CONSTITUTIONAL LAW I NOTES CHAPTER 1: THE FEDERAL JUDICIAL POWER THE AUTHORITY OF JUDICIAL REVIEW Marbury v. Madison (Pg.

g. 2) Martin v. Hunter Lessee (Pg. 10) Declared SCs authority to review state court judgments The constitution presumes that the SC may review state court decisions Constitution creates a SC and gives congress discretion whether to create lower federal courts. If Congress does not establish such courts then the SC would be powerless to hear any cases except for the few fitting within its original jurisdiction, unless it could review state court rulings. SC review is essential to ensure uniformity in the interpretation of federal law. The very nature of the Constitution, the contemporaneous understanding of it, and many years of experience all established the SCs authority to review state decisions Cohens v. Virginia (Pg. 10) 2 bros convicted of selling lottery tickets in violation of Virginia law. Ds sought review in SC: Said constitution prevented prosecution for selling tickets authorized by congress. Virginia argued o In general SC had no authority to review state court decisions and; o In particular, review was not allowed in criminal cases and in cases where a state government was a party SC reaffirmed constitutionality of 25 of the Judiciary Act and authority of the SC to review state court judgments. Emphasized that state courts could not be trusted to adequately protect federal rights because in many states the judges are dependent for office and for salary on the will of the legislature. SC declared: criminal defendants could seek SC review when they claimed their conviction violated Constitution LIMITS ON THE FEDERAL JUDICIAL POWER (1) Interpretive; (2) congressional; (3) Justiciability (standing) (1) INTERPRETIVE LIMITS 5 Interpretive limits raise question of how Constitution should be interpreted o (1) Originalism, o (2) Original Meaning, o (3) Precedent, o (4) Process Based, o (5) Aspirationalism What is Judicial Activism? o Judges arent just interpreting law, but creating it o Negative conation. Ex: abortion since it is not directly in the constitution. (1) Originalism o Reading the constitution literally (4 corners), looks for what is explicitly stated o Benefits Consistency: Ex: Abortion isnt clearly in there so not constitutional issue to decide Clear Limits the power of judges, no accountability for judges, wont loose job Absence of accountability Not reflective of the people Judges are antidemocratic; more likely to go rogue; potentially more dangerous Not reflective of peoples views o Cons Founders could not have predicted everything, to literal and society changed

Not consistent, must determine what was meant at the time Clear intent from framers Advantages: limits power of judiciary: counter majoritarian Creates level of certainty Leaves power to determine on ?? Critique: shouldnt be stuck with what people thought so long ago o Why should these framers interpretation apply to us now? o Democracy is not just about majority rule. It protects minority. We want them insulated from democratic pressure. Classic Example: Originalism brown v. board of education even Scalia who is an originalist says except Brown, but if you are an originalist you must say separate but equal is fine. (2) Original meaning o What was done as matter of tradition? Ex: What would cruel and unusual punishment mean today? Framers would have been cool with taring, hanging, etc since they saw all that and were ok with it. What was permissible back then determines search and seizure o If it was practiced in 1789 then all good even now (3) Tradition/Precedent (Stare Decisis) o Tradition provides guidance and clarity o Economically people like stability o Abide by precedent o Sometimes tradition is wrong (4) Process-based theory o Judicial minimalism court should be involved in making fair procedures o Courts role in interpreting is to make sure that a fair process is created for everyone o Should only involve itself in decisions effect the decision making process o Not creating rights not explicitly found in the constitution (5) Aspirationalism/Living constitution o Constitution interpretation evolves over time (opposite of Originalism) o Looks to public policy o What should it say rather than what does it say o What is consistent with the fundamental beliefs/ideas of the constitution o We are not in 1700s anymore, look at what SHOULD constitution say rather than what is does say. o Living breathing document o What would be consistent with fundamental belief of constitution or spirit of it. District of Columbia v. Heller (Pg. 13) ISSUE: o Whether DC prohibition on possession of usable handguns in home violate 2A to the Constitution FACTS: o Heller is D.C. special police officer authorized to carry handgun while on duty at the Federal Judicial center o Applied for registration certificate for handgun he wished to keep at home, but D.C. refused o Filed lawsuit seeking 2A grounds to enjoin city from enforcing bar on registration of handguns licensing requirement which prohibits the carrying of firearm in home without license & trigger-lock requirement o DC statute prohibited handguns possession, crime to carry unregistered firearm, & handgun registration prohibited. No person may carry handgun without license but chief of police may issue license for 1 year periods. Rules about locking up the gun ARGUMENTS: o Petitioner 2A protects only right to possess & carry firearm in connection with militia service o Respondent 2A protects individual right to possess firearm unconnected with service in militia, & use for traditionally lawful purposes like self-defense within home

HOLDING: o The Districts ban on handgun possession in home violates 2nd amendment, as does prohibition against rendering any lawful firearm in home operable for purpose of immediate self-defense REASONING: o 2A: Provides A well regulated Militia, being necessary to security of free state, right of people to keep and bear arms, shall not be infringed o The constitution written to be understood by voters; words and phrases were used in their normal and ordinary as distinguished from technical meanings o 2A is naturally divided into two parts Operative Clause Prefatory Clause (introduction) Does not limit or expand the scope of the operative clause o Operative Clause (second part of 2A) Right of the people Codifies right of people Same language seen in 1st and 4th A, similar in 9 All three other instances unambiguously refer to individual rights, not collective rights, or rights that may be exercised only through participation in some corporate body 6 other provisions mention the people term unambiguously refers to all members of the political community, not an unspecified subset Militia in colonial times consisted of subset of people, male & able bodied & within certain age range Literal interpretation fits poorly, protecting only right to keep & bear arms in organized militia , fits poorly with the operative clauses description of holder of that right as the people Start with strong presumption that 2A right is exercised individually and belongs to all Americans Keep and Bear Arms (Originalism interpretation) Interpret object of arms No different from framing of constitution Weapons not specifically designed for military use & not employed in military capacity Keep Arms and Bear Arms Keep = To retain; not to lose to have custody Keep Arms = to have weapons Bear Arms same meaning as Keep arms Carrying of weapons outside of organized militia State constitutions have clauses that state bear arms to protect self and state Meaning of operative clause Putting all textual elements together, see that they guarantee individual right possess & carry weapons in case of emergency 2A text implicitly recognizes pre-existence of right & declares only that it shouldnt be infringed Right wasnt unlimited just like 1A, doesnt protect right of citizens to carry arms for confrontation o Prefatory Clause (1st part of 2A) A well regulated Militia, being necessary to the security of a free state Well Regulated Militia Unlike army & navy congress has power to create, militia assumed by Article 1 to already exist Congress can call for militia, to organize it but not to organize a militia Well regulated militia implies nothing more than imposition of proper discipline & training Security of a Free State Meant security of free polity, not security of each of several States as dissent argued Many reasons why militia necessary to security of free state Useful in repelling invasions and suppressing insurrections

Renders large standing armies unnecessary and argument that Alexander Hamilton made in favor of federal control over the militias When able-bodied men of nation trained in arms & organized, better able to resist tyranny o Relationship between Prefatory Clause and the Operative Clause Does the preface fit with operative clause that creates individual right to keep and bear arms? History shows tyrants eliminated militia consisting of able bodied men not by banning militia but simply by taking away arms, enabling select militia or standing army to suppress political opponents Prefatory clause announces purpose for which right was codified To prevent elimination of militia Preserving militia not only reason Americans valued the right (2) CONGRESSIONAL LIMITS Exceptions & Regulations Clause o Article III of constitution says SC shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the congress shall make What is meaning of: SC Jx exists subject to exceptions & regulations as congress shall make? Does separation of powers limit ability of congress to restrict Supreme Court Jx? (1) One view believes words to provide Congress with broad powers to remove Matters from SC Jx Why? Because congressional control is check on judiciary power Ex: Judiciary Act of 1789 SC had authority only to review decisions of states highest court that ruled against federal constitutional claim not until 20th C that SC given power to review decisions of state court that ruled in favor of constitutional right (2) Another view believe Congress is limited in ability to control SC Jx See exceptions intended to modify the word fact Framers concerned about SC ability to overturn fact-finding by lower court especially juries Under this view, congress could create exception to SCs Jx for review of matters of facts, but couldnt eliminate Courts appellate jx for issues of law. These cases offer no clear principal as to what exceptions & regulations means Ultimately argument turns on disputes about meaning of Constitutions language, intent of framers, & competing policy considerations o Ex Parte McCradle (Pg. 35) FACTS: McCardle was newspaper editor in Mississippi arrested by federal officials for writing newspaper articles highly critical of reconstruction & especially of military rule of South following civil war March 9, 1868 SC held oral arguments on the claim 3 days later Congress adopted rider to an inconsequential tax bill that repealed that part of 1867 statute authorized SC appellate review of writs of habeas corpus Congress stated purpose was to remove case from SCs docket & thus prevent Court from potentially invalidating Reconstruction President Johnson vetoed attempted repeal of SC jurisdiction Congress immediately overrode Johnsons veto power Seems like a 1st A violation What is his case based on? Congressionally passed statute this is why he is able to do writ of habeus corpus ISSUES & HOLDINGS Whether congress can withdraw jurisdiction from SC after jurisdiction has been given? Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to make exceptions to that appellate jurisdiction. Court must always determine first if it has jurisdiction to review a case. RULES:

1867: Statute permitted federal courts to grant habeas corpus relief to anyone held in custody in violation of the Constitution or the federal government Judiciary Act of 1789: Supplemented but not replaced by 1867 statute Federal courts could hear habeas petitions only of those who were held in federal custody Habeas Corpus: Petition to have your case heard REASONING: Appellate jurisdiction of SC not derived from acts of Congress, strictly conferred by constitution. But conferred with such exceptions and under such regulations as Congress shall make We cant inquire into motives of legislature. We can only examine into its power under Constitution; and power to make exceptions to appellate jurisdiction of this court is given by express words Without jurisdiction court cannot proceed at all in this case Jurisdiction is power to declare law, and when it ceases to exist, only function remaining to court is of announcing that fact and dismissing the case Act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867, it does not affect the jurisdiction which was previously occupied DISPOSITION: Dismissed for lack of jurisdiction. o Notes On Ex Parte McCradle: Here, Congress withdrew right to hear habeas corpus cases only when Court got case under Act of 1867 on appeal from lower court. SC could still hear original petition for habeas corpus filed in the SC See Martin v. Hunters Lessee for constitutional law case brief where Supreme Court held it has appellate jurisdiction to review decisions of state courts involving issues of federal law. Ex Parte Yerger: SC held it had authority to review habeas corpus decision of lower federal cours inder Judiciary Act of 1789 After SC upheld jx to decide Yergers constitutional claims, federal military authorities dismissed all charges against him, thereby preventing SC review of constitutionality of Reconstruction Same issue but sought it under 1789 judiciary act. Had not been appealed yet Separation of Powers as Limit on Congresss Authority o Klein is primary decision finding federal law unconstitutional on ground that it violates separation of powers o United States v. Klein (Pg. 39) FACTS: 1863: Congress adopted statute: individuals whose property seized during civil war could recover, or compensations for it, upon proof that they didnt offered aid or comfort to enemy during the war SC subsequently held that presidential pardon fulfilled statutory requirement of demonstrating that individual was not supporter of rebellion Congress quickly adopted new statute: pardon barred as evidence in return of seized property claim A pardon without express disclaimer of guilt, was proof that person aided rebellion & would deny federal courts jurisdiction over the claims Substance of enactment is that acceptance of pardon w/o disclaimer, shall be conclusive evidence of the acts pardoned, but shall be null and void as evidence of the rights conferred by it, both in court of claims and in court of appeal I.E. Took away courts jurisdiction ISSUE: Whether Klein entitled to proceeds of his property/estate after being pardoned Does the pardon override the congress HOLDING: Congress has inadvertently passed limit which separates legislative from the judicial power RULES:

 Legislature has complete control over organization & existence of court & may confer or withhold right of appeal from its decisions REASONING: Language of proviso shows plainly: doesnt intend to withhold appellate Jx except as means to an end Purpose is to deny pardons granted by President effect which this court adjudged them to have Provision declares that pardons shall not be considered by this court on appeal SC already decided it was their duty to consider them & give them effect, in cases like the present, as equivalent to proof of loyalty Court has jurisdiction of cause to given point; but when it ascertains that certain state of things exists, its jx is to cease & it is required to dismiss the cause for lack of jx Not exercise of acknowledged power of congress to make exceptions & prescribe regulations to appellate power Congress has already provided that SC shall have jx of judgments of Court of Claims on appeal Can it prescribe rule in conformity with which court must deny to itself the jx thus conferred because & only because its decision in accordance with settled law, must be adverse to government and favorable to the suitor It is intention of Constitution that each of great co-ordinate departments of government (legislative, judicial, executive) shall be in its sphere independent of the others Executive alone is entrusted power of pardon, and it is granted without limit Unconstitutional Would create a circular pardon no pardon game Congress cannot overturn past supreme court decision on existing law o Robertson v. Seattle Audubon Society (pg. 39) SC distinguished this case from Klein Act required Bureau of Land Management to officer specified land for sale & imposed restriction on harvesting from other lands Act also noted two pending cases & said Congress hereby determines & directs that management of areas according to subsection (b)(3) & (b)(5) of this section on specified land is adequate consideration for purpose of meeting statutory requirements that are basis for two lawsuits SC rejected argument that Congress was directing outcome of pending litigation Held congress had changed law itself and didnt direct findings or results under old law Court applied Klein to situation where Congress directs judiciary as to decision making under existing law & dont apply when Congress adopts new law court found new law statute was constitutional (3) JUSTICIABILITY LIMITS 5 Major Doctrines: Prohibition against following doctrines: o (1) Advisory opinions (can hear actual case and controversy only) o (2) Standing constitutional and prudential o (3) Ripeness o (4) Mootness o (5) Political question o (6) Another exception not in book is: Collateral consequences doctrine dont worry about it. Article III 2 authorizes federal courts to hear several types of cases and controversies SC interpreted words as giving rise to series of limits on federal judicial power (limits not expressly mentioned in text of Constitution or by framers in drafting the document) o Limits Called Justiciability Doctrine Limits Are all judicially created limits on the matters that can be heard in federal courts Constitutional = Congress cannot override Cases & Controversies requirement Prudential = based on prudent judicial administration and can be overridden by Congress since they are not constitutional requirements

Congress can override prudential but not constitutional limits Policy Underlying Justiciability Requirements o Doctrine shouldnt prevent federal courts form performing essential function of upholding Constitution & preventing & redressing violations of federal law but need some limits still. o (1) Separation of Power through cases & controversies Justiciability Doctrines help define judicial role when appropriate for federal court to review matter & when necessary to defer to other branches of government o (2) Conserve Judicial Resources Focus attention on matters most deserving of review Example: mootness allows courts to dismiss cases that are not live controversies o (3) Improve Judicial Decision Making By providing federal courts with concrete controversies best suited for judicial resolution Cases & Controversies limit limits questions presented in adversary context in form historically viewed as capable of resolution through judicial process Federal Courts have limited ability to conduct independent investigations; they must depend on parties to fully present all relevant information to them: Adverse parties, with state in outcome of litigation, will perform this task best. o (4) Promote Fairness: Especially to individuals not litigants before court Doctrines generally prevent federal court from adjudicating rights of those who are not parties to lawsuit So reserve court review for situations where truly necessary o (5) Prevent & Remedy Violations of Federal Law o (6) Enjoin & Redress Constitutional Violation Inflicted by All Levels of Government & Government Officers Avoidance Principle o In addition to the doctrines the SC has said that it would follow certain principles of avoidance to ensure that it will reach constitutional questions only when necessary o Rules under which avoided passing on large part of all constitutional questions pressed upon it for decision: The court will not pass upon the constitutionality of legislation in a friendly non adversary proceeding declining because to decide such questions only in the last resort Will not anticipate a question of constitutional law in advance of the necessity of deciding it Will not formulate rule of constitutional law broader than required by precise facts to which is applied Will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. Will not pass upon validity of statute upon complaint of one who fails to show injury by its operation. Must have some sort of injury not just political move Will not pass upon constitutionality of statute at insistence of one who has availed himself of its benefits When the validity of an act of the congress is drawn into question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (1) Prohibition of Advisory Opinion: (must be actual controversy) o Core of Article IIIs requirement for cases & controversies is federal courts cant issue advisory opinions o Jefferson wrote and asked for help from SC: dispute over neutrality provision over France and England he had question about legal position of US in that conflict SC couldnt answer o Maintained legitimacy by not responding o Benefits of Advisory Opinion: Guidance to legislature will prevent enactment of unconstitutional laws Save time & effort of legislature to adopt statutes soon to be invalidated by courts Allows legislature to correct constitutional infirmities at earliest possible time

o Still Cant Allow Advisory Opinion Because: Separation of powers maintained by keeping courts out of legislature process It wastes time and money; waste of political & financial capital; creates abundance of work SC is in high demand only have them decide on cases that are super important You get better decisions when cases are live controversies works with adversarial process o Criteria to Avoid Being an Advisory Opinion: (1) Actual dispute between adverse litigants How to decide what is actual dispute? See pg 54 look at mootness, standing, ripeness (2) Substantial likelihood that federal court decision in favor of claimant will bring change or have effect o Hayburns case (Pg. 42/43) Court considered whether federal courts could express nonbinding opinions on amount of benefits owed to Revolutionary War Veterans Congress adopted law permitting veterans to file pension claims in US Circuit Courts Judges were supposed to inform secretary of war about nature of claim & how much $ to pay Law wasnt unconstitutional per se, but making recommendations wasnt judicial nature It would violate separation of powers b/c judicial action might be revised & controlled by legislature & by officer in executive department infringe in independence of judicial power o Plaut v. Spendthrift Farm, Inc. (Pg. 43) FACTS: The Plaintiff Petitioner, Plaut sued Spendthrift Farm (Respondent), under Section: 10 of the Securities Exchange Act of 1934. The suit was dismissed for not being filed in a timely fashion. In 1991, the SC ruled: actions brought under securities laws, specifically 10(b) & rule 10(b)(5) had to be brought w/in 1 year of discovering facts giving rise to violation & three years of violation Congress amended law 27A(b) Allows cases filed before decision to go forward if could have been brought under the prior law Effect of statute was reopening actions dismissed under Courts prior ruling PAST RESTRICTIONS: Two types of legislation require federal courts to exercise judicial power in manner Article III forbids (1) US v. Klein refused to give effect to statute said to prescribe rules of decision to Judicial Department of government in cases pending before it later decisions made clear that Kleins prohibition doesnt take hold when Congress amends applicable law (2) Hayburns Case Congress cant give right to review decisions to Executive Branch officials RESTRICTIONS HERE: Here statute is different b/c only courts are involved; no officials of other departments However, still offends Article III b/c framers gave Federal judiciary power not only to rule on a case but to decide it subject to review only by superior courts in Article III hierarchy. By commanding reopen final judgments, Congress violated fundamental principle above. ISSUE: May Congress require Article III courts to reopen cases on which they have passed judgment? HOLDING: No, section 27A(b) is unconstitutional to the extent that it requires federal courts to reopen final judgments entered before its enactment How advisory opinion? If congress can set aside any judgment of sc it makes all sc opinions advisory since statute here overturned decision & gave relief to party that Court said was entitled to none PROBLEMS WITH HOLDING pg. 55 & 56 Congress always has ability to overturn Supreme Court statutory interpretations by amending law Retroactive legislation??

 Congress can change law for future cases but not for old cases. o Notes on Advisory Opinion (Pg. 44) o Nashville, C. & ST. L. RY & Wallace (Pg. 45) P wants declaratory judgment that tax was un-constitutional burden on interstate commerce SC explained that because matter would have been justiciable as request for injunction, suit for declaratory judgment was capable of federal court adjudication The constitution doesnt require case or controversy be presented by traditional forms of procedure, invoking only traditional remedies. Case was justiciable as long as it retains essentials of adversary proceeding, involving real not hypothetical controversy o Declaratory relief Thought of as advisory opinion in past but now courts think can be brought as long as case of controversy vigorously disputing it and imminently going to go to court (ex: copyright that someone infringed your rights other party can say I got the cease and desist letter and these people are going to sue me, so he can bring declaratory relief action) o Reasoning: Congress may pass retroactive legislation that affects cases still pending appeal. However, this amendment requires cases to resume prosecution after judgment has been rendered. Judgment conclusively resolves the case. The statute in question offends this postulate. o Justice Scalia (J. Scalia) argues Congress violated separation of judicial & legislative powers, by requiring courts to set aside final judgments, which framers of constitution envisioned as dispositive. (2) Standing Requirement o Determination of whether specific person is proper party to bring matter to court for adjudication o Questions of standing is whether litigant entitled to have court decide merits of dispute or particular issues o Is about separation of powers and proves there is actually a case/controversy Values Served by Limiting Standing (1) Promotes separation of powers (2) Serve judicial efficiency by preventing flood of lawsuits by ideological state holders in outcome (3) Improve judicial decision making by ensuring specific controversy before court & advocate with sufficient personal concern to effectively litigate matter (4) Serves value of fairness by ensuring people will raise only own rights & concerns & cant intermeddle trying to protect others who dont want protection offered Values Limited by Standing Bad part of having standing requirement Where there is right there has to be remedy M v. Madison this requirement takes that away. What is happening may be completely wrong and unlawful but court dismisses b/c D doesnt have standing. Gets in the way of short term justice being done. Constitutional vs. prudential standing Unlike constitutional limits, courts can override prudential limits with statutes. o Constitutional Standing Requirements (injury/causation/redressability) Limits federal-court jurisdiction to cases and controversies (1) Show injury Suffered or imminently will suffer an injury (2) Causation that your injury is fairly traceable to Ds conduct (3) Redressability Will redress the harm that you are suffering (2) & (3) seen as single test: Did D cause harm that limiting D will remedy injury? o Allen v. Wright (Pg. 46) parents seeking to integrate schools causation was big issue? FACTS In 1976 respondents challenged the IRS guidelines and procedures and filed action P are parents of black children who at time complaint filed were attending public schools in seven states undergoing desegregation

Brought nationwide action on behalf of themselves and their children and other parents of black children in similar situations Allege that many racially segregated private schools were created or expanded in their communities at time public schools were undergoing desegregation ISSUE Whats required for party to have standing to bring suit? I.E. Whether Ps have standing to bring suit. ARGUMENTS Respondents allege private schools received tax exemption either directly or through the tax exempt status umbrella, government conduct harms them in 2 ways (1) Constitutes tangible federal financial aid and other support for racially segregated educational institutions, and (2) Fosters and encourages the organization, operation, and expansion of institutes providing racially segregated educational opportunities for white children avoiding attendance in desegregating public schools RULES IRS Code o IRS denies tax exempt status under the IRS code, and hence eligibility to receive charitable contributions deductible from income taxes to racially discriminatory private schools o Requires school show that it admits the students of any race to all the rights privileges programs and activities generally accorded or made available to students at that school o Failure to comply results in the proposed revocation of tax-exempt status Article III requires litigant have standing to invoke power of federal court Standing Requirements mentioned above HOLDING No standing. Reversed (for defendant Allen) REASONING: Neither claim asserts judicially cognizable injury Asserting right to have government act in accordance with law is not sufficient standing alone to confer jurisdiction on a federal court Do not have standing to litigate claims based on stigmatizing injury of racial discrimination o Such injury accords basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct By recognizing Ps standing would extend it to all members of particular racial groups against which the government was alleged to be discriminating regardless of the location of that school o Person in Maine could challenge school in Hawaii Claim of injury to childrens diminished ability to receive education in racially integrated school o Cannot support standing because injury alleged is not fairly traceable to Government conduct respondents challenge as unlawful Line is attenuated o Results from the independent action of some third party not before the court o Would be traceable if enough discriminatory private schools get tax exemptions in Ps area for withdrawal of exemptions to have appreciable difference in public school integration o Entirely speculative whether withdrawal of tax exemption from any particular school would lead the school to change its policies CLASS DISCUSSION: Standing inquiry requires careful judicial examination of complaints allegations to ascertain if particular P is entitled to adjudication of particular claim asserted. Is injury too abstract or otherwise not appropriate to be considered judicially cognizable? (pg 48) Arguments:

o (1) Harmed directly by mere fact of Government financially aid discriminatory schools Not judicially cognizable injury o (2) Federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have public school desegregated. (HOW???) Not fairly traceable to assertedly unlawful conduct of IRS STEVENS DISSENT: (1) respondents adequately alleged injury in fact o Subsidy for withdrawal of white kid can have same effect as penalty for admitting black kid (2) Injury is fairly traceable to conduct they claim to be unlawful o Proper question is: has govt. created subsidy that promotes racial segregation? Whether causal connection between injury & wrong has been adequately alleged o We know when subsidy makes given activity more or less expensive, injury can be traced to subsidy for purposes of standing analysis because of resulting increase or decrease in ability to engage in activity ex: subsidies given to private schools practicing racial discrimination When something becomes more expensive, less of it will be purchased So if racially discriminatory private schools lose cash grants that flow from operation of the statues, the education they provide will become more expensive and hence less of their services will be purchased. (3) Separation of powers principle doesnt create jurisdictional obstacle to considerations of the merits to their claim. o Requiring more direct causal connection just b/c court is troubled by separation of power implication confuses standing doctrine with Justiciability of the issues that respondent seeks to raise. Purpose of standing is to measure Ps stake in outcome, not if court has authority to provide it with the outcome it seeks. Massachusetts v. Environmental Protection Agency (Pg. 53) Sovereign State Seeking Relief FACTS Well documented right in global temperatures contributed to carbon emission (green house gas) Group of State, Local Governments, & Private Organizes sue EPA to comply with Clean Air Act to regulate emissions of four green house gasses, including carbon dioxide ISSUE: Whether petitioners have such personal stake in outcome of controversy to maintain standing ARGUMENTS EPA correctly said court cant address two issues below unless at least one petitioner has standing to invoke courts jurisdiction under article III of constitution. EPA argues no standing b/c greenhouse gas emissions inflict widespread harm o COURT: Not true. Massachusetts has special position & interest here. Es it is a sovereign State & not private individual (like in Lujan) but must take into consideration that state owns great deal of territory alleged to be affected o States give up many of their rights to become part of the union, cant invade neighboring state to stop greenhouse gas emissions, cant negotiate emissions treaty with foreign nations o Therefore, Massachusetts requires special solicitude in standing analysis especially since risk of harm to Massachusetts is both actual and imminent & there is also substantial likelihood that judicial relief requested will prompt EPA to take steps to reduce that risk (1) INJURY (Suffering or imminently will suffer an injury) Petitioner says only hints at environmental damage yet to come

