CONSTITUTIONAL LAW – Bergin Fall ‘03
1. Federal courts may only exercise jurisdiction permitted under
Article III of the Constitution
Article III Sect 2: Federal Judicial Powers
a) cases arising under constitution or laws of US, treaties
(fed ?)
b) ambassadors, ministers, consuls
c) admiralty, maritime
d) cases b/w 2 or more states
e) cases b/w citizens of different states
f) cases b/w a state or its citizen and a foreign country or
foreign citizen
2. Martin v. Hunter's Lessee: SC has authority to review
decisions of state courts only to extent that the decision was based on federal
law. Even if federal law is involved in a case by a state court, if the state
court decision is based on state law that is adequate for the decision and
independent of federal law, the Supreme Court lacks power to review the case
3. Marbury v. Madison: SC has authority and duty to declare
a congressional statute unconstitutional.
4. Sources of Judicial Power:
a. McCulloch v. Maryland: ( state tried to tax a federal
bank for operation in the state) The states have no power to burden the
operation of federal laws designed to execute powers vested in the federal
gov’t by the constitution.
* Necessary and Proper
Clause: the ends are enumerated in the constitution and the means necessary to
achieve those ends must be permitted,
- allows for a federal bank as a means to carry out tax and spend power.
- Purposes of Case and
Controversy :
i.
reduces friction b/w the branches produced by judicial review
ii. ensures that constitutional issues will be resolved in context
of concrete disputes rather than hypos
iii. Constitutional decisions are rendered on those actually injured
rather than those who want to impose their own public policy on gov’t
1. no advisory opinions – judicial review cannot be exercised in
the abstract. Decision must end a real
dispute between parties. The Dept.
of Justice can issue advisory opinions for the executive b/c the Dept.
of Justice is part of the executive and therefore isn’t overstepping it’s
bounds.
2. Standing
= status of being
qualified to assert legal rights in ct b/c plaintiff has a sufficient stake in
the controversy
a. Allen v. Wright: Parents of black students sue IRS
for giving tax exemption to racist private schools.
Rule: Standing requires a P to allege a personal injury,
fairly traceable to D's unlawful conduct, and likely to be redressed by the
requested relief.
b. Elements of Standing: (Art III now requires)
i. injury in fact= an invasion of legally
protected interest which is concrete, particularized, actual, or imminent
Requires P’s Injury to
1) arguably be w/in zone of interests
protected by statutory or
constitutional
provision at issue
2) be particular, not shared by all or almost all citizens (
not too generalized)
ii. caused by the action
complained of ( action of D must be but for cause)
- injury suffered
must be fairly traceable to challenged action of D and not
result of independent 3rd party not before the court
iii. that is redressble by the court
c.
Nexus Requirement (Lujan):
P must Show:
1) allegedly unlawful conduct has caused his
or her injury in fact
2) injury is likely to be redressed by
favorable decision
- nexus requirement not imposed outside of taxpayer context
d. Policies/Functions of
Standing:
i.
Ensure courts will decide cases that are concrete rather than abstract
or hypothetical
ii.
Promote judicial restraint by limiting occasions for judicial
intervention into the political process
iii.
Ensure that decisions will be made for those directly affected rather
than bystanders with ideological interests
iv.
Important because of SOP system, ct can’t hear cases simply b/c they
want to, require a concrete stake thus giving the exec and leg breathing room
e. Lujan v. Defenders of
Wildlife: Congressional statutes cannot confer standing to P’s who suffered
no actual injury in fact.
-In suits against the government the concrete injury requirement
must remain
***Congress cannot interfere with constitutional standing
requirements.
f.
Standing for 3rd Parties Rights: Sierra Club v. Morton:
a P must have personally suffered an injury to have standing, and may not base
his claim on injuries to third parties
g. Association has standing on
behalf of its members if:
1) members would have
standing on their own
2) interest
organization is trying to protect is germane to assoc purpose
3) neither the claim
nor the relief requires member participation
3. Jurisdiction of SC
a. Routes to the SC are appeal and certiorari. Appellate (mandatory) jx was abandoned in
1988. Cert jx is discretionary, often exercised to resolve conflicts among
courts
b. Ct lacks jx to hear appeals from cases decided on adequate and
independent state grounds
C. Political Question ( SOP
Problems)
1. Area where legislature that does not have law in place, judicial
branch would be creating policy and overstepping into legislative power (separation
of powers) (Marbury v. Madison)
-3 Possible categories Brennan refers to as political
question areas:(topics reviewed in previous political question cases)
a. foreign relations
b. duration of hostilities
c. validity of
enactments
2.
Baker v. Carr: Constitutionality of legislative
apportionment schemes is not a political question.
Re-apportionment issues present justiciable
questions – (Baker v. Carr)
1. Constitutionally assigned duty or power to a branch of
govt*
Ex: Impeachment assigned to legislature so not
justiciable
2.
No judicial discoverable and manageable standards for resolving the issue
3. If
ct must decide policy Q better left to leg. or executive
4. Ct can’t undertake
resolution w/o expressing lack of respect to other branches of govt
5. Unusual need for
adherence to a political decision already made
6. The potential embarrassment of various
pronouncements on a single issue from different branches
***You only need one to make
it a political question; not a checklist.
3.
Seeking protection of a political right does not mean it is a political
question
4.
Davis v. Bandemer: Claims of unconstitutional gerrymandering are justiciable b/c there
was a judicially discernable and manageable standard by which cases could be
decided
5.
Nixon v. US: Fed judge was challenging impeachment trial.
Rule: The adequacy of the
performance of a duty committed to another branch of govt, such as senate’s
duty to try all impeachments, is a non-justiciable political question.
EXAM TIPS for SOP – see if executive order is “making of law”,
could be violation
-
make sure law is “presented” to Pres. or Cong. violation
-
Pres. committal of troops for repel of sudden attack (does not have
power to declare war – 60 day limit)
-
Appointment or firing of federal official (approval by congress)
Congress can only remove by impeachment
c. Purpose of SOP and C&B is 1) division of labor among
branches and 2) prevention of tyranny
1.
Executive Powers – (Article II)
a) Execution of Laws- faithfully executed
b) Commander-In-Chief- directs and leads armed forces but can’t
declare war
c) Treaty and Foreign Affairs- (treaties w/ 2/3 for senate
approval)
d) Appointment of federal officers- cabinet members, federal judges,
and ambassadors
e) Pardons- only for federal offenses
f) Veto- President may veto any law passed by both houses but may
be overridden with a 2-3 majority of the house (no line-item veto)
2.
Legislative- (Art I)
g) Interstate Commerce
h) Taxing and Spending
i) DC- regulate Washington, DC
j) Federal Property- power to regulate and dispose of fed prop
k) War and Defense-can declare war and establish and fund armed
forces
l) Enforcement of Civil War amendments
3.
Judicial ( Art III)-fed judiciary may decide “cases and controversies”
that fall w/in judicial power
4.
Separation Of Powers Problems
a. Youngstown Sheet and Tube v. Sawyer (Steel Seizure Case):
During Korean War, Truman issued an executive order directing his Sec. Of
Commerce to seize mills and operate them under federal direction.
-Seizure struck down b/c unconstitutional exercise of
the lawmaking authority
reserved to Congress.
RULE: President must merely carry out laws,
not make them.
-Presidential powers must come from
either constitution or congress
Presidential Actions Fall w/in 3 categories:
- Pres action has maximum
force and authority when he acts pursuant to an
expressed or implied authority by congress
- When Congress is silent
(absent of either congressional grant or denial of authority), constitution grants president certain
powers to act independently or
concurrently w congress= “twilight zone” – invites
pres action
- Pres power lowest when he
acts contrary to the will of congress, expressed
or implied (pres constitutional power
less congress constitutional power)
b. Dames and Moore v. Regan (Sec. Of Treasury): Pres ordered
dismissal of pending litigation against Iran in US courts and forced claims to
go to arbitration pursuant to an exec. agreement.
RULE: An executive agreement has
the same force and effect as a treaty and can alter the rights of US citizens.
-Pres has power where such
settlement or suspension is necessary and incident to the resolution of a major
foreign policy dispute and congress has acquiesced in that type of presidential
action, the action will be deemed w/in pres’s constitutional authority
-Majority uses 3 categories
of pres action mentioned in Youngstown concurrence.
5. Domestic Affairs
a.
US v. Nixon: Nixon refused to turn over
tape recordings and documents which were subpoenaed in the course of the
Watergate investigation.
RULE: Where the claim of
privilege is general, and not related to a particular need to protect military,
diplomatic, or sensitive national security secrets, the pres has a qualified
privilege.
- Apply Balance Test: need for candor v. countervailing public
policy
- Constitution does not
create presidential immunity from judicial process.
b. INS v. Chadha: Legislation authorizing congress to act
alone is unconstitutional as a violation of a separation of powers, if exercise
of legislative power is involved and it does not fall within one of the
exceptions stated in the constitution. The bill must be presented to the
president for signature or veto and there must be bicameral approval.
