Constitutional Law Outline

Frederick Schauer - Spring 2015 Constitutional Interpretation - Four positions 1. Original Intent Originalism: The word means what it was intended to mean in 1777. a) Less common now for three reasons: i) it is never quiet certain at what level of generality we should understand that intent (whose intent? Drafters, ratifying states? ii) the embarrassment problem - original intent originalism turns out to generate some number of outcomes that 200 years after the fact the population is unwilling to accept. b) Similar: Public Meaning Originalists: what did the words mean at the time? 2. Textualist: look at the text and only the text so help you God a) Scalia: people vote for different reasons, the only thing they agreed upon was the actual text. In statutory as well as in constitutional interpretation he is unwilling to look to actual intent. 3. Living Constitutionalism: the words of the constitution should be interpreted in light of modern realities. (Marshall’s opinion in McCulloch) a) View assisted by the fact that the amenability of the Constitution is practically impossible. Therefore, it must be interpreted flexibly in light of changing values. 4. Contemporary Public Meaning: what the words mean now. 5. Other constitutional points: a) Formalism v. Functionalism: i) Formalism: take the words and structure as it is written seriously even if it generates a bad result. ii) Functionalism: interpret accurately according to the function that some legal provision is designed to serve. b) Enforcement: The sanctity of the constitution was upheld because the federal and state troops obeyed the President’s orders in Cooper v. Aaron. c) Counter-majoritarian difficulty: when the court declares an act of Congress unconstitutional, 5 - 9 people are overruling a decision of an elected party. d) State as a Laboratory for Democracy: try novel social and economic experiments without the risk to the rest of the country. Brandies.

Judicial Review 1. Gives the Court power to declare an act of a coordinate branch of the government unconstitutional. 2. Marbury v. Madison (1803)(p.1) a) Facts: justice of the peace appointee not appointed due to change in presidency. b) Takeaway: formed the basis for judicial review under Article III of the Constitution. i) (1) Held that the judiciary can tell the executive branch what to do. (2) The constitution is the higher law and federal legislation that does not comport is not law. (3) It is within the power of the US judiciary to declare acts of Congress unconstitutional because: “it is emphatically the province and duty to the judicial department to say what the law is.” ii) J. Marshall making a statement about SCOTUS’ power, but case dismissed for lack of SMJ. (1) Marshall had to deny P relief politically. Jefferson administration wouldn’t have complied with a court order to deliver and could seek impeachment of justices.

Page 1 of 54 Judicial Supremacy 1. Constitution binds the states a) Article III, Section 2: The judicial power shall extend to all cases, in law and equity, arising under the constitution. b) Article VI, Section 2: The Supremacy Clause makes clear that the Constitution shall be the supreme law of the land (it’s superior to state law) and judges in every state shall be bound thereby.

2. Supreme Court can declare acts of states unconstitutional a) Martin v. Hunter’s Lessee (1816)(p. 24) i) Facts: VA land dispute (who did/did not forfeit land during the revolution). VA CoA claimed SCOTUS lacked authority to review their decision. ii) Rule: The Supreme Court can review state court decisions (1) The constitution presumes SCOTUS’ authority to review state court decisions. If Congress did not establish lower federal courts, SCOTUS could not hear any cases at all unless it could review state court rulings. (2) Appellate jurisdiction is given by the constitution to the Supreme Court, in all cases within “the judicial power of the United States” where it has no original jurisdiction. Article III, Section 2, clause 2. b) Argument for federal review of act of state: i) Allowing federal review produces uniformity and prevents multiplicity c) Argument against Supreme Court Review of acts of states i) Counter-Majoritarian ii) Textualist argument: nothing in the Constitution gives the Supreme Court explicit power to review acts of states iii) Federalism question: nothing that unity must apply in all federal systems.

3. Binding other branches of federal government a) Cooper v. Aaron - after Brown, AK governor doesn’t want to enforce desegregation i) Rule: The Supreme Court made it clear that a state Governor was to be bound by the Supreme Court’s interpretation of the constitution and the Supreme Court would not be bound by the governor’s interpretation.

ii) Three positions: (1) Judicial Supremacy (Cooper v. Aaron position) (a) Important to have uniformity in constitutional interpretation (one party needs to make decisions for everyone in order to avoid dis-uniformity). (b) Constitutional law is law as it has been interpreted by the Supreme Court. Congress does something wrong by not following Supreme Court decisions. (2) Departmentalism - power of each branch of government to make constitutional decisions for their own purposes. (a) Believe in being able to interpret the constitution for themselves (b) Distinction between decisions that are directed personally to an official and decisions that purport to resolve an interpretative issue not directed at someone.

Page 2 of 54 (a) i.e. officials in AL who are not following order of AL SC (gay marriage) because order was not directed specifically at them are claiming departmentalism. One way of getting around this would require class action defendants - giving them notice and opportunity to be heard. (3) Popular Constitutionalism : The meaning of the constitution should be determined by public political determination and public political debate 4. Congressional regulation of judicial power: a) Article III, Section 2, Clause 2: power of Congress to make exceptions and regulations about SCOTUS appellate jurisdiction. i) Congress cannot use its regulatory power to determine outcomes in particular cases. United States v. Klein. ii) BUT see Ex Parte McCardle which deprived the Supreme court of jurisdiction for a particular class of cases.

NATURE & SCOPE OF NATIONAL POWERS

Necessary & Proper Clause (N&PC) 1. Constitution: a) Article I, §8: Enumerated powers of the federal government b) Article I, §8, clause 18: The Congress shall have Power…to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.

2. Cases: a) Necessary and proper means: i) in 1818: “convenient, or useful, or essential.” (McCulloch v. Maryland); ii) in 2010: “rationally related to the implementation of a constitutionally enumerated power.” (United States v. Comstock)

b) McCulloch v. Maryland (1819)(p. 68) - National bank created i) Held: Congress has the power under the N&PC to create a national bank (power to declare war: need to move money around for it). ii) Rule: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional.” iii) Expressed v. Implied Powers (penumbras - powers around those expressed in the constitution) - What connection must there be for the power to be implied? (1) There must be a direct connection between the power and the expressed power (2) Implied power must be reasonably related to the expressed power (3) Once you go beyond pure necessity, there are concerns as to that the limit really is? What is to stop the power from being anything that bears a connection to an expressed power?

Page 3 of 54 c) United States v. Comstock (2010)(p.73): i) Statute authorised DOJ to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. (1) Does congress have the authority to keep you in some sort of a facility either for your own benefit or benefit of others because of a mental illness which is unrelated to why you found yourself in fed prison in the first place? ii) Rule: In determining whether the N&PC grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. (1) If there are federal crimes, there is an implied power to create federal prisons. Therefore there is the power to do everything necessary to allow these to operate, including the power to keep people in prison. iii) Thomas, joined by Scalia, dissented (1) The N&PC does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority (2) The Constitution gives states no power to decline the responsibility of custody. d) United States v. Kebodeaux (2013)(Supp. p.3): By regulation, a statute (SORNA) was retroactively applied to sex offenders who failed to register when they moves within states. i) Held: The N&PC granted Congress the power to create federal crimes and regulate their punishment (power to create federal crimes comes from power to regulate military conduct and to impose punishment if those regulations are not followed) and SONRA could be applied to D because he was subject to similar fed requirements at the time of his release. i) Dissent: SONRA is not directed at carrying to execution any of the federal powers enumerated in the constitution. Neither the Spending Clause, Commerce Clause, nor regulation of Land and Naval forces power is aimed at protecting societies from sex offenders. Further, the statute is limited to individuals already in the custody of the fed government.

National Commerce Power 1. Constitution: Article I, § 8, Clause 3: To regulate commerce with foreign nations, and among the several states, and with Indian Tribes 2. Summary of current law a) 3 Relevant determining factors: i) (1) Crossing state lines: power at its max when regulating anything that crosses state lines. ii) (2) Reach intrastate transaction that have a substantial affect on interstate commerce(Jones & Laughlin / Darby) iii) (3) Congress has greater power over so called instrumentalities of interstate commerce (Heart of Atlanta) b) Aggregation principle: Can take all activities into account to reach interstate commerce. (Wickard) c) Motives: Congress can regulate under the Commerce Clause for reason that are not business, commercial or economic. However, if Congress is using moral, social, or cultural reasons Congress has a higher burden to justify its actions. i) Suggestion commercial motive not required: Champion, Katzenback, Darby, Comstock ii) Lack of commercial motivation a mark against federal power: Lopez, Morrison

Page 4 of 54 d) Put Lopez and Morrison together: Where the primary concern seems to be non-economic, there is no jurisdictional element, there are no strong findings and the connection is too attenuated, there are limits.

3. Pre-New Deal Rules / Evolution a) Gibbons v. Ogden (1824)(p.78) i) Facts: Steamboat rights to travel from NY to NJ. NYC licence v. Congress licence. (1) The people v. lettuce distinction: Under NY view, Congress has the power to regulate goods, but not people ii) Rule: Congress’ power to regulate interstate commerce does not stop at the external boundary lines of a State. Congress’ power to regulate within its sphere is exclusive. (1) Article 1, §8 of the Constitution grants Congress the power to regulate commerce among several states, therefore it can regulate transportation between states. (2) Commerce means more than traffic, it encompasses navigation. b) The Lottery Case (Champion v. Ames) (1903)(p.83) - Congress prohibited carriage of lottery tickets across state lines. i) Rule: As long as something business-related is going on between states, Congress can regulate it regardless of the absence of an economic motive. (1) This controversy was conservative regarding mechanism (clearly interstate) but expansive regarding motive (congress was regulating something they considered immoral, not based on economic motives but moral ones). c) Shreveport Case (Houston, East & West Texas Ry. v. United States) (1914)(p.85) i) Facts: TX practicing railroad price discrimination between trains solely within TX and those travelling between Louisiana and TX. ii) Rule: Congress can regulate any intrastate transaction so long as it is in the interest of interstate commerce. (1) This controversy was conservative regarding motive (clearly commerce) but expansive regarding the mechanism (involved intrastate business). (2) Note that the court places some attention on the fact that RR are in the stream of commerce/instrumentalists of interstate commerce d) Hammer v. Dagenhart (1918)(p.88) - The Child Labour Act prohibited the interstate transportation of goods produced with child labour. Overruled in Darby i) Held: Congress exceeded its commerce power in this case. The power of Commerce to regulate commerce does not include the power to regulate the production of goods intended for commerce. (1) Combining non-commercial motive (the Lottery Case) and interstate transactions that have some impact on interstate commerce (The Shreveport Case) is too attenuated

4. Modern era of the Commerce Clause: Post-New Deal a) NLRB v. Jones & Laughlin Steel Corp. (1937)(p.93): steel manufacture case i) The Court erased the distinction between manufacturing and commerce. ii) Rule: Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.

Page 5 of 54 b) United States v. Darby (1941)(p.94) i) FLSA established a min wage & max hrs for employees engaged in the production of goods for interstate commerce. Court overrules Hammer v. Dagenhart. ii) Rule: “The power of congress to regulate interstate commerce extends to the regulation of activities intrastate which have a substantial effect on the commerce.” (1) “Congress, following from its own conception of public policy…is free to exclude from the commerce articles whose use in the states for which they are destined may conceive to be injurious to the public health, morals, or welfare even though the state has not sought to regulate their use.” c) Wickard v. Filburn (1942)(p.99) i) Facts: farmer engaged in wholly intrastate activity of growing wheat for his own farm (1) Unlike Darby, this is intrastate in both input and output. ii) Rule: Aggregation principle: though one farmer’s growing own wheat rather than buying from the market would not substantially affect interstate commerce (i.e. the national wheat market), all the small famers growing their own wheat and seed could affect interstate commerce (1) Central feature of those saying that healthcare law could be regulated by the commerce clause: in the aggregate, those who don’t have healthcare affect the national economy d) Perez v. United States (1971)(p.102): local loan shark i) Held: Congress can regulate Perez’s loan shark business because of the possibility that he was part of a larger loan shark market, which would thereby affect interstate commerce. (1) Do not have to show individual loan sharks have an effect on interstate commerce, just that he was a member of that class. (not a transparent business, hard to distinguish intrastate loan sharks from interstate loan sharks). ii) Perez represents the outer limit as to what SCOTUS says Congress is allowed to do. It is as far as any of the case law goes, prior to some degree of retrenchment.

5. Civil Rights Act of 1964 a) Normal expectation would be to use § 5 of the 14th Amendment (additional grant of power to Congress) to pass legislation. § 5 gives Congress the power to deal with issues of racial discrimination, but does the Equal Protection Clause restrict the activities of private institutions? i) SCOTUS says the amendment only prohibits states from denying equal protection of the law (1) That is, cannot use section 5 to reach private institutions / individuals. Therefore nothing in the constitution that would prevent a private institution from discriminating on the basis of race. Congress has to get creative. b) Heart of Atlanta Motel, Inc. v. United States (1964)(p.103) i) Facts: The hotel exists at the intersection of two major interstate highways ii) Rule: The power of Congress to promote interstate commerce also includes the power to regulate local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. (1) The relative unavailability of African Americans from having a place to stay in interstate travel will affect the number willing to travel interstate. c) Katzenback v. McClung (1964)(p.105) - Ollie’s BBQ discriminating, but purely local. i) Rule: Aggregation principle (Wickard) gives reach

Page 6 of 54 6. Retrenchment a) In 1971, Congress had virtually no limits under the Commerce Clause i) Small exception, one man mine in Morton v. Bloom, judge determines Bloom was not intended to be reached by the mining legislation. But it is not a constitutional decision, it is an interpretive one. ii) Otherwise anything goes. (1) “Where we find that legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.” - i.e., if Congress says it affects interstate commerce, then it affects interstate commerce. (Katzenback v. McClung)

b) The present: Begin to see, starting with Lopez, degree of judicial reaction against the anything goes idea. c) United States v. Lopez (1994) - no guns in school zone law found to be unconstitutional. i) Rule: Four factors in determining if Congress has the commerce power to pass an act. none are dispositive, all are relevant. (1) Trade matters: existence of a commercial trade/business (2) Expressed jurisdictional element: is there a requirement that the particular element be in interstate commerce and a requirement to prove it. specific statement linking to interstate commerce (a) Nothing in the guns in school act that said anything about a gun in school affecting interstate commerce (3) Have there been explicit findings on this issue by Congress? Congress actually has to make them, no presumption as before. (4) Court will engage in own determination of the effects the activity has on interstate commerce. d) United States v. Morrison (2000)(p. 108) - Violence against women act provided federal civil remedy for victims of gender motivated violence. i) held the Act was not a constitutional exercise of Congress’ commerce power because it didn’t regulate an activity that substantially affected interstate commerce. (1) SCOTUS further defined the aggregate effects test (see Wickard) noting that intrastate activities must be considered in aggregate only if the activities themselves are economic in nature. Less deference to Congressional findings. ii) Rule: Look to whether there is commercial motivation or something else. (1) Like Lopez, the fact that the motivation was not primarily an economic or commercial or business concern counts against congressional power. e) But see: Gonzales v. Raich (2005)(p.121) - Upheld regulation on local cultivation and use of marijuana even when in compliance with state law because aggregation: part of a larger business. i. Congress has regulatory authority over interstate activities that are not themselves part of interstate commerce even when they do not themselves substantially affect interstate commerce if they are an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.