Just because climate-change risks are widely shared doesnt minimize MAs interest in outcome of litigation. Severity of injury will increase over time for MA leading to coastal loss. (2) CAUSATION EPA doesnt dispute causal connection between man-made greenhouse gas emission and global warming but still says regulation of new cars would be so insignificantly to petitioners injuries that agency cannot be hauled into federal court to answer for them For same reason: EPA doesnt believe any realistic possibility exists that relief petitioners seek would mitigate global climate change and remedy their injuries. (China & India implication) EPAs argument rests on erroneous assumption that small incremental step can never be attacked in federal judicial forum besides, massive problems are never solved in one swoop, they are whittled away over time, refining approaches, etc. Further, reducing domestic car emissions isnt tentative step since 3rd largest user in world (3) REDRESSABILITY Just because effectiveness would be small doesnt mean cant hold EPA accountable Domestic emissions reduction would slow global emissions no matter what happens elsewhere HOLDING EPA has to abide by statutory requirement or justify not doing so DISSENT Regulating Carbon Emissions is policy decisions of Executive & Legislative Branches who consider regulator, legislative, and treaty based means of addressing global climate change P probably brought suit to courts b/c unhappy with slow process of other branches (1) Injury o Court changes rules since have State litigant relaxes Article III standing requirement Makes reader think Congress meant to include States as litigants in the Act but Congress knows how to do this when it wants, here, no mention of States allowed to petition o Focuses on States loss of coastal land as injury in fact but doesnt stay consistent throughout analysis redressability is supposed to correct injury in fact not so here o P supposed to be affected in personal & individual way & seek relief that directly & tangibly benefit him in manner distinct from its impact on public at large Global warming is harmful to humanity at large (2) Causation o Greenhouse Gas is spread throughout the atmosphere so no direct link (3) Redressability o See end of Injury analysis above o Notes on Constitutional Standing Requirements: Injury, Causation, & Redressability o (1) Injury: City of LA v. Lyons (Pg. 60) FACTS: Lyons stopped by D officers for traffic violation & although Lyons offered no resistance or threat whatsoever, the officers without provocation or justification, seized Lyons & applied chokehold rendering him unconscious & causing damage to his larynx Amended complaint alleged that 10 chokehold related deaths had occurred CAUSE OF ACTION: Complaint for damages, injunction, and declaratory relief RULES Standing: Injury, causation, redressability HOLDING Absent sufficient likelihood that chokehold will happen again, Lyons is no more entitled to injunction than any other citizen of Los Angeles

Federal court cant entertain claim by any or all citizens who no more than assert that certain practices of LEOs are unconstitutional REASONING Lyons standing depends on if likely to suffer future injury from chokeholds by police officers Fact that Lyons may have been illegally choked does nothing to establish real & immediate threat that he would again be stopped for traffic violation, or for any other offense, by an officer who would illegally choke him to unconsciousness without any provocation or resistance on his part To establish an actual controversy he would not only have to allege that he would have another encounter w/ the police but also to make the incredible assertion either: o All police officers in LA always choke any citizen who they encounter OR; o City ordered or authorized LEOs to act in such a manner DISSENT It is unprecedented & unwarranted to hold that since no one can show that he will be choked in future, no one has standing to challenge constitutionality of policy Lujan v. Defenders of Wildlife (Pg. 62) FACTS Challenge to rule transmitted by Secretary of Interior interpreting Section 7 of Endangered Species Act concerning when federal government could comply with Endangered Species Act o Under rule, federal govt. would comply with Act only for actions taken in US or on high seas P sues because lack of consultation with respect to certain funded activities abroad increases the rate of extinction of endangered or threatened species ISSUE Does P have standing to bring claim against Lujan? RULES Desire to use or observe animal, even for esthetic purposes, is cognizable interest for standing But Injury in Fact Test requires more than injury to cognizable interest. o Requires party seeking review himself be among the injured Past exposure to illegal conduct doesnt itself show present case or controversy regarding injunctive relief if unaccompanied by any continuing present adverse effects Standing is not ingenious academic exercise in the conceivable, but requires, at the summary judgment stage, factual showing of perceptible harm Redressability: Suits challenging not specifically identifiable Government violations of law but particular programs agencies established to carry out legal obligations of law, rarely if ever appropriate for federal court adjudication (resolving case) HOLDING Besides failing to show injury respondents failed to demonstrate redressability REASONING Injury o Affidavits contain no facts showing damage to species will produce imminent injury to P Such someday intentions without any description of concrete plans or indeed even any specification do not support a finding of the actual or imminent injury o Goes beyond limit & into pure speculation & fantasy to say anyone who observes or works with endangered species anywhere in world is appreciably harmed by single project affecting some portion of that species with which he has no more specific connection Redressability

o The district court could accord relief only against the Secretary: he could be ordered to revise his regulation to require consultation for foreign projects o This would not remedy respondents alleged injury unless the funding agencies were bound by Secretarys regulation which is very much an open question o Agencies were not parties to suit, and no reason they should be obligated to honor incidental legal determination the suit produced. Besides, agency only supplies a fraction of the aid. o No evidence to indicate that the projects named will either be suspended or do less harm to listed species if that fraction is eliminated DISSENT Fact finder could conclude P would return soon satisfying imminent or actual standard Past trips and background could lead to conclusion that they would return soon Past trips demonstrate Ps requisite resources & personal interest in preservation of species endangered by projects to make good on their intention to return. Nothing preventing return Courts demand for detailed descriptions of future conduct will do little to weed out those who are genuinely harmed from those who are not dissent b/c majority opinion is slash & burn expedition through laws of environmental standing Very essence of civil liberty certainly United States v. Hays (Pg. 65) Shaw v. Reno Held P may state claim for relief under Equal Protection Clause of 14A by alleging that State adopted reapportionment scheme so irrational on face that is seen as effort to segregate voters into separate voting districts b/c of race and that separation lacks sufficient justification Hays claims Louisianas congressional districting plan is such a racial gerrymander (achieve result through manipulation) that it violates the 14A Appellees dont live in district that is primary focus of their racial gerrymandering claim & havent otherwise shown that personally have been subjected to a racial classification o Therefore lack standing to bring this suit Demonstrating individualized harm that standing doctrine requires may not be easy in racial gerrymandering context, as it will frequently be difficult to discern why particular citizen was put in one district or another Where P resides in racially gerrymandered district, however, P has been denied equal treatment because of legislatures reliance on racial criteria, & so has standing to challenge legislatures action Where P does not live in such district, he or she does not suffer those special harms, and any inference that P has personally been subjected to a racial classification would not be justified absent specific evidence tending to support the interference Federal Election Comm. v. Akins (pg. 66) Court held that Congress by statute could create right to information & denial of such information was injury sufficient to satisfy Article III Group of voters brought action challenging decision by Federal Election Commission that American Israel Public Affairs Committee is not political committee subject to regulation & reporting requirements under the Federal election campaign act Federal statute authorized suit by any person aggrieved by a federal Election Commission decision. Court granted standing & concluded that congress had created right to information about political committees and Ps were denied information by virtue of Federal Election Commissions decision Statute created right to information albeit a right that would not exist without the statute o (2) Causation & (3) Redressability There are 2 other requirements for standing The P must allege and prove that the D caused the harm So that it is likely that a favorable court decision will remedy the injury

2 arguments (1) Requirement simply implements prohibition against advisory opinions; if a federal court decision will have little effect, if it will not redress the injuries, so it is advisory opinion (2) Can be argued that causation & redressability are inappropriate determinations to make on basis of pleadings since all decisions about standing initially are made on basis of pleadings, assuming all allegations within them to be true Criticism is redressability is factual question that shouldnt be made at outset of lawsuit Traditionally, courts consider if equitable relief will have desired affect at remedy state, after opportunity for discovery & hearing on merits. Linda R.S. v. Richard D. (Pg. 67) Unwed mother sued to have father of her child prosecuted for failure to pay child support Challenged Texas policy of prosecuting fathers of legitimate children for not paying required support, but not prosecuting fathers of illegitimate children SC dismissed the case for lack of standing Injunction commanding state prosecutions would not ensure that mother would receive any additional child support payment Warth v. Seldin (Pg. 67) Several Ps challenged constitutionality of zoning practices in Penfield, NY Ps were people who wanted to live there by couldnt b/c zoning practice prevented construction of multifamily dwellings & low income housing home builders associations also joined as P Court held no standing b/c Ps couldnt show that appropriate housing would be constructed without exclusionary zoning ordinances. Low-income residents might not be able to afford living there even if town zoning ordinances invalidated. Builders might not choose to build there. Simon v. Eastern Kentucky Welfare Rights Organization (Pg. 67) Federal law required hospitals to provide free care to indigents to receive tax exempt status Ps claimed that they requested & were denied needed medical care by tax exempt hospitals Challenged IRS rule limiting amount of free medical care hospitals receiving tax exempt status were required to provide: Under new provisions only emergency medical treatment of indigents required SC denied standing concluding it was purely speculative whether new rule was responsible for denial of medical services and complaint suggests no substantial likelihood that victory in suit would result in respondents receiving hospital treatment they desire Duke Power Co. v. Carolina Environmental Study Group (Pg. 68) Ps challenged constitutionality of Price-Anderson Act, which limits liability of utility companies in event of nuclear reactor accident Claim was that Act violated Due Process because it allowed injures to occur without compensation D moved to dismiss on ground that injury was purely speculative SC found standing to exist because construction of nuclear reactor in Ps area subjected them to many injuries including exposure to radiation Court concluded that causation & redressability tests were met because but for Price-Anderson Act reactor would not be built & Ps would not suffer these harms Prudential Standing Requirements o (1) Prohibition of 3rd party grievances / standing Party generally may assert only own rights and cant raise claims of third parties not before the court o (2) Prohibition of generalized grievances P cant sue as taxpayer who shares grievance in common with all other taxpayers o (3) P must raise claim within zone of interest protected by statute in question Arises almost exclusively in administrative law o (1) Prohibition on 3rd Party Standing

SC stated that even when P has alleged injury sufficient to meet the case or controversy requirement, court has held that P generally must assert his own legal rights and interests, & cannot rest claim to relief on legal rights or interests of third party P can assert only injuries that he or she has suffered Exception: Situations where P meets other standing requirements may present claims of a third party Singleton v. Wulff (pg. 69) FACTS Case involves States unconstitutional interference with decision to terminate pregnancy Missouri statute doesnt give Medicaid benefits to needy persons for abortions that are not medically indicated P says provided & anticipates providing abortions to welfare patients eligible for Medicaid P says all Medicaid applications filed in connection with abortions performed by them were refused by D, responsible state official, in reliance on challenged state statute ISSUE Whether the plaintiff as physicians who perform non-medically indicated abortions, have standing to maintain the suit (as opposed to women getting abortions) 2 distinct standing issues o (1) Whether Ps allege injury in fact i.e. Whether Ps have sufficiently concrete interest in outcome of suit to make it case or controversy subject to federal courts Art. III jurisdiction o (2) Whether, as prudential matter, Ps are proper proponents of particular legal rights on which they base their suit HOLDING generally appropriate to allow physician to assert right of women patients as against governmental interference with abortion decision ISSUE (1) RULE & ANALYSIS No doubt that P suffers concrete injury from statute b/c facts show that Ps have performed & will continue to perform operations they can be reimbursed for if statute didnt exist Federal Courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation ISSUE (2) RULE & ANALYSIS CONSIDERATIONS FOR GENERAL RULE: o (1) courts shouldnt adjudicate rights unnecessarily, & may be fact that holders of those rights either do not wish to assert them, or will be able to enjoy them regardless of whether the in court litigation is successful or not o (2)Third parties themselves usually will be the best proponents of their own rights GENERAL RULE o Ordinarily one cant claim standing in Court to vindicate constitutional rights of 3rd party o Exception to prohibition of 3rd party standing: 2 factual elements: (1) Relationship of litigant to person whos right seeking to assert. May be that former is fully, or very nearly, as effective a proponent of the right as the latter (2) Ability of third party to assert own right. Even where relationship is close, reasons for requiring persons to assert own rights will generally still apply. If some genuine obstacle to such assertion, third partys absence from court loses its tendency to suggest that his right is not truly at state or important to him & party in court becomes by default the rights best available proponent APPLICATION o Woman can't safely secure abortion without aid of physician, & poor woman cant easily secure abortion without physicians being paid by State o Womans exercise of her right to an abortion, is therefore necessarily at stake here

o Physicians intimately involved in abortion o Woman may not be able to assert her own rights May hesitate b/c of desire to protect privacy of decision from publicity of court Imminent mootness technically b/c only few months before losing right to abortion Woman who is no longer pregnant may nonetheless retain right to litigate point because it is capable of repetition yet evading review (3) Overbreadth Doctrine (3rd exception in addition to the two from Singleton) (Pg. 69 Footnote 30) D to whom law constitutionally may be applied may challenge law as regulating substantially more speech than Constitution allows to be regulated Only if violates other persons 1st A right Example: Charity suing raised 1st A of client Application of Singleton Exceptions to determine if P can sue on behalf of 3rd party: Barrows v. Jackson (Pg. 71) Barrows, white person who signed racially restrictive covenant, sued for breach of K for allowing nonwhites to occupy property As defense, Barrows raised right of blacks, not parties in lawsuit, to be free of discrimination Courts allowed 3rd party standing b/c difficulty if not impossible for person whose rights are asserted to present grievances before any court since blacks werent parties to covenant, they didnt have legal basis for participating in breach of K suit Craig v. Boren (Pg. 72) Oklahoma law permitted women to buy 3.2% beer at age 18 but men couldnt until 21 Bartender challenged law on behalf of male customers between age 18 21 & said suffered economic loss from law thus fulfilling injury requirement Court allowed standing b/c vendors & those in like positions uniformly permitted to resist efforts at restricting operations by acting as advocates for rights of 3rd parties seeking access to their market or function Gilmore v. Utah (Pg. 72) Gilmore sentenced to death in Utah & chose not to pursue habeas corpus relief in federal court Mother sued for stay of execution on his behalf Court refused claim for lack of standing b/c D waived rights by not pursuing them CONCURRING OPINION o Knowing & intelligent waiver bars next friend application filed by mother Elk Grove Unified School District v. Newdow (Pg. 72) FACTS o Dad, atheist, sued school district on behalf of daughter for use of under god in pledge of allegiance b/c district implemented State Act requiring every public elementary school to being each day with appropriate patriotic exercise o 1st Opinion appeals court unanimously held Newdow had standing as parent to challenge practice interfering with his right to direct religious education of his daughter Held State Act & district policy as violations if 1st Amendment o After 1st Opinion Mom, Banning, filed motion to dismiss complaint b/c even though parents shared physical custody, she had exclusive legal custody including sole right to represent daughters legal interests & make all decisions about her education o Superior Court entered order enjoining Newdow from suing as daughters next friend Still didnt answer question of Newdows Article III standing o 2nd Opinion Appeals court said grant of sole legal custody didnt deprive Newdow of Article III standing to object to unconstitutional govt. action affecting his child Retains right to expose child to particular religious views even if those views contradict mothers & Bannings objection as sole legal custodian doesnt defeat Newdows right to seek redress for alleged injury to his own parental interests

ISSUE o Whether Newdow has standing to invoke Jx of federal courts HOLDING o Lacks prudential standing so reverse Appeals decision RULE o In general, appropriate for federal courts to leave delicate issues of domestic relations to state court b/c we recognize domestic relation exception that strips federal courts power to issue divorce, alimony, & child custody decrees REASONING o Here, Newdows standing derives entirely from relationship with daughter but lacks Jx to litigate as next friend so improper for federal courts to entertain claim by P whos standing to sue is founded on family law rights that are in dispute when prosecution of lawsuit may have adverse effect on person who is source of Ps claimed standing o Vast difference between Newdows right to communicate with his child which CA law & 1st A recognize and his claimed right to shield daughter form influence at school o Therefore, lacks prudential standing b/c deprived under CA law of right to sue as next friend DISSENT o Dissent because majority erects novel prudential standing principle to avoid reaching merits of constitutional claim conclude that for willing students to participate in Pledge of Allegiance with words under God doesnt violate 1st A o Court doesnt dispute that respondent Newdow satisfies Article III standing o Lack of prudential standing limitation loosely based on domestic relation exception to diversity-of-citizenship jurisdiction & prohibition of litigants raising anothers rights (1) Domestic relation exception is not prudential limitation on federal Jx (2) Court bases new prudential standing in part on criticisms of Appeals construction of state law coupled with prudential principle prohibiting 3rd party standing o Court of Appeals had it right, Newdow has constitutional standing but claim isnt violation of 1st A so shouldnt have any redressability CLASS DISCUSSION Elk Grove case 9th C didnt raise standing issue. Said unconstitutional condemned. Talks about passing constitutional amendment taking away funding from judges who voted for majority in case people didnt like it and attacked judicial independence. SC saw people got very heated so didnt want to address it. Bush v. Gore had just happened so people were already questioning SC, court responded with fear about pledge of allegiance case. o (2) Prohibition Against Generalized Grievances Prevents individuals from using if only injury is as citizen or taxpayer wanting government to follow law This is prudential principle preventing standing when asserted harm is generalized grievance shared in substantially equal measure by all or large class of citizens United States v. Richardson (pg. 77) PRECENDENT Frothingham v. Mellon o P sought to enjoin enforcement of Federal maternity Act of 1921 (provided financial grants to States with programs for reducing maternal & infant mortality) o P said violation of 5th A Due Process saying legislation encroached on area reserved to States o Injury was that congressional enactment challenged as unconstitutional would, if applied, increase complainants future federal income taxes

o NO STANDING b/c not the kind of direct injury required for standing since comparatively minute, remote, fluctuating & uncertain impact on taxpayer Flast v. Cohen o Whether party seeking relief alleged such personal stake in outcome of controversy to assure concrete adverseness on which court so largely depends for illumination of difficult constitutional questions. o Two Pronged Standing Test (a) Challenging enactment under Taxing & Spending Clause of Article I8 of Constitution (b) Claiming that challenged enactment exceeds specific constitutional limitation imposed on taxing & spending power o Court made clear it was reaffirming principle of Frothingham precluding taxpayers use of federal court as forum where can air generalized grievances about conduct of government or allocation of power in Federal System ISSUE HERE Whether Richardson has standing to bring action as federal taxpayer alleging certain provisions concerning public reporting of expenditures under CIA Act of 1949 violate Constitution Whether Richardsons claims meet standard for taxpayer standing set forth in Flast HOLDING Doesnt pass Flast test so no standing REASONING Flast Test Applied o Challenge isnt addressed to taxing or spending power but to statutes regulating CIA o No claim that appropriate fund being spent in violation of specific constitutional limitation upon taxing & spending power Rather, Richardson asks courts to compel Government to give him information on precisely how CIA spends its funds there is no logical nexus here RICHARDSON ARGUES Without detailed information on CIA expenditure and activities he cant intelligently follow action of Congress or Executive, & cant properly fulfill obligations as member of electorate in voting for candidates seeking national office o COURT: This is generalized grievance since impact on him is plainly undifferentiated & common to all members of public While he has genuine interest in use of funds & interest prompted by status as taxpayer, hasnt alleged that as taxpayer, he is in danger of suffering any particular injury Ex parte Levitt Levitt challenged validity of commission of Supreme Court Justice nominated & confirmed while still member of Senate. o Levitt alleged appointee voted for increase in pay provided by congress for Supreme Court Justices; claimed appointment violated explicit prohibition of article in constitution o NO STANDING b/c must show direct injury, not general interest common to all o If allegations were true, there was violation of Constitution but still held insufficient to support standing b/c whatever Levitts injury, it was one shared with all members of public POSSIBLE COUNTER ARGUMENT Can say that if respondent isnt permitted to litigate this issue, no one ca This is valid argument, but simply gives support to idea that subject matter is committed to surveillance of Congress & ultimately political process Constitution created representative government so in two, four, & six years, citizens dissatisfied with representatives decisions can vote them out of office slow process but still works DISSENT

Frothingham & Flast are different from case here where Richardson isnt asking court to invalidate federal statute simply asking to get right to receive information Court is wrong in saying no standing b/c respondent is traditional Hohfeldian plaintiff o When party seeking judicial determination that D owes affirmative duty, it seems clear that he has standing to litigate issue of existence vel non of this duty once he shows that D declined to honor his claim would ask D to pay money if P hadnt been paid; same principal Policy Of Leaving Issues To Political Process Schlesigner v. Reservists Committee to Stop the War (Pg. 80) Court denied citizen & taxpayer standing here too P sued to enjoin members of Congress from serving in military reserve Constitution prevents senator or representative from holding civil office Standing denied b/c P alleged injury only as citizen/taxpayer with interest in having government follow the law. Didnt show violation of specific constitutional right. Court said system of government leaves many crucial decision to political process assumption that if respondents have no standing to sue, no one would is not reason to find standing Court understood no one would be able to bring lawsuit so crucial issue is: Whether desirable that some constitutional provision be left entirely to political branches for interpretation & enforcement However, Majority argues absence of judicial review confirms matters best left to political process But Critics say essential that judiciary be available to enforce all of Constitution or it can be effectively rendered nullity similar issue with Political Question Doctrine o Exception For When Tax Payer Standing Permitted To challenge government expenditures as violating Establishment Clause of 1st A provision that prohibits Congress from making any law respecting establishment of religion Flast v. Cohen (pg. 81) Frothingham v. Mellon held federal taxpayer without standing to challenge constitutionality of federal statute holding stood for 45 years ISSUE Whether Frothingham barrier should be lowered when taxpayer attacks federal statute on grounds that it violates Establishment & Free Exercise Clause of 1st A FACTS Appellants filed suit to enjoin allegedly unconstitutional expenditure of federal funds under Title I & II of Elementary & Secondary Education Act of 1965 Alleged taxpayer status complaining federal funds appropriated under Act were being used to finance instruction in religious schools, to purchase textbooks, etc. Such expenditures were allegedly contradictory to 1st A STANDING ISSUE Whether dispute sought to be adjudicated will be presented in adversary context & in a form historically viewed as capable of judicial resolution Whether party invoking federal court Jx has personal stake in outcome of controversy & whether dispute touches upon legal relation of parties having adverse legal interests RULE Whether party seeking relief alleged personal stake in outcome of controversy to assure concrete adverseness on which court so largely depends for illumination of hard constitutional question How to determine when federal taxpayer deemed to have person stake & interest? Flast Two Pronged Standing Test o (1) Challenging enactment under Taxing & Spending Clause of Article I8 of Constitution

Not sufficient to allege incidental expenditure of tax funds in administration of essentially regulatory statute Establish logical link between taxpayer status & type of legislative enactment attacked Taxpayer can only challenge expenditure of funders under taxing & spending clause o (2) Taxpayer must establish nexus between that status & precise nature of constitutional infringement alleged Taxpayer must argue Congress is violating particular constitutional provision with expenditure & not just Congress is exceeding scope of powers under Constitution Court made clear it was reaffirming principle of Frothingham precluding taxpayers use of federal court as forum where can air generalized grievances about conduct of government or allocation of power in Federal System HOLDING & ANALYSIS There is standing b/c (1) & (2) met (1) Constitutional challenge made to an exercise by Congress of its power under Article I 8 to spend for general welfare & (2) challenged program involves substantial expenditure of federal tax funds additionally allege challenged expenditure violates Establishment Clause of 1st A Framers feared taxing & spending power might be used to favor one religion over another or support religion in general so made Establishment Clause of 1st A designed as specific bulwark against such potential abuse of govt. power. Clause operates as specific constitutional limit on exercise by Congress of taxing & spending power conferred by Article I 8 DISSENT Requirements of standing here dont resolve standing problem only restates it Many problems but major one is: Test is not measurement of Ps interest in outcome of suit (1) Ps interest is not made greater or smaller by unconnected fact that expenditure is, or is not incidental to an essentially regulatory program. o Example: If congress passes two programs, one encouraging specific religious group and another discouraging all other religious groups how do we decide if taxpayer has standing? Should we say personal stake in one suit matters less than in other? (2) Intensity of Ps interest in suit not measured by fact that constitutional provision of claim is or is not specific limitation on Congress spending power o If taxpayer believes given public expenditure is unconstitutional, & seeks to vindicate that belief in court, it doesnt make sense how his interest in suit necessarily varies according to constitutional provisions under which he states claim Must recall that other branches of Government are ultimate guardians of liberties & welfare of people in quite as great a degree as courts power of federal judiciary will be adequate for great burdens placed on them only if employed prudentially with recognition of strengths as well as hazards that go with representative government. Valley Forge Christian College v. American United for Separation of Church & State, Inc. (Pg. 83) Flast never overruled but also not extended In Valley, court held taxpayers lacked standing to challenge federal governments decision to grant property or its power to dispose of property under Article IV, 3 Held taxpayers have standing only to challenge expenditures violating Establishment Clause Hein v. Freedom From Religion Foundation (Pg. 84) Further limited Flast & held taxpayers lacked standing to challenge expenditure from general executive revenue as violating Establishment Clause FACTS President created Faith-Based & Community Initiative programs violating Establishment Clause

 D claim meeting standing b/c meet Flast Test RULES Federal courts not empowered to seek out & strike down any governmental act deemed to be repugnant to Constitution Rather, federal courts sit solely, to decide on rights of individuals & must refrain from passing on constitutionality of act unless obliged by proper performance of judicial function when question raised by party whose interests entitle him to raise it. ARGUMENTS Individual respondents are federal taxpayers opposed to use of Congressional taxpayer appropriations to advance & promote religion challenge Executive Branch Argue Flast Test should extend to Executive Brach spending o COURT: No because Flast limited taxpayer standing to challenged directly only at exercises of congressional power under Taxing & Spending Clause. Link between congressional action & constitutional violation is missing here actions are by Executive Branch only REASONING Valley Forge Held taxpayer lacked standing to challenge federal department of Health, Education, & Welfare decision to transfer federal property to religious college b/c transfer wasnt congressional action More congressional action connection in Valley than here o Executive action challenged was at least authorized by Federal Property & Administration Service Act permitted federal agents to transfer surplus property to private citizens (1) Here, no connection to congressional action at all so extending Flast exception to purely executive expenditures would effective subject every federal action to Establishment Clause challenged by any taxpayer in federal court broad reading would ignore first prong of Flasts standing test requiring logical link between taxpayer status & type of legislative enactment (2) Serious separation of powers concern Flast failed to recognize this doctrine has separation of powers component which keeps courts within certain traditional bounds like other branches o Respondents position would repeat & compound this mistake (3) Court of Appeals tried to extend Flast, necessary connection of stare decisis that precedent is not always expanded to limit of its logic take same approach as in Valley HOLDING No Standing & dont extend Flast but also dont overrule it leave it as is CONCURRING - Scalia Concur in no standing but Flast was wrong and should be overruled Court inconsistently described first element of Irreducible constitutional minimum of standing o Minimum consists of (1) concrete & particularized injury in fact (2) fairly traceable to Ds alleged unlawful conduct & (3) likely to be redressed by favorable decision o Alternatively rely on two entirely distinct conceptions of injury in fact Wallet Injury concrete & particularized injury expect taxpayer to assert Physic Injury consist of taxpayers mental displeasure that money is spent unlawfully Flast invoked restricted version of Physic injury by permitting taxpayer displeasure over unconstitutional spending if provision allegedly violated is specific limit on tax & spend power Flaw is twofold: o (1) never explained why Physic Injury was insufficient in cases where standing denied o (2) never explained why Physic Injury, however limited, is cognizable und First, must decide whether Psychic Injury consistent with Article III

o If yes, then apply Flast to all challenges o If no, then overturn Flast Court argues stare decisis president is not always expanded to limit of its logic o True but (1) precedents logic seen to require narrowing or readjustment in light of relevant distinctions that new fact situation brings fore; or o (2) logic is fundamentally flawed, and deserved to limited to facts that begot it o Here, (1) court gives explanation of why factual differences are material & (2) basically admits express congressional allocation vel non has nothing to do with whether P have alleged injury in fact that is fairly traceable & likely to be redressed. DISSENT - Souter There is standing b/c Flast factors are met No basis for denying taxpayers because Executive Branch & not Legislative Branch, caused injury Taxpayers dont seek to extend Flast, but simply apply it o No dispute taxpayer money in identifiable amounts funding conferences promoting religion Separation of powers argument by majority doesnt work because no difference between Judicial Branch review of executive decision or judicial evaluation of congressional one o When Govt. spends money for religious reasons, taxpayers injury is serious & concrete enough to be judicially cognizable (3) Ripeness o RULE: P must show review is not premature (harm has occurred or imminently will occur) o Case cant be heard at this time (doesnt mean it cant be heard ever) o Want to deal with cases that have well developed facts very hard to engage in fact finding when dont have something occurring. But, there are times when sometimes courts review premature statutes/regulations. o Similar to standing but more specific: When may party seek pre-enforcement review of statute or regulation? o Unfairness: requiring person to violate law to challenge legality of statute or regulation when prosecuted. Forces people to obey unconstitutional law or risk punishment o Poe v. Ullman (Pg. 92) CAUSE OF ACTION: Connecticut statute prohibited use of contraceptive devices and giving medical advice on using these devices P seek declaratory relief & say challenge constitutionality of the statute. FACTS: No. 60 (combines two actions) (1) Poe husband/wife had 3 consecutive still birth pregnancies Doctor Buxton & Poes know contraceptives are best option but cant get opinion b/c of statute (2) Doe Various physical illnesses due to first pregnancies (paralysis, unconsciousness, etc) No. 61 (Dr. Buxtons action) Declaratory relief: Says statute deprives him of liberty and property w/o due process of law. RULE: Penal Statute is not ripe for review unless it is enforced by state ISSUE: Is petitioners claim ripe for review? HOLDING & REASONING: No b/c mere existence of state penal statute is insufficient grounds for review Court basically says they dont deal with these kinds of cases. WHY? Connecticut has not enforced this statute (especially since contraceptives are commonly and notoriously sold in states drug stores) so this deprives controversies of the ripeness and immediacy which is indispensable condition of constitutional adjunction.

