (very difficult) c. Appointment (change the courts) i. Slow but Effective over Time ii. Politicization of nomination depends on importance of vote of justice (swing) d. Limit jurisdiction (creation and jurisdiction of courts) i. Congressional authority ii. Jurisdiction stripping 1. Periodically Congress may decide/try to get the court out the business of deciding particular areas of cases Congressional Power over Jurisdiction a. Constitutional Text i. Article I 1. Gives Congress power to shape and operate courts 2. Power to constitute (create) tribunals inferior to the SC (cl. 8) 3. Congress has the N&P authority to enact laws relating to the operation of the courts (cl. 18) 4. SC is created by the Const., the lower federal courts are not, only created by statute ii. Article III 1. Vesting Clause (Sec. 1): vests power in SC and such inferior Courts as Congress may from time to time ordain to establish 2. Sec. 1, cl. 2: SC shall have org. juris. in certain cases, and that in other cases, the SC shall have appellate juris., with such exceptions and under such regulation as the Congress shall make a. Seems to say that congress has power to take cases out of appellate jurisdiction of supreme court b. Also seems that congress can decline to give jurisdiction to lower courts b. Must the Entire Jurisdiction Vest unresolved (must be analyzed case by case) Jurisdiction Stripping a. Generally i. As a Means of Preventing judicial Review ii. Example Pledge Protection Act 1. Limitation on jurisdiction. No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, as defined in section 4 of title 4, or its recitation. a. Designed to prevent SC from determining phrase under god in pledge as unconstitutional iii. Administrative Law Implications: w/in regulations, dont allow courts to review decisions of administrative decisions b. Unresolved i. Ex Parte McCardle 1. the Court permitted Congress to divest it of jurisdiction a pending case

II.

III.

39

2. restriction of SC power to hear habeas corpus appeals challenging reconstruction amendments

under which imprisoned;

3. SC said this limited jurisdiction stripping was fine but likely that congress could not strip court of
power to hear habeas corpus appeals b/c it would violate DP clause ii. Klein

1. Reconstruction Era Forfeiture Statute all property owned in rebel states were forfeited; could get
it back by proving that you did not aid the Confederacy New statute a. Any pardon given was proof of collaboration and court had to dismiss claims for property 3. Unconstitutional a. Congress has inadvertently crossed the line from legislative to judicial b. Congress was infringing upon the Press pardon power by denying the pardon the constitutional power the Pres gives it iii. Hamdan 1. Statute to control the jurisdiction to review the detainees in Guantanamo 2. Statute doesnt apply in pending cases, so it court wasnt stripped of juris in this case Limits of Jurisdiction Stripping a. SC has not resolved, but academics say that congress can strip jurisdiction but not if they violate some other constitutional provisions b. Example: if congress were to strip jurisdiction from federal courts from cases involving African-Americans i. Violates EP clause and Interferes with essential functions of court Other judicial power issues a. Non-article III adjudication i. Article I Courtsbankruptcy courts, tax courts (dont have life tenure or salary protection) ii. Administrative agencies (carving some judicial power out of courts and giving it to other bodies) b. Extrajudicial functions i. Sentencing guidelines (judges may be given authority to adopt rules, type of judicial discretion) ii. Official v. personal capacities (judges serving on a board in an individual capacity, not SOP issue) 2.

IV.

V.

EQUAL PROTECTION & DUE PROCESS

Historical Overview
I. Key provisions a. Constitutional Text i. Art. I Sec. 9, 10 (prohibition of ex post facto and bills of attainder, Ks clause) ii. Art IVwith respect to horizontal federalism b. BoR i. 9 & 10makes clear that the rights in the BoR are not the only rights, dont preclude other rights from being recognized ii. Doesnt apply to states, only natl govt c. 14th Ammost imp. individual right provision of the Const, BoR applies to the states through 14th i. P&I, DP, EP Timeline

II.

b. Timeline
Bill of Rights Civil War Ams. New Deal Switch Rehnquist Court Barron v. Balt. Early Cases Little Activity Lochner era 1890-1936 1791 1833 1860s & 70s Fund. Rights 1940s-1970s 1937 Roberts Court

Retrenchment 1980s & 90s 1983 2005

Economic DP Sep. But Eq. Low 1st . Am Fed. & SOP

EP & Race Privacy Rights st Amendment 1 Procedure

Ind. Rts.? Aff. Action Takings/Puns. Corp. Speech Procedure

40

III.

Key Periods a. Initial Construction i. Many early decisions applied the 14th provisions narrowly (state action requirement from federalism) ii. Slaughterhouse CasesCourt gave a narrow scope to each of the three key Clauses of the 14th Am, emphasizing federalism concerns (dont want to shift power away from the states) 1. EP limited to race 2. DP is limited to procedures, can be denied rights as long as the proper procedure is followed b. The Lochner Era i. Recognition of rights under 14th that slaughterhouse cases seemed to reject ii. Emergence of economic rights 1. Accepted idea that regulation of economic activity might violate DP (Public Utilities Cases) 2. Allgeyerstruck down state law as violation of DP a. With the growth of govt intervention in private economic activity, the Court began to apply DP as a constraint on state regulation that interfered with property rights or liberty of K iii. Lochner (emphasizes elements of substantive economic DP) 1. Invalidated a state law setting max hours for bakery workers 2. Liberty of K is specially protected and government cant interfere unless govt has a valid health and safety reason 3. Law was invalid because it did not provide a good enough health and safety concern c. The Demise of Lochner i. New Deal switch 1. Court began to reject substantive DP 2. Carolene Products, West Coast Hotel ii. Court began to apply RB 1. Legitimacy of economic regulation by legislature 2. Extreme deference to legislature iii. Lochner discreditedepitome of bad judicial discretion d. Rise of Fundamental Rights i. Carolene Products FN 4 (some rights receive greater protection than others) 1. Very deferential basis for the RB test 2. Express provisionsif a law interferes w/ an express provision of the BoR, we will not presume it is unconstitutional 3. Alter political process (PP reasoning)law that alters the political process is problematic 4. Discrete and insular minorities (political process reasoning) a. Including racial minorities, religious, national origin b. Implies greater judicial attention if minority is not capable of participating in political process in an effective way ii. EP 1. Skinner v. OK: used EP to protest against substantive rights a. Three strikes rulecompulsory sterilization after 3 criminal acts b. Incorporation debate (BoR applicable to the states through the 14th)complete, selective, no incorporation c. Court chooses selective incorporation i. Look at BoR in question ii. Is it a central part of DP iii. Is it a fundamental right iv. Then it applies to the states d. Standards for incorporation i. Deeply rooted ii. Implicit in concept of ordered liberty 2. Implications-

41

a.

Substantive DP recognized (fundamental rights, not economic)

b. Expansion to non-textual rights because deeply rooted or implicit in concept of ordered

e. liberty Warren Court and Reaction i. attacks racial discrimination, ii. criminal procedure-enhanced protection of criminal Ds iii. 1st Amendment Freedomsbegan to protect more aggressivelyparticularly unpopular speakers iv. Right of privacyrecognizing the nontextual right to privacy (implying marriage, family, etc) v. Political reactionsustained political campaign to change the direction of the court Current Trends Federalism; disintegration of rights framework

f.
I.

Levels of Scrutiny
Formula a. Trigger for scrutiny under EP and DP i. EPclassification ii. DPburden protected by DP clause b. Decide what level of end/means scrutiny applies to decide if law is unconst c. Apply the level inquiring into both ends and means Rational Basis Legitimate 1. need not be actual purpose 2. presume facts to support Reasonable 1. rational basis for belief that purpose will be achieved 2. over and under inclusiveness tolerated 3. less restrictive or discriminatory alternatives are not required Baseline test unless there is reason to elevate scrutiny Rational Basis w/ Bite Legitimate 1. may be limited to stated or actual purpose 2. court may secondguess purpose Reasonable 1. may inquire into whether purpose will be achieved 2. severe over or under inclusiveness may show pretext 3. obvious less restrictive alternatives may show pretext Unclear; maybe cases where Court suspects animus; often where court avoids elevated scrutiny Intermediate Important 1. some legitimate purposes insufficient 2. support for factual basis required Substantial relation 1. may doubt achievement of purpose 2. over or under inclusiveness serious problem but some may be accepted 3. unclear whether less restrictive or discriminatory alternatives are fatal Gender and legitimacy classifications, commercial speech, and some other areas Strict Compelling 1. proportional to individual rights interest 2. strong support for factual basis required (requires proof of actual purpose) Necessary or narrowly tailored 1. strong support for achievement of purpose 2. no over or under inclusiveness permitted 3. less restrictive alternatives are fatal

Level Ends (govt interest)

Means (fit w/ govt interest)

Application

race discrimination, fundamental rights, restrictions on speech, and religious discrimination

I.

Frameworks a. Similarities between EP and DP i. Incorporate different levels of ends-means scrutiny b. Differences i. EP is concerned with classifications that result in differences in treatment ii. DP is concerned with burdens on protected property and liberty interests c. EP vs. DP Trigger i. EP: classification (problem of disparate impact) 1. a statute has a classification in it, in the sense that it treats some people differently than others 2. generallyjust look at the law on its face 3. disparate impactbenefit/burden falls more heavily on one specific group 4. Different from commerce clause b/c court looks at practical effects of law a. In EP, court generally doesnt look behind facially neutral law to see practical effects

42

ii. DP: Burden (Denial of Benefit) 1. trigger is burden on some sort of protected right (life, liberty, property) II.
2. harder to see Plyler v. Doe (early 80s) a. Court invalidated a TX law denying a free public education to the children of illegal aliens b. Court concluded i. Education is not a fundamental right ii. Undocumented alien status was not a suspect classification 1. Being an illegal alien is a choice, not like race c. Must Further Substantial Goal i. Children arent responsible for their status, so there must be some substantial goal for this law ii. Discrimination in the law can hardly be rational unless it further some substantial goal of the state iii. Seems like court is saying something more than RB applies iv. Sliding spectrum analysis (Marshall, concurring)

Spectrum of Scrutiny?
RB RB w/Bite IS SS Lite SS

d. Application of Scrutiny i. Here, court seems to have put the burden on the state ii. Under ordinary RB test, the burden would be on challenger to show that illegal aliens dont burden schools iii. This example seems more strict than RB test States End Illegal status Preservation of state resources Protection against influx of aliens Special burdens on schools from illegal aliens Less likely to remain in state Courts Response Deportability, not denial of education Need to preserve $ does not justify particular classification Illegal aliens not an economic burden No evidence of impact on quality of schools Not quantifiable / anyone may leave

State Action
I. Introduction a. Private action cannot usually violate the constitution except slavery and right to travel b. Basis is constitutional text (14th Am) i. Prohibition against state action; nothing about private conduct ii. Court has always assumed that congress can regulate state action under 5, but not private conduct iii. 14th am doesnt protect against private conduct that impinges upon interests that seem to be rights (doesnt violate constitutional rights, could still violate statutory rights) c. The Civil Rights Cases i. 14th Am applies only to state conduct (text of 14th) 1. The court reasoned that if the 14th applied to private relationships it would shift too much of the police power from the states to the federal govt (federalism component) ii. Greatly restricted scope of applicability of 14th and Congresss efforts to enforce it The State action includes a. Government Agencies & Subdivisions

II.

43

b. Public Officials (governor, AG) c. Lebron (public corporations such as Amtrak) i. suing Amtrak alleging violation of 1st amendment rights; although Amtrak is private corporation b/c
statute says so, its structure/control/operations make it a govt agency, so Freedom of speech applies to Amtrak through the 14th d. Public function i. Private conduct does constitute state action when private actor is performing functions exclusively exercised by the govt 1. State cannot evade its function by giving its tasks to private entities ii. Test for public function: 1. Traditionally reserved 2. Exclusively to the state a. Show that historically there has been some private exercise of function and exception wont apply iii. Doctrine emerged in two contextsracially discriminatory political parties and company towns iv. Terry v. Adamscourt refused to allow nominally private arrangements used to exclude blacks from voting to escape constitutional scrutiny, reasoning in part that these elections were public functions. v. Marsh v. Alabamafree speech protections for distributions of literature applied in a company town vi. In other cases, court has applied this test to hold that education is not a public function and so private schools are not subject to the 14th (Jackson) State involvement a. private persons may be considered state actors if the state is so involved in their conduct as to make it fairly attributable to the state b. state might become involved in private conduct in various ways i. regulation, subsidies or other financial assistance, direct participation, etc.. c. two questions: i. what level of involvement is sufficient to constitute state action ii. how closely related must the state involvement be to the particular privilege being challenged 1. state must be involved in the particular private act being challenged, meaning that extensive involvement at a general level is insufficient (Jackson) d. two types of state involvement i. spectrum: From very little to heavy regulation 1. At minimum state acquiescence 2. More financial assistance or regulatory endorsement ii. Categories and context e. Test (Sometimes Applied) theres state action if there is i. Exercise of Right or Privilege conferred by state (easy); OR ii. conduct Fairly Attributable to the state (subjective) 1. no basis from distinguishing on case from another f. Cases i. Jackson (public utility w/ monopoly) 1. Monopoly was not enough to justify state action 2. State is not involved in the specific conduct being challenged ii. Brentwood Academy (regulation of h.s. sports programs) nominally private entity; not exclusively run by school districts, but also included private schools 1. Entwinement - Although this is nominally private body, its sufficiently controlled by and interwoven with public bodies that it doesnt have necessary independence to be called private body 2. State action w/o Nexus to specific conduct a. Dissent says need to show how state itself was involved with conduct in question b. In absence of that, theres no state action c. Nexus reqt missing from majority but necessary to dissent d. State relationship to private activity o Permission need specific nexus o Assistance still needs specific o Commands somewhere in the middle o Execution/enforcement of decision easy to find state action there

III.

44

IV.

o Entwinement/symbiotic relationship nexus doesnt need to be so close Affirmative Duties a. Does a state have an affirmative duty to intervene and prevent private conduct b. Normal assumption on out const jurisprudence is that the const. rights are negative rights and dont impose a duty on the govt to act c. E.g., DeShaney - Case involving abusive custodial parent; child put back in home by SRS; other parent sued i. Court said no constitutional obligation on the part of the state to protect the child from abuse of father ii. Court treated it as an affirmative duty case, but found that there was not affirmative duty for the state

EP and Improper Classifications:

EP Classifications Decision Tree

Identify Classification Suspect/Quasi Non-Suspect

Disparate Impact Intent Proven Intent Not Proven (?) Apply SS/IS Apply RB Test

Plessy, Brown, & Beyond

I. EP Introduction a. The Equal Protection Clause (classifications) i. Text no state shall deprive any person w/in its jurisdiction the EP of the law 1. General provisionnot narrowed to racial discrimination ii. Purpose of 14th 1. Originally directed towards problems of racial discrimination, expanded over time to allowing examination of any kind of classification under law and requiring classification to be justifiable at least by RB test b. The necessity of classification i. All laws classify ii. It is not the class that is suspect, but the classification iii. Classifications are improper when they are suspect or quasi-suspect Separate but equal a. Plessy v. Ferguson - Separate but Equal ct never used the phrase, but the case established i. Laws separating races but treating them equally was not a violation of EP clause 1. Stigma in the Eye of the Beholder a. Separation of races between two rail cars creates stigma re: blacks ii. Legal v. social equality 1. Purpose of 14th was to protect legal rights of blacks and not social ones iii. Harlans dissentconstitution is colorblind b. Jim Crow Era (interestingly overlaps with Lochner Era) i. Upheld Segregation 1. Exception: Buchanan v. Warley

II.

45

a. Struck down law segregating blacks moving into white areas based on freedom to
contract (for white ); not EP ii. Other discrimination 1. Disenfranchisement of voters (literacy tests) 2. Peonage (slavery for debt/ repayment system) Laws iii. Connection to other rights 1. Substantive due process: Lochner Era a. Court interested in protecting K and property rights, but not protecting blacks 2. Federalismvery strong at this point, leave it to the states c. Road to Brown series of decisions handed down by SC; responding to strategy of NAACP i. NAACP Strategy focus on law schools (Sweat v. Painter) separate not equal ii. Brown Context 1. Significant new step; NAACP waited until it had softened up the court to some extent 2. Series of cases; as a litigation strategy, the s conceded the facilities were equal a. Equality Conceded by s forced court to address doctrine itself b. Internal Maneuvering for Unanimity unanimous decision after new justice appointed i. Warren asked for reargument, for parties to come back in a year when one justice was gone so they could get a unanimous opinion Brown I short per curiam opinion (unsigned); uncertainty for reason of decision a. Initial re-argument that went through long analysis of history of 14th Am. and found it inconclusive i. The intent was not separate but equal even though that is not what history implies b. Regarding education, separate is not equal, it is a mark of inferiority (stigma) i. Emphasized the importance of education to success in life c. School segregation is per se unconstitutional (but didnt order schools to immediately desegregate) d. Re-argument re Remedy - Doesnt order desegregation immediately, Led to Brown II decision e. Extension of Brown i. Bolling v. Sharpe (companion case) 1. DC circuit is not governed by a state, it is a federal enclave, so no basis for applying EP clause because it only applies to states 2. Reverse incorporation (5th Am. DP)applies to natl govt has DP clause that incorporates EP a. DP clause of 5th incorporates general prohibition against discrimination Remedies Brown II All Deliberate Speed in desegregation a. Schools did not have to be immediately desegregated but needed to be desegregated with all deliberate speed i. Oxymoron (deliberate = slow) b. Resistance i. Defiance & Evasion ii. Cooper v. Aaron : when SC construes the Const, that is the final say and states have to apply it, it is appropriate for the Pres to call on the natl guard to enforce the order iii. Busing 1. In order to achieve school integration, SC upheld it 2. Produced a lot of political backlash c. Other issues i. Inter-district Remedies 1. Milliken v. Bradley: if the segregation is caused by the fact that some districts are predominantly minority and some are white, there was no authority to order one district to send students to another (perpetuated white flight) a. Unless you could prove the two districts corroborated ii. Funding (MO v. Jenkins) 1. Ordered taxes to be raised to give money to KCMO school district 2. To order taxes to be raised, it is within the power of the federal courts, but only as a last resort d. Ending Decrees (Dowell) i. Test: when is the violation cured 1. Reasonable period 2. Good faith compliance 3. Vestiges of discrimination have been removed to extent practicable

III.