Page 7 of 54 7. Historical footnote, mostly without doctrinal effect. a) Difference between internal and external limitations on Congressional powers. i) Does the 10th amendment which secures certain powers to the states add anything to the commerce clause? Does it operate as an independent constraint as what congress can otherwise do? (1) Darby said it is merely a truism. ii) In 1976, National league of cities v. usury: court said congress could not set national min hourly wages and apply those laws to the state’s in the state’s own governmental operations. This was the law for 9 years, but gets overruled in Garcia (make up of the court changes). (1) BUT: Prinz case: the fed gov cannot commander state officials to enforce federal law.

Affordable Care Act (ACA) of 2010 1. National Federation of Independent Business v. Sebelius (2012)(Supp. 4) a) Facts: Congress passes ACA because many Americans have no health insurance yet actively participate in the health care market, consuming health care services but not paying. i) Government argues that inactivity has an economic affect on interstate commerce. b) Held: Congress does not have the authority to force people to buy a product (regulate inactivity) under either the Commerce Clause or the Necessary and Proper Clause. However, the court upheld the mandate under the Taxing and Spending Clause since the sole consequence for failing to buy insurance is a tax, which is in the authority of the federal government c) Split: i) Four Justices believe that the law is valid as a Tax as well as under the Commerce Clause ii) Four believe that it is an invalid exercise of tax power and an invalid exercise of the Commerce Clause. iii) The opinion of Roberts is the dispositive opinion. Says it is not a valid exercise of commerce power but is a valid exercise of taxing power. d) Summary of Justice opinions i) Chief Justice Roberts, joined by Ginsburg, Breyer, Sotomayor, and Keagan, concluded that the Individual mandate penalty is a tax for the purposes of the Taxing and Spending Clause and is a valid exercise of Congressional authority. (1) As part of a jointly written dissent, Scalia, Kennedy, Tomas and Alito disagreed, arguing that because Congress characterised the payment as a penalty, to instead say it is a tax would amount to rewriting the act. ii) Roberts, Scalia, Kennedy, Tomas and Alito concluded that the individual Mandate was not a valid exercise of Congress’ power to regulate commerce. The Commerce Clause allows Congress to regulate existing commercial activity, but not to compel individuals to participate in commerce. (1) Ginsburg, concurring in part and dissenting in part, joined by Breyer, Sotomayor and Kagan disagreed, arguing that the Chief Justices’ distinction between economic activity and inactivity is ill defined and unsupported by either the Courts precedents or the text of the Constitution. Furthermore, even if this dissection were permissible, individuals who fail to purchase insurance nonetheless frequently participate in the healthcare market, substantially impacting healthcare commerce, and may therefore be regulated by Congress

Page 8 of 54 e) Issues: i) Inactivity/activity (1) Gov: Wickard controls, the aggregation principle applies: for economic reasons all without health coverage are part of a large industry with large economic affects. (2) Other side: those not on health insurance were inactive, and congress cannot regulate inactivity. ii) “Broccoli” argument, i.e. Personal Liberty (1) Argument that forcing people to buy health insurance is a violation of the constitutional grant of personal liberty. The government can no more do that than to say that everyone must eat broccoli because if more people did than more people would be healthy. (2) Problem is that if the broccoli argument applies to health care as a liberty argument than the Mass Health Care Law is unconstitutional. (a) 14th Amendment argument not raised due to these concerns. Way too risky.

Taxing and Spending Powers 1. Article I, §8 clause 1: grants Congress power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” a) After Lopez and Morrison, things that are not within the Commerce Power are attempted to be regulated through the taxing and spending power (new broad power)

2. Taxing power issues: a) Can Congress use it’s power to tax to create authority over activities that would it would not otherwise have authority over? b) ACA Decision: i) Roberts opinion allows the taxing power to be used to salvage congressional action that would otherwise be beyond congressional powers. Not what he actually said, but what it means. ii) Various factors that labeled as a tax and not a penalty: (a) Collected through the tax system (b) Labeled in a certain way (c) Seems designated to generate some revenue.

3. Spending power issues: a) General view: Congress can spend for the general welfare i) Issue: is it being used coercively? ii) Rule (Dole): Spending powers are limited as follows: (1) It’s exercise must be in pursuit of the general welfare (courts should defer substantially to the judgement of Congress) (2) If conditioned on receipt of federal funds, it must do so unambiguously, enabling the State to be cognisant of the consequences of their participation. (3) Conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs; and (4) Other constitutional provisions may provide an independent bar to the conditional grant of federal funds.

Page 9 of 54 b) United States v. Butler (1936)(p.136) i) Facts: Congress implemented a tax on agricultural commodities from which funds would be redistributed to farmers who promised to reduce their acreage - trying to solve agricultural crisis ii) Held: the court found the act unconstitutional because it attempted to regulate and control agricultural production, a arena reserved to the states, and thereby exceeded its power. c) Steward Machine Co. v. Davis (1937)(p.138) i) Facts: The Social Security Act established a federal payroll tax on employers; however, if employers paid taxes to a state unemployment compensation fund they could credit those payments towards the federal tax. ii) Held: The Act is constitutional under the Fifth and Tenth Amendments - tax was uniform across the states and was not coercive in contravention of the Tenth Amendment. d) South Dakota v. Dole (1987)(p.142) i) Facts: Drinking age legislation attached to highway funds ii) Held: Congress acting indirectly to encourage uniformity in states drinking ages did not exceed its spending powers.

4. Questions of political economy a) Congress has three choices to implement its will: It can tax, spend, or regulate i) Taxing power is self-regulating. There are political forces that will keep Congress from continuing to add more taxes ii) Spending is self-regulating: it costs money and proposing incremental additional spending can at times be politically unpopular iii) Regulation on the other hand looks in the short term as if it is free. (1) not ultimately but easier to pass because it looks that way.

The Dormant Commerce Clause 1. Article 1, § 10: denies states the right to coin money, write letters of mark and reprisal, etc. (specifically enumerated federal powers) but says nothing about regulating interstate commerce a) Based on statutory interpretation. Congress can regulate interstate commerce. When combined with the Supremacy clause, congressional regulation trumps state legislation. b) Pre-emption: usually one of three: i) Explicit pre-emption: tells states cannot regulate ii) Implicit pre-emption: congress intended to keep states out iii) Occupation of the field: clear that congress wanted to occupy the whole field. c) Cooley v. Board of Wardens (1852)(p. 267) i) Rule: There are areas in which both state and Congress can regulate. ii) Rejection of the mutually exclusive spheres of influence argument. d) Argument of non-interference i) By Scalia and others that this area is none of the Supreme Court’s business (1) If Congress has legislated than Supremacy Clause wins (2) If Congress has not legislated in an area than the state can do whatever they want and the Supreme court cannot interfere. ii) Textualist argument (1) Expressio unius est exclusion alterius- the express of one is the exclusion of the other

Page 10 of 54 (a) The very fact of not mentioning regulation of interstate commerce in the area of things states cannot do can be interpreted as an implicit acceptance of state power to regulate interstate commerce.

5 Categories of protectionism: 1. Explicit Protectionism: (1) explicit distinction between states. (2) a motive that is protectionist. a) General Rule: per se unconstitutional, including local laws that are facially constitutional have have a clear protectionist motivation. i) Baldwin v. G.A.F. Seelig, Inc. (1935)(p. 271) (1) NY milk min price to retailers and prohibition of outside milk brought under that amount (2) Rule: the protectionist measures are a violation of dormant commerce clause powers. State’s cannot regulate with the aim and effect of establishing an economic barrier against competition with the products of another state or the labour of its residents. ii) Bacchus Imports v. Dias (1984) (1) Hawaii imposes a 20% excise tax on sales of liquor at wholesale, but exempts the tax for locally made pineapple wine and liquor. Hawaii made the exemption to help the local industry and a product that is not likely to do well in the industry. (2) Held: No state, consistent with the Commerce clause, may impose a tax which discriminates against interstate commerce by providing a direct commercial advantage to local business. 2. Discrimination for non-protectionist purposes. a) General Rule: Presumptively unconstitutional, but not almost always unconstitutional (health and safety might be a legitimate motivation to tip the scale in the state’s favour). i) Discriminatory laws may be upheld only if they serve “legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives.“ (Maine v. Taylor) b) Dean Milk Co. v. Madison (1951)(p. 274) i) Law prohibiting sale of milk not processed at approved pasteurisation plants within five miles of Madison’s central square held invalid. ii) Rule: Measure whether the discrimination inherent in the ordinance can be justified in view of the character of the local interests and the available methods of protecting them. (1) Reason: reasonable and adequate alternatives are available. c) Philadelphia v. New Jersey (1978)(p. 276) i) NJ says only a limited amount of landfill space & therefore reserve NJ landfills for NJ rubbish. ii) Unconstitutional (1) Court must determine whether the law is basically a protectionist measure or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental (2) The Commerce clause will protect NJ in the future, just as it protects her neighbours now, from efforts by one state to isolate itself in the stream of interstate commerce from a problem shared by all d) Maine v. Taylor (1986)(p. 280) i) Maine law prohibiting the importation of out-of-state bait fish constitutional because Maine authorities couldn't be certain that imported fish would be free of parasites and non-native species that might pose environmental harm to local ecology

Page 11 of 54 3. Non-discriminatory statute with protectionist motive. a) Edwards case: Creationism in schools. i) Statute was passed in a balanced sounding term, but the legislatures who voted for it did so because constituents wanted more religion in schools. The obvious evidence of motive made it not okay. b) Hunt v. Washington Apple (1951)(p. 274) i) NC required all apples to be graded USDA or marked not graded. Facially constitutional law, but found to have a disproportionately adverse affect on interstate commerce. ii) Rule: legislation that is facially constitutional is nevertheless unconstitutional when based upon protectionist motivation. (1) Case was tainted by a suspicion of protectionist motive, and by the fact that it might have been more expensive for the Washington producers to comply than the North Carolina producers. c) Griffin: EPC equivalent.

4. No explicit discrimination/intent, but discriminatory impact a) Because of background distribution, something that looks innocent can make laws that are neutral on their face unequal upon application. State must justify, but less a presumption against the state as in Philadelphia v. New Jersey. i) Example: Hotel trying to impose generalised requirements, such as requiring employees to carry guest’s luggage, 50b in each hand, discriminates against females.

5. No protectionism, discriminatory motive or impact, but nevertheless burden on interstate commerce a) No presumptions, no burdens of proof, but evenhanded balancing. Court will balance degree of burden on interstate commerce with the states interests. i) Scalia: “it is more like judging whether a particular line is longer than a particular rock is heavy.” How do we do this balancing and is it anything the courts are likely to be good at? b) Minnesota v. Clover Leaf Creamery (1981)(p. 299) i) Court upheld a state law that banned non-returnable milk containers made of plastic but permitted other non returnable milk containers (cartons made of pulpwood) ii) “The court found that the statute does not discriminate between interstate and intrastate commerce and the incidental burden imposed on interstate commerce was not clearly excessive in relation to local benefits.“ c) If it involves instrumentality, may tip the scale. a) GA and FL studded tire hypo.

6. Instrumentalities of interstate commerce: Regulation on transportation a) Congress might have more power in controlling the instrumentalities of interstate commerce than it otherwise would. Even after Lopez and Morrison, the courts will be more differential to Congress. i) Only possible to overcome through strong safety necessities. see e.g., South Carolina v. Barnwell (upheld SC law requiring trucks to be less than 8 feet wide because most roads were no more than 16 feet wide). ii) Justification: political economy concerns - Decisions made by local bodies will affect non local interests even though non local interests are not represented.

Page 12 of 54 b) Southern Pacific Co. v. Arizona (1945)(p. 307) i) Arizona law limiting the length of trains in Arizona unconstitutional. ii) The state’s interest (in safety) is outweighed by the interest of the nation in an adequate, economical and efficient railway transportation service. c) Cassel v. Consolidated Freight ways Corp. (1981)(p. 308) i) Iowa statute that prohibits the use of certain large trucks within the State ii) Rule: Regulations designed for the purpose of public health and safety nevertheless may further the purpose so marginally and interfere with commerce so substantially as to be invalid under the commerce clause. d) Bibb v. Navajo Freight Lines (1959)(p. 308) i) Court held invalid an Illinois law which made mud flap regulations in mutual exclusion with the law of Arkansas. ii) Given that a truck cannot have a mud guard that is compliant with both opposing laws - these local safety measures that are nondiscriminatory nevertheless place an unconstitutional burden on interstate commerce.

7. Exceptions a) Subsidies: What a state cannot do by way of restriction it can do by way of a subsidy i) Subsidies relate to market participation–TP’s can spend money in ways that benefit themselves. ii) Note that if a state wants to prohibit it doesn’t cost the state anything, but subsidies cost a lot. Therefore, political economy: it is harder for the state to do this as there are internal checks b) None of the restrictions apply when the state is a market participant i) Reeves, Inc. v. Stake (1980)(p.322) (1) SD cement plant began supplying in state customers before out of state. (2) Held: SD’s preferential system does not violate the Commerce Clause (a) “nothing in the purposes animating the Commerce clause prohibits a state, in the absence of congressional action, from participating in the market and exercising the right to favour its own citizens over others.”

SEPARATION OF POWERS

War, Foreign Policy and Presidential Power 1. Internal Matters: domestic lawmaking a) Separation of powers at the federal level - the constitution empowers certain branches and by implication denies those powers that exist in another branch.

b) Youngstown sheet & Tube Co v. Sawyer (the Steel Seizure Case) (1952)(p.176) i) Facts: President Truman issued an executive order to seize steel mills in order to prevent potential strike from affecting steel supplies necessary for the war effort in Korea. ii) Held: Court held the President did not have the constitutional authority to seize and operate the steel mills.