DISSENT: Douglas There has been some enforcement Giving them choice of either having sex-less marriage, or more miscarriages. Our highest court shouldnt be promoting people to break the law highest court shouldnt be giving this advice. Also threat of bringing law suit is injury in itself. By denying declaratory relief, basically asking couples to commit a crime by using contraceptives. Not choice they need under regime of declaratory judgment & our constitutional or civilized society NOTES: Five years later, Buxton (see below yellow comment) with Planned Parenthood openly violated statute and was prosecuted Won declaratory relief but underlying question is: Whether waiting for actual prosecution was appropriate restraint or if it was undesirable avoidance of important constitutional issue. CLASS DISCUSSION: Why these plaintiffs? Most sympathetic for case. Hence mention married, legitimate issues with pregnancy What about enforcement? (per dissent, there has been some) Gay sodomy case from Texas, there was arrest we know police were called, door was wide open, saw sodomy, & then arrested. To avoid Poe result be careful & actually set up real arrest. Buxton: Substantive process right in privacy and gave us Roe v. Wade. o Abbott Laboratories v. Gardner (Pg. 95) CAUSE OF ACTION Congress amend Federal Food, Drug, & Cosmetic Act requiring prescription drug manufacturers to print established name (generic name) along with proprietary name (brand name) P sought injunctive & declaratory relief saying Commissioner of Food & Drugs exceeded authority under statute by requiring manufacturers to put established name anytime trade name used RULE: Ripeness Rationale: Prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies. Protect agencies from judicial interference until administrative decision has been formulated and effects felt in concrete way by challenging parties Ripeness Test (1) Fitness of issue for judicial decision (2) Hardship to parties of withholding court consideration HOLDING (1) Fitness: Meets b/c issue tendered is purely legal one: Whether statute was properly construed by Commissioner to require specific labels. (2) Hardship: Meets b/c impact of regulations is direct & immediate effects day-to-day business. CLASS DISCUSSION Difference between Poe & Abbott dying vs. labels Sad for Poe b/c those clients Had to distinguish abbot from Poe so court set up criteria in comment below: Ripeness test Was Poe factual question? Not really, b/c if you apply this test, Poe was decided incorrectly. Hardship is severe, and fitness right of body is question of law. BUT remember, Poe was decided before Abbot. Why do they say there is harm? What is legal injury?

Financial injury, they would have to re-do labels of already printed material expensive to change ads and labels. Would have to incur substantial costs and if it exceeds commissioners authority then they dont have to do it. LEGAL OR FACTUAL ARE JUST CONSIDERATIONS THEY TAKE IN FINDING RIPENESS Abbott says is the issue one that we can do a focus review on (factual or legal) What is difference? Ex: does fed drug administration had right to give description on labels. This is legal question about if they have power. Ex: What was state of mind? Factual question How do you decide fitness element in Ripeness Test? How do you decide something is fit? Similar to redressability? What is not fit? A factual issue. Difference between factual and legal cases. Legal is more FIT for reinforcement review. Why? B/c facts arent developed yet. Pre-enforcement review means there are no facts yet. United Public Workers v. Mitchell (Pg. 96) Hatch Act of 1940 prevented federal employees from participating in political management/campaign P want declaratory relief that law violated 1st A & gave details about what they wanted to participate in NOT RIPE b/c Ps clearly seek advisory opinions upon broad claims. Hypothetical threat not enough. Different from Abbot? They sought relief before the act went into effect so why? Court would have to find facts so not ripe. International Longshoremens & Warehousemens Union (Pg. 96) Aliens wanting to work in Alaska before it became a state sued so could return to US afterwards, sued to enjoin immigration officers from preventing return. Argued: without declaratory judgment, would be forced to choose between job and country NOT RIPE b/c situation was hypothetical, too remote and abstract Regional Rail Reorganization Act Cases (Pg. 97) Railroads challenged conveyance of their property to Conrail DC: Not Ripe b/c reorganization plans not formulated & special court hadnt ordered reconveyances SC: YES RIPE b/c time delay doesnt matter when inevitability of operation of a statute is obvious. Lake Carriers Assn. v. MacMullan (Pg. 97) State law prohibited discharge of sewage from boats but wouldnt enforce law until land-based pump-out facilities would be available P challenged statutes validity. How? YES RIPE b/c even though enforcement many years away, still inevitable that law would be enforced & as result boat owners had to begin installing new facilities on boat.

(4) Mootness o MOOTNESS RULE: Cases must be live controversies at all stages of federal court litigation. Ex: Case is moot if criminal D dies during appeals process Ex: Civil P dies where cause of action doesnt survive death Ex: If parties settle matter (if court continued it would be advisory opinion) Ex: If challenged law is repealed or expires o Justification for Mootness: court cant give advisory opinion, court has limited time, etc? o Mootness can kill a case even when many things have been input into establishing the case. o MOOTNESS EXCEPTION: (1) Is issue capable of repetition? Cases capable of repetition would evade judicial review if not considered Moore v. Ogilvie (Pg. 98) FACTS:

Illinois law: To nominate candidate for general election for new political party, petition required at least 25K signatures by qualified voters, including 200 from each of at least 50 counties. Plaintiffs (1968) filed petition for inclusion on ballot, but denied b/c didnt meet requirements ISSUE & HOLDING Whether case became moot when election ended in November 1968 NOT MOOT, b/c burden for future candidates still existed. Problem is capable of repetition Roe v. Wade(Pg. 99) FACTS: Texas law prohibited abortion Roe pregnant & wanted declaratory judgment that law unconstitutional & injunction against D from enforcing the law. ISSUE & HOLDING: Whether case became moot when Roe was no longer pregnant. NOT MOOT, b/c capable of repetition Mootness rule should not be rigidly applied since pregnancy litigation would seldom survive DeFunis v. Odegaard (Pg. 99) FACTS: White male challenged denial to U of Washington Law School saying schools affirmative action program denied him equal protection. Received preliminary injunction and attended school. Allowed to graduate. HOLDING: MOOT b/c SC of Washington ruled on it so other cases wont come to US SC in timely manner o MOOTNESS EXCEPTION: (2) Voluntary Cessation Friends of the Earth, Inc. v. Laidlaw Environmental Services (Pg. 100) FACTS Environmental groups sued holder of National Pollutant Discharge Elimination System (NPDES) permit, saying it was violating mercury discharge limits Wanted Declaratory and injunctive relief, civil penalties, costs, and attorney fees. D voluntarily started complying with standards and shut down facility Say issue is now moot b/c closed facility so no injunctive relief. HOLDING: NOT MOOT D has burden of persuading court that conduct cannot reasonably be expected to start up again P has burden when suit of forced compliance by showing that if unchecked litigation, Ds allegedly wrongful behavior will likely occur or continue, & that threatened injury is impending CLASS DISCUSSION: How can you end this case then if voluntary cessation isnt enough? o Agree to settlement and put in consent decree (injunction) that if violate, you will go to jail or be fined heavily etc. BUT, have to really sure that your client genuinely wont do it again. o MOOTNESS EXCEPTION: (3) Class Action Suits United States Parole Commn. v. Geraghty (Pg. 101) FACTS: Federal Prisoner denied parole twice so brought individual and class action suit challenging validity of US Parole Commissions Parole Release Guidelines.

District Court denied certifying suit as class action; Prisoner appealed but release during process ISSUE: Whether trial courts denial of motion for certification of a class can be reviewed on appeal after the prisoners personal claim became moot. HOLDING: NOT MOOT Yes, can be reviewed b/c controversy is still live between petitioner and some members class respondent wants to represent. Sosna v. Iowa: o NOT MOOT b/c controversy may exist between D and members of class represent by P o Vigorous advocacy can be assured through other means than personal state in outcome (5) Political Question Doctrine o Leaves some constitutional violations to political branches of government o Question is: whether there should be political question doctrine? Policy for: (1) Ability to avoid controversial constitutional questions & limit courts role in democratic society Professor Bickel & Justice Frankfurter believed judiciary had fragile political legitimacy (2) Allocates decisions to branches of government with superior expertise in particular areas (3) Federal courts self-interest disqualified them from ruling on certain matters Courts shouldnt be involved in reviewing process for ratifying constitutional amendments because amendments are only way to overturn SCs constitutional interpretation (4) Separation of powers grounds as minimizing judicial intrusion into operations of other branches Policy against: (1) Judicial role is to enforce Constitution so inappropriate to leave constitutional questions to political branches of government (2) Disagree with Bickel & Frankfurter that judiciarys political legitimacy is fragile in fact believe it to be robust judiciary that ducks controversial issues to preserve its credibility is likely to avoid judicial review where it is needed most, to restrain highly popular, unconstitutional govt. action (3) Confuses deference with abdication - doctrines defenders demonstrate only that on merits, Court should hesitate in some areas before ruling against other branches of government; its wrong to deem those areas to be nonjusticiable. o Constitutional or Prudential? Constitutional if based on separation of powers or textual commitments to other branches of govt. Prudential if reflects Courts concerns about preserving judicial credibility & limiting role of unelected judiciary in democratic society o Malapportionment unequal representation, broad & systematic variance in size of electoral constituencies o Gerrymandering allocating political power among set of principles (or defined constituencies) Difference: malapportionment numbers of eligible voters per elected representative can vary widely without relation to how boundaries are drawn o BACKGROUND: Court rejected earlier challenge to malapportionment based on Guaranty Clause Guaranty Clause: US shall guarantee to every State in Union as Republican Form of Government and shall protect each of them against Invasion; and on Application of Legislature, or of Executive (when Legislature cant be convened) against domestic Violence. Colegrove v. Green (Reapportionment)

 Held challenges to malapportionment under provision are non-justiciable PQs Court long has refused to find cases under Guaranty Clause justiciable Luther v. Borden (Republican form of government clause Guaranty Clause) Voters of Rhode Island adopted new state constitution; existing govt. enacted law prohibiting constitution from going into effect & declared voting in elections a crime. elections held, Borden broke into election commissioner Luthers house to look for evidence of illegal participation in prohibited election. Sued for trespass claimed lawful exercise of government power HOLDING: Case posed political question; Congress must decide what government is established in state before it can determine if it is Republican or not. Political question b/c if state govt. declared unconstitutional, then all actions would be invalidated, creating chaos in Rhode Island Lack of criteria for deciding what constitutes a republican form of government o Baker v. Carr (Pg. 104) (Malapportionment) FACTS: Apportionment issue brought forth on 14th A Equal Protection claim rather than Guaranty Clause ISSUE: Whether possible to bring malapportionment claim without raising nonjusticable political issue HOLDING: Yes, here case brought under Equal Protection & malapportionment violated it. RULES: What questions are political in nature? 1. Textually demonstrable constitutional commitment of issue to coordinate political department o Ex: Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions" o Is there portion of C that dedicates this issue to political department (congress or presidency)? If it is, then it is political question 2. Lack of judicially discoverable & manageable standards for resolving it; o Lack of good standards then dont decide 3. Impossibility of deciding w/o initial policy determination of kind clearly for nonjudicial discretion; 4. The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; o Lack of respect for other branches 5. An unusual need for unquestioning adherence to a political decision already made; 6. Potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker v. Carr Test (1) What is the appropriateness of judiciary in resolving this issue? (2) Are there good criteria that can allow judiciary to resolve this issue? ANALYSIS Mere fact that suit seeks protection of political right doesnt mean it presents political question Court didnt overrule Luther but distinguished cases brought under equal protection clause from those pursued under republican form of government clause Whereas Guaranty Clause isnt repository of judicially manageable standards, judicial standards under Equal Protection Clause are well developed & familiar. DISSENT: Political question is inseparable from the equal protection claim and Supreme Court has effectively overturned a century of apportionment jurisprudence. In particular, dissent argues that Supreme Court opened up all state districting to judicial oversight CLASS DISCUSSION

 How is Baker different from Veith? Much more simple. That was ruled justiciable. The WAY that districts are being drawn not where or racially??? In Holding Did this case also ask court to define what republican state is? Happened before reformation o Whether challenges to political gerrymandering constitute a political question Davidson v. Bandemer (Pg. 107) P contended Republican controlled Indian legislature gerrymandered drawing of election districts to maximize election of Republican representatives tried to divide Democrats into separate districts where possible & combine Republican voters into districts to create majority Result was Democrats got majority popular vote but only won minority of seats in legislature P claimed violation of equal protection SC held case justiciable b/c standards we set for here for adjudicating this political gerrymandering claim are no less manageable than standards developed for racial gerrymandering claims Thus, political gerrymandering cases are properly justiciable under Equal Protection Clause o Reconsidering political gerrymandering in Veith o Veith v. Jubelirer (Pg. 107) (Gerrymandering) FACTS: Pennsylvania General Assembly drew up new districting map & prominent national figured in Republican Party pressured them to adopt partisan redistricting plan as punitive measure against Democrats for enacting pro-Democrat redistricting elsewhere. Plan was passed and signed into law by Governor as Act 1 P brought suit in District Court seeking to bar implementation of Act 1. In Davidson v. Bandemer (1986) court held political gerrymandering claims are justiciable but couldnt agree on standard to adjudicate them. ISSUE: Whether decision in Bandemer was in error. If it wasnt, then what should the standards for adjudicating gerrymandering cases be? HOLDING & ANALYSIS Bakers Political Question Test here dealing with # 2 A lack of judicially discoverable and manageable standards for resolving it. Bandemer WRONGLY DECIDED when held gerrymandering cases justiciable since not persuaded that no judicially discernable and manageable standard existed. Should have been that court was persuaded that such standards existed rather than simply that they didnt exist but could. Kennedy tries to argue same principal again by saying court should continue to adjudicate such claims because a standard may one day be discovered. CONCURRING KENNEDY Shouldnt shut out all cases, just this specific one for lack of standards for reviewing 1st A issue he doesnt sign onto majority b/c doesnt want to permanently bar any kind of challenge and leave minorities open to 1st A violation. DISSENTING STEVENS Shouldnt shut out all cases because when partisanship is legislatures sole motivation, the governing body isnt acting impartially. Decide case on narrow grounds: State actions that discriminate against political minority for maximizing majority power, it plainly violates decision makers duty to remain impartial. Apply standards of race cases and ask: Whether legislature allowed partisan consideration to dominate and control lines drawn, forsaking all neutral principles. If no neutral criterion identified, then no rational basis exists to save district from equal protection challenge. This narrow test would mitigate current trend under which partisan considerations are becoming the be-all and end-all in apportioning representatives.

DISSENTING SOUTER Should preserve Daviss holding that gerrymandering is justiciable issue but have following test: Test for Prima Facie Case (1) Identify cohesive political group (2) Show the district of residence, paid little or no heed to traditional districting principles whos disregard can be shown straightforwardly though: o Contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains. (3) Establish specific correlations between districts deviations from traditional districting principles and distribution of population of his group o Ex: Redistricting of Philadelphia need to point to specific protuberances on the draconian shape that reach out to include Democrats, or fissures that squirm away from republicans. (4) Present court with hypothetical district including his residence where proportion of Ps group was lower (in packing claim) or higher (in cracking one) and which at the same time deviated less from traditional districting principles than actual district. o Packing concentrate as many voters of one type into single electoral to reduce influence o Cracking spreading out voters of particular type among many districts to deny sufficiently large voting bloc (voters motivated by specific concern) in any particular district. (5) Show D acted intentionally to manipulate shape of district to pack or crack his group o Proving intent shouldnt be hard after proving 3rd and 4th After Prima Facie Case shift burden to D to justify their decisions. CLASS DISCUSSION: How would majority respond since they argued there are no standards but Souter is giving some. Getting involved like this requires constant judicial intervention. Court doesnt want to decide what is normal? Why one river or mountain range over another. Blurs separation of powers DISSENTING BRYER Court not needed: Where state improperly gerrymandered legislative or congressional districts to majoritys disadvantage use Governor to help undo harm Where state improperly gerrymandered congressional districts congress had power to revise States districting determinations. Court needed: Unjustified enrichment where redrawing districts ever two years since its easy to do so Should be able to separate unjustified abuse of partisan boundary-drawing considerations to achieve that end from more ordinary and justified use. Should be able to design remedy for extreme cases.

o In addition to election cases described above: three more important areas where Political Question applied: (A) Challenges to restriction on Congressional membership where political question doctrine rejected (B) Challenges to Presidents conduct of foreign policy (C) Challenges to impeachment process where political question doctrine applied Consider whether these constitutional provisions & controversies are best deemed non-justiciable political questions or whether they should have been decided on by merits of court o (A) Political Question Doctrine Applied: Congressional Self Governance

Powell v. McCormack (Pg. 116) FACTS: Powell was elected from 18th Congressional District of NY to serve in US House of Representatives for 90th congress but wasnt permitted to take his seat. Powell filed suit in Federal District Court saying House could only exclude him if it found that he failed to meet the standing requirements in Art. I, 2 of Constitution, which he met, so he was excluded unconstitutionally. Special house committee found Powell had questionable record/behavior and per Art. I, 5 they are allowed to determine who is qualified to be a member ISSUE: Whether this case is justiciable (1) interpret Constitution to see what powers it gives to House (2) then determine to what extent the exercise of that power is subject to judicial view. ANALYSIS: Need to determine what Be The Judge of the Qualifications of its own Members means o P says it refers to standing requirement and court agrees that Constitution leaves House without authority to exclude any person who meets requirements. o Even if it was less clear what framers meant, court would look at it narrowly giving Congress limited power to exclude members-elect Principle: Hamilton said the people should choose whom they please to govern o Yes, Congress has interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by exercise of its power to punish its members for disorderly behavior and in extreme cases to expel members with concurrence of 2/3. HOLDING: Case is justiciable. Inc. v. Thornton (Pg. 118) SC applied Powell & held states cant set term limits for members of congress because it is unconstitutional to keep candidates for congressional office from being listed on ballot after they serve set number of terms. o (B) Political Question Doctrine Applied: Foreign Policy SC has declared that error to suppose that every case or controversy which touches foreign relation lies beyond judicial cognizance, Court also frequently has held cases presenting issues related to conduct of foreign affairs pose political question Oetjen v. Central Leather Co. (Pg. 118) Court declared conduct of foreign relations of our Govt. is committed by Constitution to Executive & Legislature the political Department of Govt. & propriety of what may be done in exercise of this political power is not subject to judicial inquiry or decision There have been several challenges to Presidents use of troops in foreign countries SC didnt rule in any of these cases, but lower courts dismissed them as political questions Underlying issue is: Whether this is appropriate judicial deference or unwarranted judicial abdication on important constitutional issue last addressed in Goldwater Goldwater v. Carter (pg. 119) FACTS President Carter rescinded USs treaty with Taiwan as part of recognizing Republic of China Senator Goldwater brought constitutional challenge arguing Senate must rescind treaty, just as Senate must ratify making of treaty REHNQUIST CONCURRING Case is nonjusticiable b/c it is political question Involves authority of President in conduct of countrys foreign relations & extent to which Senate or Congress is authorized to negate action of President Political dispute should be left for resolution by Executive & Legislative Branches Here, question is political in nature b/c involves foreign relation, specifically treaty commitment to use military force in defense of foreign government if attacked. POWELL CONCURRING

Concur b/c would dismiss complaint as nonjusticiable but not because of political question o Dismiss because complaint is not ripe for judicial review Prudential considerations to see that dispute between Congress & President is not ready for judicial review unless & until each branch has taken action asserting its constitutional authority Fights between Congress & President turn on political rather than legal considerations o Judicial Branch shouldnt decide issues affecting allocation of power between President & Congress until political branches reach a constitutional impasse o Otherwise, encourage small groups or even individual Members of Congress to seek judicial resolution of issues before normal political process has opportunity to resolve conflict BRENAN CONCURRING & DISSENTING Concurring In Dismissal Of Case o Few members of Congress claim Presidents action has deprived them of constitutional role with respect to change in supreme law of land Congress has taken no official action o We dont know if there will ever be actual confrontation between Legislative & Executive branches unclear if resolution would have retroactive effect. o If congress chooses not to confront President, its not our task to do so Dissenting In Idea That Cases Is Nonjusticiable Because It Is Political Question o Rehnquist suggests issue presented is political question that can never be considered by court reliance on political question doctrine is inconsistent with precedents o Baker v. Carr Political question doctrine incorporates three inquiries Answer to all 3 questions would require us to decide this case if it was ready for review (1) Does issue involve resolution of questions committed by text of Constitution to coordinate branch of Government? No constitutional provision explicitly gives president power to terminate treaties (2) Would resolution of question demand court move beyond areas of judicial expertise? Need to decide if President can terminate treaty without Congress approval for this we only need to apply normal principals of interpretations to provisions at issue Doesnt involve review of Presidents activities or interference with foreign affairs (3) Do prudential considerations counsel against judicial intervention? Political question doctrine rests on prudential concerns calling for mutual respect among three branches of government. Judicial branch would embarrass other branches These concerns wouldnt exist if case was ripe for review because both branches would have been in conflict as to true meaning. o (C) Political Question Doctrine Applied: Impeachment & Removal Whether any aspect of impeachment procedure could be subject to judicial review Nixon indicates that challenges to impeachments & removal are not justiciable Nixon v. United States (Pg. 121) FACTS Nixon, former Chief Justice of US District Court for Mississippi convicted by jury of making false statements before federal grand jury & sentenced to prison Nixon refused to resign from office as District Judge so collected salary while serving sentence Senate voted to invoke own Impeachment Rule XI which allows committee of Senators to hear evidence against impeached individual & report that evidence to full Senate Senate heard case and entered judgment to remove Nixon from office as US district judge P filed suit arguing Rule XI violates constitutional grant of authority to Senate to try all impeachments because it prohibits whole Senate from taking part in evidentiary hearings

P wanted declaratory judgment that impeachment conviction void so should get salary again ISSUE Whether this claim is justiciable / can be resolved by courts HOLDING No because ANALYSIS Must determine scope of authority conferred upon Senate by framers regarding impeachment o Senate shall have sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When President of US is tried, Chief Justice shall preside: And no Person shall be convicted without Concurrence of two thirds of Members present o Sentence 1: sole indicates this authority is reposed in senate & no one else o Commonsense meaning of sole is Senate alone has authority to decide if individual should be acquitted or convicted & if courts can review the Senates actions, then its not sole Two additional reasons why judiciary & SC were not chosen to have role in impeachment o (1) Framers recognized most likely would be two sets of proceedings for individuals who commit impeachable offenses: impeachment trial & separate criminal trial Deliberately separated to avoid raising bias & ensure independent judgments Allowing review of Senate or participation in trial itself would introduce such bias o (2) Judicial review would be inconsistent with system of checks & balances Judicial involvement in impeachment proceedings even for review purposes is counterintuitive because would disembowel the important constitutional check placed on judiciary by farmers. Nixon argues need judicial review for check on Legislature to prevent usurp of judicial power o Framers created two safeguards to keep Senate in check (1) Whole of impeachment divided between two legislative bodies (2) 2/3 super majority requirement Lack of finality & difficulty of fashioning relief also counsel against justiciability WHITE CONCURRING Court is of view that Constitution forbids us to even consider Ps contention not so Senate fulfilled its constitutional obligation to try petitioner Question raised here meeting Baker criteria Issue here is whether Constitution has given one of political branches final responsibility for interpreting scope & nature of such power Courts willingness to abandon its obligation to review merely on word sole is perplexing All legislative powers to House & Senate in Article I section 1 All nearly synonymous with sole both mean entire & exclusive but court never thought it would unduly interfere with operation of Legislative to entertain difficult & important question of extent of legislative power In fact, held opposite, stated proper interpretation of Clause falls within province of Judiciary SOUTER CONCURRING Court basically says judicial review of impeachment trial would never be right Other things can justify denying review as well: o Ex: If senate were to act in manner seriously threatening integrity of its results judicial interference might be appropriate CHAPTER 2: THE FEDERAL LEGISLATIVE POWER

 INTRODUCTION: CONGRESS & THE STATES Will discuss: (1) Commerce Clause (2) Tax & Spending Power (3) Section 5 of 14th A Article I of Constitution: All legislative powers herein granted shall be vested in Congress of US which shall consist of Senate and House of Representative. 10th Amendment: The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. When may Congress Act? What laws may congress adopt? May act only if express or implied authority in Constitution (States may act unless Constitution prohibits action) Evaluating constitutionality of any act of Congress (1) Does Congress have authority under Constitution to legislate? o Requires defining scope of powers granted to Congress under Article 1, 8 (2) Does law violate another constitutional provision or doctrine? o Ex: infringing on separation of powers or interfering with individual liberties. MAIN POINTS OF THIS CHAPTER: How Congresss powers enumerated in the Constitution should be defined. Whether & when 10th A, & its protection of state governments, is & should be limit on Congressional power. McCulloch v. Maryland (Pg. 129) Three Main Points o (1) Rejects compact federalism o (2) Expansively defines scope of Congresss power o (3) Limits ability of states to interfere with federal activities, by imposing taxes or regulation on Fed. Govt. BACKGROUND: o 1790 Dispute between congress & executive branch whether to create Bank of US o Created existed for 21 years until charter expired in 1811 o War of 1812, economy was bad so President Madison endorsed Banks recreation o Didnt resolve countrys economic problems & states didnt like it b/c bank called in loans owed by states o In turn: Some states adopted laws prohibiting operation within state borders o MARYLAND started taxing Bank of US Law required: Any bank not chartered by State pay either annual tax of $15,000 or tax of 2 percent on all of its notes that needed to be on special stamped paper. o Bank refused to pay so Maryland sued to recover money owed o TRIAL COURT & COURT OF APPEALS judgment in favor of P & affirmed o 10TH A - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ISSUE 1 & HOLDING o Does congress has power to incorporate a bank? YES REASONING: (4 arguments why congress has power) o (1) Historical practice established power of Congress to create bank First bank enacted after much debate & approved by executive & convinced pure & intelligent minds Even those who opposed creation of first bank, agreed on creating the second bank o (2) Refute Ds argument that states retain ultimate sovereignty b/c they ratified C (Compact federalism view) D see states as sovereigns b/c created US by giving up own power & ratifying C if states are truly sovereign who alone possess supreme dominion then can veto federal action like creating bank Wrong view people ratified C not states, so people are sovereign, not states