RULE: Legislation allowing for a one house legislative veto is unconstitutional.
- Legislative Function alters rights, duties, and
legal status
- Legislation requires both
1) bicameral approval 2) presidential assent
c. Bowsher v. Synar: (Congress delegated comptroller in
charge of disbursement of funds) Congress may not reserve to itself the power
to remove executive officers. It is a violation of SOP for executive functions
to be performed by one over whom Congress has power of removal, since the
person really is an agent of congress.
- Congress could control
execution of its enactment of legislation indirectly by passing new
legislation.
- Removal by congress is
constitutional only if by impeachment.
RULE: Congress cannot vest
executive function into a legislative officer.
d. Morrison v. Olson:
Legislation authorizing the Atty. Gen. to request appointment of
independent counsel did not violate SOP b/c congress may limit the Pres’s right
to appoint lower level officials despite the Constitution’s Appointment Cl (Art
II Sec 2).
RULE: President has power to appoint top or
principal level officers, congress has power to appoint inferior officers.
-To determine PRINCIPAL V.
INFERIOR, turns on how much independence the officer will possess, how far
reaching, his duties are, and latitude of discretion the officer possesses.
6. Foreign Affairs
a.
US v. Curtiss- Wright Corp.: It is not
an unconstitutional delegation of congress’s lawmaking power to give pres the
authority to prohibit the sale of arms to a foreign nation engaged in conflict.
RULE: Congress may delegate to the pres a broader
array of lawmaking powers when foreign affairs are involved.
- In foreign affairs pres
must have some freedom of discretion and freedom from statutory restriction to
properly maintain FA.
- During war it is the
President, not Congress, who has a better opportunity, as the one who speaks
and listens as the representative of the nation, of knowing the conditions that
prevail in foreign nations.
- The President is the sole
organ of the federal government in the field of international relations, and
therefore, we must not condemn the legislation at issue before us by imposing a
general rule, that effect of which would conclude that an unlawful delegation
of legislative power to the President occurred.
- The government’s powers
concerning foreign affairs are not limited to the grants of power enumerated in
the Constitution
a. Resolution-
Important
Info:
- In 1974, Congress enacted
the war powers resolution which limited the President’s authority as commander
in chief, required the President to consult with and report to Congress
concerning military actions, and allowed Congress to terminate military actions
within a certain time.
- Some argue that it is an
unconstitutional infringement of the powers of the President, especially with
his ability to repel sudden attack.
- Does not affect short term
military action of 60 days or less.
- Constitution gives pres limitless power as Commander-in Chief and War Powers Resolution cannot take away anything given by constitution.
1. Article IV provides that federal statutory and constitutional
law is supreme and binds the states, regardless of anything to the contrary in
a state’s common, statutory, or constitutional law.
2. Preemption – federal statutory law displaces state statutory or
constitutional law whenever Congress so intends. Congress may expressly state its intention to
displace state law, or such intention may be inferred from the federal
legislation. That intention is inferred
when there is an actual conflict between federal and state law, or when the
nature and extent of the federal law implies congressional intent to occupy the
field exclusively.
1. Article I, Sec. 8 – gives Congress the power to use all
necessary and proper means to execute the powers of the federal
government. Courts defer to Congress’s
judgment of the necessity and propriety of the means it selects. So long as the means employed by Congress are
rationally related to an enumerated power of the federal government the
courts will not invalidate the legislation as unnecessary or improper
a. this clause is not a separate and independent source of
authority for congressional action. It
serves only to permit Congress to use any rational means to implement some
other authorized power.
b. incorporation of the Bank of the United States was deemed necessary and proper to the fiscal operations of the federal government (McCulloch v. Maryland)
1. Article I, Sec. 8 – gives Congress the power to regulate
interstate, foreign, and Indian commerce
2. Commerce Clause Functions: 1) Source of congressional authority
and 2) it acts implicitly as a limit on the state legislative power.
a. Gibbons v.
Ogden: Commerce power is plenary ( like all others vested by constitution)
and may be exercised to its utmost extent w/ no limitations other than those
prescribed in the constitution.
- States can’t regulate
interstate commerce.
- The federal govt has power
to regulate all of the external concerns of the nation and those internal
concerns of the states generally.
Commerce: is more than just buying and selling of
goods, includes navigation and any other form of commercial intercourse among
states
Among: states internal concerns that affect other
states falls w/in definition of "among several states"
3. Judicial test for the Scope of the Commerce Power
a. Congress must determine factually that the activity regulated is
actually in commerce or substantially affects commerce
1) In commerce – if the activity is an “instrumentality” or channel
of commerce, or if it involves the interstate movement of any article that is
the subject of market exchange
2) Substantially affect – Congress must make factual finding of
substantial affect. If it regulates
purely intrastate and noncommercial activities, the courts will not defer to
Congressional findings but will review the issue independently
i. Wickard v. Filburn: (farmer grows wheat) An activity
that is local , but has a substantial influence on interstate commerce by
reason of its aggregation with similar or other local activities throughout the
nation, may be regulated pursuant to the commerce cl.
b. Rational judgment – rational basis to believe the activity is in
commerce or substantially affects commerce
c. Reasonable means – means must be reasonably related to
its regulatory objective
History of Judicial
Approaches to CC
4. Direct Effects Test: Manufacturing is not considered
commerce (United States v. E.C. Knight Co.)
a. production of an article intended for export to another state or
country is not commerce.
b. even though it may ultimately affect commerce, suppression of
monopoly is a police power.
5. Realistic Approach: Congress may regulate
instrumentalities of intra-state commerce (RR rates) if their use bears a close
and substantial relation to interstate commerce. [Rate-setting as commerce] (Houston,
East & West Texas Railway v. US)
a. Congress has power to protect interstate commerce from
impediments of local control
b. Disparity in rates depending on origin and
destination in and out of state was substantial enough of an effect on
interstate commerce to warrant regulation
6.
Commerce Clause as Police Power
a. Champion v. Ames: Statute regulating morals was upheld.
RULE: Congress may prohibit the interstate
transportation of any things or commodities that are ordinary subjects of
traffic (lottery tix) and have a recognized value in $$$.
7. New Deal Commerce Clause
a. “Indirect
Affect”: Once a good in interstate commerce is disposed of in the state of
final destination, it is no longer in interstate commerce and thus no longer
subject to the federal commerce power. (A.L.A. Schechter Poultry Corp. v. US)
-Schecter’s wage policies
may affect interstate to lower prices, but the effect was too indirect.
8. Liberal Approach to CC
a. NLRB v. Jones
& Laughlin Steel Co.: (Steel co refused to follow order to
cease-anti-union efforts) Congress’s power to protect interstate commerce is
not limited to transactions that are an essential part of the flow of
interstate commerce. May also encompass purely intrastate activities that
burden, obstruct, or have a substantial effect on interstate commerce.
b. US v. Darby:
Court held that if in the judgment of Congress a local activity substantially
affects interstate commerce it is not for the judiciary to question this
considered judgment.
- motive is irrelevant
9. Limit on Congressional Commerce Power
a. Areas for regulation
1) regulate the use of channels of interstate commerce
2) regulate the instrumentalities of interstate commerce, as well
as persons or things in interstate commerce
3) regulate activities that have a substantial relation to
interstate commerce (substantially affect)
b. Modern Cases:
i. US v. Lopez: (Guns in school)
RULE: Under the commerce clause, congress may legislate only those activities
that implicate: the channels, instrumentalities, or activities w/ substantial
effect on interstate commerce.
- Commercial activity(economic) vs. noncommercial activity
(non-economic): if econ: was there a substantial effect? In non: was there a
bigger econ effect?
ii. Commerce Clause regulation of
intrastate activity is permitted only if that activity is economic in nature (US
v. Morrison)
1. 2/3 Senate approval of Presidential treaties to make supreme law
of the land under supremacy clause.
2. 10th Amendment is not a limit on treaty power
a. pursuant to treaty congress can legislate on matters over which
it would otherwise not have the power
b. power to make treaties is express power; if the treaty is valid,
the statute is equally so, being necessary and proper (Missouri v. Holland)
3. War Power: congress has power to declare war
and make laws necessary to carry out that power
1. Article I, Sec. 8 – power “to lay and collect taxes, duties,
imposts and excises, to pay debts and provide for the common welfare of the US
2. If Congress has the power to regulate the activity taxed, the
tax is valid even though enacted for regulatory purposes.
3. If Congress does not have the power to regulate the activity,
the validity of the tax depends on its validity as a revenue-raising measure.
1. GENERAL WELFARE power of Article I, sec. 8
is connected with the taxing and spending power. This clause can only be invoked when there is
an expenditure of money appropriated by Congress
2. Spending must be for a national concern; however, great
deference is given to the determinations made by Congress in providing for the
“common benefit”
3. Local v. General Welfare (US v. Butler)
a. RULE: Spending power may not be used to purchase compliance in
an area that congress is powerless to command.
b. Congress can’t claim that local conditions create national
concern.