Page 13 of 54 iii) Concurrence by Justice Jackson is important!: grouped the president’s powers into three categories: (1) When the president acts pursuant to an express or implied authorisation of Congress, his authority is at its maximum. (2) Zone of Twilight. Congress has not clearly said yes or no (a) History matters - what have past Presidents done that has been accepted. If Pres. exercises a power, and Congress does not stop it, or the country as a whole accepts it, that very fact of either public or congressional acquiescence has legal significance. (3) Presidents powers are the least when the Present is acting against the clearly expressed or implied will of Congress, can only rely upon his own constitutional powers minus any constitutional powers of Congress over the matter. (a) E.g. Article 2: president has the power to pardon people and congress cannot take this away. c) Emergency Powers: in a moment of genuine emergency, when the government must act with no time for deliberation, the executive may be able to act if there is reason to fear an imminent threat to the safety of the nation, but it must be limited by necessity. d) Executive Orders: i) Related to organisation of the executive branch, use of federal property and terms on which the federal government will enter into contracts ii) Dames & Moore v. Reagan (1981)(p.184) (1) The Court held that the International Emergency Economic Powers Act constituted a specific congressional authorisation for the president to order the transfer of Iranian assets. The Court further held that although the IEEPA itself did not authorise the presidential suspension of legal claims, previous acts of congress had implicitly approved of executive control of claim settlement. The court emphasised the narrowness of its ruing, limiting its decision to the facts of the case. 2. Separation of power Dispute: Formalism and functionalism relevant here

War Powers 1. External matters: war, when war is not declared a) The last time Congress declared war was Dec. 8, 1941, the day after Pearl Harbour. b) Recurring issue: under what circumstances, if any, does the president have the power to deploy troops absent a conversion declaration of war? i) Does the power to be Commander in Chief extend to the power to decide where the troops will go or is it only to decide what they are to do on the ground once congress has authorised their deployment. ii) The power to declare war is a relic of the 18th century. It says nothing about the power to make war. President argues that he has the power to make war, declaring war is an obsolete formality. iii) On the other hand, the power to declare war is the power to decide circumstances under which american solders will be at risk, which is a job for the more representative branch of the government and therefore pres. should not be allowed to engage in war-like activities without approval of congress. This was the case against Vietnam, and the court denied to hear this case on political question doctrine. Generated dissent in Mora v. McNamara.

Page 14 of 54 2. Cases a) United States v. Curtiss-Wright (1936)(p.190) i) Congress passed a joint resolution authorising the president to ban the sales of arms to Bolivia and Paraguay, which were involved in an armed conflict. Congress held that this was not an unconstitutional delegation of power ii) Rule: President is in a better position than Congress to judge conditions that exist in foreign nations and is afforded substantial discretion and wide latitude in those decisions. b) Campbell v. Clinton (2000)(p.194) i) Facts: Congressmen sues Clinton over participation of US military forces in NATO missile attacks in Yugoslavia, saying violated the War Powers Resolution. (1) Question of standing. In Mora, a soldier was bring the claim, so the outcome affected him. In this case, the outcome doesn’t affect the congressmen. Not sure if it matters. ii) Court says claim is non-justiciable.

3. Congress’ War Power Resolution of 1973 a) Before the President can introduce US armed forces into hostilities or situations where imminent involvement in hostilities is clearly indicated from the circumstances, the President must: i) Consult with Congress in some form, ii) Issue a formal report to Congress (if troops are deployed) b) Then, the power of the President to do this is limited to 60 days (unless Congress grants an extension or declares war in the interim), after which such power is suspended baring congressional approval. i) Gets an extra 30 days if the president shows he needs time to get troops out. c) Note: every president since Nixon (resolution was passed over his veto) has asserted the unconstitutionality of the War Powers Resolution. Nevertheless, they have all complied with it. In their reports however, they note “consistent” (as opposed to “compliant”) with the War Powers Resolution, they are submitting the report. i) President’s claim it is an unconstitutional restriction on the President’s emergency powers and Commander in Chief Powers. 4. Examples: a) Use of drones in Libya: i) Resolution in the House of Representatives critiquing the Presidents actions in Libya and not consulting Congress. Bi-partisan group brought a lawsuit seeking declaration that the action in Libya violated the war powers resolution in an injunction against any further pursuit. (1) Seeking both an abstract declaration of unconstitutionality and an abstract declaration of violation of the war powers resolution and an injunction on further actions. Judge found that they did not have standing ii) Administrations view was that the WPR was inapplicable because no troops were deployed. View that was understood as preposterous: the WPR does not distinguish between ground troops and other. Also, someone is sending the drones, not entirely unmanned. iii) The argument that this was illegal is not a bad argument; HOWEVER for this to prevail would have to answer that would have to examine if the War Powers Resolution was violated iv) Whether a court would ever deal with these kinds of questions is doubtful (1) It is possible that if Libya had not worked out politically it might have made a difference in the political arena

Page 15 of 54 b) Use of force against ISIS in the middle east: president has been basing as within the scope of the 2002 resolution that explicitly authorised military action in Iraq. People argue that is a reach.

5. Policy Reasoning: Validity of the War Powers Resolution a) The President might assert that he is Commander in Chief, that he acted under the emergency power, that Congress has means to check him if they do not approve of his war-making efforts (i.e., cut funding, impeachment, etc), that he does not need approval to respond defensively i) Does Commander in Chief mean George Washington on a Horse or a more expansive authority (Curtiss-Wright … also Formalist v. Functionalist) b) Congress might assert that the founders reserved the decision to “declare war” in the Constitution to them because Presidents use wars as a means of personal aggrandisement and that the decision to enter into war should be made by a representative group.

6. Powers in the Constitution a) Congress: Article I, § 8 1) “lay and collect taxes to provide for the common defence” (cl. 1) 2) “to declare War” (cl. 11) 3) “to grant Letters of Marque and Reprisal” (cl. 11) 4) “to raise and support Armies” (cl. 12) 5) “to provide and maintain a Navy” (cl. 13) 6) “to make rules for the Government and Regulation of the land and naval forces” (cl. 14) 7) “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions” (cl. 15) 8) “to provide for organising, arming and disciplining the militia” (cl. 16) 9) “to suspend the privilege of Habeas Corpus in cases of rebellion or invasion” (§9, cl. 2)

b) The President: Article II, § 1-3 1) Possessor of the “executive power” (§2, cl. 1) 2) Commander in chief (§2, cl. 1) 3) “to take care that the laws be faithfully executed” (§3). 4) Emergency Power – It is in the nature of an emergency that requires unitary and immediate authority

Presidential Power and the War on Terrorism 1. Introduction a) Article I, § 9, cl. 2: The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. i) Writ of Habeas Corpus: The judicial remedy available to somebody who claims he or she is being detained by the government without cause.

b) The Common Law i) Separation of Powers principles: Vested federal government powers are nevertheless circumscribed by side constraints such as Due Process and Habeas Corpus (Hamdi, Boumediene).

Page 16 of 54 ii) Due Process Rights of Writ of Habeas Corpus: (1) A citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker (Hamdi) (2) Expect in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s Habeas Corpus petition until after the Department, acting via the CSRT, has had a chance to review his statues (Boumediene)

2. Individual rights and the war on terrorism a) Act: Authorisation for the Use of Military Force (AUMF): authorised president to use all necessary force against those who aided the 9/11 attacks. b) Hamdi v. Rumsfeld (2004)(p. 202) - Detained US citizen as enemy combatant under AUMF i) Holding: the congressional grant of war (AUMF) did not suspend habeas corpus ii) Takeaway: To determine whether habeas has been suspended: (1) Accretion of Presidential Power principle: (what’s been done in the past) A systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned may be treated as a gloss on “Executive Power” vested in the President by Article II, §1. (Dames & Moore v. Regan); c) Hamdam v. Rumsfeld (2006)(p. 205) i) Facts: After american forces invaded Afghanistan, militia forces captured Hamdam, a Yemeni national, and turned him over to the americans. He was transported to Guantanamo. ii) Said president did not comply with the rule of law. The court had the opportunity to decide what congress actually authorised, but instead held what the President did was not authorised and shirked the constitutional issue. (1) Demonstrates the Ashwander principle: a set of principles used by SCOTUS for avoiding constitutional rulings d) Boumediene v. Bush (2008)(p. 206) i) Combatant Status Review Tribunals (CSRT) detained non-citizen combatants ii) Holding: habeas corpus is grounded in due process - the government’s military commission does not provide enough to be an adequate replacement for habeas corpus. iii) Takeaway: vested federal government powers are nevertheless circumscribed by side constraints such as Due Process (5th Amendment) and Habeas Corpus.

Congress and the Separation of Powers 1. Introduction a) These cases arise because the US has a structurally obsolete Constitution which did not contemplate current exigencies. As a result, Congress has enacted many procedures that apply to modern times that have to then be weighed against constitutional principles b) At least as a general matter, the agencies are created by and report to Congress. That does not breach separation of powers: Congress still maintains a check. Not so in Clinton v. New York. 2. INS v. Chadha (1983)(p.220) a) Facts: INS has the power to deport people. AG has power to suspend deportations. Congress worries about under-deportation and over-mercy. Passes Act, saying either House of Congress can suspend the suspensions of the AG.

Page 17 of 54 i) The problem with the act is that it is power-grab by Congress, seeking to give itself power that is vested in another branch of government. ii) What is normally required for legislative action is missing in this case: Normally, both houses have to approve, then signed by the President. Congress is in effect acting with one house instead of two, and without presenting it to the president. b) Held: Act violated separation of powers doctrine. i) Rule: whether actions taken by either House are an exercise of legislative power depends not upon their form but upon whether they contain matter which is properly to be regarded as legislative in its character and effect. 3. Clinton v. New York (1998)(p.226) a) Line Item Veto i) Presentment Clause: Article I, § 7, Clauses 2-3: Under the Presentment clause, legislation that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. ii) The argument for line item veto: in a world of a 3 trillion dollar budget, why should it be all or nothing? b) Rule: Our first president understood the text of the Presentment Clause as requiring that he either approve all parts of a bill, or reject it in total i) The Court held the President’s ability to selectively cancel individual portions of the bills, under the Line Item Veto Act violated the presentment clause of Article I and was unconstitutional. ii) By cancelling only selected portions of the bills at issue, under authority granted him by the Act, the President in affect “amended” the laws before him which was for congress to do. c) Dissent: Breyer: this is not an attempt by one branch to accumulate power at the expense of the other branch and therefore it is permissible. 4. Bowsher v. Synar (1986)(p.236) a) Congress passed the Balanced Budged and Emergency Deficit Act of 1985. if maximum allowable deficit amounts were exceeded, automatic cuts, as requested by the Comptroller General, would go into effect. b) Court held the functions assigned by Congress to the Comptroller General under this act violated the separation of powers. To permit an officer controlled by congress to execute the laws would be, in essence, to permit a congressional veto. i) Reasoning: because the CG works for Congress, he cannot tell the President what to do. ii) Functionalist dissent: the court is attaching dispositive significance to something that should be regarded as triviality because delegating the execution of this legislation to an officer independent of the President will not deprive the President of any power that he would otherwise have to that is essential to the performance of the duties of his office. 5. Morrison v. Olson (1988)(p.239) a) Special Prosecutor, limiting AG’s power to dismiss the independent investigative counsel. b) Rule: The means of selecting independent counsel did not violate the Appointments Clause; the powers allocated to the special court did not violate Article II; and the Act was not offensive to the separation of powers doctrine since it did not interfere impermissibly with the functions of the Executive Branch. i) There are some purely executive officials who must be removable by the President at will if he is to be able to accomplish his constitutional role. However, the congressional

Page 18 of 54 determination to limit the removal power of the AG was essential to establish the necessary independence of the office. Such limitation does not sufficiently deprive the president of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure faithful execution of the laws. c) Scalia’s dissent: The constitution grants all the executive powers to the President, and therefore it is not up to the court to determine how much of the purely executive powers of the government must be within full control of the president. i) “Worse than what the Court has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today’s decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law.” d) Watergate: this legislation arose out of “Saturday Night Massacre” where two AG resigned instead of following request from Nixon to fire the special counsel investigating him. 6. NLRB v. Canning (2013)(Supp. 19) a) Canning challenged a NLRB order on the ground that the President’s Appointment of three of the Board’s five members, during the 3-day “pro-forma” recess of the Senate, was invalid under the Appointment Clause i) Art. II, § 2, cl. 3, which authorises the President “to fill up all vacancies that may happen during the Recess of the Senate.” b) Held: The Recess Appointment Clause does not give the President the constitutional authority to make the appointments at issue here. The function of the clause is to permit the Executive Branch to function smoothy when Congress is unavailable. i) (1) The scope of the phrase “the recess of the senate”: An intra-session recess of substantial length is within this scope, i.e. a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. ii) (2) The scope of the phrase “vacancies that may happen during the recess of the senate”: Vacancies includes not only those that initially occur during a recess, but also those that occur before a recess and continue to exist during a recess. iii) The senate was in session during the pro forma sessions every Tuesday and Friday from 11 Dec 2011 - 20 Jan 2012. The Solicitor General argues these were sessions in name only, Court rejects this - the Senate is in session when it says it is.

“Political” Questions 1. Justiciability a) Definition: formal questions of jurisdiction aside, there are some number of things that the federal courts are unwilling to decide. b) Requirement of standing: must be a particular plaintiff that has something to gain or lose as a result of the litigation. c) Absence of Controversy is one ground for a case being non justiciable i) The federal courts do not issue advisory opinions - based on Art. III which limits federal courts to decide cases and controversies. (1) Advisory opinions problem: the court cannot really see the issue without real facts, with real people and real stakes. d) Mootness: if the issue has already been resolved/outcome will not make a difference i) Ripeness doctrine: the opposite, there is not yet a controversy e) Political Question Doctrine.

Page 19 of 54 2. Political Question: a) Definition: a political, constitutional question that is better decided by the political branches than by the courts – where a textually demonstrable constitutional commitment of the issue is given to a coordinate political department. i) Just because a question is political, does not mean it is non-justiciable ii) Much of the modern doctrine comes from Baker v. Carr, in which SCOTUS said it was able to make determinations about apportionment and re-apportionment. iii) Why are there certain things that courts cannot review? (1) Checks and balances of power (2) Difficulty of fashioning relief (3) Counter-majoritarian

b) Three types of political question doctrine (Baker v. Carr) i) Textually demonstrable commitments to a coordinate branch of government. If the Constitution gives another branch of government the right to decide an issue, then the judiciary is not going to decide it. (Nixon v. United States, Powell v. McCormick) ii) The courts will not decide an issue if there is a lack of judicially discoverable and manageable standards. (No one knows what this means) iii) The courts should not decide issues where there are potentially embarrassing confrontations with the other branches of government (won’t hear cases if the other branch of government is not going to comply). c) Powell v. McCormick – Powell had family members on US payroll, took personal trips on federal bill. House voted to exclude him from the House of Representatives. i) Held: the textual commitment of congress to determine the qualifications of its own members (Article I, §5) extended only to the qualifications that existed in the Constitution (Article I, §3). But this qualification (not being financially mischievous) does not appear in the constitution. Powell won.

d) Nixon v. United States (the judge) (1993)(p.29) i) Walter Nixon (District Judge) was tried and convicted for taking bribes. Senate sought to remove him. Nixon challenged on the ground that the rule violated the impeachment clause (1) In the impeachment proceedings in the House, the trial takes place in the Senate, and the House impeaches. (2) The Senate can sit as a committee of the whole. ii) Rule: A controversy is non-justiciable where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department. (1) The decision that this case is non-justiciable turns not the interpretation of “sole” in Article I, §3, cl. 6: “The Senate shall have the sole Power to try all impeachments.” iii) Dissent: (1) “sole is not excluding the court from reviewing the decision. It is more concerned with separating the initiation and the prosecution of an impeachment between the two houses of legislature. (2) “sole” could also be a stylistic change from the word “all” as used in different places in the Constitution; and despite the use of the word “all” the Court has been willing to review other acts of Congress where the word “all” is implicated.