IV.

46

V.

ii. Partial dissolution (Freeman v. Pitts) 1. as soon as part of decree was met, dissolve that part, dont have to wait for entire decree to be satis Relation to Strict Scrutiny a. Brown as a special Per Se Rule, no ends/means analysis b. Johnson v. CA (below) i. SS of Segregation in Prisons ii. New prisoners were assigned to cells based on race iii. Court said that segregation was subject to SS test

EP Classifications: Strict Scrutiny of Race

I. Emergence of SS a. Early Per Se Cases (e.g., Strauder) - Racial classifications = per se violations of EP b. Japanese Curfew/Internment (Korematsu) i. SS applied as a means of upholding the discriminatory curfews on and internment of citizens of Japanese ancestry during WWII ii. Explicit Racial Classification, and Suspect But not Per Se Invalid, but Can be upheld if survive rigid scrutiny iii. Rigid Scrutiny (these classifications can be upheld if there is a pressing necessity) 1. compelling interest in preventing Spies and Saboteurs in Time of War 2. Impossible to Separate Loyal & Disloyal among Japanese citizens c. AftermathKorematsu is seen as wrongly decidedSS standard in this case has become strict in theory, potent in fact i. In the aftermath of Brown, SS takes on a much more rigid role Facial discrimination a. EP doctrineracial classifications automatic SS i. This standard applies regardless of which group is disadvantaged (e.g. affirmative action is subject to SS) and even if the classification arguably results in equal treatment (CF Brown) b. SS being aggressively applied (cases below) c. Loving (ban on interracial marriage struck down by court) i. Law prohibited interracial marriage and thus arguably treated whites and blacks equally (each was prohibited from marring members of the other race) ii. Illegitimate (Discriminatory) Purpose; When the classification turns on race, doesnt matter if both treated equally d. Palmore - Custody and adoption preferences in state disadvantaged mixed race couples; natural father objected to continued custody of the mother b/c she married Af-Am man i. Court said the concern for potential social stigma was not a valid consideration (not that it isnt compelling, just not valid) ii. Court never even gets to fit on SS analysis b/c treats the purpose as illegitimate/invalid iii. Court rarely seriously engages in SS re: racial classifications b/c rarely gets past purpose of the law e. Johnson v. CA i. SS applies to all racial classifications even if the prison context ii. In this case, there was no real evidence or suggestion that segregation of prisoners was based on racial discrimination of any one group of prisoners 1. But the state has to provide a legitimate purpose that might justify segregation (which it doesnt) iii. This case suggests that in some cases it might be possible to satisfy SS f. What might survive SS i. Compelling purpose 1. National security (indicated in Korematsu) 2. Affirmative action ii. Fit must be precise 1. No over/underinclusiveness 2. No LDA 3. Individualized consideration Suspect classifications facts a. Themes underlying factors i. Political process 1. Whether groups are adequately protected

II.

III.

47

IV.

ii. Individual rights 1. Each individual has the right to be treated by the govt based on his merits and not on preconceived notions that have no bearing on the individuals morals/character b. Factors that make race suspect classification i. Historical intent of EP clause ii. History of discrimination (political process) iii. Discrete and insular minority (politically powerless) (political process) iv. Stigma and stereotypes (individual rights) v. Immutable characteristics (individual rights) Class vs. Classification a. Do we elevate scrutiny in these cases b/c the classification is racial or b/c the class burdened by laws is a racial minority? b. Suspect Class looking at it from Group Perspective i. Suspect class b/c Process Failure Discrete and Insular minority & Historical Discrimination c. Classification (Carolene FN) looking at it from Individual Treatment (individual rights) i. Suspect classifications b/c we think it is Inherently Unfair Stigma and Stereotypes & Immutability d. Implications i. Current court Emphasizes what matters is not the class but the classifications 1. Individual Rights 2. Suspect Classifications e. Affects - Now focused on factors of immutability and stigma/stereotypes and less concerned with past discrimination and political process issues i. Affirmative Action 1. Group perspective harms the powerful racial majority, not the racial minority and that majority has no history of past discrimination so, not political process failure 2. Individual perspective looks like racial classification is an unfair classification regardless of the direction that you point it ii. Disparate Impact situation where classification that is not racially based (facially neutral) but application adversely affects racial minorities disproportionately (i.e. Washington v. Davis reqt that you have H.S. diploma; excluded larger number of Af-Am) 1. Group perspective law harms the minority group on average and that group has been victim of past discrimination and likely has difficulty reping own interest a. Political process failure 2. Individual perspective test looks like its based on merit; get access to job based on how you fare on the test a. SC reqd that challenger prove that criteria was adopted for the purpose of affecting minority iii. Current law in both focuses on individual perspective; concerned with classification that the law employs and not with the group that the law affects Group No SS: Harms powerful majority w/o history of discrimination SS: Harms minority group w/ history of discrimination Individual SS: Worse treatment based on immutable characteristic No SS: Does not treat individual worse based on immutable characteristic

A Matter of Perspective Issue Affirmative action Disparate impact

EP Classifications: Gender Classifications I. Expansion of Suspect Classificationsgender

a. Overview i. Suspect: race/natl origin/alienage ii. Quasi-suspect: gender/non-marital children iii. Rejected: age/disability/wealth

48

iv. Unanswered: sexual orientation

II. Gender as (quasi) suspect a. Factors from Frontiero plurality opinion

History of 14th Am. History of discrimination Political powerlessness Stigma and stereotypes Immutability Not w/in the historical purpose of the 14th Longstanding denial of legal rights (voting, property, etc.) Women > 50% but underrepresented Yes, but real differences Not easily changed, no moral responsibility

III. Evolution of IS a. Acceptance of discrimination (Goesart v. Cleary)- court accepted laws that disadvantaged women i. upheld law that prohibited women from being bartenders unless they were married to or daughter of male owner b. Reed v. Reed rulings began to change i. Applied the RB test but invalidated a law that gave preferences to men over women as administrators of the estate of an intestate decedent ii. Failed Rational Basis possibly early example of RB + bite c. Frontiero v. Richardson i. Invalidated a law that presumed wives of a male member of the military were dependent for purposes of health benefits, but required the husband of a female member to prove dependent status ii. A plurality of 4 likened gender to race and applied SS while concurring justices relied on Reed d. Craig v. Boren i. Invalidated an OK law setting a higher min age to purchase 3.2 beer for men than women ii. Majority adopted IS which has been the controlling standard in gender cases ever since IV. IS a. . . . previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. b. If court believes law based on stereotype or unthinking adherence to traditions roles, then it tends to strike it down c. If court believes law based on real differences btw the sexes, then upholds. V. Application of IS a. Michael M. (Statutory Rape) i. Court upheld a statutory rape provision that applied only to underage females, reasoning that the law satisfied IS: 1. The states purpose: combating teen pregnancy was important 2. Classification: substantially related b/c only minor females could become pregnant (and thus suffer the most severe consequences) ii. End: Prevent Teenage Pregnancy iii. Over/Under: Only Females Get Pregnant all negative consequences of teen pregnancy fall on women instead of men iv. LDA: Neutral Law Less Effective 1. State says no b/c girls wont come forward to complain if law will punish them more difficult to enforce; Also, natural consequences of getting pregnant are more deterrent for girls b. US v. Virginia (VMI) (Military Academy) i. H: violation of EP to w/hold acceptance to women ii. Closer to SS iii. Remedy: Female Alternative Insufficient separate but equal not OK c. Nguyen v. INS i. Court upheld an immigration law that makes it easier for children of unwed parents, one of whom is a US citizen, to establish citizenship if mother is a US citizen than if father is a US citizen ii. Government objectives validneed to verify paternity (have evidence of childbirth with the mother) iii. Example of a real physical difference b/w man and woman VI. Two categories of gender cases a. When the classification based on gender reflects stereotypes about the proper roles of men and women i. Applies a very strict form of IS (VMI) b. when the law seems to be based on real physical differences

49

i. usually enough for the state to point to some reason based on these physical differences to treat men and
women differently ii. no so rigorous a scrutiny as when the court thinks the law is based on a stereotype

Real Difference or Stereotype? Case Michael M Statutory rape law Rostker v. Goldberg Draft registration

Real difference? Only girls becomes pregnant Only men must register for the draft - since only men are going to be drafted, makes no sense to have women register Motherhood not in doubt; early bonding

Result Upheld Upheld

Nguyen v. INS Upheld Children of citizens not born in US would presumed to be citizen if it was US citizen mother but not if US citizen father VMI Women not suited for adversative training invalidated Adversative training - is it really the differences or the stereotypes that follow from the differences?

EP Classifications: Other Suspect Classifications

I. Introduction a. What is EP? i. All laws classify, equal treatment is not possible 1. Distinctions may be drawn if the classes of people created are not similarly situated 2. In light of purposes of statute, you can classify people if the statute relates meaningfully to the legitimate ends of the law b. Not Similarly Situated (for purposes of the relevant statute) i. Difference Relevant to Legitimate End 1. i.e. there is a relevant difference between people who commit murder and those that do not that justifies the classification ii. Justifies Classification as Means (legitimate purpose justifies the classification) c. Suspect Classifications (think race) i. Likely Reflect Illegitimate Purposes ii. Seldom Reflect Relevant Differences d. EP Rational Basis Test i. Focus on Classification not suspect ii. Any Plausible Purpose ct. exercised a lot of deference 1. Only Improper Purposes Invalid like Cleyburne; illegitimate purpose that motivates state action iii. Any Reasonable Classification if it has any kind of relationship to that purpose, upheld 1. May be Over or Under Inclusive; doesnt really matter; classifications dont have to be precise 2. LDA Irrelevant 3. Only Arbitrary Classifications Invalid very rarely found e. Expansion of Suspect Classifications i. Although the court has recognized some additional suspect classifications closely tied to race (natl origin and alienage) and gender (non-marital children), it has declined to recognize several other possible suspect classifications, and the court as currently composed seems unlikely to recognize new suspect classifcations ii. Importance of Heightened Scrutiny iii. Liberal Expansion 1. New Classifications gender, non-marital children, alienage 2. Dicta re Others poor; disabled; aged court focuses on political powerlessness of group iv. Retrenchment beginning in early to mid-80s; court backs away from expansion; rejection the new classifications and weakens some others

50

v. RB with Bite seems to emerge to address these quasi-quasi suspect classifications; not as deferential for II.
some of these other classifications Alienage treated a lot like race a. Although alienage has been treated as a suspect classification, it presents distinctive issues and many alienage classifications have been upheld b. Def: lawful permanent residents of US who are not citizens c. Strict Scrutiny of state classifications i. Applies to state law disadvantaging aliens, unless the law preserves for citizens of the state essential functions of self governance (police officers, school teachers, but not notaries) ii. Graham v. Richardson starts us on road to SS (invalidating law re: welfare benefits to aliens) 1. Invalidated a state law denying welfare benefits to lawful, permanent residents, applying close judicial scrutiny, 2. Although Graham invoked trad EP analysis, it also relied on federal preemption as an alternative rationale 3. In later cases, the court distinguished Graham and upheld federal laws disadvantaging immigrants, relying on broad Congressional authority under the plenary power doctrine for immigration (Mathews) iii. Political Process Reasoning political process failure because aliens dont vote 1. not long after, court created exception to SS doesnt apply re: aliens in political participation d. Federal (Mathews v. Diaz) i. Upheld law disadvantaging immigrants: social security laws; no benefits until after 5 years after arrival ii. Pre-emption Wrinkle only fed can regulate aliens; not states iii. now we have federal laws giving Permission to States to regulate aliens; authorize state discrimination 1. if EP is the argument, then fed shouldnt be able to do this e. state self governance (Foley) i. court has recognized that states have a legit interest in restricting political participation to citizens, including disqualification for state employment for which citizenship is a relevant qualification (serving as governor, police officers, school teachers) ii. inapplicable to notaries Nonmarital Children / Legitimacy (quasi-suspect) a. Intermediate Scrutiny i. History of Discrimination ii. Beyond Control of Child child has no responsibility for whether his parents get married iii. Interrelation w/ gender (fathers and mothers treated differently b/c of different genders) b. While the court has generally invalidated laws that impose absolute disabilities on non-marital children, it has also recognized that there may be problems establishing paternity and that the state has a legit interest in encouraging acknowledgement and legitimation of non-marital children by their natural fathers c. Important ends some legitimate reasons for treating nonmarital children differently than marital children i. function #1 - Ascertain Paternity in re: wrongful death suits; estates ii. function #2 - Promote Parental Responsibility d. Means (fit) i. A total bar based on the status as a non-marital child is almost always INVALID 1. Not allowing children to acquire benefits or recoveriesinvalid ii. Conditional (often upheld) 1. Cant recover in wrongful death and inheritance unless you have been acknowledged Non-Suspect Classifications once thought to be quasi-classifications; but court has since rejected a. Age, disability and wealth classifications bear some similarities w/ race and genderthere has been i. Historical discrimination ii. May lack political clout because of process failures iii. Basis for stigma and stereotypes iv. that are arguably immutable the individual cannot control and is not morally responsible for the characteristic b. Age i. Mass. Bd. Of Ret. v. Murgia court rejected age as suspect classification; everyone gets old if theyre lucky; real reasons for classifications ii. Survives RB (Recall Kimmel) c. Disability broadly, not a suspect classification

III.

IV.

51

i. Cleburne v. Cleburne Living Ctr. meaningful differences; law in existence to protect disabled ii. applies Rational Basis w/Bite (Recall Garrett) to strike down law in question
d. Wealth

i. Dandridge & Rodriguez not a suspect classification, RB test

Factor History of discrimination Political powerlessness Age Disability Wealth Some HoD against old Yes Against poor and young Not elderly Yes The poor as discrete and Children? insular Stigma and stereotypes Yes, but also physical Yes, but also physical Yes reality reality Immutability Changes but beyond Yes, but real differences Changeable; individual control; real differences merit? V. Sexual Orientation A. Unresolved 1. Romer v. Evans didnt resolve; used RB + bite 2. Lawrence v. Texas struck down same sex sodomy laws violated right to privacy; didnt rely on EP clause; OConner wrote separate opinion saying sexual orientation should be quasi-quasi-suspect classification 3. Lower Courts consistently duck the issue; usually between intermediate and RB - When they strike down a law, follow pattern of Romer - When upheld law, (i.e w/ military) says doesnt have to decide b/c law passes RB test B. Application of Factors pretty good case to give some kind of suspect class 1. History of Discrimination 2. Politically Powerless (disputed) difficult to form coalitions 3. Stigma & Stereotypes 4. Immutability (disputed) whether its a choice or not

EP Classifications: Disparate Impact

I. What is DI a. Refers to govt action that is facially neutral (i.e. does not implicitly incorporate a suspect or quasi classification), but that disproportionately burdens a particular group (e.g. racial minorities or women) b. This problem is analogous to the DCC problem of facially neutral laws that disproportionately burden out-of-state interests c. Cuts across suspect classificationsDI is applied the same way to all suspect and quasi classifications Competing Implications a. Both perspectives suggest some different outcomes b. Group v. individual i. Grouppolitical powerlessness and history of discrimination ii. Individualindividual values and protections; judging each person by their own trait c. Political Process Perspective (group)court has rejected i. Heightened scrutiny would be appropriate ii. A law whose burdens fall most heavily on minority groups are likely to reflect a process failure iii. If a group is politically powerless, lawmakers are likely to discount or ignore the burden iv. If there is a history of past discrimination one might also be very suspicious that DI reflects purposeful discrimination v. Group that fairs more is the group that has political power and Group that fails more is the groups that historically lack political power d. Individual Rights Perspective no justification for heightened scrutiny i. Critical question is whether a particular individual has been discriminated against ii. The application of a neutral classification is not discriminatory and the fact that other members of the group are effected does not ordinarily prove discrimination in any particular case iii. From this viewpoint, DI does not warrant heightened scrutiny Washington v. Davis DI doesnt trigger SS; individual rights perspective wins a. To invalidate law, it is not enough to show DI, you also have to show discriminatory intent b. Test: DI + discriminatory intent = violation c. Rejection of Strict Scrutiny

II.