4. Inducement of States (Steward Machine Co. v. Davis)
a. RULE: Congress may use the Spending Power to persuade states to
enact legislation in the area of general social welfare without violating
constitutional provisions.
b. Refer to SD v. Dole below for 4 factors for what is w/in
Spending Power (III E)
5. Spending for the General Welfare – Congressional determination of general welfare and deference by the courts to Congressional findings
1. State immunity from federal regulation
a. 10th Amendment – powers not delegated to the federal
government, nor prohibited to the states, are reserved for the states
b. Valid regulation of states (Garcia v. San Antonio Metropolitan
Transit Authority)
1) Congress can enforce minimum wage and overtime requirements
against local government’s mass transit authority
Rule: If Congress is
regulating something against private entities and the state is participating in
the same activity fed. govt may regulate the state
2) Test for immunity from federal regulation under Commerce Clause
i) federal statute must regulate the states as states(not indiv.
citizens)
ii) statute must address matters that are undisputable attributes of
state sovereignty
iii) state’s compliance with the federal regulation must directly
impair its ability to structure integral operations in areas of traditional
governmental functions
iv) relation of state and federal interests must not be such that the
nature of the federal interest justifies state submission
2. Limit on Congressional Regulatory Authority (New York v. US)
a. Congress may not force state governments to regulate according
to federal standards
Policy – shifts the burden of accountability to the wrong group
(political accountability)
- 2 unconstitutional alternative choices created
coercion
b. To require state government to take title to radioactive waste
would be to commandeer state governments into serving federal regulatory purposes
which is not constitutional (violates 10th Amendment)
c. Congress cannot enact legislation strictly for the benefit and
welfare of the general public, must be a spending issue for the general welfare
of the public.
d. South Dakota v. Dole –
how could Congress get around commandeering factor:
1. withhold funds in order to provide incentive to states to comply
2. provide funds
3. tax credits for states complying with the regulation
4. prohibit interstate transportation of hazardous materials
3. Limit on Congressional Power to Use State Officers Directly (Printz v. US)
a. Congress can not compel state officers directly to enforce a
federal regulatory program
1. requiring local Chief Legal Officer to perform background checks
under Brady Act is unconstitutional use of a state officer
b. Control of state officers would affect the balance of powers. The President is responsible for executing the laws, but the Brady Act places this power in a local officer and out of Presidential control
Policy for limiting state
regulation of interstate commerce:
-
Lack of accountability - out of state citizens are unable to vote for
the state government enacting the laws affecting the flow of commerce to and
from their state
EXAM TIP (look for:) –
conflicts between the laws of 2 or more states
-
restrictions on imports or exports
-
where state is operating as a market participant (running a factory)
it does not violate dormant commerce clause
-
congressional pre-emption – fed. action in area restricts state
action (stricter state reg under fed. reg will not violate if both can be met)
Modern Approach to Dormant
Commerce Clause Review
1. the regulation must pursue a legitimate state end;
a. health, safety, and
welfare – likely to be held as legitimate
b. economic advantage –
court more skeptical
2. the regulation must be rationally related to that
legitimate end; and
a. deference to legislative fact finding
b. similar to review of Congress’ actions
3. the regulatory burden imposed by the state on
interstate commerce, and any discrimination against interstate
commerce, must be outweighed by the state’s interest in enforcing its regulation.
a. less restrictive alternatives – if the end can be achieved through
less burdensome means, court will likely find national interest in free
commerce outweighs the state’s interest
b. matter is overwhelmingly of local concern, likely court will
find state’s regulation of its own affairs will outweigh national interest
1. Traditional State Regulation of Transportation
(Instrumentalities)
a. Absence of discriminating factor – burdens are both on
inter/intra state activities (presence of discrimination is invalid per se)
1. usually regulating for public safety; existence of legitimate
objective is generally not in doubt
2. court will focus on 2nd and 3rd test
b. balancing test – burden outweighed by state interest
1. slight safety benefit will be outweighed by burden on commerce
c. Discrimination over balance – easier to invalidate through
showing of discrimination to out-of staters than to show burden outweighs
benefits
d. cumulative effect of numerous state’s regulations – individually
one state’s reg. may not appear discriminatory but multiple states regs in
conflict would cause burden (Bibb v.
Navajo)
- Illinois regulation for
curved/molded mud guards
2. State barriers to
a. regulation of trade
1. protection of economy – purpose is to strengthen local economy
court will generally strike down the regulation
- even if discrimination is small court will strike (fact of
discr. Not magnitude is deciding factor)
2. health and safety regulations – balance of benefit v. burden
(less burdensome/less discriminatory alternatives will be taken into acct.)
b. Environmental Protection and Conservation
1. Importation of Wastes (City
of Philadelphia v. New Jersey)
a) State cannot prohibit importation of environmentally destructive
substances solely because of their source of origin
b) Distinguished from quarantine laws (diseased cows posed health
issue immediately) because a health or safety issue is not evident until a
build up of trash occurs and then there is no distinction between in and
out-of-state trash
b) Undue burden on out of state commercial interests for conserving
state’s remaining landfill space
c) TEST for burden on interstate commerce
i) Does the regulation patently exclude (no entry, tax on
out-of-state, facial distinctions)
- a presumption is invalid, must show legitimate reason for
distinguishing between out-of-state goods
ii) evenhanded regulations (no transportation of radioactive waste)
- balancing test between the burden and local interest (inherent
question – is there a less burdensome way of achieving same result)
2. Limits on local government control (C&A Carbon v. Clarkstown)
a) local government may not require all of its solid waste within
its borders to be processed by a specific local processor
b) eliminates out of state or in state competition by naming only
one processor
c) patent discrimination against competition is per se invalid,
except when state can show there is no other method to advance the public
interest
d) Patent/evenhanded regulation – argue law affects everyone
equally, however court held: a prohibition or imposition on out-of-state
interests is all that is needed
e) Facially discriminatory because it prohibits 100% of
out-of-state commerce
3. subsidies instead of regulation
a) state may not impose a tax on all sales of a particular product
in order to subsidize in-state producers of that product
b) makes milk from other state more expensive and creates a
protective tariff for local producers
c. Privileges and immunities
1. justification of exception –
a) nonresidents are a peculiar source of the evil sought to be
avoided
b) discrimination bears substantial relation to the problem
2. protection of basic activities – protects essential activities
as pursuit of livelihood, the transfer of property, access to the state’s
courts
3. ordinance is not immune from attack because it discriminates
against some in-state residents and all out of state citizens
3. Facially neutral statutes
a. permissible state barriers to incoming trade (Exxon Corp. v. Governor of Maryland)
1. state can discriminate against a certain type of out of state
business if there are no corresponding intrastate businesses
2. interstate retailers that were not also producers or refiners
remain unaffected by the statute, not all out-of-state entities are burdened
b. precision (Hunt v.
Washington State Apple Advertising Commission)
1. local statute with valid, good-faith purpose must achieve its
stated purpose to be upheld
2. when burden on interstate commerce is shown the burden is on the
state to justify its regulation
a) local benefits sought
b) non-discriminatory alternatives are unavailable
3. purpose is to prevent fraud; however excludes Plaintiff’s apples
graded with equal or superior grading system
c. modern approach to transportation regulation (Kassel v. Consolidated Freightways)
1. balancing test between states safety interest v. interest in
free commerce
2. plaintiff failed to show safety issue valid to outweigh commerce
interest
a) state failed to show difference in safety between the allowed
and prohibited length trucks
b) safety measure must be “rationally related” to a justified local
interest
4. Federal preemption
a. express preemption – statute clearly provides that it preempts
state law
b. conflict preemption – federal preempts state in conflict
c. field preemption – federal regulation so pervasive leaves no
room for state to supplement
A. Civil Rights Cases
1. To assert a right protected by 1st-8th
Amend or 14th Amend must show state action. (1-8 originally governed
conduct of fed. government, 14 governed conduct of the state government)
2. Civil Rights Act 1875 – unconstitutional because it authorized
the federal gov’t to regulate conduct of private parties
3. Congress does not have power to regulate over individuals
discriminatory behavior.