Page 20 of 54 Executive Privilege and Immunity 1. Overview a) General Rule: the need for confidentiality justifies a presumptive privilege for presidential communications…to be considered in light of the historic commitment to the rule of law. (United States v. Nixon) b) Spectrum: where a claim of privilege is placed on the ground of military or diplomatic secrets, the Courts have traditionally shown the utmost deference to presidential responsibilities. c) General privilege: the generalised assertion of privilege must yield to the demonstrates specific need for evidence in pending criminal trial (U.S. v. Nixon). d) Damages: a president is entitled to absolute immunity from damages liability predicated on his official acts, even at the outer limits. (Nixon v. Fitzgerald). e) Prior Conduct: the federal courts have power to determine the Hones of unofficial conduct including that occurring before he became President (Clinton v. Fitzgerald). 2. United States v. Nixon (1974)(p. 249) a) Nixon named as an un-indicted co-conspirator. Prosecutor asked the judge to subpoena tapes and documents from the white house to use in the trial against the officials. White house moves to quash the subpoena on the grounds of executive privilege; i) Saturday Night Massacre ii) President claims general privilege: the business of running a country cannot be done without the knowledge that they can communicate confidentially. Says implicit in Art 2 b) Rule: The need of confidentiality justifies a presumptive privilege for presidential communications…to be considered in light of the historical commitment to the rule of law. i) Current specifics: where the claim of privilege is placed on the ground of military or diplomatic secrets, the courts have traditionally shown the utmost deference to presidential responsibilities. However, no case of the court has extended this high degree of deference to a president’s generalised interest in confidentiality. c) New Rule: The generalised assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. i) Nixon had to comply –> information was produced – impeachment hearings – Resignation of Nixon – Presidency of Ford. 3. Nixon v. Fitzgerald (1982)(p. 254) - Nixon sued for firing federal employee while in office. a) Principle: A president is entitled to absolute immunity from damages liability predicated on his official acts. 4. Clinton v. Jones a) President Clinton gets sued in a civil action for sexual harassment. i) There are some number of immunities of government officials based on their performing official duties. Members of congress have immunity in things done in their official capacity. b) The president is claiming that the nature of the office is the president should have temp immunity from mundane lawsuits. He lost that claim, but the action was dismissed on motion for SJ. 5. Impeachment of the President a) Impeachment is the equivalent of an indictment. Takes place in the House, trial in the Senate. b) What is an impeachable offence? i) Treason, bribery, or other high crimes and misdemeanours. ii) It is understood that high crimes and misdemeanours are not limited to the criminal code. iii) Argument in favour of ‘ordinary crimes’ not being impeachable offences:

Page 21 of 54 (1) treason is an official wrong, bribery is an official wrong. therefore a close reading of the text would say that nonofficial crimes are not impeachable. (2) statutory interpretation of the same kind (ejusdem generis) - should be interpreted that high crimes and misdemeanours should be interrupted in light go the other two crimes. c) Presidents that have been impeached: Andrew Johnson in 1868 and William Clinton in 1999 (the senate voted to acquit in both cases).

The Fourteenth Amendment and the Bill of Rights

Due Process (DPC) 1. 14th Amendment: Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person with its jurisdiction the equal protection of the laws.” 2. Before 1868, the Bill of Rights did not apply to the states. What effect does the Fourteenth Amendment have on Rights of people against state governments? Three views emerged in a series of Supreme Court Cases: a) Justice Black’s view: 14th incorporated all and only the specific prohibitions in the bill of rights. If it was a right against the feds it was a right against the states. b) Justice Harlan and Frankfurter: 14th does not explicitly incorporate. The way to determine whether the state has violated due process is to determine whether the action shocks the conscious (case of police forcing suspect to throw up to get evidence of drugs) c) Selective incorporation: Look at particular rights in the Bill of Rights and see if they are important and fundamental. i) All but two of the rights listed in the Bill of Rights have been applied to the states. (1) states need not grant the right to jury trial in civil cases and (2) states need not commence a criminal trial by an indictment or a grand jury.

3. The privileges and Immunities clause: The Slaughterhouse Cases (1873)(p.354) a) Facts: Louisiana had created a partial monopoly of the slaughtering business and gave it to one company. Competitors argued that this created “involuntary servitude,” abridged “privileges and immunities,” denied “equal protection of the laws,” and deprived them of liberty and property without due process of law.” b) Held: Court held the monopoly did not violate theThirteenth and Fourteenth Amendments. i) Incorporation of the Bill of Rights was not the intention of the 14th Amendment. ii) Note: J. Miller construed the 14th amendment narrowly, according to its “purpose”: reconciling things with the black population following the civil war. iii) Effect: closed the door on using this clause to force states to recognise the substantive rights afforded to citizens in the Bill of Rights; the Due Process Clause began to be used in incorporating a citizen’s rights against the state.

Page 22 of 54 Substantive Due Process 1. Definition: The use of Due Process to say there are certain forms of legislation that are beyond the power of states and the federal government regardless of the procedure used. Better understood as rule of law. a) The due process clause has been understood to encompass substantive rights b) Background issues: i) One Side: Due Process is not just an incorporation by reference; it is a broad phrase that makes reference to those procedures that are fundamental to ordered liberty. ii) Other Side: Due Process is just about process and procedure. c) Substantive Due Process is the primary vehicle of a number of economic liberties and the right to privacy

d) Lochner v. New York (1950)(p.362) (overruled): Bakery working hours case i) Held: Found the law infringed upon one’s freedom to contract: the NY law violated the liberty protected in the 14th Amendment. (1) The court viewed as fundamental the right to engage in financial/economic transactions without interference by the state. (a) There are economic liberties which are to be treated as liberties under the due process clause. Given that they are liberties, the state cannot restrict them without good reason and the state has not done so in this case. (2) Peckham says that part of the word “liberty” in the 14th amendment is the right to contract, that is if you don't understand that contract is included in liberty than you do not understand what liberty is. ii) Dissent, Harlan: liberty includes the right of contract, but that right is not absolute and therefore it can be overridden in the interests of health and safety. Defer to the legislature. iii) Dissent: Holmes: The word liberty in the 14th amendment is perverted when it is held to prevent the natural outcome of a dominant opinion of the state legislature. (1) This case involves a fundamental economic or political theory that is not for the courts to decide or interfere with the state’s determination. iv) Takeaway #1: Courts are in the rights recognition business, even when those rights are not explicitly listed in the 14th amendment. v) Takeaway #2: Role of Judiciary (1) J. Peckham: it is the role of the judiciary to interpret the Constitution, including applying prevailing theories to its interpretation when seemingly appropriately embodied in the Constitution (in this case, protection against takings, impairments of contract, etc.) (a) Peckham view (prevailed before 1930s): Court exist in part to check the excesses of majoritarianism which will at times take away what we might think of as fundamental rights. Job of the courts to protect minority rights and legislatures cannot be trusted to do this. (2) J. Holmes: The Constitution is a reinforcement of a Majoritarian government subject to a few exceptions, which are explicitly listed, i.e. in the Bill of Rights. Unless there is something very clear in the text justifying the exception to the majority rule, the majority should prevail (regardless of prevailing economic theories) as the default position.

Page 23 of 54 (a) Homes dissent (losing view up until the 1930s): the choice between these alternative political and economic theories is none of our business. Majoritarian process will protect the fundamental rights. vi) Note: under the Lochner view, ACA may not have passed. The Court may have claimed that as a liberty issue, the federal government does not have the power (under the 5th Amendment) nor does the state (under the 14th amendment).

e) Post-Lochner, Pre-Nebbia i) Two conflicting fundamental principles of political philosophy: (1) Right to have as much liberty as possible without hurting others (2) The right to have certain basic protections to your standard of living, health, etc and the government should protect these things. ii) Level of scrutiny (1) Holmes: the state doesn’t have to show very much. The notion of police power, even if these rights exist, as long as the state isn’t acting extremely they may restrict as they will (2) Peckham: one we recognise that these are fundamental rights, the state in its exercise of police power my only restrict them if it has a good reason, good data for restriction (which can include health and safety reasons) iii) Muller v. Oregon (1908): Court sustained regulation of work hours for women in basing the decision on special considerations relating to women. iv) Adkins v. Children’s Hospital (1923): the Court ruled that a federal statute prescribing minimum wages for women in the District of Columbia violated due process. (overruled in Parrish)

2. Abandonment of Lochner. a) Nebbia v. New York (1934)(p. 372) - NY fixed minimum prices for milk. i) Court held the Regulation did not violate the Due Process Clause of the 14th Amendment ii) Rule: “So far as the requirement of due process is concerned, [a] state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare…if the laws passes are seen to have a reasonable relation to a proper legislative purpose and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.” (1) The guarantee of due process demands only that the law shall not be unreasonable, arbitrary or capricious and that the means selected shall have a real and substantial relation to the object sought to be attained (2) Legislature’s determination of how it reaches its conclusion is going to be evaluated on whether the decision is based in arbitrary or discriminatory reasoning. (a) Example: Wallace (AL case) which mandated a one minute period of silence for meditation in all public schools. That was fine facially, but legislative intent was clear that it’s purpose was to return prayer to public schools therefore invalid. b) West Coast Hotel Co. v. Parrish (1937)(p. 374) (overruled Adkins) i) Court held that the min wage law was constitutional. (1) Court states the Constitution did not speak of freedom of contract and that liberty was subject to restraints of due process

Page 24 of 54 (2) Employers and employees were not equally ‘free’ in negotiating contracts since employees often were constrained by practical and economic realities. This was found to be especially true in the case of women. c) United States v. Carolene Products Co (1938)(p. 376) i) Congress banned the interstate shipment of “filled milk” (milk that was skim and had vegetable oil added). Court held that the law did not violate due process (1) Takeaway: of course state legislation is a deprivation of liberty, but it has come through the legislative process and is thus not a deprivation of due process. ii) Rule: Economic regulatory legislation is entitled to a presumption of constitutionality and should be upheld if supported by any rational basis. Footnote 4 listed Exceptions (1) Footnote 4: announces that in the area of social and economic legislation the court’s policy will be hands-off, EXCEPT in the area of discrete and insular minorities (a) Things are different when talking about details of equality of a certain variety (b) A degree of close scrutiny of social/economic legislation might be justifiable in protecting minorities form the majority (i) Considerable deference to state and legislative decisions while at the same time preserving the role of the courts in areas of racial discrimination. (c) Discrete and insular minority is a way of suggesting racial, ethnic and religious minorities are not the same as other minority groups. (i) communities that share a significant number of interests in common. iii) Rational basis: this was the first case to use that phrase d) Williamson v. Lee Optical of Oklahoma (1955)(p. 381) i) OK law clearly favouring optometrists at the expense of opticians (eyeglasses cannot be fitted by an optician without a prescription). Court held did not violate Due Process. ii) Rule: The day is gone when this court uses the Due Process Clause to strike down state laws, regulation of business and industrial conditions, because they may be unwise, improvident or out of harmony with a particular school of thought. (1) Rational basis simply means not irrational. It doesn’t have to be right or good. (2) Gives bench for what is arbitrary and unreasonable: everything is reasonable, rational and non-arbitrary. (3) Significant deference to legislative determinations in this area of social and economic policy. iii) Nowadays, actual motivation for the law, pre its passing, is more important. An impermissible actual motivation will trump a plausible situation (see e.g., Wallace). e) Ferguson v. Skrupa (1963)(p. 382) - Law favouring lawyers in debt negotiations i) Rule: It is up to the legislatures, not the courts, to decide on the wisdom and utility of legislation. f) Judicial review of what majoritarian legislatures have done is the exception. Review is subject to three important exceptions: i) Violation of specific constitutional right ii) Indication that the legislative process itself has broken down iii) Social and economic legislation that would deny the equal protection of the laws to insular minorities. No presumption of constitutionality and no high degree of deference.

Page 25 of 54 g) Schauer comment: i) The period from 1937 to the present has been widely understood to be the death of Lochner. After the Health Care case there is speculation that Lochner is not dead. ii) Congressional power under the Commerce Clause may be less when there is a serious restriction on liberty (making people do things). (1) Given that the commerce clause part of the ACA decision talked about the difference between requiring people to do things and prohibiting people from doing things, there is at least a question on whether, in general, there might be more sympathy to Lochner kinds of arguments outside of the Commerce Clause. That is, the fact that broccoli arguments filter into the commerce clause suggests that those might be legitimate arguments outside the commerce clause.

Takings and Private Property 1. Introduction a) Takings Clause: the Fifth Amendment limited the federal government’s power of eminent domain: “nor shall private property be taken for a public use without just compensation.” (binding on states via Fourteenth amendment) i) A use is considered public if it furthers moral, economic, political and even aesthetic objectives. As long as there is a public advantage or benefit.

2. Takings v. Regulation a) In general, most regulations will be upheld with deference to the legislation. Exceptions are physical takings (Loretto) and total deprivation (Lucas). b) Where is the line between a taking and a regulation? i) Example 1: Williamson: optician after regulation is passed realises his business is less valuable. (1) Building also less valuable because one of its prior uses is no longer possible (2) But, unlikely to have a fifth amendment claim against this regulation on the theory that it took away some of the economic value. ii) Example 2: buy land to build a house on the beach then regulation is passed that disallowed building. Lucas v. South Carolina Coastal Council (1992)(p. 386) (1) A regulation that deprives an owner of all economically beneficial uses of land is a taking (“total takings”). iii) Example 3: Penn Central Transportation Co. v. New York City (1978)(p.386) (1) Because Grand Central is considered to be a protected landmark, the court concluded that the prevention of construction of a high rise on top of the terminal by Landmark Preservation Commission did not constitute a taking. (2) Rule: In deciding whether a particular government action has effected a taking, this Court focuses both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole. (a) There are still many valuable things that can be done with Grand Central Station even if have to keep it as it is, therefore not a taking (b) The economic effects of the regulation are just something that people have to deal with and are usually distributed among the public.

Page 26 of 54 c) Kelo v. New London (2005)(p. 388) - Pfizer economic development case i) Court held the city did not violate the takings clause. (1) The city was not taking the land simply to benefit a certain group of private individuals, but was following an economic development plan. Such justifications for land takings, should be given deference (legislature must have a rational basis) (2) Rule: (1) A state may transfer property from one private party to another if future use by the public is the purpose of the taking. (2) this court long ago rejected any literal requirement that condemned property be put into use of the general public, (3) courts should afford legislatures broad latitude in determining what public needs justify the use of the taking power. (4) promoting economic development is a traditional and long accepted function of government.

d) Something to think about: i) It may be that issues about substantive due process and some number of others with takings: to what extent the court should be involved in monitoring regulation to assure that there is no excess taking/excess imposition on private choice, private economic decision and private property ii) The rise and Fall of Lochner and the rise and fall of aggressive taking review have something in common: how much sympathy will the courts have or not have with restrictions in general?