III.

52

i. Requirement on its fact is neutral ii. No evidence of discriminatory motives IV. Application of Disparate Impact a. McLeskey v. Kemp i. Statistical Application of Death Penalty white s seldom got death penalty like black s ii. but No Proof of Individual Discrimination SC said statistics irrelevant iii. establishes that requiring proof of a discriminatory purpose presents a significant barrier to those who wish to challenge arguably discriminatory practices 1. have to prove that neutral classification was adopted b/c of discriminatory effects and not in spite of discriminatory effects b. Mobile v. Bolden i. At Large Voting system for city council; minority unable to elect representative to council ii. Rejected: not enough Evidence of Intent c. Geduldig v. Aiello i. Insurance Coverage for Pregnancy denied ii. Pregnancy is not Gender discrimination b/c not ALL women get pregnant even though only women affected by law V. DI as a Prima Facie Case (Exceptions) a. Statutes (employment, VRA) i. Prima Facie Case (statistics or individual) if minority individual can show qualified for job but went to white male; thats enough ii. burden shifts back to employer to show race-neutral explanation iii. Neutral Explanation (job-relatedness) iv. burden shifts back to to prove pretext v. Pretext (inconsistent application) b. Batson (peremptory challenges on black jury members) one area where constitutional doctrine tracks with statutory doctrine i. If you find a pattern of racial exercise of peremptory challenges, that creates a prima facie case and burden shifts to D ii. Neutral Explanation (easy any reason will do dirty looks; family member had run-in w/ law, etc..), shift back to P iii. Pretext (inconsistent application) iv. Batson is hollow victory for racial minorities 1. s never win Batson cases; cant prove pretext VI. Proving Intent a. Types of Evidence that is relevant to establish intent (Arlington Hts) i. the DI itself might be evidence of discrimination 1. if it is stark enough then it may be sufficient standing alone 2. Only the racial minority affected AND 3. All members of minority affected ii. Historical background may reveal procedural or substantive irregularities that raise an inference of DI (e.g. denial of a permit when other applicants w/ same qualifications receive them) iii. Direct evidence of DI such as discriminatory statements in the legislative history b. If Proven, most cases treat as per se invalid except in DI affirmative action case and where discriminatory intent is not but for cause (i.e. 1 legislator out of 99 says he favors law b/c its bad for minorities; other condemn the 1; but 99 in favor for other legitimate reasons) VII. Issues & Implications a. Problems with DI Approach i. too High a Hurdle on s? ii. after you proveheightened scrutiny is applied 1. once you prove, shouldnt it be per se invalid b. Mobile v. Bolden (too high a hurdle?) Evidence Courts response No black ever elected Can register and vote Elected officials discriminate Independent violation: not evidence

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History of racial discrimination Mechanics made it harder to elect Contrast Rogers v. Lodge

Doesnt taint later actions Inherent in voting; must prove intent

EP Classifications: Affirmative Action

I. Introduction to Affirmative Action a. Arguments For & Against as a policy matterboth very powerful i. FOR: to remedy past discriminatory practices; need to use race as determining factor in remedy ii. AGAINST: not individual responsibility of every member of white race to remedy past discrimination 1. To get past racial politics, you have to be color-blind 2. Thomas AA undermines the accomplishments of minority group members a. Thinks own Yale law degree de-valued b/c assumed he got in only b/c of AA iii. As a constitutional matter under 14th: 14th meant to prohibit any use a racial classifications AGAINST b. Political Process / group perspective vs. Individual Rts perspective i. Group: No political process problems b/c minority was victim of past discrimination and lack political power ii. Individualracial classification is bad regardless of which way the burdens and benefits fall c. Legal Issues i. Level of Scrutiny SS applies ii. What kinds of Affirmative Action Programs Might Survive SS? 1. Remedial AA program Croson 2. Diversity in context of higher education; unclear how far diversity rationale could extend Grutter Uncertain Path (history)no majority for a standard of review of approach to AA a. Bakke (78) (4-1-4) Powell (med school admissions) i. 4applied IS and would uphold AA to rectify past discrimination ii. 4AA in admission violated statutory provisions iii. Powell said that set-asides and quotas were invalid, BUT that race could be a factor in individualized determinations b. Fullilove (80) (3-3-3) i. Upheld Federal set-aside for minority contractors but split, 3-3-3. ii. 6 vote to uphold set-aside: 3 refused to identify a level of scrutiny, 3 applied IS 1. Several justices suggested greater deference to congressionally authorized AA under Sec. 5 of 14th iii. Dissentersapplied a SS and would have invalidated the set-aside c. Wygant (87) (3-1-1-3-1) i. Retention of minority teachers over more senior teachers in the event of layoffs ii. Pluralitystressed the unfairness of laying off teachers (as opposed to a hiring preference) iii. Concurringapplied SS Strict Scrutiny: Croson established that SS applies to AA (doesnt matter which direction classification is going) a. Indicates that remedying the effects of past discrimination is a compelling purpose under some circumstances b. State Municipal Contract ordinance that set aside a certain % of contract for minority owners i. Set Aside Invalid (fails SS) c. Remedial Purpose is Compelling i. Must be participant in past discrimination and ii. There is statistical evidence must match (must show evidence of past discrimination) iii. In Croson, court demands very high standard of evidence tough hurdle to overcome d. Narrow Tailoring Croson tells us very little b/c no real evidence of past discrimination e. Federal Power Wrinkle i. Croson different from Fullilove b/c Fullilove is dealing with federal as opposed to state (in Croson) ii. Metro Broadcasting distinguished Croson 1. If its a federal program, IS applies; If its a state program, SS applies iii. Adarand 1. Overruled Metro Broadcasting Thomas replaced Marshall

II.

III.

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2. SS for Federal Affirmative Action, no reason for treating federal and state AA differently a. Court said no basis under 5 of 14th for differentiating between federal and state in re:
f. AA, but may give more deference to Congress Now: SS for federal and state AA program i. Remedial proof may be constitutional if there is adequate proof and narrow tailoring

IV.

V.

Status and future of AA Grutter & Gratz a. Grutter: upheld Michigan law school Admissions Policy i. Bakke not overruled because in Grutter race was among many factors designed to achieve a diverse incoming class ii. The admissions policy was narrowly tailored b/c race was considered as a factor and there were not setasides or quotas iii. Application of SS (purportedly) SS lite 1. Compelling purposestudents exposed to diverse types in their legal education (govt said this was OK) 2. Individualized Review Narrowly Tailored if race only used as a factor (Powell language) iv. Contrast Gratz (dealing w/ larger University policy) court invalidated University policynot narrowly tailored 1. race not used just as 1 factor more like a set-aside b. Discussion of Grutter i. Diversity as Compelling Interest ii. Really SS? Consider Dissents 1. Elite Law School - not Compelling purpose Thomas 2. Really a Quota (Rehnquist) b/c Critical mass necessary to draw in Af-Am was bigger than that necessary for Native Americans and Latinos iii. Justice OConnor - Key Swing Vote usually the key to strike down most AA programs; but switched on Grutter 1. Now that shes gone, can we say goodbye to Grutter? c. Parents Involved i. Court invalidated assignment plans that used race as a factor to promote integration in public schools ii. Rejects remedying past discriminationSeattle never had mandated school segregation and other school district that did was fully desegregated iii. Racial diversity is not a compelling purpose iv. Racial balance is not enoughnot a legitimate purpose Gender Affirmative Action a. Same standard applies regardless of direction; same standard to laws that disadvantage men as laws that do so to women i. Prior Reverse Discrimination Cases applied IS b. Mixed Affirmative Action Programs (elements of both race/gender in them) i. Gender Affirmative Action easier than racial Affirmative Action under current logic ii. but Some courts apply SS to both b/c concerned w/ outcome C. Is there a way out for the Court? Levy says no.

EP Classifications: RB Test
I. RB: Introduction a. Baseline Test i. No Suspect Classification (all laws classify, but that doesnt automatically violate EP) ii. No Burden on Fundamental Rights b. Classification Must (very deferential) i. further a Legitimate End or governmental purpose ii. Bear a Reasonable Relation to End or purpose c. Rational Basis with Bite? Legitimate Ends a. Range of Ends which may be legitimate i. Any Purpose w/in traditional Police Power of the state

II.

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ii. Some Illegitimate: Naked Preferences

court seems to indicateif the only reason for a law is that a politically powerful group is able to get laws for their benefit and hurt others, for no reason other than the powerfulness of the political groupnaked preference that is illegitimate b. Any Plausible Purpose (not any actual purpose) i. Post Hoc Explanations (Beach) - Case is significant in demonstrating how far the SC is willing to go to find a purpose in terms of the EP RB test. ii. Actual Purpose Debate (Fritz)Court upheld Congresss distinction 1. If you were a RR worker, you might be eligible for both RR retirement and social security 2. Congress drew lineif you werent currently working in the RR service of 1974 you did qualify, and if you did work for the RR in 1975, you did qualify 3. Equitable claim is strongercareer railroaders c. Occasional Exceptions - The court will sometimes hold the legislature to the actual purpose, but it doesnt really fit the standard application of the RB test. d. Evidence to Support plausible purpose is Presumed, so, if you want to defeat the law one must rebut every plausible purpose. (almost impossible to do) Reasonable Relationship a. Generally a classification is reasonably related to a legitimate end if it tends to further that end b. Underinclusiveness i. Tolerated: excludes from its coverage persons who have seemed to cause the problem. ii. Example: Railway Express Agency (REA) 1. Law in question bans trucks from having big ads on their panels except if the truck is running its own business 2. Clearly Underinclusive: a. Justification: reduce distractions for drivers and cause accidents i. If this was really the case, you would ban all distractions ii. Real reasonlocal companies have access to local political process, natl do not 3. Courtlegis might have thought it was less of a problem w/ small companies a. And it is ok to address the problem one part at a time c. Overinclusiveness i. Tolerated ii. Example: Beazer 1. Mass Transit Employees (Exclusion of methadone users) 2. Overinclusive a. Purpose: ensure qualified employees b. Many methadone users are qualified c. Individualized screening would work 3. Irrelevant under RB test: not an invidious discrimination , no animus behind this lawso OK d. LDA i. Not Required: REA and Beazer ii. Less Discriminatory Means 1. Avoid unnecessary discrimination 2. If under-inclusive, broaden the law a. E.g., in REA, bar all truck advertising 3. If over-inclusive, narrow it a. E.g., in Beazer, individualized screening iii. No requirement under RB Test, so irrelevant Rational Basis w/Bite a. Involve the court normally applying RB test and striking it down i. Because of animus b. Examples of laws being struck down under RB w/ bite i. Reed (Gender) - Earliest gender discrimination case where the SC struck down a law. ii. Purpose of govt action in question was illegitimate b/c it reflected nothing more than animus against the adversely affected class (Moreno, Cleburne, Romer) 1. Moreno (Hippies)- Law targeted hippie communes. 1.

III.

IV.

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2. Cleburne (Disabilities) 3. Romer (Sexual Orientation)

c. Implications i. Same or Different standard 1. Seemed to focus on the actual purpose given, and then found that purpose unsustainable either because of the classifications themselves or their effect. a. Must less likely to accept after the fact justifications (likely to view as pretext) 2. (OConnor concurring in Lawrence v. Texas quasi-elevated scrutiny when bias or animus is suspected.) ii. Common Thread: group who bore the attributes of a suspect classification ANIMUS

FUNDAMENTAL RIGHTS
Overview: 1. General focus: laws burden individual interests a. These cases involve tension b/w individual and community b. The individuals interest in doing what he wants to do vs. some benefit the community as a whole is seeking to achieve through legislation c. Balancing i. Recognizing a right is recognizing the ability of an individual to trump the interest of the community ii. If the right is not recognized, the community interest trumps the individual 2. Types of rights a. Economicreceive little protection, community wins over individual b. Privacya lot of special protection, individual wins over community c. Political and systema lot of protection i. Involve your rights as a member of society and have govt respond, ability to participate in process of law and govt d. Welfarevery limited protection i. Interests you have for the govt to provide for your needs, promoting individual well-being e. Expression of beliefa lot of protection

Privacy Marriage & Family

I. Introduction to Fundamental Rights a. Current constitutional doctrinecertain const rights are fundamental for purposes of DP and EP and laws that burden fundamental rights must survive SS b. Classifications vs. rights i. Classification: the way the law treats people differently and how it classifies people to treat them different ii. Rights: certain kinds of rights people have and the way in which they are burdened iii. Looking for burdens on rights and not classifications iv. Key question: what is the source of the right protected by the Constitution c. Sources of fundamental rights i. Substantive Due Process - typical traced to Due Process Clause no state can deprive any person or life, liberty or property w/o due process of law ii. Fundamental Rights - Equal Protection Clause - when laws impact fundamental rights, the classifications in the laws may be analyzed more carefully (Skinner re: compulsory sterilization of felons) iii. Some rights only evaluated under DP or only under EP and some rights seems to get analyzed under both with no distinction d. Debate over Textual vs. Nontextual Rights i. Some non-textual rights are fundamental rights such as marriage, family, children, but not in constitution e. The Rights Dichotomy i. Economic Rights have 2nd class status right to own property; right to work job, K (RB test) ii. Individual Rights certain rights elevated to fundamental rights (SS/IS or other greater protection) Privacy Overview a. Lochner era cases 1920s i. court recognized substantive economic due process

II.

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ii. But, Court struck down state laws that interfered w/ parents right to control kids educationthis was a
fundamental liberty and not an adequate police power to sustain the laws (Meyer and Pierce)

b. Carolene Products, fn 4 (1937) i. 3 kinds of laws might not get the same amount of deference as ordinary economic and social regulation
(subject to a heightened standard than RB) 1. Laws that burden rights expressly protected by the BoR 2. Laws that distort the political process 3. Laws that burden discrete and insular minorities who cannot protect themselves through the ordinary political process c. Incorporation Debate 1940s-50s i. Court recognized some BoR provisions as fundamental for purposes of incorporation into the 14th Am. ii. Test for when a provision of the BoR applies to the states through the 14th: 1. When they are implicit in the concept of ordered liberty OR 2. Rights that are deeply rooted in our traditions and collective conscience d. Fundamental Rights EP1940s-1960s i. Court recognized procreation as a fundamental right for purposes of EP analysis in Skinner Griswold launched modern right to privacy a. Court invalidates a law which prohibits the use of contraceptives (this case it was being used by married couple) b. Reaffirms Lochner but distinguishes it c. Recognized non-textual right of privacy d. Penumbra terminology (Douglas)(shadows that is cast of a particular const provision) effort to ground right of privacy in explicit const texts i. Right to privacy is not directly recognized, but the constitutional provisions are manifestations of the larger background right to privacywhich underlie those provisions of the BoR ii. Links marriage to 1st am right of association iii. 3rd and 4thmeant to give you privacy in your home (forbids quartering of troops and search/seizure) e. Concurrences (Goldberg & Harlan) i. Goldberg Were recognizing rights not expressly stated in constitution and 9th amendment gives us the power to do so ii. Harlan test for incorporation of rights ought to be applied for non-textual rights as well as textual 1. Marriage protected b/c deeply rooted; rather than rely on penumbra argument f. Scope of the Right? i. Emphasis on Home & Marriagestate laws that burden these rights receive SS 1. State may intervene to prevent domestic violence and abuse or neglect of children ii. Eisenstadt v. Baird (sale to unwed) not long after Griswold; extended Griswold to sale of contraceptives to people who were not married 1. home component of Griswold rendered unnecessary 2. looks more like a right to private, intimate, sexual relations than a right to marriage and privacy in the home Components of the Right to Privacy a. Marriage clearly recognized and protected i. As Core Component of Privacy 1. Griswold (background right) 2. Loving: held not only that a ban on interracial marriage was an improper racial classification, but also that the law infringed upon the right to marry 3. Zablocki applies SS under EP a. Law in question prohibited people from getting married w/ judicial approval is they had prior child support obligations b. Fails SS: violated right of marriageinterests may be compelling but law not narrowly tailored enough ii. Reasonable Restrictions by govt 1. Requiring a marriage license or a blood test 2. Laws can prohibit a. Underage marriage b. Plural marriages

III.

IV.

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c.