B. Enforcement of private contracts - Equal Protection Clause
prohibits courts from enforcing contractual covenant based on race. (Shelley v. Kraemer)
1. discrimination is private and not in violation of equal
protection but state enforcement of contractual agreement would constitute
state action in discrimination
2. private acts become illegal state action when state or its
officers are involved in carrying out the private action
3. 14th Amend. – protects an individual’s right to
acquire, enjoy, own and dispose of property against discriminatory behavior…does
not encompass conduct of private individuals
C. Symbiosis Test - Private use of government property (Burton v. Wilmington Parking Authority)
Mutual Benefit Test – entangled=symbiosis
Rule: When state is so entangled in a private
party’s actions as to be regarded as a joint participant in private racially
discriminatory action, the private action becomes a violation of the 14th
Amendment
2. private lessee of state property is required to comply with 14th
Amendment if the lease furthers state interests and forms an integral part of
state operation
3. “symbiotic” relationship that state profits from and invidious
discrimination create unconstitutional under 14th
4. one party benefit from the other (benefits mutually conferred)
D. Close Nexus Test (Brentwood
Academy v. Tennessee Secondary Athletic Association)
1. inseparable actions between state and private
2. members on discriminating school board are state officials
3. exception is when there is a countervailing reason to find
otherwise (public defender is paid through public funds but not considered
state action)
4. Entwinement- state being so intermingled with private
actor in the administration or the membership of a private organization being
made up of mostly state actors. However,
if there is a countervailing reason to find otherwise, such as a public
defender (opposing the state actor), state action will not be found
- federal regulation 5th (no EPC - inferred); state/local regulation 14th
Rule: Congress has no authority to prohibit slavery
1) because slave is considered a citizen in a non-slave state under
its laws, does not create federal citizenship because the federal government has
exclusive power to naturalize aliens
2) law prohibiting ownership of slaves in the Louisiana Territory
is unconstitutional
1) 13th Amendment – prohibited slavery throughout US
2) 14th Amendment – made slaves citizens
3) 15th Amendment – right to vote to all persons
4) “Separate But Equal Doctrine” (Plessy v. Ferguson)
Rule: 14th amendment was enacted
to enforce the absolute equality of the races, it was not intended to abolish
distinctions based on clors, or to enforce social equality or commingling of
the races.
a) state legislature’s purpose was to preserve public peace and good order
b) deference provided by the court to legislatures conclusions
c. Desegregation
1) application to secondary and primary schools
a) children may not be segregated in essentially “equal” public
schools solely on the basis of race; violates the equal protection clause (Brown v. Board of Education) (Brown 1). Struck
down PLESSY.
b) inherently unequal facilities and therefore a denial of equal
protection of the law
2) implementation of desegregation (Brown 2)
a) local school authorities will determine solutions to integration
problems and the determinations will be reviewed by local courts (b/c of
their proximity and familiarity w/ the schools’ particular situations) for
good-faith compliance.
b) systematic removal of any obstacles to full integration
3) Plaintiff must show intentional acts to support discrimination;
the school district involved assumes the burden of proving that it operated w/o
“segregative intent” on a system-wide basis (Keyes v. School District No. 1)
a) This case significant b/c it represent one of the first
instances where Brown v. Board was applied to northern states
b) plaintiff must show intentional segregation over substantial
portion of school district
c) evidence of intent raises inference of discrimination in entire
structure
d. Classifications based on Race and Ethnicity
1) Discrimination against racial and ethnic minorities
a) State can provide legislative limits on
availability for jury service, but CANNOT use race as a basis; the 14th
amendment says that law in all states shall be same for every race (Strauder v. West Virginia).
Rule: 14th gives all persons the
right to protection from unfriendly race based legislation.
1) law must be same for blacks and whites
2) no right to have your peers serve on the jury
-14th provides all races
rights that whites have enjoyed and provide non-whites EP under law.
b) Race classification in time of threats to nat'l security.
Rule: All legal restrictions that curtail civil rights
of a single race are immediately suspect and must b subject to a high level of
scrutiny. (Korematsu v. US)
a) beginning of strict scrutiny (more lenient because military
order)
- necessary means to
pressing political objective
b) basis of interest was public necessity; “means prong” vs.
“objective prong”: trying to achieve a pressing public necessity (avert
espionage) is an objective.
c) 4 Factors Courts Consider for Heightened Scrutiny:
1) immutable characteristics
2) inferiority of race
3) a group affiliation
4) insularity – group not effectively represented
2) Classifications that disadvantage racial minorities
a) violation of equal protection requires that the government
action have a discriminatory purpose (intentional or deliberate purpose)
b) Disproportionate impact on different races resulting from a
general qualification test does not, by itself and independent of any
discriminatory purpose, show discrimination (Washington v. Davis :
rat'l basis applied b/c race neutral classification)
1) Totality of the Circumstances Test :
-Neutral on its face can be found to have invidious discrimination purpose from
totality of relevant facts including fact that law bears more heavily on one
race than another.
2) neutral on the face and evidence of affirmative efforts to
recruit black officers
c) de jure and de facto discrimination–
1) “De Jure” – explicit discrimination or discriminatory
application
a) facially neutral statute was applied discriminatorily and found
in violation of equal protection (Yick Wo
v. Hopkins)
b) discriminatory motive for enacting law
2) de facto – neutral law results in discrimination
d) Disparate Impact on Race
Rule (Arlington Heights): Determining whether
invidious discriminatory purpose was a motivating factor demands a sensitive
inquiry into circumstantial and direct evidence of intent as may be available.
3 Sources of Intent
-Impact of Action (Effects)
-Historical Background
-Normal Procedure Departures
-Legislative History
1) Zoning restriction on low income housing impacts minority races
unequally but is inadequate to invalidate; Ps must prove that discriminatory
purpose was a motivating factor in the Ds decision (Village of Arlington
Heights v. Metropolitan Housing Development Corp.)
a) Enough to show discriminatory purpose was a motivating factor
b) Must have proof of improper intent
c) Impact was explained for
reasons other than race
d) The court will look at direct
and circumstantial evidence, and the P has the burden to show purposeful
discrimination.
2) Capital cases require evaluation of the individual jurors’
motivations in sentencing. So, raw, abstract statistical evidence isn’t
dispositive of a lack of equal protection (McClesky
v. Kemp)
Rule: When there is no discriminatory
purpose behind the law, the fact that one race is subjected to punishment more
than another is not enough to strike the law down as unconst.
a) court cannot rely strictly on statistics to prove discrimination
in criminal sentencing
b) plaintiff failed to show racial bias on the part of jury or
prosecutor
3) Facially neutral, race-based classifications
a) equal application to the
races is not enough under equal protection when arbitrary and invidious
discrimination occurs; a state law restricting the freedom to marry solely b/c
of racial classification violates the equal protection clause (Loving v. Virginia).
Rule: Racial classifications are
subject to the most rigid scrutiny and must be essential to the accomplishment
of some permissible state objective to be permitted.
b) restructuring the political process to eliminate busing (Washington v. Seattle School District)
Rule: Laws that make it more
difficult for certain racial and religious minorities to achieve legislation
that is in their interest, are uncon.
a) state may not redefine its governmental decision-making
structure for racial purposes
b) cannot place higher hurdle
on segregation busing than other reasons for busing
4) Affirmative Action
a) set-aside programs
1) the 14th amendment requires that any race-based
classification must be able to withstand strict scrutiny: the classification
must (1) serve a compelling interest that is (2) narrowly tailored to serve (3)
a compelling governmental interest (City
of Richmond v. J.A. Croson Co.)
a) no evidence of past discrimination in construction contracts on
the part of the city against named minorities in city statute
b) no indication of race-neutral means considered
c) cannot be determined
narrowly tailored because it is not linked to identified discrimination
d) NOTE: Strict scrutiny is the
most rigid form of heightened scrutiny.
b) federal government’s use of race-based classifications are
subject to strict scrutiny in affirmative action; they must be narrowly
tailored to remedy demonstrable past discrimination (Adarand Constructors v. Pena)
1) race based action necessary to further compelling interest, it
is permitted as long as “narrowly tailored”
2) all racial classifications are subject to strict scrutiny
3) government rebate money would allow them to under bid other
contractors
Three Propositions for SS
1) Skepticism: any
preference based on racial or ethnic criteria must necessarily receive a most
searching exam
2) Consistency: Standard of
review under EPC is not dependent on who is benefited or burdened by
classification
3) Congruence: EP analysis
is same in 5th and 14th
c) Academic Settings
1) Rule: the equal protection clause didn’t prohibit the
narrowly tailored use of race in admissions decisions to further the school’s
compelling interest in obtaining the educational benefits that flow from
diversity (Grutter v. Bollinger)
-“Critical Mass” of cultural and societal views to promote educational
diversity (compelling interest)
a) Deference given to school to promote their judgment that a
diverse class is beneficial
b) NT= flexible enough to consider all pertinent elements of
diversity in light of qualifications of each applicant
c) Court accepts good-faith effort for non-race based alternatives
(must explore race neutral alt not exhaust)
d) Involved sunset provision of 25 years ( time limit)
Affirmative
Action Summary:
1. 2 GOALS:
(1) Remedial (societal discrimination, identity
discrimination),
(2) Diversity.
2. Within diversity, some goals are permissible and some
aren’t.
a. BAKKE gave us examples of non-permissible diversity
goals.
-Reducing historic deficit
and traditionally disfavored minorities
-Remedying past
discrimination
-Increase number of
professionals in the ghetto
b. GRUTTER gave us examples of permissible diversity goals.