3. Contracts Clause a) Substantive due Process Takings, and the Contracts Clause all together: there are certain times when the courts are very concerned about checking the power of the government and when that happens, all three of these become more important. Conversely, during periods of deference, interference in these areas becomes somewhat more passive. b) Art 1, § 10: prohibits the state from enacting any law imparting the obligation of contracts. c) Home Building and Loan Ass’n v. Blaisdell (1934)(p. 392) i) A Minnesota law granted local courts authority to extend the period of redemption for foreclosure sales. ii) Court held the law did not exceed the power of the state under the Contracts Clause. The protective power of the state, the police power, may be exercised in directly preventing the immediate and literal enforcement of contractual obligations and grant conditional restraint where vital public interests would otherwise suffer. (1) Court found five factors significant: (1) there was an emergency need to protect the vital interests of the community, (2) the law was not designed to favour a special group, (3) the relief was appropriately tailored to the emergency, (4) the conditions imposed were reasonable, (5) the legislation was “temporary in operation” and “limited to the exigency which it called forth.” d) United States Trust Co. v. New Jersey (1977)(p. 394) i) Ny and NJ repealed a 1962 bond agreement which limited the Authority to administer commercial and passenger railroad subsidies. ii) Court held the repeal violated the Constitution and argued the states could have implemented a less drastic solution to encourage people to use community train services in lieu of driving their cars. e) Court retreated from the Contract Clause in 1983

Page 27 of 54 Health Care, Broccoli, Big Sodas and the Liberty Question 1. Focus on idea of personal liberty, not economic liberty -- argument regarding family, body, healthcare decisions being intimate and autonomy related 2. Can the gov’t make us buy broccoli? a) Yes. Under substantive due process, in the area of social & economic regulation, all the gov’t needs in order to regulate is a rational basis unless we are in one of the areas of high scrutiny from Carolene Products. If not in higher scrutiny, the least restrictive alternative is not required. i) Arguing Congress can’t do this because it is a restriction on individual liberty would be a loser b) Yes. Taxing & Spending Clause – gov’t can tax us for not buying broccoli. 3. Does the argued impermissibility of a broccoli requirement require the revitalisation of Lochner, & thus the limiting of Carolene Products, Williamson, Ferguson, etc? Yes a) Current due process doctrine is rational basis. Unlikely the broccoli argument gets us into the area of higher scrutiny. Court would need to be able to identify fundamental liberties. 4. Is the actual SCOTUS decision in NFIB v. Sebelius relevant to the current soundness or plausibility of the broccoli argument? Yes. a) Added inactivity/activity distinction to Commerce Clause doctrine b) The broccoli/liberty argument was embedded in the commerce clause argument which the majority accepted in part when discussing the commerce clause. i) When congressional power would limit individual liberty by forcing people to engage in affirmative acts (think inactivity/activity distinction), as opposed to prohibitions, then power under the commerce clause is narrower than it would normally be. 5. Would it be plausible to challenge the Affordable Care Act's individual mandate on liberty/due process grounds? Yes. Probably not a winner though. a) Since the court upheld the law under the Taxing Clause but not under the Commerce Clause, there could be a challenge of law on due process & liberty grounds (jurisdictionally allowed since it wasn’t decided in the case). 6. Would it be plausible in 2014 to challenge the Massachusetts health care law on liberty/due process grounds? Yes. a) In theory this may be something Congress can’t do because its powers are limited by Art. 1, § 8, but states can because their police powers are broad. b) Since the commerce clause argument doesn’t apply to states, striking down the commerce basis for the healthcare law says nothing about the MA gov’ts ability to have a similar law 7. The Commerce Clause argument and the Liberty Argument are two different arguments! a) If Congress can’t do this because it is an infringement of personal liberty, then Massachusetts can’t do it either! b) If Congress can’t do this because it doesn’t have the power under Art. 1 § 8, that says nothing about what Massachusetts can do.

Privacy, Autonomy and the Fourteenth Amendment 1. Griswold v. Connecticut (1965)(p. 417) - Statutes that prohibited the use and sale of contraceptives a) Court held the Constitution protected the right of marital privacy against state restrictions on a couples ability to be counselled in the use of contraceptives. i) Justice Douglas: there is a right to privacy in the constitution.

Page 28 of 54 (1) Douglas’ challenge is to distinguish from social legislation seen in Williamson and Ferguson from this case. (a) None of the presumptions of constitutionality apply when there is a constitutional protection of rights (see Carolene Products footnote), so puts case in this category (2) Mentions 1st, 3rd, 4th, 5th and 9th Amendment as having aspects in privacy. Privacy is related to the kinds of things the constitution was created to protect. (a) One way of thinking about this is that the particular rights listed in the Bill of Rights are examples of bigger rights (like privacy) and the list of rights is non-exclusive. (b) Right of privacy can be derived from what the First, Third, Fourth and Fifth Amendments share in common (3) If we understand Justice Douglas as looking for “the best interpretation” as saying the Bill of Rights is just examples (a) Can we extract a theme out of the rights established in the Constitution? (i) Penumbra around the rights: see, how we get from 1st Amendment to the freedom of association. 1) Douglas notes that Freedom of Association has been read into the first amendment by SCOTUS, even though the First Amendment does not explicitly recognise this right. (ii) Suggests the possibility of a slippery slope 1) But it is not correct to argue against the existence of a power from the possibility of its abuse. ii) Justice Goldberg (concurring): 9th amendment empowers Courts to locate rights not in the document. Because they find the right to privacy, the state may restrict only if it finds a compelling interest. iii) Justice Harlan (concurs in judgement): the proper constitutional inquiry in this case is whether the statute infringes on the Due Process Clause of the 14th Amendment because the enactment violated basic values “implicit in the concept of ordered liberty.” (1) Protection against state control is implicitly in the concept of ordered liberty – polar opposite of what Black is saying. (2) We will evaluate whether the laws are reasonable or not (don’t have to go through the charge of looking to a right of privacy). (a) A little fussy, but clear on that. Not worried about line drawing. Saying that, as an exercise of judgement this statute goes too far. (b) To enforce the contraceptive ban may as a collateral matter require law enforcement to invade privacy in a much more conventional sense (intruding on physical spaces in the home to determine who is breaking the law). iv) Justice White (concurs in judgement): concerned with means and ends in justifying this type of scrutiny (1) Reconsider the rational basis test. This law is irrational. (2) If there is no right then we have a lower standard of review, if it would infringe on a higher a higher standard of review. (3) Alludes lightly to equal protection because this law likely has a discriminatory effect upon the socioeconomically challenged. Also wants to put more teeth in the rational basis standard. v) Justice Black & Stewart Dissent

Page 29 of 54 (1) Black: if the Bill of Rights is incorporated by the Fourteenth Amendment, if not in the Bill of Rights it is not incorporated. (2) Stewart: This is a silly law, but being an uncommonly silly law does not make it unconstitutional

b) Level of Generality problem i) Right to Contraceptive –> right to marital privacy –> right to privacy –> right to autonomy ii) How do you pick the right level of generality?

c) How do you distinguish Griswold and Lochner i) Can say Griswold is about personal bodily autonomy and as such it is different from the right to contract in Lochner (1) Essentially saying that the kind of marital procreation privity involved in Griswold is personal and bodily rather than a transaction like in Lochner ii) First problem with Griswold is the legitimacy and slippery slope problem (1) Might say for a number of reasons that this is something to worry about, but it is not a knock down argument because c/l deals with this all the time

d) Other observations i) Bear in mind that there are other acclaimed rights, such as the idea of a right to life. It is possible that Douglas and Goldberg created precedent to have the authority to recognise rights that are not explicitly recognised such as a right to life. (1) Do judges have the power to full gaps: Posner says yes, if there are gaps it is our job to fill them. (2) The same critique applies to Roe. Based in part on Holmes’ dissent in Lochner, if you conclude that the courts have the power to locate/create a right with this degree of textual support, it is possible that some other court with a different majority create the right to life instead.

Substantive Due Process: Abortion and the Fourteenth Amendment 1. Roadmap of Abortion Law a) Griswold: recognition of a right to privacy in several possible amendments b) Roe: substantive due process and that is okay (not exact words). Affirms Griswold’s right to privacy as being understood to be part of liberty that is in the 14th amendment. Established trimester approach. c) Casey: establishes undue burden analysis. Also says the right comes straight out of Due Process and can put aside Griswold aggregation. i) Substantive Due Process becomes the law starting from this case.

2. Roe v. Wade (1973)(p. 431) a) Court held state criminal abortion laws that exempt from criminality only life-saving procedures on the mother’s behalf and that do not take into consideration the state of the pregnancy or other interests, are unconstitutional for violating the DPC

Page 30 of 54 b) Rule: DPC protects the right to privacy, including a woman’s right to terminate her pregnancy, against state action. i) The right to privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. ii) Relevance of the issue as to whether or not a foetus is a person = is there compelling state interest? (1) The compelling state interest in respect to the health of the mother comes at the point of viability. (a) Court seems to think that the abortion decisions is primarily a medical decision and the basic responsibility must rest with the physician. iii) Justice Blackman: we understand Griswold more broadly (1) The right to privacy is not found in the 9th Amendment or in an aggregation of amendments. It is found in the idea of liberty in the 14th Amendment. (2) If the right to privacy is a more expansive right about procreation and marriage and that cluster of actives then this case falls within that right (3) Because there is disagreement about whether a foetus is a human life or not, it does not satisfy the compelling interest standard. iv) Justice Stewart’s concurring opinion: an explicit example of stare decisis in the court. (1) It is usually the normal course of things for dissenters to keep dissenting. If stare decisis really makes a difference the justices should not keep dissenting (2) Believes in stare decisis. Courts should not be doing this, but now stare decisis compels me to go along with what the law now is. v) Trimester approach: state has no compelling interest before viability, but once the third trimester begins, viability is close enough to life to render it a compelling interest to the state. Note the trimester approach is no longer the law. c) Schauer comments: i) The best way to understand Roe is that it is part of a right of privacy, which is part of the right of liberty, but it would be an inaccurate statement to assert a general right to liberty. Liberty includes contested rights (at issue in Roe, Lawrence, Griswold and others), and includes the right not to have the state interfere with choices about abortion. (1) The state has a higher burden than rational basis when it wants to interfere with certain activities but not just in regard to liberty. ii) Roe sparked some discussion about constitutional theory and interpretation (1) Interpretivism: the job of constitutional interpretation should look to the text closely and interpret from what is actually there. (2) Non-Interpretive (aka now as the living constitution, that it should be flexible). (a) The constitution was written against a background of a belief in natural law. In a belief that there are certain aspects of law that are just out there. A written document might over the passage of time be obsolete or have gaps, therefore it is appropriate for courts in making decisions under constitution in taking text as a guide but it is appropriate to create /establish rights that are not explicitly designated in the constitution.

Page 31 of 54 (3) Original intent: conceptional interpretation should uncover what the words were meant to say/what was the intent - withered away because some of the original intentions of those who ratified constitutional provisions could not be squared with modern sensibility. (4) Modern mirror version of original intent - originalism. (a) This is Scalia. He hates ‘intent.’ Based on his idea that statutes should be interpreted according to the text alone (textualism). (b) The only thing agreed upon was the text, do not look to varying intents. There is no such thing as collective intent. What the words meant at the time is what matters.

3. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)(p.456) a) State law required that women seeking an abortion obtain informed consent, wait 24 hours, get consent of husband if married, and if minors, obtain parental consent. b) Held: Court held that many portions of the law did not violate due process. Only struck down requirement that women notify their husbands c) Rule: (1) a woman has the right to choose to have an abortion before viability and to obtain it without undue interference from the state; (2) A confirmation of the states power to restrict abortions after foetal viability if the law contains exception for pregnancies which endanger a woman’s life or health; (3) The principle that the state has a legitimate interest from the outset of the pregnancy in protecting the health of the woman and the life of the foetus that may become a child. i) Stare Decisis: the fact that something was decided in Roe creates a presumption in its favour (1) Rule: A decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided, i.e., changed circumstances or the facts upon which the case was premised have been proven untrue. (2) None of the standard respond for overruling precedent applies, therefore stand by Roe. ii) Trimester Framework –> undue burden. Court imposed a new standard to determine that validity of laws restricting abortions. (1) The new standards asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” which is defined as a “substantial obstacle in the path of a women seeking an abortion before the foetus attains viability.” (2) Liberty cannot be restricted to place an undue burden on a women’s choice to have an abortion (the clear standard from Roe is gone) (3) In application, the undue burden test allows the state to have other interests other than health and safety (4) Concern on both sides with what the undue burden test will really be. iii) Side note: (1) Casey reads as liberty affords constitutional protection to decisions relating to intimate and person choices (abortion). Seems to eliminate Roe’s consideration of liberty to privacy to abortion.

4. Gonzales v. Carhart (2007)(p. 478) - Partial-Birth Abortion Ban Act a) Court held the act was constitutional under DPC - The majority found that the act applied only to a specific method of abortion, was not unconstitutionally vague, overboard or an undue burden on the decision to obtain an abortion.

Page 32 of 54 i) Undue burden reasoning: there is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women. The Court’s precedents instruct that under these circumstances the Act can survive this facial attack. The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude that this facial attack that the Act does not impose an undue burden. (1) “There can be no doubt the government has an interest in protecting the integrity and ethics of the medical profession.” (2) “It was reasonable for Congress to think that partial-birth abortion, more than standard D & E, undermines the public’s perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world. b) Dissent, Ginsburg: “Today’s decision is alarming” i) Legal challenges to restrictions on abortion proceedings centre “on a woman’s autonomy to determine her life’s course and thus to enjoy equal citizenship statute.” ii) Laws regulating abortion, at any stage of pregnancy, must safeguard women’s health. This one does not. iii) Court invokes an antiabortion shibboleth, and deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women’s role in the family and under the constitution - ideas that have long since been discredited. 5. Note a) If nothing else, Roe and then Casey and the following cases established i) right to privacy ii) substantive due process b) And through this the question is: what apart from abortion follows for there being substantive due process and a right to privacy in the constitution?

Privacy and Autonomy after Roe 1. Thoughts a) Per Griswold, Roe, Casey: there is a right to privacy in the constitution i) This doesn’t help a whole lot because it does not explain what the right to privacy covers ii) The word privacy still leaves open a large number of questions.

b) 3 Broad conceptions of privacy i) Informational privacy: the ability or the right to keep information about yourself to yourself / ability to control the dissemination of information about yourself. ii) Locational privacy: 3rd and 4th amendments: controlling your space, and keeping others out of your house. Constitutional protection about unreasonable search and seizures iii) Decisional Privacy: privacy to make decisions about your own life (without decision in Roe and Casey, might not have thought of decisional privacy as important).

c) Personal liberties as a matter of substantive due process: i) In Washington v. Glucksberg, SCOTUS says explicitly that they are recognising substantive due process as legitimate, but there are disagreements about what is included.

Page 33 of 54 ii) A modern discussion: does the constitutional embody social ideas such as Mill’s On Liberty? Is the only legitimate function of the state to deal with those activities that case harm to other people, rendering everything else a personal choice? Two ideas: (1) Harm principle: state can only act legitimately to deal with harms (a) Is morality none of the states business? At lease in Glucksberg, the answer is no - there are many things that are prohibited for moral reasons. (b) The courts are not the ones to invalidate or make these decisions, these are the kinds of decisions best left to the legislature (2) Anti-paternalism: should the state have the authority to deal with things that are harms, but only to those who have voluntarily engaged in them? The use of certain drugs/ alcohol/gambling/duelling/etc/ (a) even if we say that physical assisted suicide bans are paternalistic, there is no clear legal or social answer to all of this and as a result the court is unwilling to make the decision. (b) If Glucksberg was decided the other way, many paternalistic laws open to challenge iii) Constitutional logic: neither prohibiting nor authorising physician assisted suicide contravenes the constitution. It is as open to the states to prohibit it as it is for the states to allow it.