Same sex marriages?

b. Family/Moore i. Zoning Excluded Household invalidated a zoning ordinance limiting the number of unrelated persons
who could live together in a single family residence, as applied to a group of relatives who did not meet the states definition of family ii. SS Applies b/c burdens family rights (Belle Terre Distinguished) 1. In the absence of a burden on family rights, the RB test would have applied and the ordinance would have been valid (according to Belle Terre) 2. Good illustration of dichotomy between economic rights and individual rights iii. Purpose: Reduce crowding/congestion invalid 1. Underinclusive: a large family could still live in a single family dwelling: against purpose of law 2. Overinclusive:4 unrelated people living in one house, not crowded; like a typical nuclear family iv. How do we define family? 1. Law in this case defined family pretty narrowly; interfered w/ what most would consider pretty close blood relatives choosing to be a family unit Children parents have FR in care and rearing of children i. This right is not absolute, some cases where the state can interfere ii. Parental Unfitness state can interfere in cases of abuse/neglect 1. Abuse & Neglect cases interest in protecting children from abuse/neglect 2. but has high standard of Procedural DP Rights when state terminates parental rights iii. Troxel grandparent visitation 1. law - Broad visitation w/best interest standard too broad; interferes with parents right 2. No finding of unfitness 3. No weight to parental decision

c.

Fundamental Rights: Abortion

Introduction a. Controversial Issues i. Does the right to privacy encompass or include the abortion decision? 1. If it does not, could the state compel an abortion 2. Is the right of a woman to CHOOSE to carry a fetus a const right? ii. Even if the right of privacy encompasses abortion decisions, can restrictions on abortion survive endsmeans scrutiny because of the states interest in protecting the life of the unborn child/fetus? 1. Can it override the mothers choice II. Roe v. Wade a. Abortion as Fundamental Right i. Right of Privacy 1. Precedent recognizing right of privacy Pierce, Meyer, Griswold ii. The definition of the right of privacy is broad enough to encompass abortion 1. But right not absolute (SS applies) a. Its a right, though, that if burdened, SS applies State interest and Trimester framework Purpose Courts treatment Discourage sex Not advanced Protect womens health Relevant after 1st trimester before the first trimester the state cannot have a strong enough interest to prevent an abortion (it is safer for the mother to abort the baby during the first trimester than carry it full term) Protect life of child/fetus Only compelling after 2nd trimester (viability) An unborn child is not a person w/in the meaning of the 14th, if it was, it would have the right to life and pretty compelling argument for state intervention States interest only becomes compelling after the 2nd trimester, the point at which a fetus could live outside the womb State may regulate: After the 1st trimester to protect the health of the mother I.

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 III.

After the 2nd trimester to protect life of child/fetus o Both must be narrowly tailored Planned Parenthood v. Casey a. Treatment of Roe i. Significance of Plurality 1. Pure Roe (2 Stevens/Blackmun) apply SS to invalidate abortion laws 2. Reaffirm Roe (3 Kennedy, Souter, OConner) apply UB (undue burden test) to invalidate/uphold abortion laws 3. Overrule Roe (4 Scalia, Thomas, White, Rehnquist) apply RB to uphold all abortion laws ii. Essential Holding 3 justices reaffirmed Roe holding 1. Women has a right to choose an abortion before viability and obtain it w/o undue interference by the state (States interests are not strong enough to prohibit this) 2. Court confirms states power to restrict abortions after viability except for pregnancies that endanger the life and health of the mother 3. State has a 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 b. Mysteries of life: Search for a deeper meaning of life is w/in the right of privacy (plurality) c. The Undue Burden Testcontrolling test on abortion rights i. Substantial obstacle 1. There is an undue burden if the state places a substantial obstacle in the path of the woman who wants to get an abortion ii. Ultimate decision 1. There is no undue burden if the woman retains the ultimate choice to have an abortion iii. Implicationsa lot more likely for a law to be upheld under UB than SS Forms of abortion regulation a. Informed Consent/Waiting (designed to discourage abortions) i. Many states have adopted laws requiring that women seeking abortions be given materials design to inform them of the consequences of abortion (usually graphic descriptions of the procedure) and of alternatives such as adoption ii. More recently, states have required an ultrasound iii. These laws typically also require that women wait a specified period, usually 24-48 hours, after receiving the material before having an abortion iv. Survives Undue Burden Test in Casey 1. States legitimate interest in life 2. No Substantial Obstacle (Woman makes ultimate choice) v. Significance of Undue Burden Test changes analysis from Roe 1. Failed SS under Roe waiting period clearly places burden on the right; under trimester framework, if its pre-viability, no compelling interest in life to justify the law b. Abortion Funding excluding abortions from Medicaid coverage (restrictions upheld even under Roe) i. Maher and Harris (Hyde Amendment): federal amendment prohibiting states to use Medicaid funds to finance abortions 1. SS applies: the govt did not burden the right of a woman to have an abortion , its decision was subject to RB and moral opposition to abortion was a legit purpose for denying funding 2. Survives RB test applied b/c no burden (legitimate purpose) ii. Extension of denial of federal funding 1. Webster (public facilities) no facility receiving public funds can provide abortions; i.e. no public hospitals can perform abortions 2. Rust (speech related)federal govt adopted regulations that limited the use of family planning funds to clinics. Under the regulations, if you received funds for family planning, you were required to say that you dont believe in abortion as means of family planning. iii. Baseline Problem 1. The constitution does not impose any affirmative duties on the states of the govt a. No fundamental right to welfare, education, protection 2. Unconstitutional conditions

IV.

60

a. Even though the govt doesnt have an obligation to provide a benefit, it cant put
conditions on a benefit, it is unconstitutional (EP, procedural DP, 1st Am.) c. Notification and Consent of 3rd Party i. Spousal notification and consent laws (i.e. requiring that a husband be notified and/or give consent) are invalid 1. Casey plurality adhered to precedent: Husbands veto power or the threat of domestic violence is a substantial obstacle to some women that violated the undue burden test ii. Parental notification and consent (minors) 1. Generally valid if there is a judicial bypass alternative for cases of physical or sexual abuse on the view that the state has a substantial interest in promoting parental involvement and protecting parental rights (not applicable if a child is emancipated) d. Post-viability Abortions i. Casey indicates state may prohibit abortions 1. At the point of viability (2nd trimester is rough estimate) 2. except when it is a risk to the life/health of the mother e. Partial Birth Abortions (Stenberg v. Carhart) i. Court invalidated a statute banning partial birth abortions ii. For the first time a majority of justices subscribed to the UB test iii. Law imposed an undue burden b/c 1. It applied to some pre-viability abortions 2. It contained no exceptions for the health of the mother, even though alternative procedures presented an increased risk in some cases iv. Stenberg seemed to imply that even as to post-viability abortions the state must make exceptions for the health of the mother Gonzales v. Carhart a. Statue is very similar to the one invalidated in Stenberg, however the Court upheld the statute. (change in the court) i. Court rules that the terminology of the statute is not vagueincludes intent requirement, gives medical landmarks ii. No undue burden because it is limited 1. Limited to a very narrow type of abortion proceduredoesnt place substantial obstacle on women b. Gonzales and Casey i. Language used in talking about Casey and UB test uphold ban w/o overruling Roe 1. We assume the following principles for the purposes of this opinion 2. Under the principles accepted as controlling here . . . 3. The prohibition in the Act would be unconstitutional, under precedents we here assume to be controlling, if it subject[ed] [women] to significant health risks. c. RB if no Undue Burden i. As long as regulation doesnt place UB or substantial obstacle in path of woman seeking abortion, its valid as long as theres a rational basis for it ii. RB remains baseline test for abortion regulation unless theres a substantial obstacle d. Health Exception Necessary? i. Medical Uncertainty congress considered fact ii. Facial vs. As Applied Challenge 1. Facial direct assault on statute; before its enforced, you challenge it on its face as a pure question of the law itself; have to show that the law is mostly unconstitutional a. Here, court said theres not enough evidence of health risk to accept a facial challenge 2. But, as-applied, if it ever does create health risk in particular case, then it may be found unconstitutional

V.

Fundamental Rights: Sexual Relations

I. Introduction a. Scope of Privacy i. Narrow: traditional marriage and family ii. Broad: sexual autonomy (personal autonomy not limited to traditional concepts of marriage, family)

61

b. Approach to Fundamental Rights i. Specific right: Each right must be recognized individually on its own, separately from other FRs 1. Deeply rooted in traditions and collective conscience
2. More difficult to establish that any particular right exists

ii. General concept: Once recognized, each component of it doesnt require independent justification?
c. Bowers a. Upholds law banning same sex sodomy in the home between consenting adults (typical of courts new approach to FR) i. 1stcourt characterized the right narrowly (as a right to homosexual sodomy) rather than more broadly (as a right to intimate relations in the privacy of the home) ii. 2ndcourt required that this specific right must be deeply rooted in our traditions and collective conscience or implicit in the concept of ordered liberty iii. 3rdcourt held that moral disapproval of homo behavior was a legit purpose supporting the law b. Not a Fundamental Right RB applies i. Characterization of the right has a lot to do with the outcome; Right to freedom and autonomy in choosing intimate personal relationship might be more connected to marriage, procreation and family and would be FR (as opposed to calling it right to same sex sodomy) ii. Moral disapproval survives RB moral disapproval rationally related to law Post-Bowers Developments a. Romer v. Evans Court invalidated a CO Am. 2 that banned laws protecting gays from discrimination i. Majority said it was different b/c talking about EP; no basis for sweeping law applied to homosexuals revealed animus b. State Court Cases & Sodomy Laws i. Right of Privacy - State constitutions have a right of privacy (KY, GA) ii. State court cases confused about Bower and Romermany said Bower violates Romer Lawrence v. Texas (overrules Bowers) a. Critique of Bowers on 2 grounds i. Mischaracterization the Right instead of it being a right to perform a particular sexual act, it is about the right of an individual to have an intimate personal relationship (liberty interest) ii. Historical Analysis/Emerging Consensus wrong in Bowers in 2 ways: 1. Incorrectly presumed all laws prohibiting sodomy aimed at homosexuality 2. Emerging consensus that homosexuals have right to engage in personal relationships b. Intervening Cases (precedents that undermine foundation of Bowers) i. Casey - Discussion of mysteries of life and ability of individual to decide for themselves the nature of life ii. Romer - Undermines Bowers b/c you cant discriminate against group based on sexual orientation or moral disapproval of that group c. DP vs. EP as Basis for Decision - Consciously chooses DP over EP to articulate a right of sexual intimacy in privacy of home between consenting adults d. Limiting Language no answer re: same sex marriage Discussion a. Holding i. Avoidance of Fundamental Rights Analysis ii. Right in the liberty protected by DP 1. but doesnt apply any scrutiny test, no doctrinal foundation to the outcome b. Rationale? i. Moral disapproval of conduct, standing alone, is not a good enough basis to make conduct criminal ii. If only basis for moral judgment is a religious one, then its improper for majority to impose that judgment on minority c. OConnor Concurrence (EP Analysis) i. Discussion of RB w/Bite ii. Moral Disapproval of Group = Animus 1. Roe right of privacy is broad enough to encompass a womans choice to have an abortion 2. Not that its deeply rooted in traditions and collective conscience Court has become increasingly reluctant to expand the right of privacy or recognize new rights

II.

III.

IV.

V.

62

Economic Rights: DP & K Clause

I. Introduction a. Constitutional Provisions for economic rights (ER) i. DP (& EP) afford minimal safeguards for economic interests (DP and EP dont differ much with ER) ii. Ks clause not state can make an law that impairs the obligations of Ks iii. Takings clause 1. 5thprivate property cant be taken for public use w/o just compensation a. Applies to federal govt but has been incorporated by DP and applicable to the states Historical Overview a. Lochner era property/K rights had preferred status for purposes of courts analysis under DP i. If law interfered with property rights or law of contract, likely to be struck down b. Post New Deal Tolerance FR rights (privacy, abortion, etc..) switched with economic interests in terms of deference c. Renewed Interest? during 1980s, 90s; court showed renewed interest w/ protecting economic rights d. More development under Takings Clause and a little under Contracts Clause; not EP/DP Rights dichotomyeconomic rights get little protection even though in the Constitution (reaction to Lochner) a. 2nd class status, super deferential RB test contrasted w/ individual rights which have heightened scrutiny Baselines baseline Q matters a lot in terms of economic rights; 3 different starting points for thinking about economic rights (court implicitly uses all of these and there is no real indication of what the court uses or will use) a. Natural rights (common law baseline/traditional approach) i. K and property rights are inherent rights preserved by the Const. ii. Laissez-faire baseline of the common law is Const. (Lochner) b. Social construction (no baselines) i. Property is created by the govt and the govt gets to define the content of those rights ii. You only have property rights to the extent the govt gives them to you c. Expectations (intermediate) i. ER are legal entitlements that create expectations and reliance interests ii. Settled expectations are protected, but regulations be expected (Energy Reserves) DP a. Court applies extremely deferential RB test to uphold economic regulation under the DP clause i. Any plausible end (presume facts that support legislative judgment) and any reasonable means (not worried about over/underinclusivness) are presumed sufficient b. Cases: examples of rent-seeking behavior i. A preferred group that provide a service have gotten legislation enacted that restricts competition ii. Williamson (Optometrists) 1. state law said that before you could go to optician to get glasses, you had to get a prescription from an optometrist 2. Deference to legislature: need optometrist to make sure people get eyes checked regularlynot very convincing explanation but allowed iii. Ferguson (Debt Adjustment) 1. Law prohibiting debt adjustments; preserving business for lawyers 2. Court said legislatures purpose was good enough regulate business c. Rent SeekingImplications for RB Test i. Problem of rent-seekingordinary people dont have the same access to change the laws as concentrated special interest groups ii. Public choice theory 1. Start with premise that b/c it is economics, the legislative process is basically a market a. Legislation is the good people want in this market 2. Not allowed to buy the good directly (bribe) but allowed to contribute money to political campaigns or engage in independent expenditures to get people elected or advertise ideas 3. Special interest group: easier to get collective action and influence the legislature b/c small a. not representative of the entire population, but can get legislation passed iii. legislative redistribution 1. can have the effect of redistributing wealthgives people incentives to use the political system to get laws passed for their benefit at the expense of others (particularly by restricting competition)

II.

III.

IV.

V.

63

d. Retroactivity Issues laws retroactively change rights and obligations

i. RB test appliesstill need a plausible purpose and legislation has to have rational relation to that purpose ii. In some casesretroactive law might cause special DP action 1. Probleminterference w/ vested right as a problem under DP 2. Butcourt has said that retroactive legis. in ordinary economic patterns is ok, if not criminal (as long as there is a RB for economic impairment) e. Punitive Damages i. Excessive punitive damages awards violate DP (Exxon)more than 1 : 1 ration is violative ii. But, it is ok to punish actor if their conduct is reprehensible and is ok to measure the misconduct by the breadth of people affected (Philip-Morris) 1. Not ok to punish for the amount of people that were injured, but ok to punish for the amount of people exposed to the injury 2. Focus is on the mental state of the actorthe more depraved, the more punishment is justified Contracts Clause a. Historical Background: one of few rights in the Const (Art. I) and applies only to states i. Responded to state debtor relief laws protecting in-state debtors from out of state creditors 1. Fed govt is responsible for debtor relief issueslike bankruptcy laws ii. Early Decisions recognized FR component 1. Establishes principle that Ks protected by the Ks Clause include not only Ks b/w private parties, but also Ks b/c private parties and the state (Dartmouth College) 2. K clause only applies to law that impairs contract relationships already in existence a. No limit on law that prospectively limits contractual relationship in the future b. Only applies to laws that retroactively burden existing Ks iii. Convergence w/DPovertime Ks Clause has converged w/ DP analysis 1. If you cant win a case under substantive DP, you will not win under K Clause (most of the time) b. Current Framework i. Substantial impairment of existing K (1st step in K Clause analysis) 1. Requirements to find impairment a. There must be a K i. Identify the obligation impaired and how other K-ing party has been harmed b. A state law retroactively interferes with its obligations (burdening effect) i. In some heavily regulated fields, when you enter into contract in heavily regulated field, you must expect possibility that background law will change ii. Whether impairment substantial may depend on how heavily regulated the field is c. Interference must be substantial (degree of impairment does not matter) ii. Is the law w/in the police power? (if it fits w/in the police power, substantial impairment irrelevant) 1. Incidental to valid purpose a. Some impairment is merely incidental to a valid police power action 2. Rationale for RB inquiry a. Effectively incorporates RB test for most Ks Clause cases b. K can estop police power 3. Energy Reserves a. Law (1) protects consumers against high prices (2) corrects market imbalance b. Upheldvery deferentialrepresents how little bite there is to analysis iii. Problem of State Kselevated scrutiny applies 1. w/in the Ks Clause (Dartmouth College) a. Ks with the state are protected by the Ks clause b. Danger is state has power to relieve itself of Kual obligations 2. If the state changes a law in a way that relieves itself from Kual obligations (acting in its own self-interest), the court will use a heightened form of scrutiny to make sure the law is related to a legit purpose and is not simply with the intent to relieve itself from Kual obligations 3. US Trust v. NJ: example of elevated scrutinyseems to be IS a. When the state impairs its own K, the impairment must be reasonable and necessary to serve an important public purpose; there must not be LRA available. b. Elevated scrutiny i. Necessity (no LRA?)