Govt. of union is supreme power, government of all; powers delegated by all, represents all, & acts for all Possible Counterargument: Rhetorically powerful but not true b/c Article VII clearly indicates states had to ratify C, not people o (3) Scope of congressional powers under Article I allow creation of bank Marshall broadly described Congresss authority: Basically says, congress is not limited to acts specified in C, can choose any means not prohibited by C to carry out its lawful authority Bank or incorporation isnt in C but find great powers to lay & collect taxes; to borrow money; regulate commerce; declare & conduct war; & raise & support armies & navies How far can power of congress extend? Detailed in number (4) o (4) Necessary & Proper Clause makes (3) clear: all laws which shall be necessary & proper for carrying into execution foregoing powers, & all other powers vested by C in government of US or in any department thereof Counterargument Clause limits congress power to create only laws that are necessary essential to achieve goal Marshall says no, necessary means useful or desirable not indispensable or essential Provision is made in constitution, intended to endure for ages to come, & consequently, to be adapted to various crises of human affairs Clause is placed in Article I 8 which expands Congress powers & not 9 which limits them Limit If Congress takes action prohibited by C, then court will have to step in ISSUE 2 & HOLDING o If state of Maryland may, without violating constitution tax that branch? NO REASONING o Power to create includes power to preserve & power to tax involves power to destroy which may defeat & render useless the power to create Thus, cant tax Bank of US because could greatly impede operation & potentially tax it out of existence o D argues could tax up to point of interfering with or endangering bank Not a good argument b/c state tax on bank is tax on other states too Those who were being taxed werent being represented in state imposing the tax NOTES (PG. 138) (1) How important is protection of state sovereignty and federalism? o Oppose judicial protection national legislation is needed to deal with national problems. Courts should not circumscribe scope of Congresss authority or use of 10th A to invalidate federal laws o Favor judicial use of federalism as constraint on Congresss power 3 benefits of protecting state govt. (1) Division of power vertically, between federal & state govt. lessens chance of federal tyranny Present times think notion of radically limited federal powers is outdated since now if federal actions intrude on individual liberties, federal judiciary will invalidate it as unconstitutional. Judicial review is seen as important check against tyrannical government action. (2) Value of federalism is states closer to people & more likely to be responsive to public need & concern Greater danger for special interests to capture governments at smaller and more local level (3) States can serve as laboratories for experimentation (2) Should it be role of judiciary to protect state prerogatives or should this be left to political process? o (1) Judicial enforcement of federalism as limit on Congress is unnecessary b/c political process will adequately protect state government interests Wechsler interests of states protected in national political process & nature of process is enough protection of state sovereignty so unnecessary for courts to enforce federalism as limit on Congress

o (2) Today though, assumption that states interests are adequately represented in national political process is questionable. Seems highly unlikely that voters, in choosing senators and representatives weigh much on who serves interest of state as entity. CLASS DISCUSSION: What is modern version of Bank of US? o Modern Federal Reserve 2-Part Ruling important b/c basically held that powers of congress dont have to be explicitly in constitutional. Bank power because by looking at various powers, have power of money, borrowing money, commerce, etc. All of those powers would be helped with creation of bank. Necessary and Proper clause by itself is nothing, but only meaningful when read in junction with other things. THE COMMERCE POWER BIG PICTURE: Besides commerce clause, what are other powers congress has? (1) Commerce Clause a. Why is this clause so big? b. Have to look at other three powers below to understand this. c. Limitation on Tax & Spend power limited to taxing and spending so cant really regulate since has to do with actual spending and actual taxing. Not go to power. d. Limitation on 14th A Atlanta Motel Case about commerce clause power, specifically refers to state cant deny so private individuals CAN deny you. Court has seen this amendment as referring to only state actions. e. Limitations on 13th A only relates to slavery or involuntary servitute (2) Tax & Spend Clause (3) Section 5, 14th Amendment a. Three different protection i. Abridge privileges ii. Due Process procedural and sub? iii. Right of equal protection unde law Section 2, 13th Amendment: Slavery congress shall have power Article I Congress has power to regulate Commerce with foreign Nations, & among several States, & with Indian Tribes The 10th A Powers not delegated to US by C, nor prohibited by it to the states, are reserved to the State, or to the people Commerce Clause Jurisprudence (4 Eras Pg. 141) (1) Early American History to 1890s Commerce Power broadly defined but minimally used (2) 1890s to 1937 narrowly defined CP & used 10th A as limit (3) 1937 to 1990 Expansively defined CP & refused to use 10th A as limit (4) 1990s to Today narrowed scope & revived 10th A as independent, judicially enforceable limit on fed. action Throughout Eras Court Considered Following Questions: (1) What is commerce? o Is it one stage of business or does it include all aspects of business even life in US? (2) What does among several states mean? o Limited to times where direct effect on interstate commerce, or does any effect on interstate activity suffice? (3) To what extend does 10th A limit Congress? o If congress acting w/in scope of its commerce power, can law be declared unconstitutional as violating 10th A? (1) The Initial Era: Gibbons v. Ogden Defines Commerce Power Interstate commerce wasnt big deal so courts were interpreting it broadly but not used much so not many cases. Gibbons v. Ogden (Pg. 142)

o FACTS NY Legislature gave Robert Fulton & Robert Livingston monopoly over NY waters Licensed Ogden to run ferry between NYC & NJ Gibbons operated competing ferry service & violated exclusive rights given to Ogden (Fulton & Living) o PROCEDURAL HISTORY Ogden sued Gibbons for injunction in NY State court & NY granted Gibbons said had right to operate ferry since licensed under federal law as vessels in the coasting trade) Gibbons appealed to Supreme Court o ISSUE & HOLDING Was NY grant of monopoly was constitutional? NO o ANALYSIS What is at issue? Commerce Clause. What does Commerce Clause allow congress to do? Commerce Clause says Congress shall have power to regulate commerce What does Commerce mean? Commerce means more than just traffic, buying & selling, interchange of commodities (what Ogden would limit it to) means intercourse between nations, parts of nations, in all its branches Ogden: Limits this by saying that this is not buying and selling or TRAFFICKING OF GOODS. This is carrying people, its not trafficking goods. Court goes with a broader definition by saying its not JUST trafficking of goods its an exchange of money, its moving people, and besides, navigation is included in commerce. How to regulate commerce? Regulate commerce by giving rules for carrying on that intercourse. Regulation of commerce includes regulation of navigation o All of American knows commerce includes navigation. Framers knew too (did they? Look at pg 143 Paragraph 2) Where does this commerce, or commercial regulation, of navigation extend to? with Foreign nations, among several state, with Indian Tribes o Universally admitted that extends to US & Foreign nations What does Among Several States mean? Among means intermingled with, cant stop at external boundaries; internal boundaries also Internal boundaries doesnt mean US can interfere with Man to Man commerce w/in state Only means commerce, or intercourse, BETWEEN states, which affect state generally and not particularly (i.e. those that dont affect other states) All States more restrictive Between: If its between states, then cant touch anything within a state Intermingling In the midst of most broad b/c can be anything. Intermingling requires some contact, etc. If power stopped at external bounds of state, it would be useless b/c ports are in internal bounds. What does it give the power to do? Gives the power to REGULATE o This power, like the others vested in Congress, is complete in itself, may be exercised to utmost extend & acknowledges no limitations, other than prescribed in constitution To what extend does 10th A limit congress? If congress is regulating commerce among states, is there any limit b/c of state sovereignty? No, congress has compete authority to regulate all commerce among the states When acting under commerce clause authority, Congress can regulate in same way as it could if no state government existed o CLASS DISCUSSION:

 No 10th A b/c no exclusive state control is immune from reach of commerce clause SC takes broad view, not the broadest. Commerce clause as positive and negative check (2) The 1880s-1937 Era: A Limited Federal Commerce Power Three Doctrines advanced dual federalism & limited scope of Congresss authority under commerce clause o (1) narrow definition of commerce o (2) restrictive interpretation of among the states o (3) use of state sovereignty as constraint on congressional power Known as aggressive era dealt with lots of commerce cases b/c of industrial revolution Wanted to know if capitalism had run amok because of big steel companies Wanted to regulate wages, employee safety, etc o Rule: if marketplace didnt have some regulation you would get monopolies o Congress cant act unless some authority in constitution commerce clause production was not a form of commerce (EC Knight Case) o Among the states narrow way Stream of commerce way if solely within a state, then outside commerce clause regulation o Limited Shreveport o Court held that 10th A no exclusive hammer case? o Minimum wages, age limits, etc were passed o Everything touched on interstate commerce Court dramatically altered what commerce was and what among states meant Combat monopolies & restraints of trade through: o (1) Interstate Commerce Act in 1887 Federal Statute designed to regulate railroad industry monopolies o (2) Sherman Antitrust Act in 1890 Federal Statute limiting monopolies and requiring federal government to investigate companies suspected of violating the Act. In this era, court deeply committed to laissez-faire/unregulated economy o Did this by declaring state laws regulating employment & commercial transactions unconstitutional as violating freedom of contract protected under Due Process Clause. o Ex: If congress made federal minimum wage invalid based on Carter v. Carter Coal Co. o Ex: Further if state made state minimum wage invalid based on Due Process Clause (A) What doe commerce mean? limited definition of commerce o United States v. E.C. Knight Co. 1895 (Pg. 146) FACTS: American Sugar Refining Co. created monopoly when bought stock of four Philadelphia refineries US sued saying purchases made were combinations in restraint of trade (meaning that they were illegal deals meant to unjustly restrict competition and monopolize commerce of refined sugar which was contrary to the Sherman Antitrust Act) Whats so bad about monopoly? If want free market, shouldnt get involved with this aspect either. Want competition, not monopolies which interfere with free market since A VERY FEW will own everything and free market will cease to exist. ISSUE: Whether monopoly can be directly suppressed under act of congress in mode attempted by this bill Is this Sherman Antitrust Act within the Commerce Power? HOLDING: No b/c this is not expressly in the constitution. It is NOT interstate commerce. Go to rule of Con Law is it needs to be expressly in the constitution.etc etc. ANALYSIS:

US argue that Commerce Clause gives Congress authority to have this act. Court says that no, this isnt interstate commerce, this is simply production. C doesnt allow congress to regulate manufacturing monopoly of production of sugar not commerce dont have this power b/c there is a 10th A issue DISSENT HARLAN This DOES affect sales/commerce b/c you make something and you sell it. Only point of producing it is to sell it. There is a direct impact from refining to selling. Court shouldnt be so narrow. o Carter v. Carter Coal Co. (Pg. 147) IMPLICATION: Limited important piece of New Deal Legislation (Bituminous Coal Conserv. Act) FACTS: Bituminous Coal Conservation Act of 1935 law provided for local coal boards to be established to determine prices for coal & to determine wages & hours after collective bargaining with unions Shareholder in Carter Coal Co. sued to stop company from complying with law ISSUE & HOLDING Is Act unconstitutional? Yes REASONING Unconstitutional to regulate wages & hours of states b/c constitutes production , not trade Employment of men, fixing their wages, hours of labor & working conditions, bargaining in respect of these things whether collectively or separately is production, not trade Why are the states not regulating? No min wage b/c afraid of business moving to different state. Narrow definition is necessary to protect states (B) What does Among the States mean? requirement for direct effect on interstate commerce o Houston, East & West Railway Co. v. United States (The Shreveport Rate Cases) (Pg. 149) Broadly defined among the states FACTS Congress passes act to try to establish max rates for railway transportation between states Railroad was ordered to charge same rate for shipments to Marshall, TX whether shipments were coming from Shreveport, LA or Dallas, TX HOLDING Act is constitutional & affects interstate commerce Court said even though this was regulating rates inside the state, the rates were ultimately having impact on interstate commerce b/c people would transfer within state if expensive to go out of state. o A.L.A. Schechter Poultry Corp. v. United States (The Sick Chickens Case) (Pg. 151) Narrowly defined among the states by requiring direct effect on commerce FACTS National Industrial Recovery Act (key piece of New Deal legislation) authorized president to approve codes of fair competition developed by boards of various industries President approved Live Poultry Code for NYC required sellers to sell only entire coops of chickens or half coops of chickens & illegal for buyers to reject individual chickens also regulated employment by requiring collective bargaining, prohibiting child labor, & making 40-hr work week HOLDING SC declared Code unconstitutional because there wasnt direct relationship to interstate commerce Acknowledged that all poultry in NY was shipped from other states, Code wasnt regulating interstate transactions; rather, concerned with operations of business within NY NOTES ON SCHECTER Court used stream of commerce approach to define among the states

 Swift & Co v. US 1905 (Pg. 153) Court upheld application of Sherman Antitrust to agreement among meat dealers to fix prices at which they could purchase meat from stockyards although stockyards were interstate, court stressed that it was only temporary stop for cattle Stockyards were in current of commerce among states, & purchase of cattle is part & incident of such commerce Stafford v. Wallace 1922 (Pg. 153) Court upheld Packers & Stockyard Act of 1921 authorized Secretary of Commerce to regulate rates & prescribe standards for operation of stockyards where livestock was kept Law designed to protect consumers by lessening consent between stockyard managers & packers and also by decreasing ability of packers to set prices for livestock Within stream of commerce b/c stockyards are throat through which current flows Railroad Retirement Board v. Alton R.R. Co 1935 (Pg. 153) Narrow definition of among the states Railroad Retirement Act of 1934 provided pension system for railroad workers. Railroads obviously part of stream of interstate commerce, & Court had upheld other federal regulations of railroad but unconstitutional here b/c different from other cases concerning safety or efficiency of railroad. Court said Congress cant use commerce power to require pension program b/c law was only to help social welfare of worker & therefore was remote from any regulation of commerce th o Does 10 A limit Congressional powers? Key question: If congress acting w/in scope of its commerce power, can law be declared unconstitutional as violating 10th A? Two different answers: (1) 10th A is not separate constraint on Congress but rather simply reminder that congress can only legislate if it has authority under C Here, federal law would never be unconstitutional as violating 10th A, but could be invalidated as exceeding scope of Congresss power under Article I of C or for violating another Cal provision Ex: Gibbons v. Ogden federal law constitutional so long as Congress acting within its authority (2) 10th A protects state sovereignty from federal intrusion Here, 10th A is key protection of states rights & federalism 10th A reserves zone of activity for exclusive control by states so federal laws intruding into that zone should be declared unconstitutional by courts Ex: First 3rd of Century(including cases below) found 10th A reserved to states control over product & federal law attempting to regulate production were unconstitutional Hamper v. Dagenhart (The Child Labor Case) (Pg. 154) Courts held commerce means actual sales; thing being regulated must be within stream of commerce Federal law prohibited shipment in interstate commerce of goods produced in factories that employed children under 14 or 14-16 who worked more than 8 hour/day or 6 days/week Although law only regulated goods in interstate commerce, Court declared it unconstitutional because it controlled production - Regulating hours of labor of children is purely to state authority Rejected argument that federal legislation necessary to prevent unfair competition because states that wanted to outlaw child labor would be at disadvantage Court said if allowed this, then Congress could regulate all kinds of local state matters Champion v. Ames (The Lottery Case) (Pg. 158) This is exception to general concept of Hamper saying congress can regulate with moral objective since gambling is bad and immoral, dont have 10th A violation. Says commerce clause can be used for commercial goals or non commercial goals.

 Court upheld federal law prohibiting interstate shipment of lottery tickets Court said power to regulate interstate commerce includes ability to prohibit items from being in interstate commerce include power to stop lottery tickets from being party of interstate commerce (3) 1937 1990s Era : Broad Federal Commerce Power Depression led to strong political pressures to change (laissez-faire economics seemed untenable) o Courts opposition to national economic regulation seemed anachronistic & pernicious in face of depression Roosevelt won presidency & pressed adoption of New Deal programs to congress & increase size of SC Court o Court Packing Proposal How did court respond? 5th justice sided with Roosevelt and changed his view o Why more justices? So Roosevelt could add six new Judges to secure majority favoring New Deal o How is size of Supreme Court Determined? Add judge when new federal circuit court of appeals added o Court Packing plan opposed b/c threat to judicial independence Key Decisions Changing The Commerce Clause Doctrine o Because of the three cases below, during this time period, not one federal law was declared unconstitutional as exceeding scope of Congresss commerce power. o They overruled earlier decisions & expansively defined scope of Congresss commerce power o NLBR v. Jones & Laughlin Steel Corp. (Pg. 160) expansively defined commerce FACTS National Labor Relations Act of 1935 created rights of employees to bargain collectively & established National Labor Relations Board to enforce law ARGUMENTS Jones isnt saying they didnt discriminate, they are saying that NLRB cant regulate. Court says: yes, can regulate b/c it is interstate commerce. What are examples of out of state activities that Jones had? Shipped to out of state warehouse; 4th largest producer of steel with factories in PA, mines in PA, MN, MI, WV, LA, NY IL, TN, OH This case overrules EC Knight b/c it says manufacturing IS commerce. Saying Commerce is not just about sales, it could also include manufacturing and production. Case says that commerce should be read broadly DISSENT: Including manufacturing in commerce is too broad b/c congress is able to use commerce clause to regulate anything. Infringes on state rights! CLASS DISCUSSION Why cant employer fire whoever they want? As long as its not protected by constitution they CAN fire whoever they want. Here: Cant fire because infringing on right to collectively bargain. You can discriminate if you own the company, but certain areas you cant: Race, Religion, Veteran Status, Skin Color, Immigration Status, Union Status Why union status? B/c there would be no unions then, which gives employees right to collectively bargain. o United States v. Darby (Pg. 164) FACTS Darby is a lumber manufacturer Fair Labor Standards Act of 1938 prohibited shipment of interstate commerce of good made by employees who were paid less than prescribed minimum wage What is real reason for passing this act besides standard of living? B/c it creates unfair competition b/c if you leave it to states, businesses will move to other states to get better working conditions for them. Court is saying were not overruling b/c the mid era ignored Gibbons v. Ogden. Court goes back to initial era saying we are being consistent with true meaning As long as congress has power to regulate, it can do so for any reason.

ANALYSIS Court upheld act saying while manufacture is not itself interstate commerce, shipment is. Court expressly overruled Hammer v. Dagenhart rejected view that 10th A limits Congress powers A law is constitutional so long as it is within scope of Congresss power; 10th A wouldnt be used by judiciary as basis for invalidating federal laws incorporates view of Gibbons o Wickard v. Filburn (Pg. 166) FACTS Agriculture Adjustment Act of 1938 secretary of agriculture set quota for wheat product & each farmer given allotment Filburn was farmer and grew wheat primarily for home consumption & to feed livestock Grew more than allotted bushels so fined $117 sued claiming federal law couldnt constitutionally be applied to him b/c wheat he grew for home consumption wasnt interstate commerce. HOLDING Court upheld application of federal law & rejected limits on commerce power enforced in earlier era Distinctions, which were crucial in earlier era, between commerce & production, & between direct & indirect effect on commerce, no longer followed Upheld application to home-grown wheat b/c cumulative effect of that wheat on national market It was single most variable factor in wheat market & could account for more than 20% of production Therefore, even though Filburns wheat had little impact on interstate commerce, Congress could regulate his production b/c cumulatively home-grown wheat had substantial effect on I.C. Reasoning: limit production so wheat prices dont go out of control o NOTES ON IMPLICATION OF 3 CASES ABOVE Court no longer distinguish b/w commerce & other stages of business like mining, manufacturing, & production; instead they could exercise control over all phases of business Court no longer distinguish b/w direct & indirect effects on interstate commerce; congress could regulate any activity that taken cumulatively had an effect on interstate commerce No longer was the 10th A limit on congressional power; federal law could be upheld so long as it was within scope of congresss power, and commerce clause was interpreted so broadly that seemingly any law could meet this requirement Meaning of Commerce Among The States o Since 1937, wide array of federal legislation adopted under guidance of commerce clause o Consider three types of federal laws adopted under it: (1) Civil Rights (2) Regulatory (3) Criminal o Civil Rights Laws: Heart of Atlanta Motel, Inc. v. United States (Pg. 169) FACTS Not allowing African Americans to stay at his motel ACT: Congress passes civil rights act of 1964 Who could regulate him? State Regulation why does he want state to regulate him? Georgia doesnt have any state regulation b/c theyre for segregation White people in office so they make laws prevention of African Americans from voting how would they stop people from voting? Poll Taxes why did this seem ok? b/c everyone was asked to pay it, but blacks couldnt afford it since tend to be poorer; Reading Requirement blacks less likely to be literate HOLDING Is Act permissible? Yes b/c even though local motel there are Afros traveling from all over.

 Test For Commerce Among States: (1) If Congress had rational basis for finding racial discrimination by motels affecting commerce (2) If it had such basis, whether means selected to eliminate evil are responsible & appropriate Voluminous testimony presented evident of discrimination & it didnt matter that Congresss motive in part was moral, many federal laws, stretching back to Lottery Case, adopted under commerce power to remedy moral wrongs Which facts indicate this was relative interstate commerce? Did every hotel in Georgia have to abide by this rule? No, court doesnt go this far. THIS hotel had 75% of occupants from out of state b/c this hotel was on interstate highway. Not merely a local issue explosion of disagreement from South b/c court was now using commerce clause to being desegregation to states infringed on state rights. Why Commerce Clause instead of 14th A b/c 14th only applies to states civil rights cases (168) holding 14th A can only apply to cases where discrimination by state NOT by private citizens Every other discrimination comes under Commerce Clause DOUGLAS CONCUR 14th A should extend to all customers in public places What right does it give? He says it should say ALL discrimination What stands in his way? The use of state 14th As SPIRIT was to eradicate slavery What are some other implications? You should be able to decide who you WANT to hang out with Associational freedom right to discriminate in certain context right under 1st A o Country Clubs as long as it doesnt affect commerce, no law that prohibits it o Civil Rights Laws: Katzenbach v. McClung, Sr. & McClung, Jr. (Pg. 171) FACTS Family-owned restaurant that sells to Afros but wont let them eat there ARGUMENTS Ollie is saying they are not interstate but court said Act applied still Court holds that they receive meat from out of state businesses, so are part of commerce Court found discrimination by restaurants had cumulative impact on interstate commerce: Established restaurants in such areas sold less interstate goods because of discrimination interstate travel was obstructed directly by it, business in general suffered & many new business refrained from establishing there as a result Court upheld Civil Rights Act b/c power of congress under commerce clause is broad & sweeping Everything after Wicker is interstate commerce recently Wicker was reaffirmed in a recent MJ case. o Regulatory Laws: Hodel v. Indiana (Pg. 173) Court upheld federal law regulated strip mining & required reclamation of strip-mined land RULE: Court may invalidate legislation enacted under Commerce clause only if (1) Clear that no rational basis for congressional finding that regulated activity affects I.C. or, (2) There is no reasonable connection between regulatory means selected & asserted end. DISSENT Rehnquist said any rational link shouldnt suffice to meet commerce requirement, there must be showing that regulated activity has substantial effect on that commerce o Criminal Laws: Perez v. United States (Pg. 173) FACTS

 Title II of Consumer Credit Protect Act prohibited loan sharking activities like charges of excess interest, violence, & threats of violence to collect debit D convicted of violating laws but argued that Law cant constitutionally be applied to him b/c business wholly operated in NY & no proof that he engaged in organized crime HOLDING Court rejected argument & upheld federal law held it was rational for Congress to believe that even intrastate loan sharking activities had sufficient effect on interstate commerce Sufficient that Congress had rational belief no need for particularized findings th The 10 Amendment between 1937 & 1990s o During this era, rejected view that 10th A was independent limit on legislative power & instead viewed it as simply a reminder that Congress may legislate only if there is authority in Constitution o US v. Darby case key Court overruled Hammer v. Dagenhart & its view that control of product was left to exclusive regulation of states. Court made it clear that law is constitutional so long as its within scope of Congresss powers; 10th A wouldnt be used for basis of invalidating federal law o National League of Cities v. Usery (Pg. 175) Only case in this era to deviate from view mentioned above & hold law violated 10th A Darby was private act, Usery is public entity Fair Labor Standards Act required payment of minimum wage to state & local employees Court held Act violated 10th A b/c forcing state & local governments to pay employees minimum wage would require that they either raise taxes or cut other services to pay these costs This would displace decisions traditionally left to states & may substantially restructure traditional ways in which local governments have arranged their affairs 10A regulates private entities public employee systems Question is, although Darby held Congress had right to regulate against private entity, doesnt mean that they have right to regulate state employers Why doesnt congress have right to regulate min wage for state employee? B/c public policy is: states should be allowed to decide themselves on how they can regulate it Here court says state is right b/c violation of state rights, interferes with separation of powers. o Garcia v. San Antonio Metropolitan Transit Authority (Pg. 178) Effectively overrules Usery but usery is important b/c stresses how court in this era doesnt apply 10th A 10th A is all about protecting state sovereignty Court in Garcia says not a problem with state sovereignty here b/c political process has checks that protect state sovereignty. Federal government is representative of the states, its not opposed of them, its composed of members of the states, the members are going to make sure that their states are not under represented. But what if its hurting one particular state. If this argument true then why was there need for 10th A? Eroded protection for state rights - ask Ex: Courts have allowed congress to effectively control it by giving grants to states that change the age to 21. Provision of vast monitory power also effects states. Electoral power Garcia dissent becomes more popular and becomes majority view. (4) 1990s Present Era: Narrowing of Commerce Power & Revival of 10th A as Constraint On Congress Descriptive Question o What principle does Court use to determine when Congress exceeds scope of Commerce Clause Authority o When does congress violate 10th A Normatively o Does Court persuasively justify their desire to limit federal powers What is Congresss Authority to Regulate Commerce Among States o United States v. Lopez (Pg. 184) limit power

FACTS Congress created Gun-Free School Zone Act of 1990 federal offense for any individual to knowingly possess firearm at place that individual knows, or has reasonable cause to believe, is school zone 18 U.S.C. 922(q)(1)(A) 12th grader brought handgun & 5 bullets to school. School found out, & arrested by state authorities PROCEDURAL HISTORY State charged him under Texas Law with firearm possession on school premises but dismissed b/c Federal Agents charged respondent with violating Gun-Free School Zone Act of 1990 School Zone in, or on grounds of, a public, parochial or private school or within a distance of 1000 feet from grounds of public, parochial or private school ISSUE If Commerce Act gives congress power to create Act (crime to possess a gun in or near school) HOLDING No, Act exceed authority of Congress to regulate Commerce among the several States RULES Three broad categories which Congress may regulate (1) Use of channels of interstate commerce (Dont worry about distinction between channels and instrumentalities) o Darby lumber manufacturers cases: production is still part of commerce o Heart of Atlanta Motel Even though in-state motel, it was on interstate highway (2) Instrumentalities of interstate commerce, or persons, or things in interstate commerce, even though threat may come only from intrastate activities o Shreveport railroad case: Congress regulate prices in-state to allow out of state competition o Southern R. Co. (3) Activities having substantial relation to interstate commerce o Jones & Laughlin Steel - cant fire union workers held manufacturing IS commerce o Case law hasnt been clear on what substantial relation means Affect or substantially affect? Court thinks it means substantially affect How can congress show substantial affect? Need to show findings? Do a background research on how effects interstate REASONING (1) & (2) are not at issue here b/c gun regulation isnt (1) use of channels and its not (2) meant to protect instrumentality of interstate commerce (3) Must show gun regulation is activity that substantially affects interstate commerce o (a) Give examples of what substantially affects interstate commerce Hodel regulation of intrastate coalmining Perez intrastate extortionate credit transaction McClung restaurant utilizing substantial interstate supplies Heart of Atlanta Motel inns & hotels catering to interstate guests Wickard production & consumption of homegrown wheat o These are all examples of activities substantially affecting interstate commerce & Wickard was a stretch but it was more substantially affected than guns. How? Gun Statute is a criminal statute that has nothing to do with commerce Not essential part of larger regulation of economic activity o (b) No express jurisdictional element which might limit its reach to discrete set of firearm possessions that additionally have explicit connection with or effect on interstate commerce General power regulating fire arms is like state powers like family law, probate, etc.