2. Physician Assisted Suicide a) Washington v. Glucksberg (1997)(p. 502): note 9-0 Decision. i) Rule: right to die is not a fundamental right because such a right historically has been rejected, and since it is not a fundamental right rational basis scrutiny applies and since there is a rational basis (in protecting sick individuals) the law stands. (1) One of the important dimensions of the case is the rejection of Justice Souter’s sliding scale proposal and instead follows a two step process: (a) If no fundamental right involved: back to minimal rational basis scrutiny (Nebbia, Carolene Products, Williamson, Ferguson). (b) If a fundamental right involved: strict scrutiny. (2) Not a fundamental right because: (a) the alleged right has been consistently and almost universally rejected, and tradition continues to reject it today, even for the terminally ill, mentally competent adults; (i) Counterargument: although the history is as it was the history is changing, and the court has a greater ability to recognise the changing history in its recognition in fundamental rights. (b) many of the rights and liberties protected by DPC are founded in personal autonomy – that does not warrant the sweeping conclusion that any and all important, intimate and personal decisions are so protected. (3) State has a rational basis because: (a) State as an unqualified interest in preserving human life (b) Suicide is a serious health problem, especially among vulnerable groups (c) State has an interest in protecting the integrity and ethics of the medical profession (d) State has an interest in protecting vulnerable groups from abuse, neglect and mistakes

Page 34 of 54 (e) The state may fear that permitting assisted suicide will start it down the path to voluntary and perhaps involuntary euthanasia. (4) Leaving decision to Legislature (a) By extending constitutional protection to an asserted right or liberty interest, we, to a great extend, place the matter outside the arena of public debate and legislative action. ii) Problem for challengers: how do you argue for fundamental rights in the face of something that has been widely recognised as illegal? (1) Could define the history more generally as a tradition of recognising bodily integrity that would allow for the right to choose in physician assisted suicide (a) Chief Justice Rehnquist: Washington choice not to change the law while Oregon is changing the law shows that the legislative process is working and we should stay out. iii) Significant degree of discussion about facial challenges and non facial challenges: in this case the court says there were enough constitutional applications that they would not strike down the statute on its face (1) Ashwander principle: courts are reluctant to struck down statutes on constitutional grounds when there is an interpretation of the statute that will avoid rejection on constitutional grounds.

b) Cruzan v. Director, Missouri Department of Health (1990)(discussed in Glucksberg) i) Cruzan was in a vegetative state. Court held that DPC did not permit Cruzan’s parents to refuse life-sustaining treatment on their daughter’s behalf. ii) Court held that while individuals enjoyed the rights to refuse medical treatment under DPC, incompetent persons were not able to exercise such rights. iii) Absent “clear and convincing evidence that Cruzan desired treatment to be withdrawn, Court found the State of Missouri’s actions designed to preserve human life to be constitutional.

c) Vacco v. Quill (1997)(p. 515) i) Court held NY’s ban on physician assisted suicide did not violate the 14th Amendment’s EPC by allowing competent terminally ill adults to withdraw their own life-saving treatment but denying the same right to patients who could not withdraw their own treatment ii) Court used rational basis: NY’s ban was rationally related to the state’s legitimate interest in protection medical ethics, preventing euthanasia, shielding the disabled and terminally ill from prejudice which might encourage them to end their lives, & the preservation of human life iii) Court distinguishes between the refusal of life saving treatment and suicide.

Due Process and Sexual Conduct 1. Bowers v. Hardwick (1986)(p.521) (Explicitly overruled by Lawrence v. Texas) a) Facts: GA statute criminalising sodomy. b) Held: it would be a stretch to apply non-reproductive issues and procreation and we don’t extend to the issues in this case. i) Court will not treat sexual orientation as deserving of heightened scrutiny, therefore turn to due process.

Page 35 of 54 (1) The form of conduct that GA prohibits is not a form of conduct that people have a right to engage in. (a) This is a form of conduct that GA finds immoral, that many other states have traditionally found immoral, and morality is an appropriate reason for legislation if all we are applying is rational basis. (i) This is clearer in Paris ii) Nature of the rights qualifying for heightened judicial protection: includes fundamental liberties that are implicit in the concept of ordered liberty, such that nether liberty nor justice would exist if they were sacrificed; in other words, those liberties that are deeply rooted in this Nation’s history and tradition. iii) There should be great resistance to expand the substantive reach of DPC, particularly if it requires redefining the category of rights deemed to be fundamental (1) Reasoning: until 1961, all 50 states outlawed sodomy, and today, 24 states and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. (in answering this question, implied that the right to engage in homosexual sodomy is not included in the right to privacy). (2) Rational Basis: the law however is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the DPC, the courts will be very busy indeed. c) Dissent: What the court has refused to recognise is the fundamental interest all individuals have in controlling the nature of their intimate associations with others. i) Sexual intimacy is “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of the human personality.” ii) That certain religious groups condemn the behaviour gives the state no license to impose their judgement on the entire citizenry. d) Framing or interpretation i) Narrow: Griswold is about family and procreation, understood traditionally. This case is not about reproduction, procreation, family, marriage and therefore the right claimed is not encompassed by the existing precedents ii) Broader: both Griswold and Roe are cases about private sexual conduct.

2. Lawrence v. Texas (2003)(p.531) (explicitly overrules Bowers) a) Facts: TX statute criminalising homosexual sodomy. Two men charged. b) Rule: Liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. Texas furthers no legit state interest to justly intrusion into the personal and private life of the individual (it is unreasonable - not a matter of compelling interest) i) Kennedy relies some on laws of other jurisdictions (drives Scalia crazy). Doesn’t touch the doctrine of desuetude: (1) the legal idea that certain statutes by virtue of large scale non use and non enforcement become technically nonenforceable. People rely on their non existence. In those circumstances courts will treat the law as non existence. It is an equitable doctrine. ii) Scope of the right (1) there is a right to engage in this behaviour, even though it is not a fundamental right in the traditional heightened scrutiny (2) Loosely seems to be about relationships of a certain variety.

Page 36 of 54 (3) Does not cover a range of activities. There is a locational dimension: sex with animals is unlawful even if you do it in the privacy of your own home. So too with incest. iii) Three possibilities for understanding the majority opinion (SCOTUS makes law –they ought to do a better job about specifying what they are doing!) (1) There is a fundamental right to engage in X where the contours of X are yet to be specified other than that it includes Sodomy (2) There is no fundamental right when talking about non-coercive sexual conduct behind closed doors, but that the state has to show something more than traditionally shown under rational basis (3) Lawrence is a decision that is based on treating sexual orientation as weighted equal protection scrutiny even when the court is not ready to admit it (a) this would make it easier to distinguish Lawrence from incest, beastiality, etc. (i) Because Lawrence was decided on DPC rather then EPC, those distinctions get tougher. c) Scalia dissent: if it is private sexual conduct, where does it stop? i) There is something to the concern in Scalia’s dissent that it is hard to draw the line between this and other arguably harmless actives the state seeks to regulate ii) Disagrees that there is no rational basis for the law. Historically, an interest furthered by the state in morality have been held to pass rational basis. Past legislation has been based on morality, disagrees that promotion of majoritarian sexual morality is not a legitimate state interest. d) What doesn’t come after Lawrence? i) It is clearer now that pure non-sexual decisional privacy is not encompassed by this line of cases from Griswold ii) The law has not gone in the direction of saying that there is a right to engage in activities that do not hurt anyone else. The state and the government have been in the paternalism business for a long time iii) There is a possibility that the same sex marriage cases may force the court to say what they have been unwilling to do thus far: Equal Protection.

3. Paris Adult Theater v. Slaton (1973)(p.741) a) Reaffirms long standing view that obscene publications (determined by an extensive test) do not count as speech for first amendment purposes b) Rule: morality, although contested, is sufficient to clear the rational basis test. i) Once the court gets past the notion that regulation of obscene publications are not free speech it becomes a sex issue and the court says nothing in the Constitution protects private sexual relations.

4. Thoughts a) If, as Kennedy says, the right in Lawrence is about sexual relationships, there is emphasis on the fact that it takes place in private; how would you challenge the laws against public sexual activity. i) There is a difference between seeing and knowing: having to see sexual activity is distinctly different and has a different psychological impact on individuals.

Page 37 of 54 ii) The right as understood after Lawrence is not just about procreation and reproduction, the right is now understood to be a right about sexual activity that does not hurt anyone (1) Here at the very lease one can say Griswold, Roe and Lawrence are about sex iii) The next case: what does Lawrence say about non-private (in the locational sense) conduct? (1) One of the things Lawrence does is make possible challenges to other kinds of regulated sexual conduct. Beastiality? Incest?

b) If Lawrence is to be distinguished, have 2 arguments i) Times are changing and less people feel revulsion by homosexual activity (the numbers matter) ii) Some possibility that what is really going on in Lawrence is that this is an equal protection case. (1) Could say what the Court wants to do it that discrimination based on sexual orientation is presumptively unconstitutional (2) If the legislation in Lawrence is targeted at same sex people then that might be sufficient to raise the level of scrutiny, if and only if, sexual orientation discrimination is suspect.

c) view that as a matter of SDP – from Griswold to Roe to Lawrence,– there is a right to marry whom you want, or to have a relationship with whom you want. This goes somewhat beyond Griswold and related cases, because none of the cases in this line deal with the precise question of who can marry whom. But Griswold did mention marriage, and the Court in Paris Adult Theatre did describe the relevant liberty right in terms of this marriage/reproduction group.

Equal Protection of the Laws 1. Introduction a) 14th Amendment: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” i) EPC was put into the fourteenth amendment in reaction to slavery and the civil war. The 13th ended slavery and the 15th was about voting. The 14th can be considered a catch all. ii) Much like the DPC, the EPC has been used to encompass more in the context of social and economic legalisation than originally intended (EPC was about race in the broader sense).

b) Classification: what forms get close judicial scrutiny? i) Virtually all laws distinguish between or among classes, e.g., conduct, behaviour, age, resident status. Not all distinctions amongst people are equal protection issues. (see e.g., Williamson - the optician/optometrist distinction okay) ii) Baseline Rule: Rational Basis iii) Certain distinctions: Heightened scrutiny (1) State must have a compelling interest (a) Race is suspect (b) Gender is suspicious since 1976 (biological distinctions are acceptable) iv) Issue: does homosexuality get heightened scrutiny today? (1) Formally, not at all. SCOTUS has avoided the issue largely and in Lawrence decided it as sexual practices in liberty.

Page 38 of 54 2. Level of scrutiny applied to simple differentials a) Railway Express Agency v. New York (1949)(p.1291) - NY truck advert discrimination i) Rule: Rational basis scrutiny: under rational basis just need some relationship between the trait and the mischief trying to be prevented. (1) Rational basis scrutiny: (a) The empirical determination by a legislator gets an enormous amount of deference (b) The relationship does not have to be that close - leave the determination to the court (i) Earlier commerce clause cases: the determination has a connection to what is regulation and the purpose of the regulation is a question for congress. (2) The elimination of distraction goal is not served by this, but it is not a constitutional requirement that legislation deal with all of the problem, it can deal with part of a problem as long as the part they deal with is statistically connected with the issue the state wants to deal with. b) Tussman & tenBroek: Mischief & Remedy- what is the nature of what the government wants to do to deal with the mischief? i) The court effectively reads the EPC guarantee as establishing a requirement of reasonable classification under which individuals cannot claim that they personally have been treated unequally so long as it is reasonable to treat the general class of which they are members differently from other classes. (1) This approach makes the permissibly of legislation turn on means-ends rationality - is the classificatory scheme adopted by the legislature a rational means of achieving a legitimate government goal. ii) Trait and mischief: Most legislation is designed to achieve some goal: wants to eliminate a problem (mischief). It identifies something that it believes causes the problem and then tries to deal with that (the trait/indicator) on the belief that lessing the instances of the trait will lessen the instances of the problem. (1) There are some indicators that are entirely spurious: knowing something about the indicator tells you absolutely nothing about the problem (2) Problems occur when the indicator comes up that is not spurious: when the evidence is logically relevant but not the whole argument / sole cause. (a) Non spurious but imperfect indicators are often over or under inclusive (3) Legislatures often pick apart fundamental indicators of a problem, deal with one part at a time, and there is no constitutional impediment to doing that (see Railway Express)

c) New Orleans v. Dukes (1976)(p.1294): No push carts in French Quarter younger that 8 years. i) Rule: Unless a classification trammels fundamental person rights or is drawn upon inherently suspect distinctions such as race, religion or alienage, our decisions (1) presume the constitutionality of the statutory discriminations and (2) require only that the classification challenged be rationally related to a legitimate state interest. (1) Trying to preserve charm and thats okay. (2) This case might be understood as the equal protection equivalent of Williamson v. Lee Optical (a) Shows just how minimal the minimal scrutiny test is and just how irrational the rational basis test can be.

Page 39 of 54 d) The extreme minimality represented by Dukes and Railway express remains under some pressure. At least at the SC level there have been justices that would like min EPC scrutiny to be a little higher - it is not enough for a court to speculate on what the correlation might be. i) Want some progression seen in Lopez and Morrison for EPC - does the legislature actually have to have something to back it up? ii) But Railway express and Duke still represent the law

3. Age Discrimination a) Massachusetts v. Merger : the requirement of mandatory retirement on commercial airlines i) Rule: Age is not a suspect class so rational basis scrutiny is applied (1) Age 60 is predictive of the increase in many problems associated with hearing, eyesight, slower reflexes — rational basis for the law.

b) United States RR Retirement BD v. Fritz (1980)(p. 1300) i) Under inclusive federal law disallowing windfall benefits to some RR workers in receiving their pension. ii) Held: The classification of RR workers by Congress was not arbitrary and irrational and was not a violation of the Equal Protection Clause (1) Rule: (1) Must ask whether Congress achieved its propose in a patently arbitrary or irrational way; (2) It is constitutionally irrelevant whether this reasoning in fact underlay the legislative decision. (2) The legislature does not have to state the reasoning for the law, extreme deference, presumed valid so long as there is some plausible reason for the act. iii) Dissent: The Court assumes that Congress must have intended whatever result actually happened. This is tautology.