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4.

ii. Reasonableness (changed circumstances) 1. Must have been something unforeseeable to be a reasonable impairment It is to the partys advantage to characterize the law as creating a Kual relationship because heightened scrutiny applies and is more likely to be shot down, whereas if it is just a law, you are under the DP-RB test

Economic Rights: Takings

Takings Analysis
Physical
Title Possession Destruction
Lucas complete destruction of EVU

Regulatory
Use Restriction
Nollan Dolan Exaction

Per Se
Includes Temporary (First English)

Per Se
Does Not Include Temporary (Tahoe-Sierra)

Subst. Rel. Cong. & Prop.

Penn Central Factors

I.

II.

Introduction a. The Takings Clause5th Am incorporated by 14th applicable to the states i. Nor shall private property be [1] taken for [2] public use, without [3] just compensation. 1. DP clausecant deprive person of life, liberty, propertyTakings deals w/ property part ii. Public Use (Kelo) 1. A public use is any public purpose that would be valid for a police power measure 2. The city was not taking the land to benefit a group of private individuals, but also not taking the land for a specific government use, instead, following an economic development plan that would benefit the entire communitycourt found this was a valid public purpose and expanded definition of public use iii. Just compensation 1. Govt CAN take your property, but it must be for public use and you must receive just compensation 2. Govt must give market value b. Takings context i. Eminent domain ii. Inverse condemnation 1. Private party suing govt b/c the govt has physically taken the property with paying just compensation Physical Takings a. Per se rule if you have a physical taking, its a taking per se (w/o regard to extent of loss or govt purpose) b. Three types of per se physical takings i. Title clear theres a taking if govt takes title to property ii. Possession/Occupation or if govt occupies or possesses property in some way, it constitutes and physical invasion iii. Physical Destruction or if govt destroys the property c. Loretto example of physical taking; i. SClaw requiring landlords to permit the installation of cable for cable TV was a taking b/c it was a permanent physical invasion

65

III.

1. Cable = physical occupation ii. Govt must give landowners just compensation d. Temporary Takings/First English i. Temporary flooding of a property was a taking and had to be justly compensated ii. if govt temporarily occupies property, you get rent for that time period as just compensation Regulatory Takings a. When you regulate property, you effectively restrict the use of that property i. Property is a bundle of rights 1. If you restrict the use of property, youre taking a right out of that bundle right has a value b. Early Cases: Pennsylvania Coal v. Mann show complete devaluation of property i. H: land use regulation was a taking ii. In coal mining area; law adopted that prevented you from extracting coal if that was going to cause surface land to subside made coal rights worthless b/c cant extract coal iii. Justice Holmes said at some point the regulation goes too far and constitutes a Taking c. Penn Central Test i. historic preservation ordinance prevented rebuilding Penn Central station; lost millions of dollars by virtue of ordinance; SC found no taking in this case ii. General framework: ad hoc, fact sensitive inquiry into the economic impact of a regulation, especially interference w/ investment-backed expectations, and the nature of govt regulation iii. SC has never found a taking under this test 1. Look to special rules below to see if there is a taking iv. Several Factors 1. Economic impact on the claimant substantial 2. The extent to which the regulation has interfered with distinct investment-backed expectations. 3. (w/in police power) The "character of the governmental action" a. for instance whether it amounts to a physical invasion or instead merely affects property interests through "some public program adjusting the benefits and burdens of economic life to promote the common good. b. This last quoted language in the case is the first quoted language in Lingle d. Special Rules i. Rule #1 - Destruction of Economic Viable Uses per se Takings b/c treated like a physical invasion 1. Lucas v. Carolina Coastal Commission a. Coastal Commission given authority to regulate along coast to prevent erosion b. Commission prevented Lucas from developing property c. Ruling: Taking per se, regardless of the purpose 2. Nuisance Exception & Baseline Issues a. Court: if the law preventing use was merely a replication of a common law nuisance regulation thats already on the property, then theres no Taking b. Critical Baseline point: only have a Taking if theres something to take to begin with 3. Denominator problem : Scalia illustration geographical denominator problem a. We have 100 acre woods and state restricts 10 acres and says no development you have lost 1/10 of the value b. If you treat the 10 acres as a separate parcel with no development rights, then no Taking i. Court not likely to sever out those 10 acres c. However, if property owner sold those 10 acres to someone else and that person brought Taking suit, then they might have a claim d. Whole parcel test v. diminution of value test ii. Rule #2 Exactions 1. Permit Conditioned on Easementheightened scrutiny is applied a. Denial of permit would likely not be a taking under Penn Central b. But a direct command to cede the easement would be a taking per se 2. Test a. Exactions must bear a Substantial Relationship (Nollan v. CA Coastal) to the purposes of the permit program i. Must be a tight fit (indicates high level of scrutiny)

66

b. This requires the exaction to be congruent and proportional to the harm caused
3. (Dolan) i. Have to show that you took only as much as you needed This elevated scrutiny only applies when party seeking permit and, as a condition to getting permit, state requires person to give up some property

Death and DyingA right to die?

I. Bodily integrity a. A right to not have your physical person addressed i. As a component of liberty 1. Traditional torts, corporal punishment, medical decisions b. Relation to privacy (connection w/ bodily integrity and right to privacy) i. Contraception & Abortion Griswold (contraception); can be defended re: bodily integrity; 1. Women has right to control her own body ii. Distinctive treatmentthe puts abortion under the right of privacy Cruzan courts implicit recognition of a liberty interest in bodily integrity (not a fundamental right) a. Characterization of Right i. the right to Refuse Unwanted Treatment was ii. Assumed for purposes of opinion that this was a Liberty Interest that was protected by due process b. You have a liberty interest to refuse medical treatment but that treatment is subject to a balancing test that if the states interest is greater, you can be denied refusal of treatment c. Balancing test: States interests (in preserving life) v. individual interests (prevention of unwanted medical treatment) i. in this case, court upheld MO ruling that required clear and convincing evidence that a patient in a persistent vegetative state would want the termination of life sustaining treatment before acceding to her parents request to discontinue treatment d. Context (Compare Schiavo Case) i. State had to show whether vegetative person would want to be disconnected or not (w/o evidence of a Living Will) ii. Didnt allow for substitute decision maker; state reqd direct evidence of her prior intent Assisted SuicideCourt has held that there is no right to physician assisted suicide a. Supreme Court Cases i. Washington v. Glucksberg (Due Process, burden) 1. There is no fundamental right to assisted suicide 2. Test: a. Whether it is deeply rooted in collective conscience b. Or perceived in our concept of ordered liberty 3. Not w/in Cruzan (bodily integrity) distinguished a. Right to refuse treatment negative action (die w/o treatment) b. Here, positive action outside assistance to end your life (treatment to end life) 4. Survives Rational Basis test state has compelling interest in protecting life a. But some justices indicated that there might be cases where it is so bad, that assisted suicide could be ok ii. Vacco v. Quill (EP, classification) 1. Assisted suicide is banned and refusal of treatment is a protected right 2. statutes Classification Banned Assisted Suicide, but gave patients the Right to Refuse Treatment 3. RB Applies a. No Fundamental Right to assisted suicide, so No Suspect Classification and RB applies 4. Distinction Justified overt act v. inaction basis for the distinction a. Physicians Intent to cause death (assisted suicide) b. state has interest in making sure physicians are protecting life justified b. Related Issues i. Right to Treatment: 1. Constitutional right to obtain treatment the govt might otherwise prevent you from doing a. Example: experimental medications prohibited by the FDA (to cure cancer)

II.

III.

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IV.

2. Not a fundamental rightgovts interest is sufficiently rational ii. Access to medical careseems like it is not a fundamental right in the US Dis-Integration of courts rights analysis a. Traditional approach i. Tradition FR framework (similar framework for EP) 1. Characterization of interest a. FR or not (Deeply rooted in our collective conscience) 2. If FR, is there a burden on that right? 3. If there is a burden, apply level of scrutiny b. Modern approach i. Defining Fundamental Rights each right gets defined separately ii. Tests for Specific Right - not only a Conceptual issue but each right gets analyzed on Ad Hoc basis iii. Level of Scrutiny 1. RB or SS (Traditional approach) 2. Right-Specific Approaches undue burden test; balancing from Cruzan

Other Fundamental Rights I.

EP and Fundamental Rights (FR) a. Heightened Equality Interest when rights are fundamental i. The law classifies w/ respect to FR so there is heightened interest ii. Skinner: SS applies under EP for classifications that infringe upon FR (case involved privacy right) b. Justification i. When a right is fundamental, the interest in which each individual has in being treated equally is also heightened ii. Political Process: more suspicious that there is a political process failure when the majority chooses to burden a fundamental right of the minority c. History i. During the 50s ad 60s the court also applied SS under EP dealing w/ FR to classifications impeding the right to travel, vote, and access to courts ii. It was a way of avoiding DP analysis but still protecting fundamental rights iii. These rights have started to dwindle d. Analysis i. Important difference between FR and EP analysis 1. If the burden doesnt violate DP, why should the classification matter? ii. In EP focusing on classification 1. But some peoples rights are burdened by these classifications iii. Look at relative treatment of people Access to Court a. Criminal: Griffin & Douglas: held that the state must provide a transcript and counsel, for indigent criminal Ds on appeal i. There is no const right of appeal (DP clause: no FR to an appeal), but the law violated EP b/c the ability to pay could not determine the availability of an appeal when such important interests were at stake b. Application in civil: extended principles of Griffin and Douglas i. Divorce (Boddie) - If too poor to pay fees for divorce, state has to pay fees on your behalf; divorce so fundamental re: right to marry (fundamental right) ii. Termination of Parental Rights (M.L.B.) 1. FR: the right to care for your child 2. You cannot be made to pay for a transcript if you were appealing a decision that terminated your parental rights 3. State cant make your right to appeal dependant on your ability to pay iii. Bankruptcyno fundamental right to bankruptcy (Kras) Right to Vote: FR for purposes of EP analysis a. The right to vote is fundamental, but not absolute, in the sense that some reasonable restrictions on voting are constitutional (age and registration requirements) b. Fundamental i. History of Disenfranchisement minorities, women

II.

III.

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ii. Preservative of Other Rights Denial of right to vote creates political process failure which can lead to
discriminatory legislation c. Issues

i. Voting Qualifications for voters 1. Invalid: (unconstitutional under EP clause)pose a severe burden so SS applies a. Poll Tax (Invalid Harper)
i. Right to vote cant turn on ability to pay tax Property Ownership i. Cant limit rights to persons who own property c. Literacy (Generally) i. Historically wrongly allowed; NOW Prohibited by voting rights act 2. Validreasonable regulations are OK and RB applies (no severe burden imposed) a. Registration i. Reasonable to prevent fraud b. Age (18) c. Felons i. Could see it as additional punishment attached to crime 3. Crawford: Voter ID laws a. No evidence that voter ID requirement poses a severe burden on voters i. It will not trigger SS b. There is a plausible purpose to prevent fraud (legis. doesnt need any evidence to show fraud, just that it reasonable believes that it will prevent fraud)RB ii. Vote dilution triggers SS in almost every case 1. Problem of Unequal Districts a. Longstanding political subdivisions that are represented by single representative and over time, populations becomes highly disparate b. If populous county and rural county each repd by 1 rep, then person in highly populous countys vote translates to little weight and person in rural county has more weight 2. 1 Person, 1 Vote (Reynolds) each persons vote should weigh the same a. Reynolds: Court held that unequal districts sizes are subject to SS b/c they dilute the votes of those in more populous districts b. Most Justifications Fail SS i. Preserving historical political units ii. Follow geographic boundaries 1. Both insufficient to justify deviation 3. Exceptions a. Senate/Electoral College 2 senators per state; electoral college b. Special Use Districts (narrow exception) water rights districts or other districts where participation is based on having particular sort of interest 4. How Equal? (Fed vs. State) How large a deviation would trigger strict scrutiny? a. State/local if youre under 10% variation OK; over 10% - in trouble b. Federal districting within a state, each congressional district has to be virtually identical i. Even a 1% deviation is likely to invalidate iii. Bush v. Gore rule against arbitrary/disparate treatment of ballotsuses no standard of scrutiny 1. Argument: violated EP by the way in which FL was conducting its recount 2. Court claims the recount was too arbitrary 3. Didnt dilute votes and wasnt a classification, but the court found this violative still The Right to Travel recognized FR a. Components i. Right to move physically, freely from state to state w/o restrictions ii. Right to take up residence in a state; become citizen of state iii. Right to be treated equally as new resident to other longstanding residents (P&I clause) b. Exception to the requirement of State Action (applicable to private persons preventing free travel) i. Your right to travel is protected against the state as well as private persons (emergence of KKK) c. Durational Residency Requirements: Shapiro v. Thompsonfails SS under EP i. Court invalidated law under which new residents had to wait a year to be eligible for welfare benefits b.

IV.

69

V.

ii. Court applied SS under EP b/c the denial burdened the FR to travel iii. Reasons the state gives 1. End # 1: Fraud a. Not LRA there are LRAs b. If purpose is fraud: could require documentation or shorter duration 2. End # 2: Discourage people from coming into state a. Illegitimate Purpose to discourage in-migration d. Saenz v. Roe i. Erosion of Right to Travelcourt doesnt apply SS ii. Right to travel as a P&I (14th Am) 1. Court relocates away from EP and puts it under P&I iii. Analysis 1. P & I Clause & Residency: different from P & I clause of US Citizenship a. Critical feature of courts analysis relocates right to travel b. In Shapiro, its in EP clause c. In Saenz right to travel is one of the P & Is of US citizenship (still in 14th) d. This is only right of US citizenship that court recognizes under P & Is clause e. Any resident can take up residency in new state; cannot be treated adversely b/c you are new resident 2. Didnt apply FR SS or even a balancing test; just per se invalid a. This is another FR that court has dis-integrated from FR framework; different analysis e. Congress Cannot Consent to violation of 14th amendment i. In re: aliens b/c congress controls immigration, can discriminate against aliens while states cannot Education and welfare rights: a. Other FR and affirmative duties i. Court might be willing to recognize in some cases that there is a FR that govt has to do something for you ii. Affirmative duties by the govt for necessities b. Education i. at the federal level, there is no FR to education under DP and EP or any const provision ii. in Rodriguez: court H that there is no FR to education 1. case reflects the courts general refusal to recognize affirmative const rights (rights to have the govt provide some benefit) c. Welfare: i. No affirmative dutyno constitutional obligation, only does it for the public good ii. No EP violationwealth disability is not enough to trigger SS iii. Question of positive rights: no requirement for affirmative duties by the state Baselines Revisited in many of these cases, the s are complaining that the state has not done something for them (affirmative benefit); i.e. state has not provided transcript for appeal or lawyer, etc. a. Burdens and DP burden is not created by state, but rather exists by virtue of persons individual state (e.g. povery) b. EP & Relative Treatment even if relative treatment is in relation to benefit, impermissible classifications would be invalid i. Suspect Classifications ii. FR? 1. Here, court has been inconsistent 2. Court sometimes treats denial of benefit under SS b/c it implicates fundamental right a. Access to courts b. Right to travel (Shapiro) 3. In other cases, seems to still require a burden to trigger SS c. Denial of Benefits as an EP Burden? i. Shapiro & Access to Court ii. Contrast. Maher, Harris, and Rust iii. Also in Dandridge v. Williams reduction of benefits based on size of family 1. Large family got lower benefits than smaller family 2. Even though recognized that family rights are FR, court allowing distinctions based on size of family

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In all of these cases, the govt has no obligation to provide the benefit Case Benefit Shapiro Welfare (not const. obligated to provide) MLB Appeal (no const obligation to provide right of appeal) (appeal is benefit govt doesnt have to provide) Pay for transcript Nollan Permit (govt doesnt have to give you a permit, benefit govt doesnt have to provide) Provide easement Kadrmas Education Maher & Harris Medicaid (providing Medicaid is something govt doesnt have to provide)

Condition (benefit will only be given on certain conditions) Baseline

1 year residency

Pay for bus

Have child

Result

No welfare (invalid to condition right to welfare benefits on being here for a year, burdens right to travel) Invalid

No appeal (burdens fundamental right to have a child) Invalid

No permit (Burdens right not to have govt take property and not pay for it ) Invalid

No education

Valid

No Medicaid (can condition access to Medicaid on basis of relinquishing your right to have abortion) Valid

Freedom of Expression
Introduction:

Contours of Free Speech

I.