CONCURRING - KENNEDY & OCONNOR They dont want to go to old definition where it was difference between manufacturing and production. We want to acknowledge reality of modern marketplace. Court shouldnt say that the Commerce Clause is insufficient to support an exercise of national power History of Clause shows two lessons relevant to this case (1) Vagueness of content-based boundaries used to define limits of Commerce Clause (2) Court as institution and legal system as whole has immense stake in stability of Commerce Clause jurisprudence as it has evolved to this point Here, neither actors not their conduct has commercial character & neither purposes or design of statute has evident commercial nexus Doubtful that any state would say guns are safe in school, its still their decision to make Statute forecloses states from experimenting & exercising own judgment in area where States clam right of history & expertise & does so by regulating activity beyond realm of commerce CONCURRING THOMAS doesnt like substantially affect Test Return to original meaning of commerce clause: difference between manufacturing & production Commerce consisted of selling, buying, bartending, & transporting used opposite to productive activities like manufacturing & agriculture Parts can flow from different States or other nations so can be flow of commerce but manufacturing takes place at a discrete site so cant be in flow of commerce If substantial effect test can be added to Commerce Clause, why not every other Federal power? Would expand congress powers to all matters that substantially affect Army & Navy, bankruptcies, tax collection, expenditures, & so on Test suffers from further flaw appears to grant Congress police power over Nation DISSENT BREYER, SOUTER, STEVENS, GINSBERG Majority engages in undue judicial activism for abandoned almost 60 years of precedent & for invalidating important federal statute Judicially should uphold federal law as valid exercise of commerce power as long as rational basis that activity affects interstate commerce (test from before!) o United States v. Morrison (Pg. 196) limit power FACTS Brzonkala enrolled at Virginia Poly Tech where Morrison & Crawford repeatedly raped her Brzonkala sued Morrison under Section 13981 of Violence Against Women Act of 1994 Act said: All persons within US shall have right to be free from crimes of violence motivated by gender To enforce right, Act said Person who commits crime shall be liable to party injured . ISSUE & HOLDING Whether Act falls within Congresss power under Article I 8 of C. Hold that it does NOT RULES Congress can regulate (1) channels, (2) instrumentalities, & (3) activities Decided Lopez based on following criteria (1) compare with precedent cases noneconomic, criminal nature of conduct didnt suffice (2) Statute contained no express jurisdictional element which might limit its reach (3) No express congressional findings regarding effects on interstate commerce (4) Link between gun possession & substantial effect on interstate commerce was attenuated ANALYSIS P says Act is regulation of activity that substantially affects interstate commerce b/c when looked at cumulatively across country, have substantial effect on interstate commerce women afraid to travel to areas where violence to them is likely

 Court said no, independent judgment says trying to regulate activity traditionally dealt with by States We have only upheld Commerce Clause regulation where activity is economic in nature Majority says criminal is not commercial, but what about environmental regulation? To what extent do the other cases (motel, wicker) still hold true? We dont know how many of the 4 elements we need (1) Jurisdictional element o E.g. Linking gun to commerce (2) Findings (3) Commercial v. non commercial o Focus on economic activity (4) Avoid areas of traditional police powers CONCURRING THOMAS Same as Lopez DISSENT SOUTER, BREYER, STEVENS, GINSBERG Same as Lopez o Notes: Avoiding Constitutional Doubts Court narrowly construed federal laws to avoid question of whether they exceeded Congresss scope Interpreting laws narrowly to avoid constitutional doubts isnt new, but its application to commerce clause gives powerful tool to lawyers challenging application of federal civil & criminal laws They need not persuade Court that federal statute is unconstitutional on its face or as applied Only need to show that application of law would raise constitutional doubts Court doesnt say how serious doubt must be, or how plausible narrowing construction has to be United States v. Jones (Pg. 201) Issue: Whether arson of dwelling violates federal law making arson of property in interstate commerce a federal crime US argued that residence was party of interstate commerce b/c had insurance policies & received utility serve but SC said act didnt apply to dwelling Court said allowing law to be applied to resident would raise constitution doubts about Congress exceeding scope of its commerce clause power Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (Pg. 201) Consortium of suburbs of Chicago wanted to buy abandoned gravel pit to dispose of nonhazardous solid wastes water in pit was used by migratory birds Army Corps tried using Water Pollution Control Act to say pit cant be used Court held cant apply federal Act to intrastate waters based on presence of migratory birds Again interpreted Act narrowly to avoid constitutional doubts o Pierce County, Washington v. Guillen (Pg. 203) uphold power FACTS Hazard Elimination Act gave state & local government funding to improve most dangerous sections of their road. To be eligible, must undertake thorough evaluation of its public road Due to fear of having information used against states, Federal statute adopted saying that if local government did a traffic study as party of applying for federal funds, study is not discoverable Guillen had accident on intersection in State of Washington state had applied for funding to fix this road and had been denied, applied again 3 weeks after accident & approved Guillen sought access to traffic studies to use in suit against local government PROCEDURAL HISTORY Washington Supreme Court held statute unconstitutional HOLDING

US SC reversed & upheld federal law because well established that Commerce Clause gives Congress authority to regulate use of channels of interstate commerce statute can be viewed as improving safety in channel of interstate commerce & increasing protection for instrumentalities of int. com. o Gonzales v. Raich (Pg. 205) uphold power California created exemption to state marijuana laws for medical use no such exception in federal laws Supremacy clause is supreme only where it has legitimate exercise to act if congress doesnt have the power then you cant assign it. State felt good, it seemed like it was back to production and manufacturing Weird that Scalia is concurring b/c he like the old rule federalist view hes saying Controversial split decision that federal govt had right to regulate sale and growth of local use and groth of medicinal MJ purpose. Case talked about Wicker which everyone thought might be bad precedent but here court holds it up. o UPSHOT Lopez & Morision congress should be held to higher standard should have jx element should have 4 elements Gonazles shows that the trend isnt totally anti government, sometime and some areas where court is willing to allow government Does 10th A Limit Congresss Authority o New York v. United States (Pg. 216) FACTS Congress enacted Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act). Act attempted to force states to arrange for disposal of radioactive waste. The three parts of the Act were: (1) monetary incentive; (2) an access incentive, & (3) take title incentive, where state that didnt arrange for disposal of its waste would be required to take ownership of the waste & be fined New York claimed Act violated Tenth Amendment by invading the sovereignty of the state. ISSUE Does congress have authority to force state to adopt federal regulatory program? HOLDING No. Judgment affirmed in part and reversed in part 10th A violated when Congress directs states to regulate in particular field & in particular way. Constitution doesnt authorize Congress to commandeer state legislative process by compelling states to enact & enforce a federal regulatory program. Take title provision is Congressional coercion. Monetary & access incentives are a permissible exercise of Congressional spending power. Take title provision gave state two options. Either (i) take title to waste & risk whatever liability that followed, or (ii) regulate disposal according to congressional mandate. Either way, state forced to implement federal regulatory scheme & would be agents of fed. govt. o Why cant states be told what to do? B/c it violates checks/balance of having states/federal government Accountability issue Ex: Passing a tax on ink only affecting publishers is fine since publishing is commerce BUT 10th A check doesnt allow singling out publishers. Court says you can intervene with state interests in certain circumstances not an absolute rule but has to have a compelling rule for government to do this. DISSENT Congress isnt forcing its will on states by regulation of radioactive waste. Instead, Congress ratified compromise between many states to solve waste disposal problem. Without this statute, another state would be forced to accept New Yorks radioactive waste. CONCUR

 C enhances power of federal government. C doesnt limit ability of Congress to direct state governments to implement Congressional legislation. Therefore, no reason to prevent Congress from commanding states to enforce federal standards for waste disposal. o Printz v. United States (Pg. 226) FACTS Congress passed Brady Handgun Violence Protection Act required Attorney General to establish national background check system. Until national system became computerized, interim provisions for background checks were established. Provisions provided that state and local law enforcement officers must do background checks before issuing permits to buy firearms. Two local law enforcement officers challenged the constitutionality of the Acts interim provisions. ISSUE Can Congress compel state or local government to even temporarily implement and administer a federal regulatory program? Is it violation of 10th A? HOLDING No, Judgment reversed In New York v. United States, SC held federal govt. couldnt compel states to enact or administer federal regulatory program. So, background check provisions of Act violated this prohibition. Even if there is no policy-making involved, Congress cannot take away states sovereignty. Federalism mandates states remain independent from the federal government. Only president has executive authority to implement laws to state & local law enforcement CONCUR THOMAS Since Congress doesnt have authority to regulate intrastate transfer of firearms they also dont have authority to require state officials to administer & enforce such regulations. Why is it a violation of a 2nd A right? Assuming this is individual right, this is interfering with right to bear arms. Assuming b/c court hadnt decided if it was individual right. DISSENT - STEVENS Federal commerce power gives Congress right to regulate handguns. Necessary & Proper Clause gives Congress right to implement its regulations by using local officials. Further, since private citizens could be compelled by Congress to identify people who couldnt be trusted with handguns, no reason why states couldnt be compelled to perform same function. Garcia only applies if regulating state the same way would apply to any other actor. If could apply to private citizens as well. Ex: Min wages court says this is ok b/c regulating both private and state parties o Reno v. Codon (Pg. 236) FACTS Drivers Privacy Protection Act prohibited states from disclosing personal information gained by DMV Senator Boxer introduced law when actress stalked & killed by man who got her info through DMV Respondent, South Carolinas Attorney General Charlie Condon, argued law violated 10th A b/c commanded states not to disclose information US Court of Appeals agreed said unconstitutional ISSUE Can Congress require States to comply with DPPA? Violates 10th A? RULE Test: Affirmative obligation or negative prohibition? HOLDING

Yes. Appeals court ruling reversed and remanded. DPPA doesnt require states to regulate their own citizens or require South Carolina legislature to enact any laws or assist in enforcement of federal statutes regulating private citizens. Since DPPA only restricts state government action, doesnt violate 10th A It was prohibition of conduct, not affirmative mandate like NY or Printz Extended to private entities too, not just state governments IMPLICATIONS OF CASE First time in last decade in which court rejected federalism challenge to federal law Court limited scope of 10th A restrictions on Congress Congress can prohibit state governments from engaging in harmful conduct, especially if law applies to private entities as well, but Congress cant impose affirmative duties on states

THE TAXING & SPENDING POWER REVIEW First attempt at desegregating was struck down as unconstitutional FIRST VIEW: congress can expand scope of rights so long as it is not diluting rights Katzenbach Boerne can only provide remedies for rights created by courts Article I 8 congress shall have power to lay & collect taxes, duties, imposts and excises, to pay debts & provide for common defense & general welfare of US; but all duties, imposts & excises shall be uniform throughout the US. For What Purpose May Congress Tax & Spend? Question: Is Congress limited to taxing & spending only to carry out other powers specifically enumerated in Article I or does Congress have broad authority to tax & spend for general welfare? US v. Butler (Pg. 239) Congress has broad authority o FACTS Agricultural Adjustment Act of 1933 sought to stabilize production in agriculture by offering subsidies to farmers to limit their crops. (Wickard) o HOLDING Court declared Act unconstitutional b/c violated 10th A cant regulate production, state responsibility This aspect never followed but holding about Tax & Spend power is good law Court said Congress has broad authority Madison View Congress limited T&S power to carry out other powers explicitly in Article I of C US is government of limited & detailed (enumerated) powers Hamilton View Congress could T&S for any purpose believe to serve general welfare as long as Congress didnt violate another constitutional provision Endorsed Hamilton View Example: Tax calculated or administered in racially discriminatory fashion would be unconstitutional, not as exceeding scope of Article I powers but violating 5th A equal protection Steward Mach. Co. v. Davis (Pg. 241) o FACTS Social Security Act imposed tax on employers with 8 or more employees Plaintiff challenged validity of tax system on 5th A constitutional grounds o HOLDING The tax system was constitutional. The tax system at issue is merely designed to assist federal & state agencies to work together. Neither States nor citizens are injured. System doesnt require States to surrender powers essential to their quasi-sovereign status. It is necessary to distinguish between coercion and temptation. Every tax is to some degree coercive. Every rebate from taxes conditioned upon conduct is to some extent a temptation.

In the instant case, the tax system did not reach coercion. o NOTES Supreme Court here draws distinction between federal regulation that encourage (i.e., pressure) States & those that coerce them. Former is permissible, latter is not. Precise point where line from encouragement to coercion is crossed remains open question. Sabri v. US (Pg. 242) o FACTS Sabri charged under federal law prohibited bribery of state, local, & tribal officials of entities that receive at least 10 K in federal funds bribed city councilmen Sabri moved to dismiss indictment, claiming that law unconstitutional because failed to show connection between federal funds & alleged bribe as element of liability his activities had nothing to do with area of local government that received federal funds so Congress exceed scope of its spending power District court accepted argument & dismissed indictment. Fed. Govt. appealed to the Eighth Circuit. o ANALYSIS Court upheld constitutionality of federal law & rejected Sabris argument b/c money is fungible, bribed officials untrustworthy stewards of federal funds, & corrupt contractors dont deliver $-for-$ value Rejected federalism challenge to law & concluded criminal law was constitutional b/c Congress has power to bring federal power to bear directly on individuals who convert public spending into unearned private gain, not means for bringing federal economic might to bear on States own choice of public policy Conditions on Grants to State Governments o Oklahoma v. Civil Service Commission (Pg. 245) Court upheld provision of Federal Hatch Act granted federal funds to state govt. on condition that states adopt civil service systems & limit political activities of many categories of government workers Congress has broad power to set conditions for receipt for federal funds even to areas that Congress might not otherwise be able to regulate While US not concerned with, & has no right to regulate local political activities as such of state officials, it does have power to fix terms on which money allotments to state shall be disbursed o South Dakota v. Dole (Pg. 245) o FACTS South Dakota permitted 19 year olds to purchase beer containing 3.2% alcohol Federal law sought to create a 21yr old drinking age by withholding portion of federal highway funds from any state govt. that failed to impose age 5% of federal highway funds would be denied to any state that did not create age limit Condition imposed by congress was directly related to main purposes behind federal highway money: creating safe interstate travel Some argued it was coercive Court argued that it was a relatively mild encouragement and was constitutional even if congress might like the power to impose a national minimum drinking age directly So encouragement to state action is valid use of the spending power o Pennhurst State School & Hospital v. Halderman (Pg. 247) FACTS Developmentally Disabled Assistant & Bill of Rights Act of 1975 created federal grant program for state governments to provide for better care for developmentally disabled act included bill of rights for developmentally disabled School was sued for violating bill of rights contained in Act HOLDING Court said Act failed to require that states meet bill of rights as condition for accepting federal money

 Congress may place strings on grants to state & local governments so long as conditions expressly stated this way states will now consequences of their choosing to take federal funds CONGRESSS POWER UNDER POST-CIVIL WAR AMENDMENTS After the Civil War, 3 extremely important amendments were added to the constitution 3 Reconstruction Era amendments contain provisions empowering Congress to enact civil rights legislation 13th A [1865] applies to individuals o prohibits slavery & involuntary servitude, expect as punishment to crime o Congress shall have power to enforce this article by appropriate legislation 14th A [1868] applies to states only o All persons born or naturalized in US are citizens & no state can abridge privileges or immunities of such citizens; nor may states deprive any person of life, liberty, or property without due process of law or deny any person of equal protection of the laws o Congress shall have power to enforce, by appropriate legislation, the provisions of this article 15th A applies to states only o Right of citizens of US to vote shall not be denied or abridged by the US or by any state on the account of race, color or previous condition of servitude o congress shall have power to enforce Two major questions arise concerning the scope of this power: o (1) Can congress regulate private conduct under this authority or only government? o (2) What is scope of congresss power under these Amendments? (1) Whom May Congress Regulate Under Post-Civil War Amendments? Can Congress Regulate Private Conduct? o The Civil Rights Cases (Pg. 248) SC limited Congresss ability to use power under Reconstruction Amendments to regulate private conduct Civil Rights Act of 1875 Law broadly prohibited private racial discrimination by hotels, restaurants, transportation & other public accommodations Court held Act was unconstitutional & adopted restrictive view of power of Congress to uses provisions to regulate private behavior 13th A applies to private conduct; prohibits people from being or owning slaves However, Congresss power limited to ensuring end to slavery not power to eliminate discrimination Cant enact law under 14th A broadly declared that 14th A applies only to government action so cant be used by Congress to regulate private behavior o Jones v. Alfred H. Mayer Co. (Pg. 249) Case involved private real estate developer who refused to sell housing or land to African Americans African American couple sued under 42 U.S.C. 1982: all citizens same right, in every State & Territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold & convey real & person property Court held congress could prohibit private discrimination in selling & leasing property 1982 applies to prohibit private discrimination & Congress has authority under 13th A to adopt law Congress has broad legislative power under 13th A o Runyon v. McCray (Pg. 250) Court held 42 U.S.C. 1981 applied to prohibit discrimination in private contracting & within scope of Congress under 2 of 12th A Case raised question whether 1981 prohibits private schools from excluding qualified African American children solely b/c of their race o Jones v. Alfred H. Mayer (Pg. 250) Court concluded that 1981 & 19982 reach private conduct Reaffirmed decision in Patterson v. McLean Credit Union

o United States v. Guest (pg. 250) Reaffirmed that Congress cant regulate private behavior under 14th A Federal law made it crime for two or more person to go in disguise on highway or on premises of another with intent to prevent or hinder his free exercise or enjoyment of any right or privilege Court held interference with use of facilities in interstate commerce violated law whether or not motivated by racial animus Us v. Morrison (Pg. 250) o Court held exceeded scope of Congresss Commerce Clause authority Virginia Tech Rape Case o FACTS Government argued that law was constitutional as exercise of Congresss power under 5 of 14th A o HOLDING Court reaffirmed Civil Rights Cases & rejected opinions contrary to Guest Law exceeded scope of commerce power b/c Congress cant regulate noneconomic activity based on cumulative impact on interstate commerce Court held law is not constitutional as exercise of Congresss 5 power where Congress can only regulate state & local government, not private conduct Guest opinions indicating congressional power to regulate private conduct were only dicta o IMPLICATIONS Morrison is important limit on Congresss power under 5 of 14th A Holding defended as being consistent with principal that 14th A applies only to government conduct Holding criticized as unduly narrow interpretation of constitutional provision intended to have broad scope (2) What Is Scope of Congresss Power? Two different views: [5 of 14th A] o (1) Nationalist perspective Congress may use its 5 authority to expand the scope of rights o (2) Federalist perspective Congress under 5 cannot create new rights or expand scope of rights; congress can act only to prevent or remedy violations of rights, and such laws must be narrowly tailored Nationalist Perspective o Katzenbach v. Morgan & Morgan (Pg. 253) IMPLICATION Indicated that Congress may independently interpret C & even overturn SC FACTS Section 4(e) of Voting Rights Act of 1965 no person who completed 6th grade in Puerto Rico, where instruction was in Spanish, shall be denied right to vote b/c of failing English Literacy Requirement Morgan & other registered voters in NYC brought suit to challenge constitutionality of Act HISTORY Lassiter v. Northampton Election Board court upheld constitutionally of English language literacy requirement for voting so Congress, seeking to partially overturn Lassiter provided this Act HOLDING Court upheld provisions as proper exercise of powers granted Congress by 5 of 14th A Two reasons to support this conclusion (1) Law constitutional b/c remedy for discrimination (2) Literacy test denied equal protection even thought contrary to holding in Lassiter Whether Congress limited to remedying what Court had found to violate C or Whether Congress could independently interpret C Court spoke broadly of Congresss powers under 5 DISSENT

If Congress can use its powers under 5 to interpret C, then it can use this authority to dilute or negate constitutional rights COUNTER TO DISSENT 5 doesnt grant Congress power to exercise discretion in other directions & to enact statutes so as in effect to dilute equal protection & due process decisions of this court Power under 5 is limited to adopting measures to enforce guarantees of Amendment 5grants Congress no power to restrict, abrogate, or dilute these guarantees Federalist Perspective o City Boerne v. Flores (Pg. 258) FACTS In Employment Div., Dept. of Human Resources of Oregon v. Smith, SC significantly lessened protection of free exercise clause Oregon law prohibited consumption of peyote, hallucinogenic substance - Indians challenged law claiming it infringed free exercise of religion b/c religious ritual required use of peyote Before, government actions burdening religion would be upheld only if necessary to achieve compelling government purpose but in Employment court changed law & held free exercise clause cant be used to challenge neutral laws of general applicability Oregon law deemed neutral b/c wasnt motivated by desire to interfere with religion & was law of general applicability b/c applied to everyone In response, Congress adopted Religious Freedom Restoration Act goal was to overturn Smith Act required courts to uphold govt. action only if necessary to achieve compelling interest Wanted to change law to what it was before Smith decision Act specifically prohibited government from substantially burdening persons exercise of religion even if burden results from rule of general applicability unless government can demonstrate burden: (1) is in furtherance of compelling government interest, & (2) is least restrictive means of furthering compelling government interest Boern involved church in Texas that was prevented from constructing new facility b/c building was classified as historic landmark Church sued under RFRA & city challenged constitutionality of law HOLDING Act unconstitutional because Congress under 5 of 14th A cant create new rights or expand scope of rights; rather Congress is limited to laws that prevent or remedy violations of rights recognized by SC IMPLICATIONS Is narrow definition desirable interpretation of Congresss 5 powers? 1st view: Narrow view has virtue of protecting SCs role as authoritative interpreter of C o Court alone determines meaning of substantive constitutional provisions o Congress limited to enacting laws to enforce these rights o Avoids risk that Congress might use 5 to dilute or negate constitutional rights o Consistent with basic constitutional premise of federal government with limited legislative authority & most governance left to states nd 2 view: Narrow view denies Congress power to expand scope of rights o 9th A

CHAPTER 3: THE FEDERAL EXECUTIVE POWER 6 Main Issues In This Chapter (1) President power & when, if at all, President may act w/o constitutional/statutory authority (2) Power of Congress to expand presidential power beyond Constitution (ex: rent line-item veto power) (3) Constitutional problems posed by administrative agencies (Non-delegation doctrine, Legislative Veto, & other alternative checks on agencies, including removal power) (4) Allocation of decision making authority in area of foreign policy (responsibility of treaties/war power)

 (5) Executive power & war on terrorism (6) Checks on executive, including civil suits for money damages & impeachment. INHERENT PRESIDENTIAL POWER Introduction If has explicit constitutional authority, then issues are: o Whether President is acting within scope of granted power & o Whether President is violating some other constitutional provision If statute authorizing Presidents conduct, then issue is: o Whether law is constitutional If neither constitutional or statutory authority, then: o Hamilton said President has authority not specifically in Constitution there are inherent powers o Madison said President has no power not enumerated in Article II Article 1 vs. 2 congress had more limited powers, while president had more broad powers Hamilton Madison no executive inherent power inconsistent with idea of written constitution b/c created federal govt. of limited powers no sense to have limited congress but unlimited presidential powers o Issue is discussed in Youngstown, note how each justice would answer it o Majority decision limited Presidential power, but separate concurrences make it difficult to figure out what the limitations exactly are in regards to seizure of private property in emergency. Jacksons used most often Youngstown Sheet & Tube Co. v. Sawyer (Pg. 318) o 4 Different Approaches (1) No inherent presidential power; pres. may act only if express constitutional or statutory authority (2) Pres. has inherent authority unless he interferes with functioning of another branch of government or usurps powers of another branch (3) Pres may exercise powers not mentioned in C so long as he doesnt violate a statute or Constitution (4) Pres has inherent powers that may not be restricted by Congress & may act unless C is violated o FACTS 1951 dispute between steel companies & their employees over terms & conditions of new agreement Couldnt reach an agreement so employees representative, United Steelworkers of America, C.I.O. gave notice of intention to strike. Federal Mediation & Conciliation Services stepped in but failed to settle dispute President referred dispute to Federal Wage Stabilization Board which also failed to reach settlement April 1952 Union gave notice of nationwide strike, made President fear that work stoppage would threaten national security b/c steel was indispensable component of all weapons & other war materials President issued Executive Order 10340 directing Secretary of Commerce to take possession of most steel mills & keep them running which Secretary did accordingly Secretary made presidents of various seized companies operating managers President, next morning sent notice to Congress reporting his action. Another notice 12 days later. Companies obeyed order but brought suit against Secretary saying seizure wasnt authorized by act of Congress or constitutional provision. o RULE Presidents power must stem either from act of Congress or from Constitution itself Article II: The executive power shall be vested in a President he shall take Care that the Laws be faithfully executed; and that he shall be Commander in Chief of Army & Navy of US o REASONING approach (1)

Here, no statute or act of Congress, & Government isnt relying on statutory authorization for seizure There are two statutes that authorize President to take both personal & real property under certain conditions but Government doesnt argue those here. In fact, Congress has refused to adopt the seizure technique of settling labor disputes Taft-Hartley Act 1947 Congress rejected amendment which would authorize seizure in emergency Why? Though it would interfere with process of collective bargaining Therefore, the plan that congress DID adopt did not provide for seizure under any circumstances Instead, their plan sought to settle disputes through customary means (mediation, conciliation, investigation by boards of inquiry, & public reports) Sometimes, though, temporary injunctions authorized to provide cooling off periods This left unions free to strike (after vote of course) Government argues: presidential power should be implied from the powers given under constitution Rely on Article II: The executive power shall be vested in a President he shall take Care that the Laws be faithfully executed; and that he shall be Commander in Chief of Army & Navy of US Argument fails b/c the order is not an exercise of Presidents military power Government says it is by citing cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. COURT Theater of war is an expanding concept, but it wouldnt be faithful to constitution to hold that Commander in Chief of Armed Forces has ultimate power to take possession of private party to keep labor disputes from stopping production. This is the Nations lawmakers job (Congress), not the military authorities. Also cant argue that several constitutional provisions grant this executive power to President Framework of Constitution limits Presidents role in law making to recommending of laws he thinks are wise and vetoing laws he thinks are bad. Constitution entrusts lawmaking power to Congress alone in both good and bad times o ISSUE Whether President was acting within constitutional power when he issued order directing Secretary of Commerce to take possession of & operate most of Nations steel mills. o HOLDING Seizure cant stand, the act is beyond the presidents constitutional power o JACKSON CONCURRING (Approach 3) President action can be split into three categories: (1) Acts with express or implied authorization from Congress This situation personifies federal sovereignty, anyone challenging has burden of proof (2) Acts where Congress has been silent Could possibly lead to implied authorization from Congress b/c it invites measures of independent presidential responsibility. (3) Acts incompatible with expressed or implied will of Congress Test: Seizure of strike-bound industries within Presidents domain & beyond control by Congress Here: Not (1) b/c Government admits no congressional authority existed Not (2) b/c Congress hasnt been silent, (see Taft-Hartley Act) Yes (3) so needs to meet test which it doesnt. Government relies on Rely on: The President shall be Commander in Chief of Army & Navy of US Not so b/c Congress has power to raise and support Armies & to provide & maintain a Navy which gives Congress responsibility for supplying armed forces