4. Miscellaneous Discrimination. a) United States Dept. of Agriculture v. Moreno (1973)(1305) i) Court applying traditional equal protection analysis held that a provision of the Food Stamp Act–excluding any household containing an individual who is unrelated to any other member of the household–was “wholly without any rational basis.” ii) Rule: The challenged classification must rationally further some legitimate governmental interest other than those specifically stated in the Congressional Declaration of policy. b) Armour v. Indianapolis (2012)(Supp. 69) i) Financing scheme apportioning cost of sewer construction allowed some property owners to pay full amount ($9,278) and others in instalments over as many as 30 years. Shortly thereafter City switched to a new financing system and forgave all debts. Some paid full amount, others paid as little as 309. ii) Held: considerations of administrative convenience provided a rational basis for the city’s policy of forgiving unpaid assessments but not refunding any money already paid. c) The above two cases, combined with Logan v. Zimmerman Brush Co. (1982)(1306), establish: i) Rule: There is a little bite to rational basis scrutiny; regulations will be shut down if completely irrational.

Page 40 of 54 Race and the Equal Protection Clause 1. History a) Dred Scott v. Standford (1857)(1310) (part of negative cannon) i) Dred Scott was a slave in Missouri. Lived in Illinois (a free state) for w while. After returning to Missouri, sued for his freedom, claiming his residence in free territory made him a free man. ii) Court held Dred Scott was a slave and therefore he could not sue on diversity citizenship. b) Departmentalism: i) Lincoln, after the Dred Scott decision said that the Court had made a decisions and was law for the purposes of the courts, but it was not the law for the purposes of decisions that had to be made as the president. Said that if he has to decide whether an African American is a citizen of the US, his answer is yes, which does not go against the SC in the sense that the court does not bind him. ii) There is a distinction in coming to a decision different from what the courts have decided, versus disobeying directly an order directed at them. c) 14th Amendment was a reaction to the Civil War and Dred Scott.

d) Plessy v. Ferguson (1896)(1317) i) Louisiana enacted a law that required separate railway cars for blacks and whites. ii) Court held Louisiana’s law was not an unconstitutional infringement on the EPC of the 14th amendment. Segregation does not in itself constitute unlawful discrimination. (1) The justices based their decision on the separate but equal doctrine, that separate facilities for blacks and whites satisfied the 14th Amendment so long as they were equal.

e) Brown v. Board of Education (1954)(1332) i) Black children were denied admission to public schools attended by white children under laws requiring or permitting segregation according to the races. ii) Rule: Separate education facilities are inherently unequal (1) The idea that you have a separate schools (even if equal) generates a feeling of inferiority (2) The court relies on psychological studies that indicate separate schools student the education of minorities

Race and the Enforcement of Brown 1. Post Brown / some ideas a) After Brown the court decided seven cases all involving formally officially segregated facilities– none of them involved schools and none of them produced options i) The court post-Brown re-conceptualised the case such that it no longer depended on empirical outcomes (see fn 11 of Brown) but about the larger outcomes of separation/ segregation in general (1) Holmes v. Atlanta: challenge to segregated municipal golf course (a) The court said on authority of Brown that segregation is unconstitutional. ii) All of these other cases seemed to suggest that Brown decided something more than education, decided that state sponsored segregation is unconstitutional (1) Brown is making a broader claim about the inherent inequality of segregation sponsored by the state.

Page 41 of 54 (2) Not only are the studies in Brown unimportant, but Brown might not be as empirically based as it looked. b) Judicial Supremacy: does the Supreme Court’s interpretation of the Constitution bind the other branches of government and the states i) The court that decided Brown v. Board of Education was essentially the court appointed by Eisenhower (1) Eisenhower himself thought that Brown was wrongly decided, he was of the view that desegregation needed to happen but the court should have left out of it (2) Eisenhower choose to send troops to Little Rock to enforce a decision with which he disagreed - sent strong message about SC supremacy 2. Enforcement of Brown a) Bolling v. Sharpe: segregation in DC, argument that because DC is not a state, and EPC is not in the fifth amendment, it does not apply to them. i) Rule: The EPC is itself a component of Due Process: now inevitably it is understood that the EPC applies in all of its dimensions to the federal government as it does to the states. b) Brown v. Board of Education II (1955)(1341) - Reintegration of schools i) Rule: “with all deliberate speed” ii) Court realises there will be resistance, but remands case to the lower courts, noting that the “courts will be guided by equitable principles.” i) Equity: practical flexibility in shaping its remedies and reconciling public and private needs. c) Cooper v. Aaron (1958)(1343): i) AK resisted Brown decision, refused to obey court ordered desegregation. ii) Court held that AK officials were bound by federal court orders mandating desegregation. (1) Supreme Court announces that it is interpreting the constitution for all branches of government, but this remains controversial. d) Closing Schools: Griffin v. County School Board (1964)(1344) i) FarmVille and Prince Edward Country took the position that if they were going to be forced to integrate then they were just going to close the schools (made new private schools for whites) (1) Rule: motive alone may render the exact same action unconstitutional that might be constitutional if done with other motives e) Freedom of Choice: Green v. Country School Bd (1968)(1344) i) A small county in VA says everyone can go to school where they want. No whites went to black schools and vice versa. ii) Rule: no longer are we interested in the nature of the plan - interested in the results. (1) Green is important because the court says they no longer care about the methods that schools claim to be using - looking to the outcome (tired of the sneakiness) (2) We are interested in the creation of unitary school districts and the measure of if the school is unitary is numbers. Where there is an explicit history of segregation they must prove through numbers that a unitary school is created. f) Busing: Swann v. Charlotte - Meckleburg Bd of Education (1971)(1345) i) Rule: busing to create unified schools is a permissible judicial remedy.

Page 42 of 54 3. Types of Discrimination a) De Jure vs. De Facto i) De Jure: By Law Discrimination that is directly the product of government action (1) De jure segregation is a state wrong and the remedy can be designed to make sure the consequences of the wrong are diminished or eliminated. ii) De Facto: (incidental) (1) Residential and housing patterns, for example, produces segregated schools. State says not forcing people to stay or preventing people from moving, so not their control. (2) The mere existence of a differential impact without state involvement is not itself a constitutional violation. b) Important takeaways i) In all of the above school cases, the remedy was premised on an initial fining of a constitutional wrong in a school district. This allowed the courts to order a race conscious remedy to rectify the De Jure discrimination. This is an important distinction for affirmative action purposes. ii) When do the remedies end? (1) At what point is it determined that a school district is in compliance with Brown and therefore the race remedies no longer apply? (2) Once the judge (federal judge) who had made the initial determination of a violation has said “you have now complied and therefore I am relinquishing jurisdiction” then the history of segregation is no longer relevant and it becomes a de facto rather than de jure segregation. c) Boston Case: Boston School Committee- construction of schools to maintain segregation i) Almost all of the decisions by the then elected Boston school committee on school construction were based on race. (1) There were decisions regarding the construction and placement of schools by the Boston School Committee that made it clear that this was an example of de jure discrimination (purposely built schools to maintain segregation) ii) Court came to the conclusion that de jure discrimination existed and the judge ordered some degree of busing to address this problem and integrate the schools (1) Judge orders some number of remedies and takes control of the school system for several years (court has to approve school board decisions). iii) Judge sees the state action, so as a conceptual matter, whether it be a decision made by school committee, major or in legislature, all of that state action is state action that becomes unconstitutional if it is based on race.

Race and the Framework of Review 1. Summary of Current state of the law a) Racial Discrimination is suspect and subject to strict scrutiny (Korematsu, Loving - standard cite) i) State must have a compelling interest (1) Very little deference is made to the original determinations when challenged. ii) State myst use least restrictive alternative iii) Facially race neutral laws can be unconstitutional if administered in a discriminatory way iv) If no intentional discrimination but discriminatory impact, rational basis. Washington v. Davis. v) Race as a proxy can be constitutional if state has compelling interest

Page 43 of 54 2. Korematsu v. United States (1944)(p.1324): internment of Japanese Americans a) Held: Court held that the President and Congress did not go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent. i) But established Rule: Strict Scrutiny Standard: “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” Courts must subject them to the most rigid scrutiny (1) despite this calling for strict scrutiny, the court noted that during wartime, the Court will give heightened deference to military authorities.

3. Discriminatory Application: Yick Wo v. Hopkins (1886)(p.1354): Chinese laundry license debacle a) Rule: Discriminatory application of a facially constitutional law can be the basis of a constitutional challenge i) The state cannot do by legislation what it cannot do by official action. ii) Relevance to dormant commerce clause: will look beyond statute and look at outcomes - is it protectionist. 4. Loving v. Virginia (1967)(p,1349) a) Virginia law prohibiting marriage between whites and blacks. i) VA trying to argue different from Korematsu because they are treating people on both sides of the racial like the same. b) Rule: The very fact that this is a racial classification produces heighten scrutiny. i) EPC demands that racial classifications be subjected to the most rigid scrutiny. If they are to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the 14th Amendment to eliminate. ii) Interesting: “Marriage is one of the basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statues surely denies due process”

5. Palmore v. Sidoti (1984)(p.1352): interracial couple custody dispute a) Rule: Racial classification of a certain kind, and because this is a radical classification of that kind it is invalid. i) Once there is a racial classification that moves it to strict scrutiny. Then the state’s goal is suspect and the state has to show a compelling interest. ii) This case is a good illustration of the idea that reasons that might otherwise be permissible become impermissible under strict scrutiny. (1) Trial judge might have not wanted to conscript the child to the frontline of racial tension in a world where racism still exists.

6. Laws that have a racially disproportionate impact: Washington v. Davis (1976)(p.1354) a) Test for higher level police force members (wanted a police force with a certain level of written and verbal skills) resulted in a disproportionate number of black applicants failing the test. Court held the recruiting procedures did not violate EPC

Page 44 of 54 b) Rule: Discriminatory effect, without discriminatory intent, does not get heightened scrutiny. when we have a legitimate goal applied even handedly that produces an effect of racial disparity (disproportional impact) = rational basis. i) This case is controversial, but it is the law c) Schauer: There is an absolutely crucial difference between what constitutes a direct constitutional violation and what a legislature may make into a legal violation by virtue of that legislation i) Ollie’s BBQ is free to discriminate according to the constitution. Congress is free to make laws about what non-governmental entities can and cannot do. Ollie’s BBQ violated statute but not con law. ii) If Congress wants to say that discriminatory effect is a violation, or imposes burdens on the institution, it can. iii) Difference from Yick Wo: there are circumstances under which statistical disparity will be sufficient to make a strong case for discriminatory intent. (1) That is, given the underlying population (who are engaged in the laundry business - i.e., the base rate) there is no explanation for the outcome other than intentional discrimination. (2) In Davis, no one saying this is statistically impossible unless the scorers of the exam are intentionally discriminating. Without discriminatory intent the constitution is not implicated

7. Personnel Administrator v. Feeny (1979)(1363) a) A MA law gave hiring preference to veterans applying for state civil service positions. Feeny, a woman who scored high on certain competitive civil service examinations, was ranked below male veterans who had lower scores. b) Court held that the law did not discriminate against women and therefore did not violate the EPC i) It was clear that if you give a benefit to veterans, it will benefit men. But the court says, so what? Mass was trying to help veterans not men – mere foreseeability absent a showing of intentionality does not meet the test (1) The cause of the decision was not to hurt women, even though it was the consequence. (2) In Yick Wo, it would be hard to find a legitimate justification that would explain the disparity, i.e. it was the cause and the consequence to hurt Chinese operators.

Affirmative Action 1. General points a) When there is a judicial determination/finding of a violation then it is permissible for a judge to issue a race based remedy in response to the race based discrimination i) Lesson that comes out of Green / Swann: if there has been past de jure discrimination than it is appropriate for race to be a part of the remedy. (1) In the narrowest, most explicit sense: an actual judge, in an actual court, finding an actual violation passes a remedy. b) In 1974, an issue of Affirmative Action went to the court. i) University of Washington Law School admittance question: Dude was denied admission to UW Law School Sued saying it was affirmative action that kept him out. UW decided to let him in temporarily, and by the time the case got to the Supreme Court the individual who

Page 45 of 54 bought suit was a 3L and they had decided not to throw him out even if they won the case. Supreme Court said the case was moot

c) Summary / current state of the law i) Affirmative action programs get strict scrutiny (1) Not fatal in fact, can be satisfied (2) State must have a compelling interest (a) Interest in Diversity (Grutter) (b) Remedying past discrimination: court issued race-based remedies permissible (i) Remedying societal discrimination is not a compelling interest (ii) A justification couched in terms of diversity will have a better chance than one based on past discrimination iii) Narrowly tailored: (1) Requires serious, good faith consideration of workable race-neutral alternatives. d) Brief issue: Does section 5 of the 14th amendment give power to Congress that it otherwise might not have i) Most of what Congress does we assumed was granted in Art. 1 ii) But boilerplate: Congress has the legislative powers to enforce these provisions. (1) Heart of Atlanta and Katzenbach: should not have twisted and bent interstate commerce such that Olli’s BBQ and hotel were engage in it, but instead say, ‘doing this under Sec. 5 of the 14th.” (2) But SCOTUS thought Sec. 5 was limited to state and not private business

2. Regents of Univ. of California v. Bakke (1978)(p. 1374) a) Medical School reserved 16 places in each entering class of 100 for "qualified" minorities, as part of the university's affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke claims that without the separate tract for previously discriminated against minorities we would have gotten in. i) Guide: (1) Racial and ethnic Classifications are subject to stringent examination; (2) We have never approved a classification that aids one race at the expense of individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. b) Two Rules: i) Anything that looks like a quota is unconstitutional. Powell, Stewart, Rehnquist, Berger, Stevens. ii) If it is not a quota, race may be taken into account – positive factor approach: the race of an applicant may tip the balance in his favour just as the artistic skills of another may tip the scales in their favour. Powell, Brennan, Marshall, White, Blackmun. c) No majority opinion: i) Four justices (Brennan, Marshall, White, Blackmun) would give rational basis (1) The relevant category is the discrimination of basis of race for discrete and insular minorities in situations where the discrimination is stigmatising and that doesn’t exist here (2) Using race for purposes other than to subordinate is not problematic.

Page 46 of 54 ii) Four justices (Stewart, Rehnquist, Berger, Stevens) (1) Decided the case based on a statute rather than the constitution: The Civil Rights Act prohibits the discrimination on the basis of race. Taking race into account isn’t allowed iii) Justice Powell (1) Taking race into account is allowable as long as it is done for diversity purposes. Quotas are not allowed.