1st Amendment a. First Amendment Text i. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ii. or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. b. Historical background i. 1st amendmentresponse to abuses that existed in pre-colonial England ii. Laws of Seditious Libel & Prior Restraints (censorship) 1. Seditious libelany speech (written or oral communications) that is critical to the govt is a form of sedition (treason) and therefore punishable as a crime 2. Prior restraintsrequiring newspapers and other forms of the press to be licensed to publish (get permission from the govt to publish) iii. 1st Am largely dormant until 20th Cent. iv. Birth of Modern Free Speech Law: decisions in late 1910s and 20s re: US participation in WWI 1. Schenck case (Famous Holmes Opinion) no right to falsely cry fire in a crowded theater a. Opinion upheld prosecution of who encouraged resistance to draft b/c there was a clear and present danger to draft b. 1st is Not Absolute - at some point the govt interests are sufficiently compelling that govt can restrict speech c. Clear and Present Danger opinion gave use C & P danger test 2. Holmes/Brandeis Opinions Holmes kind of switched and became more protective of speech a. Abrams, Gitlow & Whitney i. Distinguished Abrams from Schenck b/c pamphlets too wacky to be effective 1. Means that govt can prohibit when speech effective b. Gitlow/Whitney Holmes/Brandeis started writing separate opinions re: protections for speech; articulating theories

71

3. II.

Eventually Persuasive now people quote Holmes/Brandeis opinions as authorities even though they were concurring/dissenting opinions and not the majority view

III.

Theories & Methods: a. Methodology: Categorical approach i. Look at the case and determine the content (CN or CB) ii. What type of speech is it? 1. Protected speech, LV speech, unprotected speech iii. Depending on the category determines what level of scrutiny to apply 1. There are special rules for different types of speech, usually variation of SS, IS, RB, but also other tests b. Theories of why speech should receive special protection i. Search for Truth (assocd w/ Holmes) 1. Marketplace of Ideas open, free debate (best way to uncover truth) 2. History of Suppression of Truth (govt suppression) 3. Scope here is broader protection for any speech that would be in search for truth truth is ii. Self govt: Free Speech essential to democratic Self Government (assocd w/ Brandeis) 1. Informed Electorate - If your going to elect officials, you need to have information about issues, candidates 2. Criticism of Government, speech is related to the political processpublic policy 3. Scope here is dealing with politics; wouldnt necessarily apply to art narrower scope using Brandeiss view iii. Self Fulfillment (individual autonomy) 1. Intrinsic value in and Of Itself not a means to an end, but part of who we are; freedom of thought, consciousness, fulfillment; vital to autonomy 2. Promotes Tolerance iv. These ideas arent mutually exclusive c. Additional Factors i. Public and Nonpublic Forums 1. Court has drawn a distinction between speech on public property called public forum places traditionally, purposely open for free communication, debate, ideas (more protection) ii. Special Regulatory Contexts 1. Some areas of free speech regulation that are just special a. campaign finance regulation even though CB, subject to lower levels of scrutiny iii. Special Procedural Rules when dealing with 1st amendment that allow you to challenge statute affecting free speech that you normally cant do 1. Overbreadth doctrine 2. Vagueness 3. Prior restraints Content based (CB) and Content Neutral (CN) a. Rationale for distinction i. CB restricts based on content of its message (what the speaker says) (SS) 1. based on idea that if law turns on content of speech, seems likely that it was adopted to target the ideas of the speech it regulates 2. Greater threat to values that 1st amendment protects a. More likely that law designed to suppress unpopular viewpoints b. Will distort marketplace of ideas and criticism of govt 3. More problematic than CN restrictions, therefore, gets higher scrutiny ii. CN apply regardless of what if being saidregulation doesnt depend on content (IS) 1. Only focuses on time, manner, volume, where the speech is undertaken 2. if content neutral, the law is less likely to be targeting particular idea b/c the idea can still be spoken, just not here and now in this way iii. Low Value Speech v. core value speech (fully protected artistic, political) 1. LV speech a. Ex: obscenity court treats it as unprotected if it meets the courts test for obscenity b. Ex: commercial speech ads; protected but they receive less protection than political speech

72

c. Ex: fighting words may be beyond scope of 1st amendment protection

d. Ex: libel/slander/defamation/speech that intentionally inflicts emotional distress

b. Characterization of Regulations (similar to disparate impact EP cases) i. Facial can determine if CB/CN just by looking at statute 1. True re: Republican Pty v. White - Clear that the law turned on the content of speech b/c law
targeted only certain kinds of speech ii. Purpose like Turner Broadcasting - If its clear that purpose of law was to target particular content, then treated as CB regulation even if its facially neutral c. Level of Scrutiny i. CB = SS (Republican Pty v. White) (failed SS) 1. Law: Canon of judicial ethics that prevents judges from publicly announcing their political views on legal issues likely to come before the judge in cases (re: election of judges, campaigns) 2. Basis for law: judges are supposed to follow law and not their policy views 3. Content based regulation: may not announce views, narrow construction restricts speech 4. SS: a. Purpose: impartiality/appearance b. Impartial as to litigants: not narrowly tailored i. If the goal is fairness to parties, the law is both over/underinclusive c. Impartial as to the law: not compelling d. Openmindedness: bad fit/implausible i. Not actual purpose 5. Ruling: Canon is unconst and a restriction of free speech 6. Dissenters say: problem w/ elected judges (elections violate DP says Levy) ii. CN = IS (Turner Broadcasting) 1. Statute that required local cable franchises to carry all of the local stations (must carry rule) 2. Not CN b/c it didnt turn on content but on what stations were carried 3. Dissent: CB b/c Diversity Purpose a. Must carry rule was adopted to diversify, and that is related to content, purpose of law is CB 4. IS Applies (on Remand) a. Ends: i. free tv (everyone could have access to cable) ii. promote competition (ensure better customer prices) iii. diverse sources b. Fit is tailored enough i. Requirement is Congruent and SC affirmed Low Value Speech a. Categories i. Illegal advocacy ii. Obscenity/Sexually Explicit Speech iii. Commercial Speech iv. Defamation v. Fighting Words b. Rationales/Perspectives i. Less important in terms of 1st Amendment values, so receives less protection ii. State Interest Justifies Regulation (Scalia/Thomas) 1. LV speech should not be called such; we have no right to categorize like this; should only look to see if govt interest is sufficiently important to regulate certain types of speech

IV.

Special Procedural Rules for Freedom of Speech: Vagueness, Overbreadth & Prior Restraint
I. Intro a. Special protections for speechmake it easier to challenge laws that restrict speech i. Elevate speech to special status as a FR Main rationale: i. Not only does speech get the same protection as a FR, but it has these special rules that dont always apply to other FR and make it more difficult to regulate speech

b.

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ii. Status of speech: FR + special protection

iii. Fearful of chilling effectfear of people being afraid to voice their opinions, so need heightened
protection Are these special rules applicable to other fundamental rights? i. Largely these are confined to only speech ii. Gonzalespartial birth abortion case that talks about overbreadth doctrine). Answer is unclear. Vagueness & Overbreadth a. Context and Operation i. Expand opportunities to challenge laws restricting speech, even speech that may be restricted by the state ii. Protected and Unprotected Speech 1. protected: speech the govt cant make illegal. At the very least, it is protected by strict scrutiny. 2. unprotected: speech the govt could regulate or proscribe b/c it meets strict scrutiny or it is low value speech. iii. Invalidation of Statute based on whether speech is protected or not 1. The whole law is invalid because it infringes upon protected speech, even though all provisions may not individually be unconstitutional. The court does not parse statutes in this context. b. Vagueness i. a law proscribing speech is vague if it isnt clear if it would be applicable to you. ii. Standing is not necessary: anyone can challenge a speech law on vagueness grounds. iii. Principle & Rationales 1. DP concept (substantive) a. Giving insufficient warning about what conduct violates statute b. Not easy to win DP argument, but pretty easy to win vagueness argument 2. People could be afraid to speak b/c the statute is too vague and they dont want to get in trouble a. vague statutes could lead to selective or discriminatory prosecution b. could also lead to under or over enforcement iv. Cases 1. Kolender (rare DP case that was successful giving insufficient warning about violative conduct) 2. Coates a. Law against assembly on public sidewalk on the basis it annoyed i. Annoy is too vague for the law to be upheld b. A vagueness challenges asserts that a law restricting speech does not provide sufficiently clear standards for what speech is prohibited. c. Vague laws may chill protected speech b/c speakers will avoid the risk of prosecution. d. Vagueness raises the risk of discriminatory enforcement against unpopular speech. 3. Baggett: a. Loyalty oathhad to swear you were not a member of a subversive organization b. Ambiguous as to what subversive means, the law is void for vagueness b/c it doesnt give guidance 4. Vagueness : no clear standard to be applied to determine it. c. Overbreadth i. A law that regulates unprotected speech is facially invalid if it also applies to protected speech ii. A law must be substantially overbroad for it to be invalid. iii. Chilling effectwant to prevent iv. Cases: 1. Coates: Law prohibits annoying conduct and also harassment, threats (unprotected) a. so the law is invalid b/c it applies to protected and unprotected speech. b. Rationale: focuses on the chilling effect of overbroad statute 2. Broadrick (Substantial overbreadth) a. Adopted a standard of substantial overbreadth. Balancing the permissible and impermissible. The impermissible instances of the statute must be a substantial portion of the statutes application. 3. Airport Commissioners: a. Total ban on all 1st Am. activities in the airport is too overbroad b. ban wasnt only limited to problematic activities c. a ban on solicitation was ok, but a total ban was to broad c.

II.

74

III.

These cases permit a narrowing construction, as long as the court has the ability to offer such a narrow construction. Procedural Dimensions: facial vs. as applied challenges a. Vagueness and overbreadth challenges are usually facial b. Facial: brought against the statute w/o regard to its application in a particular case i. In most contexts, the court is less likely to invalidate the law under a facial challenge, different under 1st Am. because fear of chilling effect c. As applied v. facial Facial Challenge Specific Conduct/Speech immaterial to analysis

4.

As Applied Challenge Specific Conduct/Speech - Focus of analysis (analyze conduct or speech in question) Specific Conduct/Speech must be protected (need to know conduct evaluate the const question) No Standing to Assert others rights Strike particular unconstitutional applications

IV.

Specific Conduct/Speech need not be protected (look at statute and its overall reach) May be allowed to assert others rights Strike entire statute (or narrowly tailoring construction to address the specific issue) d. Aspects/elements (more receptive to facial challenges in speech) i. 3rd Party Standing 1. Relaxed rulelitigants may assert the free speech rights of 3rd parties 2. For exD may raise a vagueness challenge even if his speech was clearly w/in the scope of the statute on the basis that the statute is vague as to other speech, likewise a D may argue that a statute is overbroad and must be struck down even if his speech was unprotected b/c the law also prohibits protected speech ii. Narrowing Construction: Federal court might narrowly construe a federal statute to cure vagueness or overbreadth problems and a state court may do the same w/ one of the states statutes e. Main rationale: avoid a chilling effect on speech Prior Restraints (includes injunctions against speech and licensing regimes) a. Injunctions are prior restraints i. Judicial order prohibiting a person from speaking ii. Nearly per se rule that you cant enjoin publication of controversial material iii. Rationalea prior restraint by definition restricts speech before you can act/talk (different when you prevent speech than when you regulate it after the fact) 1. Levyflawed rationale iv. Near exception 1. national security issue OK to suppress v. Levy: Ive never understood myself why there is a difference between a prior and not prior restraint. The effect of a prior constraint and a criminal law are not that different. One potential difference though is that if you violate an injunction you do not usually get back and claim the injunction was unconstitutional as a defense, where if you violate a statute, you can defend by arguing unconstitutionality. b. Licensing Systems: nearly always per se invalid i. may be constitutionally permissible if properly constructed (purely ministerial and do not permit content based denials) ii. Different than injunctions because the proponent of the injunction does not have to justify it in court. c. Reason for concern of prior restraint i. HistoryEnglish colonial history ii. Chilling effect: prior restraints prevent speech from occurring, create barriers before the fact and is a greater danger to speech (weak explanation) b/c laws regulating after the fact speech have the same effect

Content Based Restrictions and LV speech Illegal Advocacy

I. Introduction a. Contemplate relationship between Speech and Criminal Conduct law frequently draws this distinction; i. Sometimes speech itself can constitute a criminal violation 1. Can be prosecuted even though all thats happened at this point is speech

75

II.

III.

2. Not protected speech ii. I will kill you if you testify against me. 1. Threat w/ intent to incriminate is not protected speech iii. I will pay you $100,000 to kill my wife. 1. Speech amounts to attempt to commit a crime or is prohibited b/c of what is going to happen next conduct at other end of it that may be criminal iv. Trash the building! to angry mob. 1. Not protected speech incitement 2. Starting to get close, however, to protected speech v. Abortionists must be executed on website. 1. Is this protected? Harder case. vi. The govt must be overthrown in pamphlet. 1. Protected speech b. 2 elements that are relevant to whether we think illegal advocacy is punishable: i. Intent of speaker if you are speaking with goal that listener will conduct some illegal activity ii. Effect/Success how close is the speaker from eliciting action; how immediate is the success Historical Evolution a. Early Cases i. Schenck: Holmes famous C&P danger test 1. cant yell fire in a crowded theaterHolmes 2. Clear and Present Danger Test speech could be prosecuted if created a C&P danger of criminal conduct 3. H: you could regulate speech is the speech in question was a C&P danger of producing a substantive violation of the statute (specifically obstruction of the draft) 4. Understood by some justices that C & P Danger test used to decide when speech became tantamount to conduct prohibited ii. Syndicalism Cases (Whitney & Ghitlow) prohibiting advocating overthrow of the govtno longer good law 1. Statute Targeting Advocacy in speech 2. Dont do C&P analysis, use reasonable approachdeference to the legislature 3. Deference to Legislature - Court suggests that statute targeting speech reflects congresss judgment and courts should defer to congress judgment; Only question is one of reasonableness iii. Relation to Hostile Audiences v. illegal advocacy case were worried about what listener might do because were worried they will act violently against the speaker (not just inciting listener to act generally) Smith Act Cases a. Background i. Smith Act cases established that contrary to Ghitlow & Whitney, the C&P test applied to statutes directed at speech (originally the test was limited to determining whether speech amounted to a violation of a law criminalizing conduct) ii. During the Red Scare and Communist Party iii. Smith Actstatute that made it a crime to advocate, abet, organize, teach, encourage the overthrow of the govt by force or violence iv. In most cases, the SC accepted these prosecutions as consistent w/ 1st Am. b. Dennis (convictions of CP organizers upheld) i. Charge: teaching communism which essentially advocates that at some time the workers should overthrow the govt ii. SC H: this kind of instruction is really an advocacy of action 1. Even though there wasnt any immediate conspiracy or effort to overthrow the govt, you dont have to wait for a putsch to arrive iii. Clear and Present Danger? 1. How close must revolution be before its a danger? 2. dont have to wait for the putsch to come / dont have to wait for catalyst to sustain conviction c. Later cases provide somewhat more protection i. Yates (action v. abstract doctrine) 1. Narrowing Construction 76

a. b/c court construed statute narrowly in Dennis, cant be applied more broadly re: abstract
doctrine

ii. Scales (membership Clause upheld) is const

You could be punished for simply being a member of the communist party because the party advocates overthrowing the govt 2. Noto for a conviction on basis of membership, you need Specific Intent to accomplish the purposes of organization Brandenburg current test for illegal advocacy a. KKK Rally if you keep on denying rights to white men, there will have to be some revengeance taken. insufficient to convict i. Statute invalid on its face b. Test (very high standard, more restrictive/specific than C&P test) i. . . . [T]he constitutional guarantees of free speech and free press do not permit a state to forbid advocacy of the use of force or of law violation except where such advocacy is [1] directed to inciting or producing imminent lawless action and [2] likely to incite or produce such action. ii. Intent directed at causing action iii. Effect it must be likely to produce some action iv. Imminence lawless illegal action must be imminent; not enough if its only abstract or some vague point in future c. Application of Test (Hess case involving anti-war protest during Vietnam Era) i. SC said that the statement by the protestor (referred to doing something later) was not sufficiently imminent ii. Currently, cases more likely to be analyzed under LV or fighting words Hostile Audiences a. Hostile audience reaction to unpopular speech i. Heated political rhetoric might just as easily incite a violent hostile reaction as to cause the audience to carry out the admonitions of the speaker ii. When this happens, the state may prosecute the speaker for disorderly conduct, etc b. Difference b/w illegal advocacy and hostile audiences i. Hostile audiencescrowd is directing its anger at the speaker ii. Illegal advocacyperson who is trying to get something done c. Heckler vetohaving govt come in and silence speaker is conducive to oppression of ideas d. Application of the C&P danger test: i. Early casesC&P illegal advocacy analysis ii. Later tightening (last resort) 1. Brandenburg type tightening of C&P for hostile audiencesbut not as clear 2. Moving toward a narrow application of fighting words doctrine than a broad Brandenburg test iii. Practical application 1. Protection given to speaker first a. Calm down the audience (police try and diffuse the situation) 2. If cant calm down, speaker may be punished for inciting the audience, however cases may be dismissed for police not doing enough 1.

IV.

V.