Congress alone controls raising revenue & decides how it should be spend for military purposes If Congress wants to rely on free private enterprises collectively bargaining, then so be it Executive action here is individual will of President & represents exercise of authority w/out law o DOUGLAS CONCURRING (Approach 2) Congress has power to pay how is president spending? By seizing steel mills, violates takings clause seizure means that govt. has to pay just compensation which congress has power to do. If president seizes things, then he is forcing congress to use spending power. President has right to act in emergency situations but that did not include seizure of private property Here: emergency did not create that power, it was only an occasion where power should be exercises President can act quickly, true, but Congress, even though it moves slower, raises revenue. President can seize and Congress can through subsequent action ratify the seizure, but until and unless Congress acted, President has no right. o FRANKFURTER CONCURRING (Approach 3) We dont need to consider what powers the president would have had if Congress actually had never ruled on seizures before. Here, Congress HAS ruled before and its enough to show that President exceeded his authority o VINSON, REED, MINTON DISSENTING (Approach 4) Agreed to with Approach 3 about inherent powers but disagreed as to whether Congress had acted President is allowed to act in emergencies and this was an emergency Steel mills were due to close for who knows how long President did the right thing because he notified Congress the next day of his actions. The Scope of Inherent Power: The Issue of Executive Privilege Whether & under what circumstances can President invoke executive privilege? o Executive Privilege ability of President to keep secret conversations w/ or memoranda to or from advisors o Policy EP is necessary for President to receive candid advice, protect national security, diplomacy, etc. United States v. Richard M. Nixon, President of The United States (Pg. 329) o BACKGROUND June 17, 1972 burglary at Democratic National headquarters in Watergate building in D.C. Burglars linked to Campaign to Reelect President & high officials, president & aids involved in cover-up 1973 Senator Ervin (NC) chaired Senate Select Committee hearings on Watergate. Presidential aide, Alexander Butterfield, revealed secret taping system in oval office Attorney General involvement suspected so pressure for independent investigation Cox prosecutor Cox subpoenaed tapes President challenged Court of Appeals sided w/ Cox President said hed turn in edited transcripts, and no additional subpoenas Cox said unacceptable so Nixon got him fired by General Bork Saturday Night Massacre Impeachment resolution introduced, new prosecutor Leon Jaworski Impeachment hearings held while Nixon case pending Supreme Court unanimously ruled Nixon had to comply with subpoena. Nixon resigned on August 9, 1974 o FACTS April 18, 1974 subpoena to produce documents (duces tecum) issued April 30 Nixon said would disclose edited transcripts May 1 Moved to quash subpoena May 20 US District Court denied motion Supreme Court granted review prior to consideration by court of appeals

o ISSUE (1) Whether the subpoena of documents is within justiciable in court (2) Whether subpoena should be quashed b/c it infringes on executive privilege o HOLDING (1) Yes, Justiciable & (2) No, President cant claim privilege o PRESIDENTS COUNSELS ARGUMENTS: o (1) Justiciability Matter of jurisdictional dispute w/in Executive Branch like dispute between congressional committees Executive branch has exclusive authority and absolute discretion to decide whether to prosecute a case so the President decision is final in determining what evidence to be used in given criminal case Granted Pres. delegated certain powers to Special Prosecutor but not executive privilege idea Calling demand for items is a political question under Baker v. Carr b/c involves textually demonstrable grant of power under Article II COURT Mere assertion of claim of intra-branch dispute is not enough US is a sovereign and party in the dispute Article II, 2 allowed Congress to give Attorney General power to conduct criminal litigation of US Govt. Also gives AG right to appoint people to assist him, here he gave powers to Special Prosecutor Not ordinary delegation, AG got authorization from President that cant remove Special Prosecutor without consensus of eight designated leaders of Congress This isnt a political question, its a legitimate controversy b/c there is concrete adverseness which sharpens presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Baker v. Carr o (2) The Claim Of Privilege A: Marbury v. Madison allows courts judicial review to determine what law is. Here court has right to check the president while maintaining separation of power by saying what the law is in respect to the claim of privilege presented in this case. (1) broad claim that separation of powers doctrine precludes judicial review of Presidents privilege (2) If not absolute privilege then at least privilege over duces tecum (documents) B: Broad claim absolute privilege (1) Need for protection of communication between high govt official & advisors In camera review for confidential national security issues. Close the docket seal the record and court only gets to access these documents COURT President cant claim absolute privilege based on this broad, undifferentiated claim based of public interest. Need a claim that its to protect military, diplomatic, or sensitive national security secrets. None of these interests presented here. (2) doctrine of separation of powers: independence of executive branch insulates President from judicial subpoena COURT Separation of powers doesnt give absolute power b/c framers didnt want any one person to have such powers. They divided and allocated sovereign power among three co-equal branches. To give absolute power would upset constitutional balance of workable government C: Presidential privilege vs. needs of judicial process President bases claim not on military or diplomatic secrets. He bases it on broad claim that has privilege against disclosure of confidential communications. 6th A every D in criminal trial has right to be confronted with witnesses against him and have compulsory process for obtaining witnesses in his favor 5th A no person shall be deprived without due process of law Interest in protecting presidential privilege is great but cant conclude that advisers will not speak openly b/c of a possibility of disclosure in criminal prosecutions.

 Constitutional need for production of relevant evidence in criminal proceedings is central and administration of justice especially if disclosure of a limited number of conversations would have some bearing on the pending criminal cases. COURT LIMITED THEIR RESPONSE B/C DONT LIKE TO GET INVOLVED WITH DISPUTES BETWEEN CONGRESS AND PRESIDENT THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER Power of Congress to expand presidential power beyond Constitution (ex: rent line-item veto power) (1) Some see separation of powers as appropriately resolved if pres and congress agree then court rarely needs to invalidate actions (2) Other view sep. of powers as constitutionally mandated and crucial judicial role in enforcing requirements Discussing congresss authority to increase E Power by delegating legislative powers to administrative agencies Here: Line item veto gave president power to veto or cancel parts of a bill and letting rest of it go into effect The Line Item Veto William J. Clinton, President of The United States v. City of New York (Pg. 335) FACTS o Line Item Veto Act of 1996 gave Pres power to veto provisions of certain spending and taxing bills after they had been signed into law. Act sets out procedures Pres must follow, including a procedure where Pres must notify Congress of veto & Congress can veto the Presidents veto with majority vote. o Pres used Line Item Veto power to cancel item of spending that would benefit only New York & also to cancel a tax break to farmers cooperatives. o It is undisputed that Pres complied with Act, Congress properly enacted Act and spending and taxing issues in this case fall within Act. ISSUE o Can Congress grant Pres authority to cancel parts of legislation after they have been enacted as law? HOLDING o No, Act is unconstitutional b/c president was changing law adopted by Congress; final version was different after veto than what Congress passed o No provision in C that authorized President to enact, amend, or repeal statutes DISSENT BREYER o There is practical need for line-item veto o When C was written, national budge was $4 million & each allocation was separate bill but today budget is $.15 trillion & cant divide bill into thousands of separate allocated bills which Pres sign & veto separately IMPLICATIONS o Difference between majority here is between formalist & functional approach to separation of powers Majority highly formalistic Breyer functional THE CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE Article I vests legislative power in Congress only in last century that Congress routinely delegated legislative power to administrative agencies: Federal Communication Commission, Securities & Exchange Commission, Food & Drug Administration, Environmental Protection Agency, etc. Congress delegated broad legislative powers to administrative agencies b/c o Sheer quantity of regulations exceeds capacity of Congress o Political dimension: Expansive delegation allows Congress to act, but avoid political heat for regulations Administrative agencies possess legislative power to make laws, executive power to enforce laws, & judicial power to adjudicate violates of rules seems in conflict with elemental concept of separation of powers How to resolve this? Via Non-delegation doctrine, legislative veto, etc. (1) The Non-Delegation Doctrine & Its Demise

Principal that Congress may not delegate its legislative power to administrative agencies Forces politically accountable Congress to make policy choices, rather than unelected administrative officials A.L.A. Schechter Poultry Corp. v. United States (Pg. 341) o Court declared unconstitutional regulation adopted under National Industrial Recovery Act o President approved Live Poultry Code for NYC See Sick Chicken Case o Court said congress is not permitted to abdicate or transfer its essential legislative function o Problem with code is that it makes law, congress cant delegate its law making power to executive o Congress makes laws, and executive executes laws o Do they say there can never be delegation? No, there just need to be guidelines Panama refining Co. v. Ryan (Pg. 342) o Court declared unconstitutional provision of National Industrial Recovery Act that authorized president to prohibit shipment in interstate commerce of oil produced in excess of state-imposed production quotas o Law was impermissible delegation of legislative power to president court emphasized lack of any standards in Act to limit Presidents discretion. IMPLICATIONS o All delegations, no matter how broad, have been upheld o Although courts say when Congress delegates legislative power, it must provide criteria to guide agencys exercise of discretion, all delegation, even without any criteria, have been upheld o Mistretta v. United States (Pg. 343) Court approved broad delegation of power to US Sentencing Commission, agency of judicial branch, to promulgate sentencing guidelines to determine punishments for those convicted of federal crimes Whitman v. American Trucking Assn., Inc. (Pg. 344) o US Court of Appeals declared Environmental Protection Agencys air quality regulations as unconstitutional Particularly as to ozone levels on ground, impermissible delegation of power Emphasized lack of intelligible principle to explain why statute permits one level of pollution but not another when all amounts entail to some risk to public health o Court unanimously upheld delegation & constitutionality of EPAs air quality regulations (2) The Legislative Veto & Its Demise Issue arose as to how power of administrative agencies will be checked & controlled o Created legislative veto as check on administrative agency action where either house of congress could veto Immigration & Naturalization Service v. Jagdish Rai Chadha (Pg. 347) o FACTS Chadha was alien who was lawfully admitted into United States on a non-immigrant student visa. Chadha overstayed his visa & Defendant, INS, began deportation proceedings. Immigration judge found Chadha met requirements set out in Immigration and Nationality Act Under Act, Attorney General reported suspension of deportation to Congress. However, House of Rep passed resolution that Chadha didnt meet statutory requirements for suspension of deportation. Neither the Senate nor the President reviewed the decision. Chadha filed petition D and the D agreed that statute was unconstitutional. o ISSUE Is one-house legislative veto unconstitutional, even when authorized by properly enacted statute? o HOLDING Yes, the legislative veto is unconstitutional. Congress delegated Attorney General power to determine, if particular deportable alien could remain in United States. C doesnt permit Congress to then delegate same authority to one House of Congress. Since action of deciding whether to deport a given alien is legislative, it is subject to both bicameralism and presentment requirements of Article 1 of the Constitution.

 Bicameralism & presentment were built into C to act as check on each branch & protect people from careless exercise of power by giving certain prescribed steps. o White Dissent Framers loved checks of power so we shouldnt be formalistic, we should be functional This may not technically be in constitution but lets look at spirit of constitution Concept of legislative veto, isnt type of action that bicameralism & presentment apply to. Only bills & their equivalent are subject to bicameralism and presentment. Here, Congresss initial delegation to Attorney General of deportation decision was done with bicameralism and presentment. Thus, since Congress didnt write new law when allowing one House of Congress to override AGs decision, then bicameralism and presentment were not necessary. (3) Checking Administrative Power The Appointment Power o Alexia Morrison, Independent Counsel v. Theodore B. Olson (Pg. 356) FACTS Ethics Government Act created position of independent counsel to investigate high-ranking officials for federal criminal violations. If Attorney General receives information that government official may have violated federal law, hes required by Act to make preliminary investigation & report to Special Division (three judges) of D.C. Circuit Court of Appeals. If further investigation needed, Special Division must appoint an independent counsel to investigate further and prosecute if necessary. Independent Counsel can only be removed by Attorney General for good cause or it terminates when all investigations and prosecutions are complete. Olson was subject of investigation by Independent Counsel & Appellant, Alexia Morrison The Court of Appeals held the Act was unconstitutional What was the appointments scheme of the independent counsel? How did they get appointed? AG goes to special court for appointing counsel, special division court appoints. Only if person being appointed is an independent officer ISSUE Does C require Pres exercise sole & exclusive control over appointment of all executive officers? HOLDING No. President doesnt have exclusive authority to appoint executive officers. Petitioner subject to removal by higher executive branch official & office is restricted in jurisdiction, tenure & authorized duties, it is clear that she is inferior officer & not principle officer. On its face, Appointments Clause of C doesnt provide limit on inter-branch appointments. To contrary, Congress is granted great leeway when determining where to vest power to appoint inferior officials. DISSENT SCALIA Criminal investigations & prosecutions are executive functions so decision deprives Pres of purely executive function, thereby substantially affecting the balance of powers. IMPLICATIONS Appointments Clause divides executive officers into (1) principle & (2) inferior officers. The President appoints principle officers with advice and consent of Senate Heads of departments & Courts appoint inferior officers SC decided that position of Independent Counsel is an inferior officer because (1) Always subject to removal by President; (2) Can only perform certain, limited duties proscribed by Act; (3) Office is limited in jurisdiction granted by Special Division and (4) Office is limited in tenure. The Removal Power

o No provision in C concerning Presidents authority to remove executive branch officials (case law only) o When dealing with removal power ask 2Qs: (1) Is office one in which independence from president is desirable? If so, congress may limit removal power, & Weiner indicates that judiciary may limit removal even in absence of statutory restriction *the analysis must be functional & contextual: Are there good reasons why office should be independent of president? (2) Are congresss limits on removal constitutional? Congress cant completely prohibit presidential removal, but can limit removal to where there is good cause Congress also cant give itself power to remove an executive official o Who can remove? In general, Pres may remove executive officials unless removal is limited by statute Congress, by statute, may limit removal both if it is an office where independence from pres is desirable, & if law does not prohibit removal but, rather, limits removal to instance where good cause is shown The Impeachment Of Andrew Johnson o Congress passed Tenure in Office Act of 1867 to prevent Pres from removing key members of cabinet Meyers v. United States (Pg. 362) o President fired postmaster in violation of federal law that said postmaster could be removed during their 4yr terms only with advice & consent of senate o Justice Taft argued that Pres had exclusive power of removing executive officers of US [who he appointed with advice and consent of senate] o Case is broad proposition that any congressional limits on removal of power are unconstitutional Humphreys Executor v. United States (Pg. 363) o Court took much different position & recognized that Congress could, for some officers & under some circumstances, limit removal power o Under Federal Trade Commission Act, Pres could fire commissioner only for inefficiency, neglect of duty, or malfeasance in office o Congress could create independent agencies & insulate their members from presidential removal unless good cause for firing existed This is distinguished from Myers in that officers in quasi-legislative or quasi-judicial positions are different than purely executive officers and that congress may limit the removal of these individuals purely executive Examples: postmaster, secretary of state, or attorney general [people in cabinet that carry out presidents policies] quasi FTC, SEC, FCC, FDA etc [independent regulatory agencies] Weiner v. United States (Pg. 364) o Court went further & held that even without statutory limit on removal, Pres couldnt remove executive officials where independence from president is desirable o President fired member of War Claims Commission (wanted someone of his own political party) [there was no statutory limit to removal] However, court concluded that functional need for independence of WCC limited pres removal power Congresss intent was for WCC to award claims based on merit rather than on political influence task which requires an absolute freedom from executive interference Bowsher v. Synar (Pg. 366) o Held that congress cannot give itself power to remove executive officials Only exception, is congress can always remove executive official through impeachment process o Court declared Balanced Budget & Emergency Deficit Control Act of 1985 unconstitutional

Act prescribed maximum allowable budget deficit for each of 5yrs if spending exceeded deficit ceiling, comptroller general of US [head of the congressional agency] was instructed to impose budget cuts This was impermissible delegation to legislative official of executive power to implement law Comptroller general could be removed only by Congress & was impermissible for executive power to be exercised by person who was totally insulated from presidential removal Morrison v. Olson (Pg. 367) o Congress adopted Ethics in Gov Act 1978 which allowed federal court judges to appoint independent counsel to investigate and prosecute wrongdoing by high-level federal govt. officials [after Watergate] o Court upheld constitutionality of having good cause limit to removal of an IC o Distinguished from Myers in that there was limit on executive removal, in this case power to executive to remove is clear, but there has been good cause type restriction on removal o By itself, it doesnt unduly trammels on executive authority, nor does it limit presidents control

SEPARATION OF POWERS AND FOREIGN POLICY Constitution says very little about foreign policy decision making Article I 8 grants Congress power to regulate commerce with foreign nations, to declare war Article II say President shall be Commander in Chief & President shall have Power, by & with Advice & consent of Senate, to make Treaties, provided two thirds of Senators present concur Questions raised: What is relationship between Congresss power to declare war & Presidents authority as Commander in Chief? When may Pres use troops, including in war situations, without congressional declaration of war? Whether Pres can use executive agreements instead of treaties in dealing with foreign countries o Appropriate exercise of power of Chief Executive? o Or unconstitutional usurpation of Senates power? Difficult area of Con Law b/c Hard to determine framers intent Relative absence of judicial decision (1) Are Foreign Policy & Domestic Affairs Different Does Pres have more inherent authority regarding foreign policy than as to domestic affairs? United States v. Curtiss-Wright Export Corp. (Pg. 370) o Congress adopted law that empowered Pres to issue proclamation making illegal further sales of arms to warring nations b/c of concern that US munitions manufacturers were arming both sides of war in S. America o Issue is constitutionality of congressional delegation of power to Pres in area of foreign policy [Court was aggressively enforcing non-delegation doctrine (principle that congress cant delegate legislative power to executive agencies) at time case was decided] o Court upheld the delegation & gave broad inherent presidential power in area of foreign policy o Fundamental difference in role of government in foreign affairs and domestic affairs Federal government has both constitutional & inherent authority to conduct foreign affairs as it sees fit. Pres is USs sole representative to foreign nations. To achieve USs foreign policy aims, Pres is better able than Congress to judge conditions that exist in foreign nations & is afforded substantial discretion & power in those decisions. Pres has confidential info as well as diplomatic & foreign affairs officers to help his decision. Notes On Curtiss-Wright o Majority reasoning criticized by many scholars (1) View is inconsistent with written C that contains provisions about foreign policy Detailing of authority rebuts assumption that Pres has complete control over foreign affairs simply by virtue of being chief executive If Majority view correct, no reason for C to enumerate any powers in area of foreign affairs

(2) Historical account of Majority is wrong Framers intended president, like all branches of govt. to have limited powers, not expansive

(2) Treaties & Executive Agreements What are constitutional limits on agreements with foreign nations Debate over difference between foreign policy & domestic affairs occurs in treaty-making & war powers: o Treaty is agreement b/w US & foreign country negotiated by Pres & is effective when ratified by senate o Executive agreement is b/w US & foreign country effective when signed by president & head of other govt. If document is titled executive agreement no senate ratification is necessary C doesnt mention EA but are still constitutional & anything that can be done by treaty can be done by EA EA like treaties, prevail over state law and policy o Treaty is the law of the land like the supremacy clause Executive Agreement: o Courts have sided with President each time there has been challenge to executive agreement: United States v. Pink & United States v. Belmont(Pg. 374) SC upheld executive agreement, Litvinov Agreement, where US recognized Soviet Union in exchange for their assigning US its interest in Russian insurance company in NY Soviet Union had nationalized interest in insurance company & US would use these assets to play claims that it & others had against Soviet Union Upheld b/c not a treaty so Senate Approval wasnt requirement o Dames & Moore v. Regan, Secretary Of The Treasury (Pg. 374) [1981] President Carter negotiated agreement with Iran to free US hostages in exchange for US lifting freeze on Iranian assets in US & also provided for an end to all suits Dames brought this action b/c was suing Iran for breach of $3.5 million K Held that executive agreement was constitutional b/c federal statues authorized such presidential actions & b/c there was history of such executive settlement of claims As long as Pres isnt violating another constitutional provision or fed statue, there is little basis for challenging constitutionality of an executive agreement IMPLICATION Can be read narrowly as establishing executive agreements prevail over conflicting state law & are permissible when authorized by federal statute Senator Bricker proposed Bicker Amendment that would prevent use of executive agreements but wasnt passed. Simply reflects deep concern over Presidents ability to circumvent treaty ratification process by using executive agreements instead Treaties: o If there is conflict b/w treaty and federal statute, the one adopted last in time controls o Cannot violate constitution o No agreement with foreign nation can confer power on congress, or on any other branch of govt., which is free from restrains of constitution However, treaties cant be challenged as violating 10th A & infringing state sovereignty (3) War Powers How is decision-making authority over war powers allocated? Article I grants congress power to declare war and authority to raise & support army and navy Article II makes president commander-in-chief Question to ask: o (1) What constitutions declaration of war? Formal like after Pearl Harbor or something less explicit like Gulf of Tonkin Resolution authorizing use of military force in Southeast Asia, sufficient to be declaration of war for Vietnam War

Does repeated funding for war by congress suffice as declaration without resolution actually declaring it? o (2) When may Pres use American troops in hostilities without congressional approval? Prize Cases (Pg. 377) o Court ruled that Pres had power to impose blockade on Southern states without congressional declaration o No other Supreme Court has addressed Issues: o (1) SC rarely spoken to constitutionality of Pres using troops in war or without congressional approval o (2) Challenges are likely to be dismissed as political questions o (3) Unresolved as to what constitutes declaration of war sufficient to fulfill requirements of article I o (4) Unclear whether & how congress can put other limits on Presidents use of troops in foreign countries Whether war powers resolution is unconstitutional political question Arguments for and against [p.286] Title 50. War & National Defense; Chapter 33War Powers Resolution [Pg. 378 - text] War Powers Resolution states that Pres as commander-in-chief may introduce US Armed Forces into hostilities or situations where hostilities appear imminent only pursuant to o (1) a declaration of war, o (2) specific statutory authorization, or o (3) national emergency created by attack upon US, its territories or possessions or its armed forces o Requires that Pres consult with congress, where possible before introducing troops into hostilities & that president report to congress w/in 48hrs after troops are introduced into hostilities And that Pres shall withdraw troops after 60days unless congress has: declared war or authorized a 60day extension or is physically unable to meet as result of an armed attack upon US o Resolution was adopted by congress in 1973 in response to Vietnam war in which 2 presidents fought highly unpopular war with great cost in lives and dollars without formal declaration of war from congress Constitutional Issues Of War Powers Resolution o (1) Is it unconstitutional intrusion on Presidents powers as Commander in Chief? o (2) Or is it permissible effort by Congress to interpret C & ensure checks & balances? o Campbell v. Clinton (Pg. 381) Rep. Campbell brought lawsuit arguing bombing of Yugoslavia violated War Powers Resolution Court dismissed for lack of standing o Doe v. Bush (Pg. 381) Lawsuit to have war in Iraq declared unconstitutional was dismissed as non-justiciable o Possible that every challenge to Presidents action as violating War Powers Act will be dismissed on justiciability grounds but constitutional issues above still remain

PRESIDENTIAL POWER AND WAR ON TERRORISM September 11, 2001 led to many government actions that will raise important constitutional questions: (1) Is indefinite detention of unlawful combatant constitutional? (2) Are secret deportation proceedings constitutional? (3) Is it permissible for government to hold individuals indefinitely as material witnesses? (4) Are provisions of USA Patriot Act constitutional? Two issues discussed below: (1) When may Executive detain American enemy combatant? (2) When, if at all, are military tribunals constitutional? (1) Detentions 2004, SC decided 3 major cases concerning civil liberties & war on terrorism o Rasual v. Bush (Pg. 382)

SC held Guantanamo detainees had right to have habeas corpus petition heard in federal court o Padilla v. Rumsfeld (Pg. 382) Held American citizen, apprehended in US & held as enemy combatant in military prison in S. Carolina couldnt present habeas corpus petition in NY, where he was held earlier, had to refile in S. Carolina Hamdi v. Rumsfeld (Pg. 382) o FACTS Hamdi captured in Afghanistan shortly after 9/11. American citizen, & classified as enemy combatant. After petitions, motions, & counter-motions, Hamdi filed for writ of habeas corpus. o (1) ISSUES & HOLDING If fed. govt. has authority to hold American Citizen apprehended in foreign country as enemy combatant? Hamdi said govt. violated Non-Detention Act no citizen imprisoned by US except by act of congress Held No violation, govt. allowed to detain by act of congress: Authorization for Use of Military Force act passed after 9/11 Dissent Violated, govt. doesnt have authority unless Congress expressly suspends writ Hab. Corp. o (2) ISSUE & HOLDING What, if any, process must be according to Hamdi Hamdi must be given due process. Entitled to have habeas corpus petition heard b/c imprisonment is obviously most basic from of deprivation of liberty. Use three-part balancing test to determine due process violation (Mathew v. Eldridge) pg 386 (1) Importance of interest to individual (2) Ability of additional procedures to reduce risk of erroneous deprivation (3) Governments interest Boumediene v. Bush (Pg. 393) o Issue: whether Guantanamo Detainees have constitutional privilege of habeas corpus [legal action, through which a prisoner can be released from unlawful detention] o Military Commission Act noncitizens held as enemy combatants have no access to federal courts via habeas corpus except if there is military proceedings, detainees can then seek review in US Court of Appeals in DC o Held MCA was an unconstitutional suspension of right to habeas corpus C allows Congress to suspend habeas corpus in times of rebellion or invasion (not here) o Dissent Courts should have deferred to choices made by Congress & president o Major Dissent Judiciary has no business in being involved in matter at all IMPLICATIONS o Majority & Dissent hold different views about role of federal courts during times of war on terrorism Majority: C & access to federal courts to enforce it are essential even in times of crisis Dissent: Decision was dangerous judicial meddling in realm properly left to president & Congress

(2) Military Tribunals Questions to ask: o Does Pres have authority as commander-in-chief to create military tribunals? OR o Does is creating courts entirely congressional power under C? o Does it violate 5th & 6th A to try individuals in military tribunal, where C protection not fully provided? Ex Parte Quiren (Pg. 412) o FACTS Eight Nazi landed on American soil during WWII; captured with explosives & wearing uniforms Roosevelt issued executive order for trial in military tribunal Detainees filed habeas corpus petition in federal court

Court upheld use of military tribunals b/c pres had constitutional authority to try individuals in front of military commission Difference between lawful & unlawful combatants Lawful treated as POWS Unlawful offenders against law of war & subject to trial & punishment by military tribunals o IMPLICATIONS Disagreement over if Quiren is good precedent today for suspected terrorists Supporters: Like Bush say case was on point & specifically authorizes use of military tribunals Critics: Quiren is discredited decision that shouldnt be followed & its distinguishable from todays war b/c WWII was a declared war & there was statute authorizing military tribunals Hamdan v. Rumsfeld (Pg. 419) o June 2006 Court held military tribunals provided pursuant to Executive Order by Bush were invalid o Procedure violated Uniform Code of Military Justice & Geneva Accords Court didnt consider constitutional issues raised Congress responded by enacting Military Commissions Act of 2006 Procedures under it not ruled on yet but Court invalidated restriction of hab. Corp. in Boumediene