3. Grutter v. Bollinger (2003)(p.1379) a) Race taken into consideration as a factor for the admission to University of Michigan Law. b) Three Rules: i. Race is involved, therefore strict scrutiny. ii. Strict scrutiny isn’t fatal, compelling interest is the attainment of a diverse student body. iii. remedying of past discrimination no longer counts as a legitimate reason unless a court has found that you have discriminated in the past (1) Justice O’Connor says: Strict scrutiny doesn’t mean that the state loses (a) Burden of proof is on the state to justify it, the state must show that it couldn’t achieve its goal with a lesser restrictive alternative (b) Here satisfies the compelling interest test - they have demonstrated that it is important and there is no easier way to accomplish the important goal 4. Gratz v. Bollinger (2003)(p.1389) - Undergraduate MI school policy - looks too much like a quota. a) Court held the University of Michigan's use of racial preferences in undergraduate admissions violated the EPC. i) While rejecting the argument that diversity cannot constitute a compelling state interest, the Court said that the automatic distribution of 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race was not narrowly tailored and did not provide individualised consideration (this looks like a quota) ii) Quotas are out, adding numerical scores in a mechanical way is out, taking race into account in a holistic way is ok. 5. Fisher v. University of Texas (2013)(Supp. 70) a) the TX legislature enacted a law requiring the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes. i) There is no doubt that TX did this in order to preserve some degree of minority enrolment. ii) Adopting the 10% plan in order to increase the minority representation looks like a neutral plan with an impermissible motive. iii) Affirmative action might be an exception to the notion that impermissible purposes render a constitutional statute unconstitutional b) Fisher reaffirms rule: Strict Scrutiny means compelling interest. A plan that serves the compelling interest must be narrowly tailored. The question on whether it is narrowly tailored gets no deference. i) The court will look closely at the soundness of the justification and the evidence in support of that justification

6. Wigan v. Jackson Board of Education (1986)(p. 1412) - Minority preference in teacher layoffs a) Court held the agreement provision for race based layoffs violated the EPC.

Page 47 of 54 i) Marks an era where the court issuing SS for any use of race regardless of whether that use is to discriminate against discrete and insular minorities or used to compensate for past discrimination. (1) By the time of this case, it is clear that institutions cannot impose race conscious remedies on themselves even with a finding of past discrimination. Absent a court order, the remedying past discrimination rationale does not survive even though diversity does.

7. Richmond v. J.A. Croon Co (1989)(p. 1414): construction contracts to minority businesses a) Court held the Richmond law violated EPC. i) Richmond said that they had previously discriminated against minority contractors which is why they were instituting this plan. This would be too easy to find for themselves. ii) Having other categories of other minorities made it cleat that this was about broader goals than just remedying past discrimination. 8. Adarand Constructors, Inc. v. Pena (1995)(p. 1419) a) Contractor would receive additional compensation if it hired small business controlled by “socially and economically disadvantaged individuals.” b) Court held the presumption of disadvantage based on race alone, and the consequent allocation of favoured treatment is a discriminatory practice that violates the EPC.

9. Parents Involved in Community Schools v. Seattle School Dist. (2007)(p. 1399) a) Seattle school district has ever been found by a court to have engaged in de jure segregation. The Jacksonville one had been found by a court to no longer engage in de jure. Those two situations are the same according to the court. b) Court applied strict scrutiny framework and found the Districts racial tiebreaker plan unconstitutional under the EPC. i) You can no longer be your own judge and jury and make your own determination that you engaged in discriminatory action in the past and are going to remedy it yourself. ii) Breyer dissented, pointing to a long history of school segregation in Seattle and school officials had been involved. None of this evidence was in the record.

10. Schuette v. Coalition to Defend Affirmative action (2014)(Supp. 73): MI banned affirmative action a) Rule: Allowed. States are constitutionally permitted to practice affirmative action but are not required to do everything the constitution allows them to do. b) Important because of logic of Con law: some number of states have said that taking race into account is impermissible. Cal. is the most prominent state to have done this. - c) Argument against the ruling: by preventing race from being taken into account, you are acting with negative discrimination by deciding that based on race i) i.e., Affirmatively deciding to stop doing things on the basis of race is to take race in to account in a negative way.

Gender Discrimination 1. Some history a) Personnel Administrator v. Feeny (1979)(1363) - Veterans preference for state employment which results in more men hired than women.

Page 48 of 54 i) Rule: for the state to be liable the state has to actually have intended a particular outcome. The intended outcome (to help veterans) was gender neutral b) Reed v. Reed (1971) (p.1422) - law prefers men to women as administrators of an estate i) Court held the code violated EPC. A classification must be reasonable, not arbitrary and must rest upon some ground of difference having a fair and substantial relation to the object to the law. (1) This outcome is not rational basis review, despite the court saying that it is (2) point in fact: men are more likely to have business degrees. easy therefore to argue that training was overwhelmingly male and if rational basis test allows one to use statistically plausible proxy, the state can pass rational basis c) Frontiero v. Richardson (1973) (p.1422) i) Federal statute permitting males in the armed services an automatic dependancy allowance for their wives but requiring females to prove their husband’s dependancy ii) Court held the law violated the DPC of the 5th amendment. (1) One plurality says gender should be afforded a stricter review of scrutiny, other side says should not amend EPC outside of what is normally about.

2. Equal Rights Amendment a) When it was first proposed in the 1960s, it was widely thought to be a good idea, as it was explicitly enforced by both major political parties and it was quickly ratified by a very large number of state legislatures i) Under Article 5, three-fourths of state legislatures must ratify an amendment passed by Congress before it becomes part of the Constitution. b) About the time when a little more than 30 states had ratified, opposition began to crystallise i) Arguments that EPC for gender would result in removal of gender separated restrooms In public facilities ii) Drive for ERA came to a holt. c) Coleman v. Miller: Court determined that the question on amendability is non-justiciable. Thus, Congress alone has the authority to decide. d) Produces a discussion about what it is to say that a certain form of classification will get heightened scrutiny. i) One option: The most important aspect of race for constitutional purposes was the immutability of race, and it is fundamentally wrong to classify people based on immutable characteristics. Gender in some ways has immutable characteristics, but then saying that gender is therefore like race has limited power. ii) Other Option: if the way to understand heightened scrutiny is to talk about historical classifications that build on discrimination. Gender would be a classic example of this type of past discrimination. Gender, with a history of discrimination and subordination is like race and should get heightened scurrility if the theory behind discrete and insular minorities is that they have systematically less historical power and political power even though in the numeral dense women are not a minority. (1) numerical (2) degree of political power (3) historical discrimination (4) discrete and insular minatory : does some combination of those give heightened scrutiny?

Page 49 of 54 3. Current state of the law: a) Gender discrimination gets intermediate scrutiny (between rational basis and strict scrutiny) i) Individual assessment even if reasonable proxy might exist. ii) State must show an exceedingly persuasive justification that is substantially related iii) Overly-broad generalisations about differences between men and women are per se impermissible iv) “It is because gender discrimination is wrong that gender-based generalisation, even when statistically rational, is wrong as well.”

b) Craig v. Boren (1976)(p.1427) - women can buy 3.2% beer at 18. Men cannot until 21. i) Court held the statute violated EPC. ii) Rule: classifications by gender must serve important governmental objective and must be substantially related to achievement of those objectives to justify gender based classifications (1) Important: there may be interests that are important but not compelling. Important is more than rational. (2) Substantially related: close fit, but not as close as least restrictive alternative and not as close as narrowly tailoring.

c) Mississippi Univ. for Women v. Hogan (1982)(p.1453) i) A male applicant was denied admission to a women’s only nursing school. ii) Court held the state statute preventing men from enrolling in MUW violated the EPC because it did not provide an exceedingly persuasive justification for the gender-based distinction. (1) Gender affirmative action here was unpersuasive because women never lacked opportunities to be nurses & the statute perpetuated the stereotype of nursing as a female job. (2) “exceedingly persuasive”: stronger than “important” but weaker than “compelling”

d) United States v. Virginia (VMI) (1996)(p.1431) i) VMI disallowed female admission. Court held that violated EPC. The programs were unequal & VMI failed to show an exceedingly persuasive justification for its policy. ii) Rule in gender discrimination cases: “parties who seek to defend gender based government action must demonstrate an “exceedingly persuasive justification” for that action. The state must show that at least the challenged class-action serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. It must not rely on over-broad generalisations about the different talents, capacities or preferences of males and females.” (1) Test needs to be more individually tailored (there are some woman who have the skills to succeed in an adversarial learning environment per Ginsburg). iii) Issues: (1) Justification needs to be genuine and not invented post-hoc in response to litigation (a) raises the question: is it possible that an invented justification for rational basis review might be good enough?

Page 50 of 54 (2) Ginsburg: even if the generalisation is correct, and even if it is necessarily correct, it is still the case that making the decision on the basis of the generalisation is impermissible under this intermediate standard of review. (a) Even in that case: the standard being applied is more individualised that does not exist for lower standards of review. (b) This is a product of previous discrimination, and under intermediate review that is not good enough. As in Reed, the empirical prop in reed was that at the time men were more likely than women to be accountants, MBA’s, lawyers, etc but it is almost certain that they is a function of previous steering / channelling of men into some forms of education and steering women in another. (c) genuine difference that are functions of pervious discriminations will not count as permissible justification.

Sexual Orientation 1. Review a) If there are classes of heightened scrutiny other than race, what are they? i) Discrimination on the basis of age is not discrimination against a discrete and insular minority ii) Discrimination on the basis of sexual orientation? (1) Normally look to immutability: it is a factor (a) But: is sexual orientation really an orientation, or is it just a preference (b) Caroline Products: discrete and insular minorities: is the community of non heterosexuals discrete and insular in the way the court was thinking about it in terms of race? (c) A history of discrimination being the most important factor? either a history of discrimination itself, or perhaps the history of discrimination that itself creates the stigma.

2. Romer v. Evans (1996): amendment to CO denied special classification to homosexuals. a) Rule: A bare desire to harm (animus) a politically unpopular group cannot constitute a legitimate governmental interest. i) Kennedy stated that Amendment 2 relegates homosexuals to a solitary class and withdraws from them, but no others, legal protections arising from discrimination (1) A law making it more difficult for one group of citizens to seek assistance from the government than another is a denial of the Equal Protection of the laws in the most literal sense (i.e. the means do not fit whatever ends sufficiently to pass rational basis review). (2) Court held the amendment lacked a rational relationship to a legitimate gov’t interest (desire to harm a group isn’t a legitimate interest). Note here the court is clearly applying a heightened level of scrutiny even though they call it rational basis.

3. United States v. Windsor (2013)(Supp. 78): a) Defence of Marriage Act (DOMA) states for the purposes of federal law, the words “marriage” and “spouse” refer to legal unions btw one man and one woman. b) Court held DOMA deprived same-sex couples legally married under state laws of their 5th Amendment rights to equal protection.

Page 51 of 54 i) The purpose and effect of DOMA is to impose a “disadvantage, a separate status, and a stigma” on same-sex couples in violation of the 5th Amendment’s guarantee of equal protection. ii) Kennedy is concerned that the federal law does not create its own definition of marriage that encompasses a wide range of things, but carves out a particular category and shows animus. It is the same kind of animus / hostility that is dispositive in Romer. iii) Best way to think of the case as one more step of giving sexual orientation heightened scrutiny (1) Movement towards heightened scrutiny w/o saying so (think Reed v. Reed, heightened scrutiny masquerading as rational basis) c) Scalia dissent i) same as Lawrence and Romer. Same debate. The level of scrutiny is never articulated. Scalia takes Kennedy to task for avoiding the issue once again. ii) One of the things that makes this difference: this case is based largely on fundamental rights doctrine that on EP. iii) Windsor says that marriage itself it a fundamental right, and because of that things flow from that that otherwise wouldn’t. (1) it is the majorities effort to forge a compromise, perhaps as Scalia says, it is the majorities effort to signal what it is going to do in the same sex marriage case.

4. Hollingsworth v. Perry (2013)(Supp. 96): a) Prop 8 in Cali held unconstitutional; dismissed in circuit court for lack of standing. (state officials refused to defend laws, agents of the proposition the only ones left to defend).

5. Bostic v. Schaefer (2014) a) Fourth circuit held that the Virginia Marriage laws (which barred same-sex marriage or prohibited the State’s recognition of otherwise lawful same-sex marriages from other jurisdictions) violated DPC and EPC to the extent that they prevented same-sex couples from marrying and prohibited Virginia from recognising same-sex couples' lawful out-of-state marriages. b) Cert denied. c) Important feature of this: it is almost entirely a DPC rather than a EPC case. It relies heavily on the idea that there are cases including Loving that say marriage is a fundamental right. This court says that marriage is fundamental right, therefore it gets strict scrutiny i) However, as a political strategy, best to keep this in EPC arena rather than DPC arena to avoid questions of incest. marriage to parents, etc.

State Action 1. Basic idea: Constitution is a constraint on government and only government a) Government action applies to all levels of government, all employees acting in official capacity. i) 14th Amendment doesn’t restrict private action, § 5 does not empower congress to deal with private action, thus why commerce clause is used for the civil rights act of 1964 ii) If want to restrict discriminatory action by private parties Congress needs a statute to do so (1) Article 1 Section 8: Commerce Clause (a) Generally the commerce clause will allow Congress to enact statutes against individuals

Page 52 of 54 (2) Federal statutes must have a basis in Constitution: logic of the state action doctrine.

1. Three ways in which actions taken by non governmental actors has been deemed state action: 1) State enforcement of private choice (Shelley) a) Shelley v. Kramer: state action when the state enforces a law or enforces a private decision made pursuant to state law i) Restrictive Covenants: no requirement that anybody apply restrictive covenants to homes, but if you had one in the deed/document and the state enforces it then it is state action. b) Refusal to follow Shelley: i) Gordon Case: guy assumed that will with restriction that the son must marry a Jewish girl in order to inherit money, court said that as a matter of estates law we will enforce this clause (cert denied) ii) Sit in Cases: E.g. Woolworths: company said this is a whites only establishment, when sit-ins occurred Woolworths tried to remove them as trespassers, court did not decide the case under Shelley (i.e. did not say “this is state enforcement of private discrimination which is unacceptable”) c) Takeaway: mere state enforcement does not convert private action into state action

2) Actions of private parties are actions of the state if those are actions that are traditionally exclusively functions of the state. a) Marsh v. Alabama: i) Facts: Alabama says to Gulf Ship Building Co that they can build a town, but then the company says we don’t want the Jehovah’s Witnesses visiting even though normally this would be unacceptable for a normal town ii) Ruling: setting up a town is traditionally exclusively a governmental function, thus creating this town is state action and thus they cannot infringe on free speech b) Normally arises for things that look like law enforcement (state empowers a private entity to operate in law enforcement functions, e.g. private prisons) i) Note: universities are traditionally run by the state, but not exclusively, thus it does not satisfy the test (thus private universities are not reached as state action) c) Must be a nexus between the challenged action and a state decision. i) Jackson: (1) Suppose the state said we are going to license you, but you’re licensed by the state to deliver x services (cable, water, etc.) – to get a license you must comply with our requirements including the requirement that you don’t hold a hearing before shutting down power (2) Result would be that this is state action because there is a link between a state decision and the action being challenged ii) Moose Lodge: (1) Suppose the state said we will give you a liquor license but only if you restrict membership based on race (2) Result would be that this is state action because there is a link between a state decision and the action being challenged

Page 53 of 54 iii) Mere fact of getting a state license or money does not turn the party into a state institution (1) MIT/Cal Tech gets 60% of their funding from the government – is this is not the right type of connection

3) Active State Encouragement a) Reichman vs. Mulke: if the state is not passive but instead actively encourages certain kinds of actions then they become state action b) Burton v. Wilmington Parking Authority i) Ruling: sufficient entanglement between the all white Coffee Shop and the state parking garage (1) Coffee shop lead the public to believe they were related with the state (2) Advertisements all over the garage (3) Note: this was a race specific case, less reason to believe SCOTUS will do the same thing outside the area of race

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