-Diversity in student body
3. Point-based admission process held unconstitutional (whites
had to achieve 20 pts. from multiple areas to equate to minority) (Gratz
v. Bollinger)
a) Lack of individualized review for significance of racial
background violates narrowly tailored prong of strict scrutiny
b) Point system violate narrow tailoring
a. Early cases treated sex-based classifications under the
traditional Equal Protection tests. The early cases were decided against the
backdrop of The Slaughter-House Cases (these cases deal with
“Implied Fundamental Rights: The Privileges & Immunities Clause”),
which had given an extremely narrow reading to the 14th amendment’s
due process and equal protection clauses. They therefore paid little attention
to claims that gender discrimination violated these provisions.
1. sex not suspect classification
2. rational basis test (must have a legitimate goal) applied;
a statute couldn’t give mandatory preference to members of one sex over the
other merely to eliminate the need for hearings on the merits
Rule: Arbitrary legislative choice forbidden by the equal
protection clause (Reed v. Reed) [Rat’l Basis Applied]
a) state preference of male over female in determining who will
administer an estate violates Equal Protection
b) “as applied” challenge (show exceptional circumstance)
b. Intermediate Standard (sex-based classification is inherently
suspect)
1. military requirement that women show dependence of spouse
without requiring men to do the same is unconstitutional b/c the distinction
was solely for the purpose of achieving administrative convenience, which was
not a significant governmental interest (Frontiero v. Richardson).
a. arbitrary discrimination
2.
classification favoring women; intermediate scrutiny test applied: (Craig v. Boren)
Rule: Sex based classification
gets Intermediate Scrutiny:
- Invalided state law allowing 18 yr. old women to purchase alcohol
and men had to be 21; justification was based upon traffic safety records.
a. important
governmental interest
b. substantially related
to achievement of objectives
c. Real differences v. Generalizations (Stereo Types)
1. Two-Prong TEST for Sex Classifications: (1) states must show
that a sex-based government action serves important governmental objectives
and that the discriminatory means employed are substantially related to
the achievement of those objectives (intermediate scrutiny), (2)
there must be an exceedingly persuasive justification for this action [this
prong was added to the CRAIG rule] (United States v. Virginia).
*stricter test NOT strict scrutiny
a. educational diversity with male education; no corresponding plan
for females violates equal protection
b. only modification required to include women would be housing
c. separate program hypothesized for women does not include the
rigorous military training and is therefore not equal
**Govt objective must be one
that actually motivated legislature as opposed to one that is articulated after
gender based scheme is articulated**
2. requirement of proof of paternity and not maternity for
citizenship of child born out of the US is constitutional (Nguyen v. INS)
a. The Governmental Objectives: substantial relation to biological
relationship and ties to the US
b. mothers proof of maternity is evident at birth, father is not
necessarily even present
c. neutral requirements would be hollow because mother is still
proving maternity at birth
***MUST ACKNOWLEDGE MOST
BASIC BIOLOGICAL DIFFERENCES****
d. “Benign” Gender-Classification and Discrimination Against Men
1. Laws that discriminate in favor of a certain class b/c of gender
will be struck down if they do not reasonably compensate the favored group for
past discrimination. (Califano v. Goldfarb)
-state disadvantages women contributors to SS system as
compared to similarly situated males
a. important interest – provide dependent spouses with support
after death of wage-earner
b. substantially related – required proof by widower of dependency;
only justification was stereotype of wives dependency on husbands
2. Congress Can Provide Gender-Based Classification to Compensate
Women for Adverse Past Discrimination (Califano v. Webster)
-Rule: Statutes that operate to directly compensate
women for past discrimination are constitutional even if they discriminate
against men in process
a. important interest – reduce disparity in economic condition
between men and women caused by history of discrimination against women
b. substantially related – level of benefits is directly related to the level of past earnings (past earnings for women are lower due to discrimination)
a. See Nguyen above under 1.
Economic and Social Laws
a. Rational Basis for
legislation was all the 5th amendment’s due process clause required
(US v. Carolene Products Co.)
1. if there are no factual findings there is a presumption of
findings supporting the legislative decision
2. great deference to legislative findings
- If debatable but someone could conclude that congress had a
rat'l basis then court leaves it alone.
b. burden on challenger to law to prove no rational relationship
(presumption of validity)
c. An exclusionary scheme not directed at any individual or
category of persons, but rather representing a policy choice made by gov’t is
constitutional because it does not circumscribe a class of persons
characterized by some unpopular trait or affiliation
- employment discrimination against methadone users was
rationally related to government’s interests in protecting public safety; b/c
methadone users don’t have the characteristics of a suspect class, all that
must be shown to validate the rule is rational basis (New York City Transit Authority v. Beazer).
- over-inclusive statute does not make it invalid
d. Legislation does not have to regulate entire problem, can attack
one facet at a time (Railway Express
Agency v. New York)
1. regulation eliminating all but owner-advertising on delivery
vehicles
2. deference granted to city to meet rational basis test
3. under-inclusive statute does not make it invalid
e. Law regulating business and industrial conditions will not be
struck down because it is unwise, up to legislature to balance advantages and
disadvantages in decisions and not the courts.
(Williamson v. Lee Optical)
Rule: Legislative may enact one
phase at a time in a field.
f. Minnesota v. Clover Leaf Creamery:
Rule:
If it is at least debatable that there is a rational basis, defer to
legislature.
Issue is whether the legislative classification between plastic and
non-plastic, non-returnable milk containers was “rationally related”
to achievement of conservation. State can enact statute not discriminatory on
its face but that does cause a shift in an industry from a predominant out of
state location to a predominant in-state location
1. Ban on sale of milk in plastic non-returnable, non-refillable
containers but allowed sale in cardboard containers
2. Rationally related to conservation interests
3. Incidental burden on interstate commerce is not “clearly
excessive”
4. Deference given to state legislature and their purpose
-State does not have to
convince the court of correctness of legal judgment.
g. City of Cleburne v. Cleburne Living Center:
Rule:
Fear of a group of people is not a reasonble ground for treating them
differently under the law.
Mental retardation is NOT a quasi-suspect class, and therefore subject
to rational basis test
1. Permit requirement for mentally retarded is not rationally
related to any government interest
2. Law does not apply to nursing homes, sanitariums, or boarding
houses and therefore is not related to protection of a class (retards)
3. Issues require a variety of solutions best addressed by
legislature
4. Dissent – burden on challenger of law, deference should be given
to legislature in the purpose for their enactment of the law
h. Unpopular groups : Rational Basis with a Bite
1. The "unrelated person" provision was irrelevant to the
state purpose of the Food Stamp Act and did not operate to rationally further
the prevention of fraud. The classification acted to exclude not only those who
were likely to abuse the program, but also those who were in need of the aid
but could not afford to alter their living arrangements so as to retain their
eligibility. (US Dept. of Agriculture v. Moreno)
a. Purpose of statute is to raise nutrition and strengthen economy
b. Not rationally related to non-relative containing households and
therefore unconstitutional under rational basis
c. Desire to harm a unpopular political group is not a legit.
gov’t interest
2. Sexual Orientation - States cannot prohibit protection of
homosexuals. Law could not have been
adopted for any other reason but to discriminate against mos. (Romer v. Evans). Amendment 2
violated the Equal Protection clause because the classification
was unrelated to any legitimate state interest.
a. Homosexuals are not a suspect class; it classified homosexuals
not to further a proper legislative end, but to make them unequal to everyone
else.
b. However statute bears no rational basis to purported reasons
c. Makes it more difficult for one group than all others to get
protection so violates EPC
3. Social welfare (Geduldig v. Aiello)
a. Action brought as sex-based, but statute applied to both men and
non-pregnant women no longer based on sex
b. If statute was based on ability to be pregnant then would be
sex-based and under intermediate scrutiny
c. Court reviewed social welfare under rational basis b/c applied
to men and non-pregnant women.
1. Applies to –
a) lack of political power
b) history of discrimination
c) immutability of the basis for classification
d) irrelevance to performance
e) obviousness – (basis for classification acts as a badge)
2. Alienage
a) state laws discriminating against aliens are inherently suspect
b) most laws discriminating against aliens are not upheld
c) exception – situations involving state government functions
(exclude aliens from police force)
d) state cannot prohibit all aliens from all competitive state civil
service positions (Sugerman v. Dougall)
1) Narrowly Tailored and
substantial government interest; Aliens
have a history of being a discrete and insular minority, and therefore
classifications based on alienage trigger strict scrutiny, which means the
classification must advance a compelling interest and be narrowly drawn.
2) not all jobs require loyalty of that of a citizen (clerical
workers)
e) Illegal Aliens – see Plyler v. Doe pg. 31
f) Federal regulation discriminating against aliens will carry greater deference because EP rights will be inferred under 5th Amend. and federal has the exclusive responsibility of supervising immigration
-
fundamental right? (right of privacy or autonomy)
-
marry, bear children, rear children
-
strict scrutiny
-
non fundamental – rational basis
-
distinguish between 5th Am. - Due Proc (federal) and 14th
Am. (state)
-
involves ability to have sex (married – fund., non-married-non-fund.)