CHECKS ON THE PRESIDENT How to keep checks on President? Informal check pressure of public opinion or checks by congress via budget process Formal check civil suits & criminal o No case has address if Pres can be criminally prosecuted (1) Suing & Prosecuting the President Richard Nixon v. A. Ernest Fitzgerald (Pg. 420) o Established absolute immunity from civil suits for President for all official actions while in office o FACTS Fitz fired from his job with Air Force as cost-management analyst b/c he embarrassed his superiors by testifying about certain cost-overruns. Air Force said fired because of reorganization & reduction in force. Internal memo was passed through White House staff saying Fitz was top notch cost expert but with very low marks of loyalty & recommended that they let him bleed. At a press conference, Nixon said he personally made decision to fire Fitz. White House later retracted statement saying Nixon had confused Fitz with another employee. Fitz brought suit and Nixon moved for summary judgment on ground of absolute immunity from suit o ISSUE Does Pres have absolute immunity from suit for actions taken in his official capacity? o HOLDING & REASONING Yes, President immune from suit from his official acts as a matter of public policy Immunity stems from his unique position in constitution scheme & great importance of his duties. SC worried about diverting Pres energies to concerns related to private lawsuits. For public safety: constitutional remedy of impeachment, vigilant oversight by Congress & Press William Jefferson Clinton v. Paula Corbin Jones (Pg. 423) o Rejected immunity for acts occurring before President takes office o FACTS Jones sued Pres for sexual advances (in hotel), which occurred while he was Governor of AR in 1991. Pres was speaker at conference & Jones was state employee working at reception desk. Jones claims she was summoned by state trooper to Pres suite where he made sexual advances towards

her that she rejected. As a result, her supervisors were hostile & rude to her & her duties were changed to punish her Jones filed suit seeking actual and punitive damages. o ISSUE Does the President have immunity from all suits against him while he occupies the office? o HOLDING & REASONING No, sitting Pres is not immune from suit for unofficial acts. Separation of powers doctrine doesnt require federal courts to halt all private actions against pres until he leaves office. SC distinguishes this matter from situation where public official sued based on some sort of official action taken- in that case granted p immunity. Presidents Separation of Powers argument fails b/c no indication that judiciary being asked to perform any function that might in some way be described as executive, or that this decision will curtail scope of official powers of Executive Branch. Moreover, SC observed that decision would not result in flood of private litigation against sitting Pres (2) Impeachment Ultimate check on presidential power is impeachment and removal o Article II 4 the president, VP, and all civil officers of the US shall be removed from office on Impeachment for and conviction of, treason, bribery, or other high crimes, and misdemeanors o Article I 2 House of Representatives has the sole power to impeach o Article I 3 gives the Senate the sole power to try impeachments and prescribes that no person shall be convicted without the concurrence of 2/3 of the members present Issues unresolved by provisions: o (1) What are high Crimes & Misdemeanors? o (2) What procedures must be followed when there is impeachment & removal proceeding? CH. 5 THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF CIVIL RIGHTS & CIVIL LIBERITIES INTRODUCTION 7 Articles of Constitution primarily about structure of government and not individual rights Framers were concerned that enumeration of some rights in text of C would be inevitably incomplete & thus would deny protection to those not listed so they created the 9th A o Several states however were concerned about absence of an enumeration of rights & ratified C with request that it would be amended to add Bill of Rights Bill of Rights First 10 amendments to Constitution The first 8 detail protection of individual rights o 1st freedom of speech and religion o 4th, 5th, 6th criminal procedure protections o 9th enumeration in C, of certain rights, shall not be construed to deny or disparage others retained by ppl o 10th powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved for the states respectively, or to the people Main Issues: Extent to which judiciary should protect civil liberties & civil rights [separation of powers] Extent to which individual rights should be applied to state governments & how aggressively they should be enforced [federalism] THE APPLICATION OF THE BILL OF RIGHTS TO THE STATES (1) The Rejection of Application Before the Civil War Barron v. Mayor & City Council of Baltimore (Pg. 525) o FACTS

P sued D b/c they ruined his wharf by diverting streams and making water too shallow for his boats. P claimed that city took his property without just compensation and in violation of the Takings Clause of the 5th A of C o ISSUE Does the Fifth Amendment of the Constitution apply to local government? o HOLDING & REASONING No. Court said framers intended Amendments to apply only to Federal government & not states. Each state had own constitution, so Amendments didnt apply to them. Article 1 Section: 10 of C provides an exclusive list of restriction upon state government. Here, since no conflict between city & states action & Constitution the SC had no jurisdiction. o IMPLICATIONS Barron doesnt make sense today b/c troubling that state & local government were free to violate basic constitutional rights but it made sense back then b/c of faith in state C & shared understanding that B of R meant to apply only to federal govt. (2) A False Start in Applying Bill of Rights to States: Privileges or Immunities Clause & SlaughterHouse Cases 14th A adopted after the Civil War declares: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US Debate over Framers Intent o Does 14th A apply bill of rights to states? Black yes since Bill of Rights are most basic privileges or immunities Others said no b/c ??? Slaughter-House Cases: Butchers Benevolent Assn. of New Orleans v. Crescent City Livestock Landing & Slaughter-House Co. (Pg. 528) o FACTS LA statute granted Crescent City Live-Stock Landing and Slaughter-House Company exclusive rights to engage in livestock landing & slaughterhouse business in City of New Orleans. Butchers challenged constitutionality of state law giving monopoly to particular slaughterhouse Hurts their business b/c its going to increase prices since they have to pay off slaughter house Butchers argued that the law violated 13th & 14th A b/c denied due process, equal protection and abridged their privileges and immunities. o HOLDING 14th A protects privileges & immunities of national, not state, citizenship, & neither Equal Protection, Due Process, or Privilege and Immunities Clauses of that A may be used to interfere with state control of privileges and immunities of state citizenship. 13th and 14th As were to protect former slaves o IMPLICATIONS Court narrowly interpreted each part of 1 of the 14th A but later on: interpretation of the due process clause was overruled interpretation of Equal Protection Clause overruled interpretation of the Privileges or Immunities clause lasted until very recently For 1st time in American history, SC used P & I clause to invalidate a state law in Saenz v. Roe Saenz v. Roe (Pg. 534) o FACTS CA enacted law limiting welfare benefits for citizens who lived in California for less than 12 months. Welfare family would be paid amount they received in their last state of residence. Roes had recently moved to CA & challenged law on equal protection grounds. DC preliminarily enjoined implementation of statute & court of appeals affirmed. o ISSUE Does statute violate the Privileges and Immunities Clause of the Constitution?

o HOLDING Yes, b/c durational residency requirements violate right to travel by denying newly-arrived citizen same privileges & immunities enjoyed by other citizens in same state, & are therefore subject to strict scrutiny. States legitimate interest in saving money provides no justification for its diction to discriminate among equally eligible citizens. o DISSENT - REHNQUIST Didnt like that Privileges and Immunities Clause had only been applied once before & was overruled five years later. Felt Californias law was good faith residency requirement. o DISSENT THOMAS Thinks majority applies meaning to Privileges and Immunities Clause that framers didnt intend. Slaughter-House Cases drained Privileges and Immunities Clause of any meaning. J. Feared 14th A Privileges and Immunities Clause will be new tool for inventing rights. o IMPLICATIONS Uncertain what case will mean in future could affect cases about out of state tuition Challengers to such laws will argue that they are indistinguishable from Ps in Saenz b/c state is bestowing monetary benefit on those who have lived in state for longer with those who just moved in States will argue that Saenz is distinct b/c in & out of state distinction involves states ability to define when person becomes resident of state for purpose of receiving a benefit, in Saenz there was no question that P was already a resident of CA (3) Incorporation of Bill of Rights into Due Process Clause of 14th Amendment B/c of Slaughter-House Cases, application of Bill of Rights to states couldnt be through P & I clause Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (Pg. 536) o SC ruled that due process clause of 14th A prevents states from taking property without just compensation o In case below, court for first time incorporates provisions of Bill of Rights & applies them to state & local govt. Twining v. New Jersey (Pg. 536) o FACTS NJ law provided that jury may be instructed to view criminal Ds failure to testify as something negative. NJ was one of few states that didnt incorporate right against compelled self-incrimination in its C Twinning challenged law under both Due Process Clause & Privileges & Immunities Clause of 14th A o HOLDING Court expressly recognized possibility that due process clause of 14th A incorporates provisions of Bill of Rights and thereby applies them to state and local governments Gitlow v. New York (Pg. 538) o For 1st time court said First As protection of freedom of speech applied to state through incorporation into due process clause of 14th A Fiske v. Kansas (Pg. 538) o Court found state law regulating speech violated due process clause of 14th A Powell v. Alabama (Pg. 538) o Court found states denial of counsel in capital case denied due process; applied 6th A to states in capital cases o Scottsboro trial involved African-American men were convicted of rape without assistance of counsel by jury from which all blacks had been excluded The Debate Over Incorporation o Once court found Due process clause protected fundamental rights from state infringement, there was major debate over which liberties are safeguarded Total incorporationists believed all of Bill of Rights should be deemed to be included

Selective incorporationists believed only some of bill of rights were sufficiently fundamental to apply to state and local governments Palko v. Connecticut (Pg. 539) Cardozo Process of absorption applied to rights where neither liberty nor justice would exist if they were sacrificed. Frankfurter Due process precludes those practices that offend those canons of decency & fairness which express notions of justice of English-speaking peoples. o Debate centered around 3 issues: (1) Over history & whether Framers of 14th A intended it to apply bill of rights to states Adamson v. California (Pg. 540) Majority doesnt apply to states Black My study of historical events that created 14th A says one of chief objects of the first section was to make Bill of Right applicable to states (2) Federalism applying bill to states imposes substantial set of restrictions on state & local govts. Selective incorporationists argued federalism principal: desirability of preserving state & local governing autonomy by freeing them from application of bill of rights Counter: history shows there are instances where state & state court will not adequately protect rights; safeguarding precious liberties shouldnt rest on faith in states (3) Appropriate judicial role Total: (Black) selective gives judges far too much discretion in deciding what rights fundamental Selective: denied Blacks argument & said total would mean more judicial oversight of state & local actions & thus less room for democracy to operate The Current Law As to Whats Incorporated o Over time, court articulated varying tests for deciding whether provision of bill of rights is incorporated o Duncan v. Louisiana (Pg. 543) TEST: Whether right is among those fundamental principles of liberty & justice which lie at base of all our civil and political institutions Whether it is basic in our system of jurisprudence, Whether it is fundamental right, essential to fair trial Found following provisions of bill to incorporated (Pg. 516 Supplement) The Content of Incorporated Rights o If provision of Bill of Rights applies to states: Is content identical like when its applied to federal government? OR Is it sometimes phrased? Court has been inconsistent in answering this question: Examples Below: Williams v. Florida SC held state need not use 12-person juries in criminal cases even though that is required by 6th A for federal trials upheld constitutionality of 6-person jury saying 12 was historical accident, it was unnecessary for purposes of jury system Apodaca v. Oregon & Johnson v. Louisana held states may allow non-unanimous 12 person jury verdicts in criminal trials even though 6th A requires unanimous jury , BUT, ruled conviction by non-unanimous 6 person jury violated due process o Besides requirement for 12-person jury & unanimous verdict, Bill of Rights provisions have been incorporated to apply to states exactly as they apply to federal government APPLICATION OF BILL OF RIGHTS & CONST. TO PRIVATE CONDUCT (1) The Requirement for State Action Constitutions protections of individual liberties & its requirement for equal protection apply only to government Private conduct generally does not have to comply with constitution The Civil Rights Cases: United States v. Stanley (Pg. 548)

o Law prohibited private race discrimination o Held: 14th A applies only to state & local govt. actions & not to private conduct o When Does C Apply to Private Actions? (1) 13th A forbids people bring being or owning slaves forbids compelling person to work for another individual to repay debt (2) Conceptual disaster area - ??? (3) Statutes both federal & state can apply constitutional norms to private conduct (2) The Exception to State Action Doctrine Several inconsistencies among these exception cases. Explanations for inconsistency reflect: o Inherent problem with state action o Way in which some state action decisions written & decided o Social realities o Reduced need to rely on C to reach private racial discrimination (A) The Public Function Exception o Three areas where Court considered public function exception: Management of private property; control of electoral process; & running or regulating schools o Marsh v. Alabama (Pg. 553) Court defined public functions exception broadly Could be used to find great deal of private conduct to be state action Balancing Test: Whether private property is used for a public purpose FACTS Corporation owned town called Chickasaw in Alabama. Town was accessible & used freely by the public except for fact that Gulf Shipbuilding Corporation owned title to town & paid police. Marsh, Jehovahs Witness was told she needed permit to distribute her flyers. Marsh declined to obtain permit & refused to leave sidewalk so arrested & charged with violating Alabamas anti-trespassing statute Marsh claimed: applying statute to her violated 1st & 14th Amendments of C ISSUE Is C applicable to privately owned towns? HOLDING Yes, using test above: private town isnt same as private homeowner. Meaning, its not right to suppress unwanted religious expression in the town like it would be in a private home. o Jackson v. Metropolitan Edison Co. (Pg. 555) Narrow, makes it very difficult to find that private actors are performing a public function Held: State action exists in exercise by private entity of powers traditionally exclusively reserved to states Private utility company did not have to provide due process before it terminated a customers service Test: Whether it is activity that has been traditionally, exclusively done by the govt. FACTS Jackson brought federal civil rights action against D, private company subject to extensive state regulation because it held a certificate public convenience from the Pennsylvania Public Utilities Commission (PPUC) empowering it to deliver electricity to specific area. Jackson sought damages & injunctive relief against D for terminating her electrical service for alleged nonpayment, claiming she had not been afforded notice, hearing & an opportunity to pay amount due. Claimed that under state law, she was entitled to reasonably continuous electrical service and Ds termination constituted state action without procedural due process. ISSUE Whether Ds termination of Jacksons electricity constituted state action? HOLDING No. Although D had monopoly, that fact is not determinative in considering whether Respondents termination of service constituted state action. o Elections

Terry v. Adams (Pg. 558) FACTS D is very successful Texas political organization that operated like political party o All white members only o Ds Association held pre-primaries & for more than fifty years, D county-wide candidates invariably been nominated in Democratic primaries & elected to office. President of Ds Association admitted purpose of party was to exclude blacks from voting & to escape 15th A command that everyone could vote, regardless of race. D argues that its association is a private club b/c wasnt governed by state laws & didnt utilize state elective machinery or funds AND 15th A constitutional challenge doesnt apply to their self-governing voluntary club. Ps, group of Black voters, brought class action to determine their rights under 15th A ISSUE Does a private, successful, political association have to follow 15th A? HOLDING Yes, b/c engaging in state action for purposes of 15th A since D had control over ultimate outcome of election. o Private Property Used for Public Purposes Evans v. Newton (Pg. 560) Held city could not avoid desegregating park by turning its control over to private entity Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza Inc. (Pg. 562) Held privately owned shopping center couldnt exclude striking laborers from picketing store within Re: shopping center was open to public & functionally same as commercial center of town [analogized it to Marsh] **overruled by Hudgens Lloyd Corp. v. Tanner (Pg. 564) Held privately owned shopping center could exclude anti-Vietnam war protestors from distributing literature on its premises This was different from Logan b/c content of speech was unrelated to center Hudgens v. National Labor Relations Board (Pg. 566) Overruled Logan said content of speech shouldnt matter, 1st A doesnt apply to privately owned shopping centers Despite Hudgens and overruling of Logan, when you go to shopping mall in CA, you DO have certain 1st A rights. CA supreme court has exclusive say over what state constitution says. Here they held that there IS 1st A right, SC can overrule at federal level, but not at state level. States can add rights where federal government doesnt have those rights. (B) The Entanglement Exception o Constitution applies if government affirmatively authorizes, encourages, or facilitates private conduct that violates Constitution Govt. must cease involvement with private actor OR private entity must comply w/ Constitution o Key Questions: What type of govt. involvement makes Constitution applicable? What types of govt. encouragement sufficient for state action? o Cases arise in four areas: (1) Judicial & Law Enforcement Actions (2) Government Licensing & Regulation (3) Government Subsidies (4) Voter Initiatives permitting discrimination o (1) Judicial & Law Enforcement Actions Shelley v. Kraemer (Pg. 567) FACTS:

1911 30/39 property owners in St. Louis sign a restrictive covenant saying only Caucasians can occupy or own property in that area. Covenant was to apply for 50 years. 1945 Shelleys, black family, unaware of restrictive covenant bought land from Fitzgerald Respondents brought suit for injunctive relief to prevent Shelleys from taking possession TRIAL COURT RC doesnt go into effect b/c everyone doesnt sign it. MISSOURI SUPREME COURT RC applies so injunctive relief granted Individual vs. Individual: in this case so why do we have Supreme Court involved? 14th amendment originally said What is the difference between injunctive relief for inviting to dinner? Not only can state restrict through police power, but rights are determined through state through judiciary. Regulatory perspective and courts determination of how you can ISSUE Whether enforcement of restrictive covenant by state courts is an act of those States If yes, then whether that action denied petitioners 14th A rights Issue: o First, are racially-based restrictive covenants legal under the Fourteenth Amendment of the United States Constitution? o Secondly, can they be enforced by a court of law? HOLDING Yes, state action, and petitioners would be denied 14th A rights In granting judicial enforcement of RC, states denied petitioner equal protection REASONING Framers regarded 14th A equality in enjoyment of property rights as essential 14th A doesnt apply to private parties; allowed to have RC that are discriminatory/wrongful 14th A applies only to state actors: HERE RC of agreement was secured only by judicial enforcement by state courts o Respondent says its not state action b/c its attenuated o Disagree b/c Virginia v. Rives said State may act through different agencies: legislative, executive or judicial and prohibition extends to all action of state denying equal protection of laws whether its action by one of these agencies or another (BROAD!) o Procedurally unfair?? Court held actions of state courts in enforcing substantive common-law rule can be denial of rights even if judicial proceedings in those cases may have been in complete accord with most rigorous conception of procedural due process o But also, it has never been suggested that state court action is immunized from operation of provisions simply because act is that of judicial branch of state government. Here: more than private individuals free to impose discriminations as they see fit. The states here are giving coercive power to individuals to deny petitioners based on race Difference between judicial enforcement & non-enforcement is petitioner being denied rights available to others, and being accorded full enjoyment of those rights on equal footing. NOTES Court rarely applies Shelley as basis for finding state action b/c its so broad Two areas court considered judicial enforcement as state action o (1) Prejudgment Attachment o (2) Preemptory challenges at trial (2) Example: Prejudgment Attachment: Lugar v. Edmondson Oil Co. (Pg. 570) FACTS

1977, petitioner was indebted to supplier, Edmondson who sued petitioner on debt. In addition to action & pursuant to state law, Edmondson wanted prejudgment attachment of some of petitioners property. To do this, Edmondson only had to allege a belief that petitioner was disposing of or might dispose of his property in order to defeat his creditors. Based on this belief, Clerk of state court issued writ of attachment executed by County Sheriff Sequestered (seized) petitioners property but still left it in his possession Pursuant to statute, hearing on attachment & levy was conducted 34 days after levy, trial judge ordered attachment dismissed b/c Edmondson failed to establish statutory grounds for attachment alleged in petition. SO, petitioner sued Edmondson under 42 U.S.C. 1983 saying in attaching his property respondents acted jointly with State to deprive him of his property without due process ISSUE Whether claimed deprivation resulted from exercise of right based on state authority Whether, respondents, may be appropriately characterized as state actors RULE Conduct allegedly causing deprivation of federal right be fairly attributed to state by: Use: 2 Part Fair Attribution Test o (1) Is deprivation caused by exercise by state or by person for whom state is responsible o Rephrase: Is coercive power of state behind this action? o (2) Is party charged with deprivation one who may fairly be called state actor? Why have this rule? B/c otherwise any private party who uses a state statute could face constitutional litigation. HOLDING Held there was state action when a creditor obtained a writ of prejudgment attachment from a court and of the sheriff enforcing it Flagg Brothers v. Brooks (Pg. 572) FACTS o Individual was evicted from home, sheriff arranged for storage of her possessions at warehouse who demanded she pay fees or else they would sell her stuff o Customer claimed due process b/c NY delegated dispute resolution power (traditionally state power) to the company who delegated task to creditor by giving it authority to sell goods to pay debt HOLDING o Private creditors self-help repossession didnt constitute state action & thus due process wasnt required prior to sale of her belongings o Several other ways dispute could have been resolved so it cant be said that govt. delegated creditor an exclusive prerogative of sovereign Key differences between Lugar & Flagg Direct involvement of state officer, sheriff, in Lugar whereas Flagg was entirely self help Lugar, state law provided procedure for prejudgment attachment Flagg, state law provided for self-help action o In fact, Flaggs involvement of sheriff was unnecessary b/c states law allowed repossession without assistance of sheriff (3) Example: Peremptory Challenges: Edmonson v. Leesville Concrete Co. (Pg. 573) Peremptory Challenges is the ability of litigant to excuse prospective jurors without showing cause In Batson, court held Equal Protection prohibits prosecutors from using peremptory challenges in discriminatory fashion in criminal cases ISSUE

Whether private litigant in civil case may use peremptory challenges to exclude jurors on account of their race? HOLDING NO. Race-based exclusion violates equal protection rights of challenged jurors By enforcing discriminatory peremptory challenge, court has not only made itself party to biased act, but has elected to place its power, property and prestige behind discrimination Re: Discrimination on basis of race in selecting jury in civil proceeding harms excluded juror no less than discrimination in a criminal trial Court applies 2 part Lugar Test: (1) Yes. Peremptory challenges agree permitted only when =government deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy requirements for service on jury (2) Yes. In determining whether particular action is governmental in character, court emphasized involvement of govt. in jury section from subpoenaing individuals for jury service to compelling completion of questionnaires to judicial supervision of voir dire process o Without overt participation of govt., peremptory challenge system could not exist o Private party could not exercise its peremptory challenges absent overt, significant assistance of court. Georgia v. McCollum (Pg. 575) Took step further where Court considered whether criminal Ds exercise of peremptory challenge constitutes state action for purposes of Equal Protection Clause If anyone is antithesis of govt. it is criminal D being prosecuted Court held criminal D is state action in exercising peremptory challenges Followed same reasoning as Edmonson: Laws create peremptory challenges & jury selection is govt. function accomplished through power of state & overseen by judge (4) Government Regulation: Main Question: Whether meaningful distinction among cases in terms of degree of govt. involvement In general, govt. licensing or regulating insufficient for finding of state action, unless there is other government encouraging or facilitating of unconstitutional conduct Burton v. Wilmington Parking Authority (Pg. 575) FACTS o City of Wilmington created Wilmington Parking Authority to construct parking & commercial facilities. Leased spot attached to facility to commercial tenant who opened a restaurant. Lease contained no requirements that restaurant serve general public on nondiscriminatory basis. o This action was commenced b/c restaurant refused to serve P b/c he was black o P sued under Equal Protection Clause of 14th A o SC found building where restaurant was located was publicly owned & dedicated to public use in performance of States essential government functions. ISSUE o Whether the state action significant enough to permit an action under the Equal Protection Clause of 14th A. o If so, whether action was discriminatory under Equal Protection Clause of 14th? HOLDING o Yes & Yes, exclusion of P was discriminatory state action violating 14th A IMPLICATIONS o Govt. licensing and regulation was deemed sufficient for state action too broad o SC has virtually always found opposite (like Moose Lodge) Moose Lodge No. 107 v. Irvis (Pg. 577) narrows Burton view

Why cant they just sue lodge? Its private country club, civil rights acts apply to businesses associated with commerce since private club, allowed to discriminate Freedom of Association Lodge restricted membership to whites & refused to allow guests to bring blacks inside PA Liquor Control Board played no role in establishing or enforcing membership or guest policies of lodge nothing approaching symbiotic relationship between lessor & lessee in Burton SC held state grant of liquor license to private club not sufficient state action for C to apply vs. Burton o Moose Lodge is located on land owned by it, not by any public authority o It is not open to the public (5) Government Subsidies Norwood v. Harrison (Pg. 580) FACTS o Number of private schools in MS increased over years since mandatory desegregation. o State program provided free textbooks to both public & private schools. o Harrisons claim that state must provide assistance to private schools that is equivalent to assistance provided to public schools. o Harrison filed class action on behalf of all students in Mississippi to enjoin textbook lending program since by supplying textbooks to segregated private schools, state was directly supporting segregated education, in violation of students constitutional rights to fully desegregated schools. ISSUE o Does state funded program violate C by providing books to private schools? HOLDING o Yes b/c textbook lending program is form of tangible, financial assistance, which benefits private schools & supports discrimination exercised by those schools. o Even though intent of program wasnt to discriminate, but to help children in state, effect of assistance resulted in discrimination and is, therefore, a violation of the Equal Protection o SC said A States constitutional obligation requires it to steer clear, not only of operating dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination. Gilmore v. City of Montgomery (Pg. 581) Montgomery, AL allowed segregated private schools to have exclusive possession of football stadiums, baseball diamonds, etc for school sponsored events. Held city cant give racially segregated private schools exclusive use of public recreational facilities b/c citys actions significantly enhances attractiveness of segregated schools formed in reaction against federal court school order by enabling them to offer complete athletic programs Rendell-Baker v. Kohn (Pg. 582) FACTS o School provides education to students that have difficulty adhering to the traditional curriculum of the public school districts. o Kohn is administrative director of privately owned school who accepts students with drug, alcohol, or behavioral problems from local public high schools. o Students referred to school under Massachusetts Acts of 1972 & school districts pay tuition for referred students. Public funds accounted for 90+% of schools operating budget. o In 1977, P fired by D & five other teachers also fired for writing letter to schools board of directors asking for Ds dismissal. ISSUE

o Is private schools dismissal of its staff considered state action when majority of its students tuition is provided by the state? HOLDING o No. Decision to discharge P was not compelled or influenced by any state regulation. o Although general operations of school were regulated by state, specific personnel matters were left to school. The most intrusive regulation by state was that it had power to approve those hired as vocational counselors. o Govt. funding by itself is not basis for finding state action school was no difference from other private businesses whose business depended on Ks with govt. & of such private contractors dont become act of govt. by reason of their significant or even total engagement in performing public contracts. DISSENT o Because school receives almost all of its funds from state and is heavily regulated, close nexus exists between school & state. Therefore, schools action must be considered state action. Analysis relies on previous decisions that define symbiotic relationship & entanglement between state & private actor. Blum v. Yaretsky (Pg. 585) FACTS o Federal program where Medicaid recipients can have nursing home stays paid for by NYC if they meet specific eligibility criteria. Federal regulations require nursing facility to establish review committee (URC) of physicians who periodically review patient cases for appropriate patient placement. URC may decide patient doesnt need intensive level of care found in nursing home & transfer patient to lower level of care. o In 1975 URC decided to transfer Respondent to lower level of care facility. o Transferred w/out notice or benefit of administrative hearing to challenge decision. ISSUE o Did decision by nursing home committee to transfer Medicaid patient to another facility violate his Due Process rights under the Constitution? HOLDING o No, for three reasons: Being subject to state regulation doesnt convert private action into state action State is responsible for a private decision only when it exercises coercive power or has provided significant encouragement of the decision conveniently Private entity exercised powers traditionally exclusive prerogative of the state (6) Initiatives Encouraging Violations of Rights Reitman v. Mulkey (Pg. 589) FACTS o Ps sued under CA Civil Code prohibiting discrimination in housing decisions based on racial status, alleged D refused to rent apartment solely based on their racial status. o P demanded injunction & damages as result of this discrimination. o D filed motion for summary judgment on grounds that CA Codes have been invalidated by proposition in CA C. which banned fair housing measures in CA o Trial court granted the motion, & CA SC reversed saying prop. of equal protection of laws are guaranteed by 14th A of U.S.C. ISSUE o Whether CA constitution denies any person equal protection of laws within 14th A HOLDING o Held unconstitutional voter initiative that repealed open housing laws & prevented enactment of such future antidiscrimination laws b/c the provision would encourage & significantly involve state in private racial discrimination contrary to 14th A IMPLICATIONS

o Holding sensible b/c initiatives purpose & effect were to encourage private discrimination o However, does this mean any repeal of antidiscrimination law is impermissible encouragement of discrimination? If so, isnt failure to adopt antidiscrimination laws also encouraging discrimination? Then, isnt same true about failure to adopt law prohibiting violations of Cal rights? o Court never went so far but has invalidated other initiatives that reversed antidiscrim. laws o Hunter v. Erickson SC declared unconstitutional initiative in Akron, OH that repealed open housing laws & required voter approval of any such future laws Court found initiative was explicitly racial classification treating racial housing matters differently from other racial & housing matters o Washington v. Seattle School Dist. No. 1 SC declared unconstitutional Washington initiative that said school board cant require any student to attend school other than school geographically nearest or next nearest students place of residence Initiative precluded kids from being assigned for purpose of desegregation & this goal frustrating desegregation made initiative unconstitutional o Crawford v. Board of Education Court upheld CA initiative that provided state courts could not order mandatory assignment or transportation of students unless federal court would do so to remedy violation of 14th A Court found no racial classification in law & repeal of remedies not required by the constitutional is allowed Rule: look to whether there is violation of equal protection o In Reitman, Hunter, & Washington, Court saw initiatives as being motivated by impermissible discriminatory purposes & found denial of equal protection (7) Entwinement In Brentwood, court finds that private entity is state actor based on entwinement with govt. Questions not answered in case: How is entwinement related to entanglement? Is this a new exception? If so, how is it different? Is it that entanglement requires govt. encouragement but entwinement doesnt? Not answered here, but will likely be litigated in future Brentwood Academy v. Tennessee Secondary School Athletic Assn. (Pg. 593) FACTS o TN Association is a non-profit membership corporation organized to regulate interscholastic sports among its members o There is a Large portion of the public and private high schools in Tennessee. o Association's role in regulating interscholastic competition in public schools long acknowledged by State Board of Education. o Brentwood Academy sued Association after it penalized them for placing "undue influence" on football recruits. At time, all voting members of Ass. were public school administrators. o Brentwood claimed that rule's enforcement was state action that violated 1st & 14th A o District Court agreed & enjoined the rule's enforcement. In reversing, Court of Appeals concluded that there was no state action. HOLDING o Private entity is a state actor based on entanglement b/c close nexus between State & challenged action that seemingly private behavior may be fairly treated as State itself o No single test for determining state action, but facts in this case justified concluding sufficient govt. entwinement