Fighting Words & Offensive Speech

I. Low Value Speech a. unprotected i. Words dont matter enough to warrant 1st amendment protection b. LV generally i. Justified regulationthe state can regulate this speech b/c the activities underlying it are illegal ii. Ideas of unprotected speech 1. Speech itself is not protected by 1st amendment, and is therefore unprotected 2. [I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. iii. First articulated in Chaplinski

77

II.

III.

IV.

Chaplisnki i. Declared that there were certain narrow categories of speech, the regulation of which has never been thought to raise any constitutional problem ii. Court listed categories 1. Lewd and obscene 2. Profane 3. Libelous 4. Insulting or fighting 5. These by their very utterance intend to inflict injury or tend to incite an immediate breach of the peace iii. The court explained, it has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interests in order and morality d. Status of LV Speech state has good justification to regulate speech to avoid harm; so speech becomes outside scrutiny of 1st amendment i. since Chaplinski, theres been an Erosion of Categories of low value speech (much narrower category which is protected); AND 1. exampledefamation is now heavily protected under 1st Am. than Chaplinski would suggest ii. Conceptual reorientation: recent cases have reoriented the way the court may be thinking about low value speech focusing more on reasons that justify regulation of low value speech Fighting Words a. Generally i. Fighting wordspersonally directed, face to face 1. Likely to provoke immediate action by a reasonable person 2. Narrowly defined in cases like Chaplinski ii. Relate to Hostile Audience (Cantwell) 1. Fighting words are more one-on-one as opposed to hostile audience where its a larger group of listeners iii. Low Value vs. C & P Danger 1. Could approach this problem using C&P or Brandenburg test look to see if words are likely to incite imminent unlawful action iv. Distinguish fighting words from other Offensive Speech face-to-face utterances likely to produce immediate, violent response 1. Profanity & Vulgarity not fighting words, though may be offensive 2. Threats & Intimidation need to distinguish from fighting words; VA v. Black a. Not the same as preventing violent reaction from fighting words b. Historical Overview thought to be almost dead after Chaplinski i. Erosion since Chaplinski, the court has found a way to reverse conviction under the fighting words doctrine; SC never rejected the doctrine, but it construes it so narrowly that its questionable whether doctrine survives ii. doctrine became relevant against when states enacted Hate Speech Codes codes defended under fighting words doctrine Narrow Application (Cohen) a. Cohen (F*** the Draft coat worn in public area) i. While the court has not overruled Chaplinski or repudiated the fighting words doctrine, it has applied it narrowly and generally invalidated statutes or reversed convictions often on vagueness or overbreadth grounds ii. Categorical Approach 1. Does the speech fall w/in accepted categories of regulation a. Obscenity i. Even though we think of fuck as obscene, it cant be regulated under the 1st b. fuck isnt a fighting word because it is not directed at any individual c. not evidence of immediate violent action 2. When it does not, it treats the law more or less per se invalid iii. Left with states desire to excise this particular word from public discourse per se invalid iv. May Not Prohibit Offensive Speech (good for society) RAV Reorientation struck ordinance w/o consideration of Fighting Words doctrine

c.

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V.

Change in courts approach to LV speech i. Chaplinskiimplies that certain speech is unprotected b/c it is not part of any exposition of ideas or search for truth, hence term LV speech ii. After RAVfocus not on the value of the speech, but rather on the reasons that justify state regulation 1. Important implications for the analysis not only of fighting words but all LV speech b. RAV (dont apply SS) i. Hate speech code failed because the regulation wasnt targeting a harm, instead it was targeting racism and sexism, trying to suppress those ideas, which is not constitutionally permissible 1. Not targeting the harm, but targeting the ideas 2. So not proscribable content ii. Imposed limits on the states ability to target a subclass of fighting words based on content iii. Rationale for Low Value Speech 1. What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)--not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. 2. Not unprotected; so proscribable content a. There are good reasons for govt to regulate speech b. If it has proscribable content, you can regulate the harm which is a justification for regulating LV speech 3. Unrelated to the suppression of ideas (CN) a. Not about ideas, about effect b. Regulating not b/c you wanted to suppress ideas, but instead b/c this speech causes harms that the state is allowed to protect c. If related to the suppression of ideaslaw will be struck down iv. Permissible Subcategories certain kinds of regulations survive strict scrutiny; the govt has an interest in prohibiting immediate violent reactions that FW cause 1. May be constitutional if it Relates to Rationale 2. Permissible content based -- When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. 3. Secondary Effects - Can be regulated based on effects but not on basis of underlying viewpoints a. If the category of speech has 2ndary effects, the court sometimes treats it as if it is CN and not intending to suppress ideas 4. If you are regulating proscribable content or 2ndary effects, the reason for regulation is not to suppress an idea, but address a consequence of the speech the govt can legitimately regulate c. Court refers to obscenity 2 times i. RAV itself makes clear that you cannot confidentially say that the state may freely regulate obscene materials Virginia v. Black court didnt rely on fighting words used threats/intimidation a. in general, cross burning prohibition is a permissible regulation of free speech b. court treated cross burning as having proscribable content, not b/c of fighting words, but as a threat that causes fear i. the court reasoned that targeting cross burning is a permissible subcategory b/c cross burning is a particularly intimidating type of threat Cross Burning Statute (crime to burn a cross w/ intent to intimidate) c. Permissible LV Speech Regulation i. Threats as Proscribable Speech you can ban threats; intimidation is a form of threat 1. So the speech generally involved here is within category of proscribable speech) ii. Not Viewpoint Based / its viewpoint neutral; anytime you use a burning cross w/ intent to intimidate 1. Facially neutral, but you could argue that its discriminatory in practical effect aimed at KKK iii. Particularly virulent d. In general terms statute is valid i. What was invalid was a provision that said that cross burning itself is prima facie evidence of the intent to intimidate ii. Court saidthis allows a conviction to be upheld w/o an intent to intimidate and that is overbroad/vague

a.

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VI.

RAV revolution is sweeping away categories and, instead, focuses on what justifies regulation of speech and if thats sufficient under 1st

Defamation and Related Issues

I. Introduction a. Speech Related Torts as opposed to criminal case i. Defamation, IIED, privacy ii. As CB restrictions on speech 1. All of these are content basedimpose liability on some speakers and not others 2. Liability depends on the content of your speech b. Defamation i. In criminal case, the state is lined up against - to limit s speech ii. In torts suit, its private individual suing another private individual 1. But still theres state action involved to either allow or disallow that suit (elements re: defamation/libel/slander) Defamation (libelous speech never though to be constitutional problem Chaplinski) as LV Speech

II.

III.

IV.

the very utterance of low value speech (defamation) can cause injury; state has interest in protecting injured persons reputation b. Chaplinski weighing comes down so heavily in favor of states interest, that defamation is entirely outside scope of first amendment Key Issues in typical libel/slander/defamation case (in terms of s and recovery) a. where burden of proof in Truth/Falsity lies; in most tort actions, burden on to show falsity prove has caused some sort of tort i. certain rules re: presumption of falsity and certain stmts defamatory shifts burden to to prove truth b. Standard of Care with respect to false/defamatory statements give protection to speaker i. Mental state P has to prove that D had in order to recover ii. Is defamation a strict liability offense, negligent standard, recklessness standard? c. Presumed and Punitive Damages re: reputational injury (some states) NY Times v. Sullivan fundamentally altered the way we look at defamation cases a. Libel Suit by Public Official b/c of Political Ad brought in NY Times by advocates for civil rights that was critical of police in the South; contained admitted falsities in ad b. Recovery Violated 1st Amendment i. Court reviews history of 1st amendment and says that core meaning of amendment was that seditious libel laws were illegal 1. 1st amendment particularly concerned with allowing criticism of govt and public officials here, were talking about public officials; brings the issue here w/in core meaning of 1st amendment ii. Chilling Effect on people who wanted to criticize govt officials iii. these concerns justify providing protection for speech against govt officials even if that speech might be libelous

a.

80

c.

For a public official to recover in a defamation suit i. has burden to prove falsity ii. must prove actual malice 1. Prove reckless disregard 2. Cant allow punitive damages based on strict liability

V.

VI.

iii. when you run for public office, you are taking the risk 1. cant claim you are entirely innocent victim iv. public official has more access to the media to respond to libelous stmts self-help remedy v. outweighed by public concern, chilling effect Post-NY Times Issues a. Scope of Actual Malice Rule i. Extended to public figures 1. Great public interest in this type of information 2. Public figure assumes the risk ii. Definition of public figuresubject to actual malice standard 1. What makes you a public figure is when you voluntarily undertake activities that put you in the public eye you assumed the risk b. Proof of falsity on the facts of particular case i. Burdenon P to prove falsity ii. Standard = Clear and convincing evidence; affords more protection for speech 1. Normal standard in tort action is preponderance of the evidence iii. Independent Appellate Review as opposed to deference to fact finder 1. To see if there is a sufficient factual basis for liability c. Fact vs. Opinion (Milkovich) i. Not about whether it is a fact or an opinion, but whether P can prove it is false Private figures and Public/Private Concern a. Gertz rules court drew the line between public figures and non-public figures; NY Times rules only apply when public figures involved i. Not a public figure, but public concern 1. No Strict Liability must at least prove negligence; cant have strict liability defamation 2. Must show Actual Malice for Presumed/Punitive damages even when person whos not a public figure is involved a. You can get compensatory damages based on evidence of negligence, but need malice for punitive damages ii. AOR = no assumption of risk; didnt voluntarily put oneself in limelight iii. If not dealing with public figure, then no access to media for rebuttal iv. But same 1st amendment interests exists v. So balance is more neutral / even (state interest vs. 1st amendment value)

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b.

Dun & Bradstreet i. Private Concern & Private Speech 1. It was a private subscription service that provided that information and provided it to small group of people not public concern 2. Court distinguished between matters which were of public concern (Gertz) and matters where wholly private speech involved (D & B) 3. Actual Malice Not Required for presumed and punitive damages since wholly private 4. Interest preserving reputation is great and the 1st amendment value is lessstate can allow recovery ii. Open Issues 1. could you create a Strict Liability tort under D & B? 2. burden/std of proof? a. Does it have to be C&C or preponderance of the evidence Compensatory Actual malice Negligence Unclear Punitive or Presumed Actual malice Actual malice Actual malice not reqd Proof of Falsity by clear & convincing preponderance of the evi unclear

Defamation Framework Category Issue Public figure Private figure in relation to public concern Private speech

VII.

Other Torts: IIED a. Hustler v. Falwell i. F sued Hustler b/c of a parody of an ad concerning him having sex with his mother 1. Lost on defamation b/c it was clearly untrue and not defamatory. ii. Court held: under NYT, a public figure cannot bring an IIED claim w/o showing a false statement of fact made with actual malice 1. But b/c the statements were parodies, they were not intended to be true, so no actual malice b. Implications for West Borough Baptist church? (Phelps) i. s not public figures there so NY Times and Falwell doesnt apply; ii. Typical IIED cases focuses on knowledge of infliction of distress falsity & malice normally not elements

c.

d.

same as Ny Times re: IIED and public figures i. basically youre no better off bringing IIED claim if you are a public figure than you would be in defamation case Protection of privacy: many statutes protect the confidentiality of private records and convos and these statutes are generally constitutional. Similar issues are raised by CL invasion of privacy actions based on the wrongful publication of private facts and actions involving unauthorized use of a persons name or likeness.

Commercial Speech
I. Introduction

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a. Initially the court regarded commercial speech as outside the 1st am (like the types of LV speech identified in
Chaplinski) i. first amendment is supposed to protect political speech b. Protection for Commercial Speech i. Va. Bd. of Pharmacy (1976) involved a law that prohibited pharmacies from advertising their drug prices; court said that truthful advertising re: prices serves important consumer interests ii. Concluded that commercial speech was entitled to some protection under 1st Amendment c. Intermediate scrutiny (CHG) i. Commercial speech is protected but less value than other speechso gets IS Defining commercial speech a. Most cases are pretty clear that an ad relates to a commercial transaction i. But there are hard cases which depend on the circumstances b. Bolger (contraceptives)ad doesnt fit w/in definition of Commercial Speech i. Regulation failed ISgeneral health related info about birth control and talked about larger public issues surrounding BC and sexual health ii. Just because something is a paid ad, doesnt make it commercial speech because you might pay for an ad that has little or nothing to do with a commercial transaction (political ad) Central Hudson Gas leading case establishing framework IS applies a. Regulation of utility advertisement inserts i. purpose was to promote conservation of energy by reducing demand regulate ads b. 4 Part Test applied in CHGlooks like IS i. Protection 1. Threshold question: To qualify for protection, commercial speech must be truthful and lawful activity ii. Substantial govt interest (ends) 1. Less than compelling, more than legitimate iii. Directly advanced by regulation (fit/means) 1. prove by factual evidence 2. Harms in fact exist 3. Restriction will alleviate the harms iv. Restriction no more extensive than necessary (fit, over and underinclusiveness and LDAnot quite the same as SS LRA) 1. Fit is reasonable to narrowly tailored means 2. Careful weighing of the burdens and benefits c. Application i. Lawful Activity using electricity is a lawful activity ii. govts interest in promoting energy conservation was Sufficient Interest iii. Substantial Relationship: prohibiting advertising will promote govts effort to promote energy conservation (court didnt demand much evidence, just willing to assume) iv. *Fails No More Extensive Requirement 1. Some ads might promote energy conservation, could target regulations more carefully 2. Connects with Overbreadth a law that if overbroad prohibits more speech than is necessary to achieve that end Lorillard a. Involved Regulation of Tobacco Ads: (already prohibited on tv and radio) i. 3 kinds of regulations: 1. Outdoor advertising including ads that were visible from outside the store but were inside store 2. Point of Sale displays 3. regulations of Sales Practices keep smokes behind the counter, ask for ID, basically interaction w/ salesperson ii. does federal law preempt this regulation (cigarettes???) b. Analysislaw fails under CHG c. Suppression of Lawful Activity (backdoor regulation) i. Justifications for Regulating Commercial Speech 1. Prohibiting advertising pertaining to Illegal Activity 2. Protect against speech that is False/Misleading (Consumer Protection)

II.

III.

IV.

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Suppress Lawful Activity? a. There is a legal activity and the state would prefer if people didnt do it, but state hasnt banned the activity all together, but instead regulates it through advertising i. Particularly applicable to Sin taxes and past illegal activity like gambling b. Some courts: if state doesnt have the guts to ban the activity overall, it cant come in the backdoor and regulate it through advertising 4. Difficult Issue for Court a. Vacillation & Fragmentation within the court i. In CHG court treats it as substantial purpose (regulate advertising to regulate legal conduct, but talking about electricity, not gambling/smoking/drinking) d. RAV connection: i. Key point about RAVidea that LV speech is not unprotected (not invisible to the 1st Am) but instead the speech has content which is proscribable ii. Good and legit reasons for proscribing certain kinds of LV speech, and when govt is regulating for those reasonsnot to suppress ideas, but to regulate 2ndary effects that come from speech 1. When govt is regulating fighting wordsthe reaction comes from the fighting wordsnot the words themselves iii. Application to commercial speechCS is not something you can regulate b/c it has not value, but you can regulate it b/c it has 2ndary effects unrelated to the suppression of ideas 1. Limit regulations to false and misleading and ads that promote unlawfulness 2. Not to suppress speech b/c you dont like the underlying activity e. Attack on CHG Looks like there may be a majority of justices who are ready to do away with CHG test i. But Ginsburg and Stevens may not sign on to a new test by Scalia, Kennedy and Thomas ii. Highlighted language implies that CHG may not really be the law, but using it to decide this case

3.

Obscenity I.
Obscenity Introduction a. Evolution i. Generally seen as outside the scope of the 1st amendment 1. On Chaplinski List lewd & profane unprotected, not like SS test in RAV for fighting words 2. But referred to in RAV twice a. RAV itself makes clear that you cannot confidentially say that the state may freely regulate obscene materials ii. Most resistant to erosionseems are pretty much unprotected iii. Generallystill invisible to 1st amendment b. Rationale: State Interests for regulation i. Protect Unwilling Audience & Minors from being forced to encounter or being exposed to it ii. Protect Morality (Paris Adult Theatre) 1. Paris different b/c voluntary admittance to theater; when talking about consenting adults, there should be no basis for regulation of obscenity (argument made by Paris) 2. Court said no, state can regulate to protect morality and social degradation a. wouldnt meet the Brandenburg test b. idea that the state thinks that moral grounds justify preventing people from viewing or possessing obscene material iii. Social Degradation (Paris Adult Theatre) 1. Leads to adultery and pornography 2. Breaks moral fiber of society iv. Violence Against Women (Feminist) targeting pornography v. Protect Participants (Recent and particularly re: child pornography) in production of obscene materials Definition a. Importance of Definition critical b/c to apply scrutiny once defined as obscenity b. Miller Formulation (companion case to Paris Adult Theatre) current test i. The basic guidelines for the trier of fact must be: 1. Average person, applying contemporary community standards would find the dominant theme or work as a whole appeals to the prurient (sexual) interest 2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

II.