1. prevents deprivation of right of any person to life, liberty, or
property without “due process” of law
2.
protection of individual rights
3.
one major function of 14th Due Process Clause is to make the
Bill of Rights applicable to the states, because as originally drafted the BOR
limited only the federal gov’t
4.
only major BOR guarantees NOT incorporated by 14th: 5th amend. Right not to be subject
to criminal trial without a grand jury indictment and 7th amend.
Right to jury trial in civil cases
1. Concept
a. Ends or purposes –
1) objective must be – i) legitimate, ii) appropriate, iii)
necessary
2) promotion of i) health, ii) safety, iii) welfare, iv) morals of
the people
b. Means – reasonable and appropriate (real and substantial
relationship to the legitimate end)
c.
Effect
– effect on liberty and property of the parties, if too drastic violates due
process
d. Usually a regulation is
stricken as a taking of “liberty” without due process of law, example: state regulation found to be an undue
interference with a private person’s “freedom of contract” or with his “right
to privacy”
2. Freedom to K -
State cannot generally prohibit private agreements to work more than a
specified number of hours (Lochner v. New
York)
Lochner Test: 1) Close fit must be real
and substantial relationship and
2) Regulation of health and safety is permissable;
readjustment of earning power is not permissable
a.
Lochner v. New York- violated liberty to contract
Facts: employer arrested for violating state law
which prohibited bakers from working more than 10 hrs/day or 60 hrs/week; D was
convicted and fined for permitting baker to work past limit
Rule: A law that
infringes on freedom in market place and freedom of contract is
unconstitutional if it does not bear a reasonable relation to a legitimate
gov’t purpose.
b. right to contract – subject to reasonable conditions established
by the government under police powers
c. under the state’s police powers they must regulate with regard
to health, safety, morals or welfare of the public; here the public health was
not affected by long working hours because baked goods were no less fit to eat
1) was not possible to find connection between number of hours a
baker worked and the healthful quality of bread made
2) individual’s liberty imposes restraint on state’s police power
d. legislation that infringes
on individual right is valid only if it is fair, reasonable and an appropriate
exercise of state’s police power
e.
this court refused to defer to the legislative fact findings of the
state
f.
right to K is not a
fundamental interest, this court treated it as such so that’s why it applied strict
scrutiny
3. Economic and Social Welfare Regulation- Substantial means-end
relationship
a.
State can strictly control retail prices, even if such control inhibits
the use of private property and the making of contracts (Nebbia v. New York)
Facts: price of
milk fell below cost of production; legislature determined milk was essential
and low prices threatened contamination; Milk Control Board created to set min.
and max. prices for milk; P was grocer selling milk below fixed price
Rule: Law is
unconstitutional only if it is arbitrary, discriminatory, or demonstrably
irrelevant to the policy the legislature is free to adopt
1) Test
a) substantial relationship
to proper legislative purpose
b) not arbitrary, unreasonable, or capricious
c) means are reasonably related to the ends sought
2) no area is outside the province of state regulation for police
power purposes, including the direct regulation of prices (state free to
adopt whatever economic policy may reasonably be deemed to promote public
welfare, and enforce that policy by legislation)
3) this case moves away from myth of market neutrality; liberty is
taken away by market, not statute
4) ****court moving towards giving greater
deference to legislative intervention in economic affairs; gives greater
deference to legislative fact findings
b. state can impose minimum
wage on employee-employer contracts (West
Coast Hotel v. Parrish)
Facts: state
minimum wage law for women
Rule: Regulation
which is reasonable in relation to its subject and is adopted in the interests
of the community is due process
1. ct.
gave substantial weight to redressing women’s inferior bargaining power; minimum wage was a legitimate
means to stop exploitation of women workers
2. Rationale: readjustment of economic bargaining power in
order to enable workers to obtain a living wage was a legitimate limitation on
that freedom of K
3. court
preserved substantial relationship to legitimate state objective, but later
cases virtually abandoned this high degree of scrutiny
c.
Congress can prohibit interstate commerce in products it finds are
injurious to the public health (US v.
Carolene Products)
Facts: Congress
passed Filled Milk Act which prohibited interstate shipment of filled milk
Rule: used
rational basis test; means was rationally related to the end; act was
constitutional
• ct. noted that Congress had acted upon findings of
fact showing public health danger from filled milk, BUT even in the absence of
legislative findings the ct held “the existence of facts supporting
legislative finding is to be presumed, legislation not uncon. unless it is of
such a character as to preclude the assumption that it rests upon some rational
basis within the knowledge and experience of the legislators.; burden is on movant to show no rational
relationship; presumption of
constitutionality
1. no state action so under 5th Amendment – no equal
protection
2. even 14th Amendment does not require states to
prohibit all evils, (can pick and choose)
d. 14th Amendment
does not prohibit all state business regulation that is not essential and
directly related to the harm it intends to cure (Williamson v. Lee Optical)
Facts: statute that required an optician to have a
prescription from ophthalmologist or optometrist to make glasses
Rule: it is the
duty of the legislature, not courts, to balance advantages and disadvantages of
new requirements
1. legislature must balance advantages and disadvantages of a new
requirement
2.
courts will not strike down state laws regulating business merely
because they are unwise
3.
there is an evil at hand for correction, and it might be thought that
legislation measure was rational way to correct it
4.
gave great deference to the findings of Congress when enacting statute
5.
Ct hyposthesized reasons to enact legislation.
6. The court may not review economic
legislation on grounds that it is prohibitory and not regulatory (Ferguson v. Skrupa)
Facts: statute
declared it unlawful for any person to engage in business of debt adjusting
except as incident to lawful practice of law; D was put out of business by
statute b/c he was non-lawyer debt adjustor
Rule: Up to
legislature not courts to decide on wisdom and utility of legislature
1. not within province of court to draw on their own morality,
legitimacy, and usefulness
2.
courts do not decide whether a statute bears too heavily on that
business and so violates due process
3.
states have power to legislate against injurious practices in their
internal commercial and business affairs, so long as they do not run afoul of a
specific federal con. Prohibition
e.
Summary of Modern Approach to Substantive Due Process- Economic
1. Court
has withdrawn almost completely from reviewing state legislative regulation for
substantive due process violations; ct. has not struck down economic regulation
for violating sub. Due process since 1937
2. as
long as objective falls within state’s police power (virtually any health, safety, or
general welfare problem) and there is a minimal rational relation to
means chosen and end pursued
A. Fundamental
Interests and Equal Protection
1. Strict Scrutiny,
narrowly tailored to compelling state interest, applied when fundamental rights
involved (voting, access to the courts, and welfare)
2.
Procreation – state cannot sterilize
habitual criminals if it distinguishes among the types of crimes that satisfy
the definition of “habitual criminal” (Skinner
v. Oklahoma)
Facts: statute allowed atty general to initiate
proceedings to render criminal sexually sterile; anyone designated a habitual
offender could be made sterile if not detrimental to his health; D convicted of
stealing chickens 3 times, therefore he was habitual offender
Issue: Can a law that provides a very different
punishment for those who have committed intrinsically the same quality of
offense withstand judicial scrutiny?
Rule: When the law lays an unequal hand on those
who have committed intrinsically the same equality of offense and puts extra
punishment on one and not the other, it has made an invidious discrimination
a) stranger who takes $20 dollars from register is subject to
sterilization however a clerk (embezzlement) taking the same amount is not
b) no allowance for showing of no inheritable habitual tendencies
c) law interfered with right to marry and
procreate; deprivation of liberty
d) strict scrutiny required because invidious
discrimination made against certain groups
e) state showed no biological differences
between larson and embezzler; showed no evidence that criminal traits are
inheritable
****PROCREATION IS
FUNDAMENTAL RIGHT(violation of liberty, in textual basis of con. but it’s implied)
3. Voting –
a) Support for Right to vote -
1) 14th Amendment – equal protection applied to right to
vote
2) 15th Amendment – forbids denial or abridgment of
right to vote based on race, color, or previous condition of servitude
3) 19th Amendment – granted right to vote to women
4) 24th Amendment – abolished poll tax for federal
elections
5) 26th Amendment – granted right to vote to 18 year
olds in state and federal elections
b) Denial or Qualification of right to vote
1) State may not exact a poll tax as a condition for exercise of
the right to vote (Harper v. Virginia
State Board of Elections)
Facts: D charged all residents over 21 a $1.50 poll
tax as precondition for voting; P sued alleging poll tax violated equal
protection clause
Rule: Voter wealth or the payment of any fee can’t
be made a precondition for voting
a) wealth or payment of a fee is an irrelevant factor in measuring
voter qualifications
b) however states may impose reasonable voter qualifications
****VOTING IS FUNDAMENTAL
RIGHT(fundamental
to structure of gov’t, implied as preservative of all democratic processes)
2) State may not restrict the franchise for limited purpose
elections merely on a showing of a rational basis for the restrictions (Kramer v. Union Free School District)
Facts: P
challenged NY law limiting voting in certain school district elections to those
who owned or leased property in the district or who had children enrolled in
districts’ schools, challenged on Equal Protection grounds
Rule: It is a violation of EP to
restrict the voting in school district elections to parents and property owners
or lessors
a) exclusions must be necessary to promote a compelling government
interest; this wasn’t narrowly tailored because it allowed people with no
interest at all to vote
b) statute is not narrowly drawn
to affectuate its purpose to only include “primarily interested” or
“primarily affected” parties and therefore not constitutional
c) Dilution through apportionment: If vote is not weighed same as
other people's then there is an EP claim.
1) Federal v. State apportionment
a) requires that representation reflect the total population as
accurately as possible
b) more flexibility allowed in apportionment of state legislatures
c) grossly disproportionate districts are not allowed
2) State must apportion its districts based on its population (Reynolds v. Sims)
Facts: SC
struck down Alabama’s districting scheme because it did not apportion its
district according to population which resulted in smaller districts having
more representation in sate legislature than larger districts; districting
scheme based on 1900 census to elect legislatures in 1960’s
Rule: A state must structure
its elections and its state legislature so that its citizens are equally
represented according to population
a) right to vote is essential to democratic society
b) votes cannot be weighted based on where the voters reside
c) substantial equality of
population must be the overriding objective
d) periodic plan for reapportionment needed
3) An at-large system of municipal elections not motivated by a
discriminatory purpose does not violate the rights of a minority group
consisting 1/3 of population (City of
Mobile v. Bolden)
Facts: city
commission consisting of 3 commissioners governed city of Mobile, 3
commissioners were chosen by residents of city at large and not by residents of
3 districts, Mobile had large black population but no back commissioners were
chosen; P filed suit seeking change in voting system on grounds that at large
system unconstitutionally diluted voting power of black residents
Rule: EPC does not require
proportionate representation as an imperative of political organization
a) neutral on its face so only violates 15th Amendment
if discriminatory purpose shown by challenger
b) when lack of equal representation violate 14th
Amendment for equal protection:
1) requires proof of official discrimination
2) failure to elect proportional numbers of minority reps is not
sufficient proof
3) no right exists to
representation of your choosing only a right to participate in the process
c) P had to
prove the disputed plan was conceived or operated as a purposeful device to
further racial discrimination; law that impinges upon a fundamental right is
presumptively uncon.
4) A threshold showing of discriminatory vote dilution is required for
a prima facie case of an equal protection violation. (Davis v. Bandemer)
Facts:
Republican controlled Indiana legis., passed reapportionment plan which
provided for state legis. Of substantially equal population; Democrats claimed
lines were gerrymandered and substantially understated Democratic voting
strength
Rule: Court will review political
gerrymandering controversies; In order to prove-up violation of EP both
intentional discrimination against an identifiable political group and an
actual discriminatory effect on that group must be proved.
a) challenger has burden of proving:
1) intentional discrimination against identifiable political group
&
a) discrimination - inherent in legislative redistricting
b) satisfied by district courts findings
2) actual discriminatory effect on that group
a) constitution does not require proportional representation
b) test – whether
electoral system is arranged so as to consistently degrade a voter’s or a
group’s influence in the political process
c) one election is not enough
to show unconstitutional discrimination
b) EP violation only where electoral system
substantially disadvantages certain voters in their opportunity to influence
political process effectively; lack of proportional representation alone is not
sufficient to prove uncon. Discrimination
4. Right to Travel
a. Interstate mobility – “compelling” state interest required to
impose restriction on citizens right to travel freely from state to state
b. State cannot create a one-year residency requirement as a
condition for receiving state welfare assistance (Shapiro v. Thompson)
Facts: several
states had laws which denied welfare to residents who had not lived within
their jurisdictions for at least one year immediately prior to application for
assistance.
Rule: Under EP a
state may not grant or deny welfare benefits to its residents based upon amount
of time the resident lived within its borders.
1) places burden on poor to travel to states seeking better
opportunities
2) operation of the union and liberty is basis for fundamental
right to free travel
3) cannot hold welfare from short-term residents any more than you
could hold police and fire protection
4) denying welfare may
deprive person of the only means for them to subsist- food, shelter, and other
necessities- therefore
******RIGHT TO TRAVEL IS
FUNDAMENTAL RIGHT
5) can’t deter people to assert their
constitutional rights
c. State may not limit the welfare benefits of new-citizens to the
amount they would have received in their previous state of residency (Saenz v. Roe) not on exam
1) Right to travel includes at
least 3 components
i) right to enter and leave another state
ii) right to be treated as a welcome visitor
iii) right to elect to become a permanent resident and to be treated
like other citizens of the new state
2) can have different treatment for citizen and non-citizen of
state (college tuition) but not new and old citizens
3) Privileges and Immunities – to be treated as citizen of state
when residence within the state is achieved
**What you do to certain
groups of citizens in your state, you must do to all citizens in your state.**
5. NON-Fundamental Rights – Rational
Basis Review
a.
Welfare - Imposition of a ceiling on
welfare benefits does not deny equal protection to large families, which
receive smaller benefits than do smaller families (Dandridge v. Williams)
Facts: Maryland provision granted most eligible
families a computed standard of need but imposed a monthly max of $250 per
family regardless of size or need; SC
upheld provision
Rule: Welfare is not a fundamental right
1) welfare is not a
fundamental right
2) sufficient that states interest is rationally based and free of invidious discrimination
3) statute is intended to encourage gainful employment
b. Education –
1) State system of financing public education that closely
correlates to spending per pupil and the value of local taxable property is
subject to rational basis review (San
Antonio ISD v. Rodriguez)
Facts: school
district funds raised by property taxes, district that is not affluent can’t
raise nearly as much as Alamo Heights School district, with low property tax
base spent less on education per pupil than those districts with a higher
property tax base
Rule: Even though system of financing
education by collecting taxes on property in the school district leads to some
disparity in spending per pupil across districts, it is not an irrational way
for a state to fund education
a) people living in poorer districts are not a suspect class
b) in this case, the poorest families were not
in the poorest districts, and the children have not suffered deprivation of
education
c) Equal Protection does not require absolute
equality
d) fundamental rights must be explicitly or implicitly guaranteed by
the Constitution- education is not exp. or imp. in the const. so therefore is
not a fundamental right
e) policy – courts should not interfere with state fiscal policies
unless necessary
2) Form of Heightened Scrutiny (Quasi-Strict)
a) rationally related to a substantial government interest –
applies to kids of illegal aliens
b) States may not deny undocumented school-age children the free
public education that it provides to citizens and legally admitted aliens (Plyler v. Doe)
Facts: TX legis. Passed law allowing schools to deny enrollment
in public schools to kids who were illegal immigrants; Tyler ISD required
undocumented kids to pay full tuition fee in order to enroll in schools
Rule: If the state is to deny a discrete group of
innocent children the free public education that it offers other kids residing
within its borders, that denial must be justified by a showing that it furthers
some substantial state interest
1) 14th - equal protection to ANY person within a state’s jurisdiction
2) statute imposes a lifetime hardship on children who are not
accountable for their disabling status
3) “substantial” state purpose required
4) substantial state interests are not furthered by statute – (protection against illegal immigration, avoidance of the special burden of educating these children, likelihood children will not remain in the state)
1. In
Substantive DP area fundamental rights recognized by SC have tended to be in
the related areas of:
a.
sex
b. marriage
c.
child-bearing
d. child-rearing
e.
2. Generally
these fundamental rights fall within the broad category of the “right to
privacy,” perhaps a better term is personal autonomy
3.
Fundamental v. Non-Fundamental
a.
non-fundamental: only a legitimate state
objective and a rational relation between means chosen and the objective; court
gives great deference to legislative judgment
b. fundamental: strict scrutiny applied, narrowly tailored to
compelling state objective, and state must show it cannot be achieved in a less
burdensome way
4. most
of these cases are viewed as being part of the “liberty” guaranteed against
state action by 14th amend.
5. Fundamental
Privacy Rights
a.
Contraception – Violation of right of
privacy for state to make it a crime for married couples to use contraceptives
(Griswold v. Connecticut)
Facts: statute forbade use of
contraceptives, and also forbade the aiding or counseling of others in their
use. D were convicted of counseling married
persons; D contends that statute violates implied privacy provision of DP
Clause of 14th amend.