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III.

IV.

V.

a. Need specific state definition of obscenity b. Contemporary community standards c. Defining patently offensive is in the eye of the beholder 3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. a. It can be sexually explicit and offend community standards, but if it has serious artistic, literary or scientific value not obscenity b. Objective standards Zoning and Secondary Effects a. Court has upheld zoning ordinances regulating adult oriented businesses b. These case assume that at least some of the material at issue would not meet the constitutional definition of obscenity and is therefore protected i. But the court does not apply SS (b/c of the 2ndary effects) c. The court has treated these regulations as CN because they combat the 2ndary effects of concentration of adult businessescrime, prostitution, decline in property values, etc Near Obscenity a. Sexually Explicit, but does Not meet definition of Obscenity under Miller i. raised by some recent Zoning Regulations (Wichita adult bookstores) 1. must be certain distance from schools and churches and often from each other - prevents red light district ii. exposure of children through Electronic Media (requirements for libraries to put filters on internet to prevent access) b. these regulations turn on content but court says these kinds of statutes are targeting Secondary Effects of adult oriented materials (crime associated with location of XXX stores); since associate effects instead of particular message more like content neutral and court applies IS i. Relation to RAV? 1. Possibly this is a start towards an RAVing of obscenity focuses on cultural/social effects of obscene material if you are proscribing that material b/c of its effects, then thats permissible IS applies Child Pornography compelling state interest a. Govt has authority to ban child porn and is not predicate on meeting the definition of obscenity i. You can regulate media involving children even if it is not obscenestate has an interest b. Distinctive interests i. Prevent use of children as participants ii. Prevent encouragement of pedophilia c. Different Analysis i. Definition is broader 1. You can ban child porn even if not obscene ii. Possession (Compare Stanley w/ Osborne) 1. Stanley: even if material is obscene, you have a const right to possess it in the privacy of your home 2. Osborne: can be criminally prosecuted for having possession of obscene materials in your home that include children a. Govt has a substantial interest in protecting children from being exploited d. Limits: Ashcroft v. FSC (virtual obscenity adults that look like children; creation of computer generated virtual images of children) i. No Interest in Protecting Participants b/c no children actually participated in production ii. Other Interests advanced in support of statute all Fail SS 1. Ashcroft was Facial Challenge which court accepted; some component of statute could be applied to child pornography a. Protected Explicit Speech w/Minors critical that it was overbreadth (i.e. Lolita or Romeo & Juliet would be prohibited too) iii. After Ashcroft, it appears that the only interest that sustains extensive regulations, is the interest in protecting the children who would be involved in the production of the material

Content Neutrality & Public Forum

I. CN Introduction

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a. CN regulations are Less Dangerous in terms of 1st amendment values b/c:

i. No Distortion of Marketplace of Ideas ii. Does Not Suppress Disfavored Views iii. Leaves Other Avenues of Expression available b. CN Regulations (2 kinds that might be upheld under IS standard) i. Time, Place, and Manner (Public Forum) when, where and how you can speak 1. Ward v. Rock Against Racism limitation of amplification in public park after certain time 2. Place restrictions present particular problems re: public form doctrine speech on government, public property ii. Regulation of Conduct as applied to conduct which communicates a message (symbolic speech) TPM FrameworkIS applies a. Is the regulation CN? i. Factors in Hill 1. w/in 100 ft of heath care facility 2. CNregulates place and not based on disagreement w/ message a. Interest unrelated to content b. Does it survive the appropriate level of scrutiny? i. Ward v. Rock Against Racismseems to mix IS and SS 1. Regulation must be Justified w/o reference to content (content-neutral)--ends 2. Significant govtal Interest (significant/substantial)ends 3. Narrowly Tailored (less rigorously than SS); (means) and a. What does narrowly tailored mean? i. when court upholds statute, court willing to tolerate certain amount of over/under inclusiveness ii. when it strikes down law, requires close fit; emphasizes LRAs 4. Leave Open Ample Alternatives of communication (means) c. Parallel to DCC, EP i. Circumstances where framework of analysis hinges on whether you call a law neutral or not 1. Facially neutral w/ respect to racial classifications 2. Of discrimination on basis of race ii. Similar situation where level of scrutiny turns on whether we think law is neutral or not iii. When laws are neutral on their facewe might suspect that govt has some hidden motive iv. Same question ariseshow do you prove when a law is facially neutral, is in fact discriminatory on basis of residency, race, basis of speech 1. Look behind explicit statements of legislature in order to find some hidden motive v. Unfortunately court gives differing answers in the DCC, EP, speech vi. In Hill, unwilling to look to behind the statute, whereas the dissenters are willing to look into intent vii. Next questionwhat level of scrutiny applies when you decided it is CN d. Ambiguity in Hillwhat level of scrutiny applies when it is CN i. Majority seems unwilling to look behind states offered purpose ii. Dissenters are willing to look behind and find real purpose iii. Ambiguous on what level of scrutiny to apply iv. Burdens/balancing test 1. Confront the question of whether the statute reflects acceptable balance b/w const right of speakers and then unwilling listeners a. Seems like a balancing approach v. Later onseems to go back to Ward analysis 1. We think it is valid TPM under ward because it is narrowly tailored, restrictions are CN, persuaded that leaves open ample opportunities 2. Focus is on whether law was narrowly tailoredcourt finds that is was and left open ample opportunities for communication e. Turner broadcasting i. On remandapplied test from obrien (didnt apply ward directly) ii. CN regulation will be sustained if it advances imp govt interest unrelated to the suppression of free speech 1. Ends is pretty much the same 2. Meansdoesnt look like narrowly tailored a. Says you cant burden substantially more speech than necessary

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b. Much more intermediate form of scrutiny iii. Compare to WardNarrowly tailored and leave open amply opp, for communication f. Two key issues i. Whether regulation is CNlook at face of statute, whether justifications articulated are unrelated to ideas expressed ii. If it is CNapply some sort of IS 1. Balancing approach 2. Ward: rigorous IS (SS?) III. Public Forum a. Introduction i. Places restrictions relating to govt property ii. Early cases said Government as Owner of property; could exercise same rights as private owner iii. Over time, court recognized streets, sidewalks, public parks, metaphorical forums are held in trust as places for public activity 1. Not all types of govt property are equal iv. Content based restrictions SS; content neutral IS w/ regards to public forums b. Categories of Public Forums identified in Perry i. Traditional public forum held in public trust (CB/CN FW) 1. Streets and parks 2. CBSS, CNIS and balancing ii. Designated public (CN/CN FW) 1. If forum has been designated, just like traditional public forum 2. some forums may be public for Limited Purposes and not for other purposes a. 1st floor commons public forum for purposes of law school related expression by law people iii. Nonpublic (reasonable/not viewpoint) 1. Adderley - property was a jail and court said there was no right to have a sit-in in jail 2. Govt can restrict access to a non-public forum if its restrictions are reasonable and designed to protect the property for its intended use (as long as restriction isnt viewpoint based) c. Current Framework Type of Forum Content Neutral Subject Matter Viewpoint Public Forum (includes IS/Balancing SS SS/Invalid designated forums) Limited In IS/Balancing SS SS/Invalid public forum Out Reasonable Reasonable Invalid Nonpublic Forum Reasonable Reasonable Invalid d. Application i. Lee v. Krishna - whether Airport was public form 1. SC said airport was Not a Public Forum a. cant say airport is traditional b. Not Designated as public forum c. Reject Transportation Node Argument (rail, roads, etc) i. Airports are different b/c no multiple nodes of transportation, not in middle of city, etc.. 2. Reasonableness Test applies a. Uphold Ban on face-to-face Solicitation b. Reject Ban on Literature Distribution b/c that was not impediment to use of airport; didnt obstruct people; not a risk of fraudulent activity e. Discussion i. Other Cases where court rejected public forum status 1. Kokinda (Post Office Sidewalk) ct said those were not public forum (Walk going into post office) 2. Forbes (Candidate Debates) Forbes argued that debates were public forums so all candidates should be able to come in (equal access); rejected ii. recent cases seem reluctant to recognize new public forums iii. Uncertainty of Limited Public Forum

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iv. like govt benefit issue (Medicaid funding for abortion) govt has no affir. duty to provide public forums
for speech

Symbolic Speech
I. Introduction a. Speech and Conduct i. all Speech involves some conduct (in most broadly defined way) AND ii. all conduct communicates b. Speech/Conduct Spectrum

Speech Symbolic Speech Conduct -------------------------------------------------------------------------------------------------------------------------------------------- Armbands Draft Card burning political assignation Flag salute Flag desecration Hate Crimes Picketing Live nude dancing Criminal Conspiracy Campaign Contributions c. Issues i. threshold question is always Categorization: is there enough speech involvedspeech, conduct, symbolic? ii. treatment of mixed speech and conduct II. OBrien a. Congress passed Statute Banning Draft Card Burning; b. court Assumed Communicative Content, therefore Some 1st Amendment Protection, regardless, law was valid III. OBrien Test for Symbolic Speech a. statute must be W/in Power of Govt to enact (Not 1st Am.) b. Furthers Important Govtal Interest (ends important, not just legitimate IS) c. Unrelated to Suppression of Expression (if law targets suppression, fails test) d. Restriction No Greater Than Necessary e. Compare Test for Content Neutral (TOM) i. OBrien is more generous to govt regulation than Ward ii. Whenever challenging the lawwant to use Ward iii. Arguing in favor of the lawuse OBrien

TPM (Ward): 1. Justified w/o Reference to Content 2. Narrowly Tailored to Meet Significant Interest 3. Leave Open Ample Alternatives

OBrien: 1. W/in Power 2. Furthers Important Governmental Interest 3. Interest Unrelated to Suppression 4. No Greater Than Necessary

Key: Red = CN; Blue = Ends; Green = Means

More or less the same, but maybe, when dealing with content under OBrien the fit may be looser than under TPM

f. Application to facts here:

i. Important Draft Interests Served by Cards ii. Unrelated To Suppression of Expression 1. Didnt talk about narrow tailoring 2. had pretty good evidence that law passed to suppress expression; if this was evidence used in disparate impact case, it would be smoking gun; same evidence used in hippie commune case (legislative history)

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iii. Rejection of Improper Motive Evidence didnt look behind purpose in legislative history 1. Levy doesnt understand where you are supposed to look for evidence of suppression if not
IV. legislative history Flag Burning a. Texas v. Johnson Johnson protested Republican natl convention; court struck down TX statute prohibiting desecration of flag i. Content Based law so OBrien inapplicable b/c law not CN ii. Not Fighting Words (on Facts b/c no evidence that anyone was going to fight with Johnson) iii. Failed SS only asserted purpose was to protect objects (flag) of symbolic value b. Eichman new Fed statute banning flag burning i. Law invalidated by SC

State ActionBurdeningSpeech

Nonpublic/Public or Private Prop

Restrict/Prior Restraint

Reasonable; Not V iewpoint

CN/CB

Super SS Speech Proscribable/Protected

Conduct/TPM

Not Vor OB/Vor OB Restriction Proscribable/Other

SS Invalid

OBrien

W ard

Lesser Scrutiny

SS

Religion Clauses
I. Introduction a. Text Congress [applies to exec and states] shall make no law respecting an establishment of religion, [usually interpreted to mean that the govt may not establish religion] or prohibiting the free exercise thereof. b. Historical Background - Religious Persecution and Emigration c. Interrelation between 2 clauses i. Complementary 1. Each protects religious freedom ii. Tension 1. Logic pulls in opposite directions when neutral govt regulation infringes upon religious practices 2. If the regulation applies to the practice free exercise is burdened, but making an exception for religious practices tends to establish religion Free Exercise a. Overview i. Court has distinguished b/w two components of Free Exercise 1. Absolute protection of internal beliefs a. Completely free from any govt regulation

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Qualified protection of practices/conduct a. State may legitimately prohibit b/c have real-world physical consequences that may go beyond religious beliefs b. Ex. Govt may treat human sacrifice as murder ii. Regulation of Religious Practices 1. Laws Targeting Religion or practice in question discriminatory against religion 2. Neutral Laws not designed or directed toward a religion, but as-applied to particular religion, may have an impact on religious practice (tougher case) 3. Analogy to Other Areas a. like facially neutral w/ disparate impact in DCC, freedom of speech, etc. b. Facially Neutral Laws inconsistent precedents i. Cases Upholding laws 1. Reynolds (Ban on Polygamy) treated ban as neutral even though it targeted Utah and likely Mormonism 2. Braunfield v. Braun (Sunday Closing laws) burdens free exercise for people for whom Saturday is holy daybut uphold the law a. Court rejected argument that Sunday Closing laws was establishment b. SC said law was neutralnothing to do with religion (obviously ridiculous) ii. Cases Invalidating laws 1. Sherbert v. Verner (Work Requirement) a. discussed in Smith, was Jehovahs witness and observed Sabbath on Saturday; under state unemployment comp laws, the refused to take a job forcing her to work on Saturdays b. SC said it violated her free exercise rights so was invalid 2. Yoder (Compulsory Education through certain age) a. Amish challenged on ground that their religion limited type of education to be provided b. SC H: cant make them send kids to school past certain age 3. in all of these case, law is facially neutral, but burdens members of certain religions whose practices dont align w/ the law c. OR v. Smith i. Converted free exercise clause analysis into the functional equivalent of EPneutral laws that adversely effect religious practices dont get elevated scrutiny ii. Factual Background unemployment comp case as applied to Native American church in which there was sacramental use of peyote (illegal, no exception for religious use); fired from jobs as drug counselors; denied benefits iii. s argued the law violated free exercise of religion & SS should apply under Sherbert iv. court said - SS Does Not Apply to Neutral Laws 1. generally applicable neutral laws dont violate the establishment clause 2. Distinguish Compound Rights a. Free exercise right is not standing alone, combined w/ some other right that requires protection b. In this casepure religionno compound right c. Scalia opinion. Compound rights are free exercise rights plus ancillary rights (parental rights, free speech, etc.), so gets SS. i. Most of cases could be swept away using Compound Rights except Sherbert. v. Sherbert Narrowed to apply only to unemployment compensation cases 1. Arbitrary narrowing why should unemployment compensation cases be different 2. Also, this is an unemployment compensation case so ought to apply in Smith vi. Policy Arguments good reasons why neutral laws which burden free exercise should not be subjected to SS; theres so many religions with so many practices that govt would frequently be caught in free exercise claims vii. Valid Application of General Law; court upheld law d. Smith Aftermath i. to show a violation 1. law targets religion in some way 2. proof of discriminatory intent

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III.

ii. targeting religion 1. Babalu Aye (if law adopted for Discriminatory Purpose then invalid) a. Animal sacrificesbut exceptions i. About the only type of slaughtering is ritual sacrifice, so you know it is targeting religion b. For evidence of discriminatory intentlook to Arlington Heights c. Example of religious gerrymandering iii. Congressional Response 1. RFRAinvalidated Boerne a. Neutral laws that burden religious practices are by statute subject to SS b. Free exercise clause applies to the states through the 14th 2. Narrower statute a. Challenged and went up to SC iv. Cutterinterplay b/w clauses (making accommodations for religiondoes it discriminate in favor of religion) e. Levys thought: most states have laws prohibiting giving minors alcoholic beverages, most have exceptions for religious services. i. does that violate establishment clause, to create an exception? ii. Suppose a state eliminated those exceptions and tried to enforce the law against religious practice that involved consumption of alcoholic beverages by minors? Establishment clause a. Overview i. Three Approaches 1. Strict separation a. between all elements of religion and all elements of govt (broadest scope) b. Worried about in God we trust; invocation before Congress; Pledge of Allegiance 2. Requirement of Neutrality a. cant favor or burden religion under either clause 3. Accommodations of perspective (Narrow Reading) a. govt can accommodate religion as long as it doesnt officially endorse any religion or coerce membership in religion b. Public displays okay so long as not too specific or coercive ii. Common Issues creating lots of litigation 1. Public Displays you can have xmas tree as part of multicultural display, but not just a xmas tree 2. School Prayer prayer in public schools conflicts with establishment clause; prohibited 3. Aid to Religious Schools voucher systems - OK for it to be used for religious school b. Lemon and Its Critics i. Lemon Test is test court (maybe) applies; 3 elements for law to survive establishment clause scrutiny 1. Secular/non-religious Purpose 2. Primary Effect Does Not Advance nor Inhibit religion a. Can have 2ndary or incidental effects that help religion, but nothing more 3. No Excessive Entanglement between govt and religion ii. Criticism 1. focuses on entanglement element; sometimes use entanglement as factor to determine if effect advances or inhibits religion (#2) a. Does not tolerate much religion in public sphere; those who prefer accommodating view are very skeptical of Lemon test 2. Anti-coercion 3. Endorsement iii. ModificationZelmon (upheld school vouchers) 1. Secular purpose 2. Does not have effect of a. Coercing b. Endorsing c. Or fostering excessive entanglement 3. What used to be a separate strand under Lemon is now a factor in look at an impermissible effect

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