Rule: A right of personal
privacy emanates from the penumbras, a zone of privacy, of the Bill of Rights
and it cannot be invaded absent a showing that the legislation is necessary to
accomplish a compelling state interest
1. Bill of Rights- create penumbra (body of rights)
a. 1st Amend – right of association with the related
privacy
b. 3rd Amend – privacy of home from quartering of
soldiers
c. 4th & 5th Amend – including sanctity
of home
d. 9th Amend – protects rights attained by the people
2. law criminalizing use of contraceptives acts to destruct
association of marriage
3. Right of privacy is fundamental right
subject to strict judicial scrutiny requiring a “compelling” state interest
4.
a broad constitutional right of privacy protects intimate aspects of
personal life from gov’t intrusion
5.
this law seeks to achieve its goals by means of having a maximum
destructive impact on marital relationship; it sweeps unnecessarily broadly and
invades a protected freedom
6. Abortion - WOMAN’S
RIGHT TO CHOOSE (TERMINATE PREG)
a. State cannot constitutionally make it a crime to procure an
abortion with the only exception being to save the mother’s life (Roe v. Wade)
Facts: TX law
made it a crime to procure abortion except for the purpose of saving the life
of the mother, P claimed it invaded the const. right of women to choose to
terminate their pregnancies, D argued fetus was a person
Rule: 14th amend supplies
a broad right of privacy and personal autonomy, entitling a pregnant woman to
terminate her pregnancy but also enabling state regulation of abortion at
various stages of the pregnancy; came up with trimester framework
1. 1st Trimester – state has no compelling interest so
it cannot ban or even closely regulate abortions; state may require abortions
be performed only by licensed physicians; mortality rate lower than rate for
full-term pregnancy so no valid state interest
2.
2nd Trimester- states’ interest in mother’s health becomes
compelling; state may regulate abortion procedure in ways reasonably related to
her health, such regulations may include requirement that procedure take place
in hospital rather than clinic; flat ban on 2nd trimester abortions
not permitted, nor may the state regulate in any way to protect the fetus
3.
3rd trimester- court states fetus becomes viable; states’
interest in potential life and mother’s health are compelling; state may
prohibit abortion during 3rd trimester, but abortion must be
permitted where it’s necessary to preserve life or health of the mother
4.
decision was premised upon “right to privacy”, part of “liberty”
guaranteed by 14th amend
b. Government regulation on Abortion
1. Elective Abortion – Citizen does not have an unqualified right
to an abortion with which interference must pass strict scrutiny (Maher v. Roe)
Facts: ct. upheld state regulation granting Medicaid
benefits for child birth, but denying those benefits for non-therapeutic
abortions (abortions not medically necessary)
Rule: Denying welfare benefits for abortion does
not impinge on fundamental right
a.
financial need alone is not a suspect class
b. this law placed no obstacle
on woman’s path to abortion, she has to depend on private sources of money as
she always has
c. no fundamental right to abortion, it’s the right to choose
d. state’s interest in protecting potential life is clear,
subsidizing costs of childbirth is a means of protecting that interest
e. funding for only medically necessary abortions is state’s
option, can make a value judgment that has nothing to do with mom’s health or
potential life
2.
Public funding of medically necessary abortions – Congress can deny
public funding for certain medically necessary abortions while funding
substantially all other medical costs including costs of carrying pregnancy to
term (Harris v. McRae)
Facts: ct. upheld
Hyde Amendment which prohibited use of federal Medicaid funds to perform
abortions where life of the mother would be endangered, or for rape or incest
victims
a. no entitlement to funding to pursue the protected choice was
recognized in Roe
b. funding of
other medically necessary expenses but not ones relating to abortion left woman
not worse off than she would have been had there been no funding at all
c.
mere existence of const.- protected right
did not obligate gov’t to grant funds needed to exercise that right
d. wealth is not a suspect class
3.
Planned Parenthood v. Casey: Permissible state regulation – State may
impose notification and consent requirements as prerequisites for abortion
Facts: Pennsylvania imposed several
restrictions on abortion:
1.
24 hour waiting period prior to abortion
2.
woman had to give informed consent
3.
minors had to have parental informed consent, or get it from a judge
4.
married women had to tell their husbands
5.
had reporting requirements on facilities that provided abortion
services;
**act exempted compliance in case of medical
emergency
Rule: Roe
reaffirmed, court does away with trimester framework and strict scrutiny and
established “undue burden” test
a.
“undue burden” exists if the law’s purpose or effect has placed a
substantial obstacle in the path of a woman seeking an abortion before fetus
viability
b. as long as it is not an
undue burden, a state may take measure to ensure a woman’s choice is informed
and may enact regulations to further health and safety of woman seeking
abortion
c.
24 hour waiting period and informed consent requirements were not undue
burdens because it facilitated a wise exercise of those rights
d. husband notification
requirement is an undue burden because it is repugnant to our present
understanding of marriage(woman maintains rights after marriage): places risk of spousal abuse on woman
e.
minor’s parental consent is not undue burden because it does include
for a judicial bypass; reasoning: 1) parents will have best interests in mind,
but 2) if girl does not want to tell or cannot get consent, courts can waive
parental consent upon finding of girl’s capability of giving informed consent
f.
facility reporting requirement does not impose undue burden
g. unless it has the effect or
her right of choice, a state measure designed to persuade her to choose childbirth
over abortion will be upheld if reasonably related to that goal
h. basically, a state can
regulate and restrict abortion from conception
i. Roe holdings reaffirmed:
1. woman’s right to choose before viability without undue burden
2. state’s power to restrict abortions after fetal viability, with
exceptions to protect health and life of mother
3. state has legitimate interest from the outset of pregnancy in
protecting the health of the woman and the life of the potential life (Roe
forbade any regulation of abortion designed to advance state interest before
viability)
4. Stenberg v. Carhart: Ban on partial birth abortion – States may
not regulate abortion by banning a specified procedure if the statute has no
exception for the health of the woman and would also encompass an additional
commonly performed procedure
Facts: statute
banned partial birth abortion unless procedure was necessary to save the life
of the mother; partial birth abortion defined as abortion in which the live
fetus is partially delivered vaginally and then killed before the delivery is
complete and then completing delivery
Rule: A law banning partial birth
abortion creates an undue burden on a woman’s right to obtain an abortion
a. Statute was unconst. for 2
reasons:
1.
statute did not contain an exception allowing the procedure where it
was necessary to protect the health of the mother; evidence showed D&X is
sometimes safest procedure, so banning it forces her to use riskier methods of
abortion, thereby endangering her health
2.
language of the statute was ambiguous; state’s intent may have been to
prohibit D&X procedure but language of statute also allowed D&E
procedure to fall within definition of partial birth abortion; statute may
punish doctors who perform D&E’s so doctors may fear prosecution which in
turn is an undue burden on woman’s right to choose
b. subject to undue burden
test – “substantial obstacles”
c. did not provide for partial birth abortion when mothers health
is at risk - court said you have to have
a health exception
d. statute eliminated both
D&E and D&X procedure by court’s interpretation
e.
court will closely scrutinize state efforts to regulate abortion
procedures, at least ones that are used pre-viability
7. Privacy of unmarried individuals: (Lawrence
v. Texas)
Facts: TX
statute made it a crime for 2 persons of same sex to engage in certain intimate
sexual conduct
Rule: State cannot demean D’s
existence or control their destiny by making their private sexual conduct a
crime
*****FUNDAMENTAL RIGHT IS TO
SEXUAL INTIMACY***********
a.
this case overturned Bowers v. Hardwick
b. homosexuals may seek
autonomy just as heterosexuals do, Bowers denied homosexuals this right
c.
this is a violation of 14th amend. DP Clause because
homosexuals have right to privacy
d. what level of review? Court did not really say. Think it is strict scrutiny, but ct. talks
about legitimate state interest. All
court says is it does not pass legitimacy test so there’s no way it could be
compelling
8. Right to
Die: Cruzan v. Director of Missouri
Dept. of Health
Facts: Nancy was in
persistent vegetative state and would not regain mental facilities, had
artificial feeding and hydration tubes to keep her alive, parents asked
hospital to terminate artificial techniques that would result in her death, state law required proof of Nancy’s wishes by
clear and convincing evidence, parents
did not prove evidence by “clear and convincing” means
Rule: DP Clause
protects an interest in life as well as an interest in refusing life-sustaining
medical treatment, and a state may legitimately seek to safeguard the personal
element of this choice for incompetent persons through the imposition of
heightened evidentiary requirements
a.
this court did not announce a fundamental right - assumed the const.
would grant competent person a const. protected right to refuse lifesaving
techniques
b. the court is NOT imposing
clear and convincing evidence burden, just saying it’s ok to have heightened
evidentiary standards for incompetent persons
c.
state has interest in protection and preservation of life, choice
between life and death is personal and final, so state can legitimately seek to
safeguard the personal element of choice
d. 14th amend. DP
Clause protects an interest in life as well as interest in refusing
life-sustaining medical treatment, but state is allowed to safeguard against
potential abuses
e.
state has sought to advance interests through a clear and convincing
std. of proof to govern such a proceeding, and this is ok
f.
a competent person has a const. protected liberty interest in refusing
unwanted medical treatment
g. Where the patient is
incompetent to express present wishes (as Nancy was) ask: Has the patient
previously expressed clear wishes either: (a) that she does not want medical
treatment under circumstances like those now existing; or (b) that she wishes
some designated other person to make such decisions for her in the event of
incapacity? If the answer is No (like in
this case) then we now know state may refuse to discontinue the procedures even
though all concerned agree that it would be best to terminate treatment.