 84% of members of private entity were public schools State traditionally delegated regulating athletic activities to entity Most of its funds came from public schools & most meetings held on govt. property o Distinguished from NCAA v. Tarkanian Case involved entity regulating interscholastic sports at college level Difference is Tarkanian involved NCAA which is in all states, Brentwood was only 1state Couldnt see NCAA as collective member, in fact it was surrogate for one State Held NCAAs connection with Nevada was too insubstantial to be called station action o Key question in Brentwood is: Whether it creates new, broader exception to state action doctrine. pg 539 of supplement CH 6 ECONOMIC LIBERTIES INTRODUCTION Generally refer to constitutional rights concerning ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess, and convey property Three main areas where given protection (1) Due process Clause 5th & 14th o 5th to federal & 14th to state o Substantive Due Process (2) Contracts Clause (3) Takings Clause Historical Overview (1) Lochner Era (Until 1937) o Court aggressively protected economic rights under due process clause o Extremely important to note that also used federalism to limit to ability of congress to regulate economy Narrowly defined scope of Congresss powers under commerce clause & 10th A protected states (2) Contracts Clause (After 1937) o Law changed dramatically & court adopted policy of great deference to govt. economic regulations o Reluctance to protect economic liberties manifested under K Clause o Since 1937 court found law to violate K Clause only twice (3) Takings Clause o Used takings clause to protect property rights ECONONMIC SUBSTANTIVE DUE PROCESS Introduction 5th & 14th As say neither fed. nor state govt. can deprive person of life, liberty, or property without due process of law 5th A & 14th A due process are same, but 5th applies to federal government, & 14th applies to states Due Process Clauses have been interpreted to provide different types of protection: Procedural Due Process o Government has to follow certain procedures taking/depriving your life, liberty, & property o Interpreted as proving notice & have case heard before jury of peers looking at this next semester Substantive Due Process o Govt. cant take your L,L,&P without substantive justification o Effectively has to meet strict scrutiny Test: deprivation necessary to achieve compelling government interest o Has to meet strict scrutiny govt. has to show its action is necessary to achieve a compelling govt. interest Applied in 2 main contexts (1) Economic Liberties (2) Affirmative Privacy Rights (ex: abortion, sex, medical freedom, family autonomy, etc.)

Example: state steps in to take your kids o Procedural you must be given notice & hearing o Substantive state must show seizure of child necessary to achieve compelling government interest Early History of Economic Substantive Due Process Initial Rejection of Economic Substantive Due Process o Slaughter-House Cases (Pg. 528 & 604) 14th A protects privileges & immunities of national, not state, citizenship Courts Suggestion of Economic Substantive Due Process o Govt. regulation significantly increased as industrialization change nature of economy o Loan Association v. Topeka Court invalidated city law imposing tax to fund bonds to attract private businesses to Topeka Said law was purely in aid of private or personal [objects] beyond legislative & unauthorized invasion of private right there are limitations on such power that grow out of essential nature of free govt. Over next two decades, court rejected due process as challenge to govt. economic regulation o Munn v. Illinois Court upheld state law that sex max rates for grain-storage warehouses Said under some circumstances, regulation of businesses would be found to violate due process Central question: Whether private property is affected with public interest b/c when one devotes his property to use in which public has interest, he, in effect, grants to public an interest in that use, & must submit to be controlled by public for common good Court declared it was for judiciary to decide reasonableness of state regulations o Railroad Commission Cases Upheld state law regulating railroad rates but court said due process could be used to challenge rates in future b/c power to regulate is not a power to destroy o Mugler v. Kansas Upheld state law prohibiting sale of alcoholic beverages strongly indicated that state laws would be invalidates as violating due process unless they truly were exercise of state police power o IMPLICATIONS Munn, Railroad, & Mugler important for articulating that due process was limit on govts regulating power even though in each cases Court ruled in favor of govt. Substantive Due Process of Lochner Era Allgeyer v. Lousiana (Pg. 607) o Freedom to Contract if he wants to purchase insurance, he should be able to get whoever he wants, he says state shouldnt interfere with his rights o What does court do? Declared unconstitutional state law prohibiting payments on marine insurance policies issued by out-of-state companies not licensed or approved to do business in state o Said the law interfered with freedom of contract and thus violated due process clause of 14th A o IMPLICATION Court moved from speaking only in dicta of due process as limit on economic regulations to invalidating a state law based on it Lochner v. New York (Pg. 608) see Bunting below o FACTS 1897 Labor Law stated no employee can be required or permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hrs/week, etc. o ISSUE Does due process clause of 5th & 14th A protect liberty of K & private property against unwarranted government interference? o HOLDING Declared law unconstitutional b/c it interfered with freedom of K & didnt serve valid police purpose (1) Prevented bakery owners and bakers from contracting for as many hrs of work as they wished

(2) Court rejected argument max hrs law served police purpose No contention that bakers as a class are not intelligent to know whats good for them Protecting their health is not sufficient justification to allow state to interfere with freedom of K o If allowed, then doctors, lawyers, scientists, all could be forbidden to work long hours (3) Limiting hours had no relationship to public health Clean & wholesome bread doesnt depend on whether baker works per law in question o LOCHNER RULE (1) Freedom of K is basic right protected as liberty & property rights under due process clause of 14th A (2) Govt. could interfere with freedom of contract only to serve valid police purpose: that is to protect public safety, public health, or public morals (3) It was the judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it served a police purpose o DISSENT HARLAN There is need for judicial deference to legislative choices legislation was reasonable way to protect heath of bakers who suffered serious medical problems b/c of exposure to flour dust & intense heat Quoted study that found lifespan of baker less than other workmen o DISSENT HOLMES Rejected majoritys premise that C should be used to limit govt. regulation & protect laissez-fare economy C is not intended to embody particular economic theory, whether paternalism & organic relation of citizen to State or of laissez-faire Laws Protection Unionizing o Coppage v. Kansas (Pg. 614) Declared unconstitutional federal and state laws that prohibited employers from requiring that employees not join a union [it was a condition of employment] Wasnt legitimate exercise of police power for govt. to attempt to equalize bargaining power b/w employee & employer Maximum Hour Laws o Muller v. Oregon (Pg. 617) Court upheld a maximum hours law for women Womens reproductive health required limiting nondomestic work Lochner required proof that law closely related to advancing public health, safety, or morals Justified b/c of womens physical structure & performance of maternal functions o Bunting v. Oregon (Pg. 618) Upheld max hours law for manufacturing jobs needed to help protect health of employees Hard to distinguish Lochner from Bunting Minimum Wage Laws o Adkins v. Childrens Hospital (Pg. 619) Declared unconstitutional a law that set a minimum wage for women Minimum wage law different b/c interferes w/ freedom of K, but doesnt serve any valid police purpose Rejected argument that without min. wage women would be forced to earn money in immoral manner *overruled by West Coast Hotel o Morehead v. New York ex rel. Tipaldo Also declared unconstitutional state min wage law for women same reasoning as Adkins Consumer Protection Legislation o Weaver v. Palmer Bros. Co. (Pg. 620) Declared unconstitutional state law prohibiting use of shoddy (rags & debris) in making bedding

Court rejected claim that ban was needed to protect public health & found that law interfered with freedom of contract for those who wished to buy and sell such products Public interest in health could be served by regulation, such as mandating sterilization of shoddy o Initial Suggestions of Demise of Lochnerisms Nebbia v. New York (Pg. 622) Upheld NY law that set prices for milk Court appeared to question premises of Lochner era that govt. only could only regulate to achieve police purpose & that court must review laws aggressively to ensure they truly served police purpose Economic Substantive Due Process Since 1937 Pressure For Change o The Great Depression The End of Lochnerism o West Coast Hotel Co. v. Parrish (Pg. 625) end of substantive due process Made it clear that court was abandoning principles of Lochner Upheld state law requiring minimum wage for women employees & expressly overruled Adkins Re: Nowhere in C does it talk about freedom of K it speaks of liberty and prohibits the deprivation of liberty w/o due process of law Said govt. was not limited to regulating only to advance public safety, public health, or public morals It allowed govt. to regulate to equalize bargaining power Govt. could regulate to serve any legitimate purpose o United States v. Carolene Products Co. (Pg. 626) Upheld filled milk act of 1923 that prohibited filled milk substance made by mixing milk & vegetable oil Rule: Economic regulations should be upheld so long as they are supported by a conceivable rational basis, even if it cannot be proved that it was the legislatures actual intent Economic Substantive Due Process Since 1937 o Williamson v. Lee Optical Of Oklahoma, Inc. (Pg. 629) Upheld OK statue that prohibited optician to fit or duplicate lenses without prescription from an optometrist or an ophthalmologist Court recognized that law might be illogical in some of its applications, but noted that day is gone when court used due process clause to strike down state laws regulatory of business and industrial conditions b/c they may be unwise, improvident, or out of harmony with a particular school of thought Rule: This shows that so long as court can conceive of some legitimate purpose and so long as the law is reasonable, a law will be upheld The Rebirth of Economic Due Process?: Constitutional Limit on Punitive Damages o BMW of North America, Inc. v. Gore (Pg. 631) FACTS Gore BMW from authorized BMW dealer in Birmingham, Alabama. 9 months later, took car to independent detailer to have it detailed who detected evidence that car had been repainted. R BMW repainted to repair acid rain damage that occurred when car was in transit from Germany. Gore sued alleging that failure to disclose paint job constituted suppression of a material fact. BMW said adopted nationwide policy of selling cars as new without advising dealer of repairs when cost did not exceed three percent of suggested retail price. At trial, Gore said repainted car was worth less than new car so wanted punitive damages Claimed BMW had sold 983 refinished cars as new, including fourteen in Alabama. BMW denied carts were worth less & said they had good-faith belief that made punitive damages inappropriate and transactions other than Alabama had no relevance to Gores claim. PROCEDURAL HISTORY

 Jury found BMW liable for $4,000 in compensatory damages and $4 million in punitive damages. BMW said punitive damages violated their due process rights Trial judge denied BMWs motion to set aside punitive damages, finding it was not grossly excessive, and therefore did not violate the Due Process Clause of the 14th A After post-trial motions, Alabama SC reduced award to $2 million saying jury improperly multiplied Gores compensatory damages by number of similar sales in all States. ISSUE Was $2 million punitive damages award so excessive that it violated Due Process Clause 14th A? HOLDING Yes, excessive & violates due process Punitive damages imposed to further States legitimate interests in punishing unlawful conduct and deterring its repetition. States have considerable flexibility to protect its citizens by prohibiting deceptive trade practices. State sovereignty, however, prevents states from imposing economic sanctions with intent of changing the tortfeasors lawful conduct in other States. Alabama doesnt have power to punish BMW for conduct that was lawful where it occurred and had no impact on Alabama. RULE for why $2 million punitive damages award so excessive (1) Degree of reprehensibility; (2) Disparity between the harm suffered and the punitive damage award; and (3) Difference between this remedy and civil penalties authorized in comparable cases. APPLICATION (1) Degree of reprehensibility. Nonviolent crimes less serious than violent crimes. Trickery & deceit more reprehensible than negligence. Harm BMW inflicted was purely economic in nature. No evidence that BMW acted in bad faith who reasonably relied on state disclosure statutes (2) Ratio between the harm suffered and the punitive damage award. Must be reasonable relationship between the punitive damages award and the compensatory damages. Here, punitive damages award 500 times more than actual harm determined by jury. (3) Sanctions for comparable misconduct. Substantial deference should be given to legislative judgments concerning appropriate sanctions for the conduct at issue. Here, punitive damages were equal to that of a severe criminal penalty. o State Farm Mutual Automobile Insurance Co. v. Campbell (Pg. 635) FACTS In 1981, D decided to pass cart ahead of him on two-lane highway. Ospital approached from other direction & to avoid head-on collision with D, he swerved onto shoulder, lost control & collided with Slushers car. Ospital was killed, & Slusher was rendered permanently disabled. Campbells escaped unscathed. D said not at fault in wrongful death tort action. Investigation showed Ds unsafe pass caused crash. Ds insurance company nonetheless decided to contest liability & declined offers by Slusher & Ospitals estate to settle claims for policy limit of $50,000 ($25,000 per claimant). PROCEDURAL HISTORY Instead, jury determined D was 100 percent at fault, & returned judgment for $185,849, far more than amount offered in settlement. Meanwhile, Slusher & Ospital agreed not to seek satisfaction of claims against D & in exchange D agreed to pursue bad faith action against P & be represented by Slushers & Ospitals attorneys.

In 1989, Utah SC denied Ds appeal in wrongful death & tort actions. D filed complaint against P alleging bad faith, fraud, & intentional infliction of emotional distress Jury awarded D $2.6 million in compensatory damages & $145 million in punitive damages Trial court reduced to $1 million & $25 million in respectively. Both parties appealed. ISSUE Whether award of $145 million in punitive damages, where full compensatory damages are $1 million, is excessive & violates due process clause of 14th A HOLDING Yes violated due process applied BMW rule DISSENT SCALIA Due Process Clause provides no substantive protections against excessive or unreasonable awards of punitive damages o Philip Morris U.S.A. v. Williams (Pg. 642) FACTS P's husband smoked 3 packs/day for 50 years, couldnt stop despite warnings during his later years Diagnosed with lung cancer and died 6 months later. P argued that D hid their research from the public and neglected to tell public about health risks. PROCEDURAL HISTORY Lower court found D liable for fraud & negligent practices awarded $821k compensatory (reduced to $500k per OR state law), $79.5M punitive (reduced by trial judge to $32M for being excessive under federal standards) OR Appeals court reinstated $79.5M punitive award & OR SC affirmed. ISSUE Can a D be punished for harming nonparty victims? HOLDING NO, Courts must protect against risk that juries might be confused about using knowledge of nonparty victims to punish D instead of using such knowledge only for rubric of reprehensibility. Due Process forbids state to use punitive damage awards to punish D for injury that it inflicts upon nonparties or strangers to the litigation. Would add standard-less dimension to punitive damages equation, leading juries to speculate: How many victims? How seriously were they injured? DISSENT No sense to use 3rd party harm to assess how bad D's conduct is & not using it to punish D directly. Compensatory damages to nonparties would violate Due Process Punitive damages are intended to punish D. Constitution does not constrain the size of punitive damages awards. o Exxon Shipping v. Baker (Pg. 646) Held that under common law of maritime, punitive damages should be in 1:1 relationship with compensatory damages Too Much Deference? o Since 1937 not one law has been declared unconstitutional by SC as violating substantive due process o So protection of economic rights has come under: (1) Contracts Clause of Article I (2) Takings Clause of 5th A

THE CONTRACTS CLAUSE

 Introduction Article I 10 No State shall pass any Law impairing Obligation of Contracts o Provision applies only if state or local law interferes with existing contract o Does NOT apply to federal govt. o Does NOT limit ability of govt. to regulate terms of future Ks Clause was irrelevant before 1930s b/c of Lochner era since could get anything through economic substantive due process. Once court said no such thing as ESDP, then people started looking to K clause Who does K clause apply to? Limitations are: o States & Existing Contracts Whereas Economic substantive due process in past applied to: o Past & existing & future K Policy: o Desire to prevent states from adopting laws to help debtors at expense of creditors o Goal was to protect creditors & encourage them by assuring lenders that they would be repaid The Modern Use of Contracts Clause In Home, SC upheld Minnesota law enacted in response to Depression that prevented mortgage holders from foreclosing on mortgages for 2-year period. Home Building & Loan Assn. v. Blaisdell (Pg. 648) o FACTS Minnesota Mortgage Moratorium Law: during emergency, relief may be had through authorized judicial proceedings with respect to foreclosure of mortgages, & execution sales, of real estate; that sales may be postponed and periods of redemption may be extended. 2 year moratorium Act doesnt apply to mortgages subsequently or previously made which shall be extended for period ending more than a year after passage of act. Appellant argues that law is against Contract Clause & due process & Equal Protection Clause of 14th A o ISSUE Whether provision for temporary & conditional relief exceeds power of state by reason of clause in Federal Constitution prohibiting impairment of obligations of contracts. To decide this ask: Whether power possessed embrace particular exercise of it in response to particular HOW TO ANALIZE: Is it state thats doing t his? Is it impairing existing K? o HOLDING (1) Emergency existed (2) Legislation was addressed to legitimate end not for mere advantage of particular individuals but for basic protection of society (3) Relief afforded & justified by emergency, in order not to contravene constitutional provision, could only be of character appropriate to that emergency & could be granted only upon reasonable conditions (4) Conditions on which period of redemption is extended do not appear to be unreasonable. Indebtedness is not impaired Interest continues to run Validity of sale & right of mortgagee-purchaser to title or obtain deficiency judgment, if mortgagor fails to redeem within extended period, are maintained Conditions of redemption, if redemption there be, stand as they were under prior law (5) Legislation is temporary in operation & can be changed if circumstances change o WHAT CAN D ARGUE? This is against the K clause b/c framers wanted to help creditors and this is debtors. Money has value now, not two years from now Public policy argument

Legal argument: its not reasonable b/c govt. has a less restrictive means as in if they want to help these homeowners out, they could pay off the mortgage for them Legal argument: we are looking at the literal textual argument there is no reasonable standard We know that framers hated this kind of policy Reasonableness standard: rational basis we dont give fundamental rights Government Interference With Private Contracts o Energy Reserves Group, Inc. v. Kansas Power & Light Co. (pg. 651) FACTS Contract said price to be paid for natural gas would be increased if government regulators fixed a higher price than that specified in K Afterwards, Kansas adopted law that said price to be paid for natural gas under K could not be increased b/c of prices set by federal authorities. ISSUE Whether state law has, in fact, operated as substantial impairment of contractual relationship Substantial impairment does not mean o Total destruction of contractual expectations o State regulation that restricts party to gains it reasonably expected from K HOLDING o Three Part Test (very similar to traditional rational basis review) (1) Is there substantial impairment of contractual relationship? Ex: General Motors v. Romein 1981 Michigan State Supreme Court adopted Michigan statute to allow employers to reduce workers comp. payments to disabled employees who could receive compensation from other employer-funded sources. 1987 MI legislature overturned ruling & required employers to make retroactive payments Employers sued alleging change in law constituted impairment of obligation of Ks Court rejected challenge on ground that it didnt interfere with existing contracts 1987 statute didnt change legal enforceability of employment Ks here. (2) If so, does it serve significant & legitimate public purpose? (3) If so, is it reasonably related to achieving the goal? In 2 & 3 State & local laws upheld, even if interfere with K rights as long as meet rational basis test Ex: El Paso v. Simmons 1910 Texas sold public lands & K said if interest was not paid in timely fashion, state could terminate K & reclaim land BUT if owner could pay delinquent interest owed, could reinstate claim to land 1941 Texas adopted law: Reinstatement had to occur within 5 years after non-payment forfeiture SC upheld state law even though it changed terms of K b/c law had legitimate purpose since it was intended to restore confidence in stability & integrity of land titles Ex: Keystore Bituminous Coal Association v. DeBenedictis State law prohibited coal mining that would cause subsidence damage to property Coal mine had bargained with land owners to be allowed to mine even if it caused subsidence of land Law prohibited exactly what coal mines had bargained to be able to do Court still upheld state law even though it interfered with contractual rights because it served signification government interest in that it was a reasonable way to prevent or repair environmental damage caused by coal mining o Allied Structural Steel Co. v. Spannaus (Pg. 654) Only case where court declared unconstitutional a state law that interfered with K FACTS 1963 Allied Pension Plan

Qualified as single-employer one under section 401 of International Revenue Code Eligible if: o (1) Age 65 entitled to get 1% average monthly earnings by total years of service So no limit on length of service with company, it just reflected in how much you got later o (2) worked for 15 years & reached 60 o (3) at least 55 and sum of age & years of service were at least 75 o (4) less than 55 but sum of age & years of service was at least 80 Once requirements satisfied right to collecting pension became vested Company was sole contributor to pension trust fund Wasnt required to make contributions & no sanctions for not contributing In sum Employee who didnt die, quit, not discharged before meeting requirements received fixed pension if company remained in business and elected to continue pension plan in existing form 1974 - Minnesota passed Private Pension Benefits Protection Act Private employer like Allied who provided pension plan under section 401 of Int. Rev. Code was subject to pension funding charge if terminated plan or closed Minnesota office o Charge assessed if pension funds not sufficient to cover full pensions of all employers who had worked at least 10 years o Employer required to satisfy deficiency by purchasing deferred annuities, payable to employees at their normal retirement age Why have act? To keep/encourage companies within state; hugely penalized those who left; protect citizens from being laid off Summer of 1974 Allied began closing Minnesota office. Discharged 11 of 30 Minnesota employees & notified Minnesota Commissioner of Labor & Industry as required by Act. 9 of 10 discharged didnt have vested rights under the company plan but had worked for at least 10 years so qualified as pension obligees of company under the Act passed few months earlier State notified company that owed $185,000 under provisions of act PROCEDURAL HISTORY Brought suit in Federal District Court asking for injunctive & declaratory relief Claim: Act unconstitutionally impaired companys K-ual obligations to its employees under pension plan ISSUE Whether application of Minnesotas Private Pension Benefit Protection Act to appellant violates K Clause HOLDING Yes, violates the K clause b/c REASONING Must ask the three questions (1. Substantial impairment; 2. Public purpose; 3. Reasonably achieve goal) (1) Substantially impaired company contract with employees Act required company in 1974 to have made contributions throughout pre-1974 life of plan as if employees pension rights had vested after 10 years. Company didnt reasonably expect employee rights to vest in any other way except per their plan Basic term of pension K that company relied on was substantially modified b/c although companys past contributions were enough, they werent after the Act went into effect (2) Doesnt serve public purpose Act isnt like mortgage moratorium legislation whose constitutionality was upheld in Blaisdell This was sudden, totally unanticipated & substantial retroactive obligation on the company (3) Reasonably achieve goal

Minnesota Legislature entered field never sought to regulate and so grossly distorted companys existing contractual relationship with employees Burden was placed on company only because it closed its office in that State. It was selective b/c didnt affect every Minnesota employer, not even every Minnesota employer who left state but only those who in past had been sufficiently enlightened as voluntarily agreeing to establish pension plan for their employers DISSENT Act is positive social legislation & simply imposes new, additional obligations on specific class of persons Act address problems arising from private pension plans Private plans dont protect interests of employees (even those close to meeting company reqt) Address problem by selecting 10 years as a period after which interest vests. CHECKLIST Temporary?national emergency? No & no Government Interference With Government Contracts o United States Trust Co. v. New Jersey (Pg. 659) FACTS In 1960, Authority took over financially troubled, privately owned commuter train. In 1962 NY & NJ entered contractual arrangement not to finance railroad deficits with revenue pledged to make bond payments. But in 1970s, both states passed laws, which repealed original legislation & allowed toll revenue to be used to upgrade & maintain railroad system. Authority argued that this changed states contractual obligation to repay bonds. Petitioners brought suit alleging repeal of original legislation violated K Clause since it impaired their rights to payment on the bonds. ISSUE Did repeal of the 1962 covenant between NJ & NY & bond holders constitute a violation of K Clause? HOLDING Yes. K Clause doesnt prevent a state from enacting legislation, which may affect existing contracts so long as reasonable conditions & public interests justify its enactment. Situation is different when it comes to state impairing its own contracts. In that case, nature of K must be scrutinized. Only where states promise is not purely financial, may state impair its own debts. Here, reservation of tolls was purely financial. States cannot impair their debts merely because they would prefer to spend their money in different manner. Repeal was not a necessary or reasonable means of achieving the goal of encouraging citizens to use the transit system instead of automobiles. A less drastic alternative was available to achieve the states goal. DISSENT Textual argument: which doesnt say different for govt vs. private ks. Clause makes to differential between state and private Doctrinal argument: in past, courts have used rational basis, here they are using additional standards CLASS NOTES Govt. K that are impaired are going to be treated diff Even if this is legitimately in interest of state, there is higher level of scrutiny Show that this is least restrictive means of achieving goals of promoting public transport. Court said there were other ways to achieve goals and this was excessive Raise general taxes rather than toll revenue raise from OTHER places The state is self dealing here, need to have it checked by K clause.

 THE TAKINGS CLAUSE 5th A private property cant be taken for public use without just compensation Applied to states & federal government Four central questions: What is a taking? What counts as property? What counts as public use? What is just compensation? Introduction Is There A Taking? Possessory Taking: When govt. confiscates or physically occupies property o Did the government confiscate, occupy, destroy or invade the property? o Loretto v. Teleprompter Manhattan CATV Corp. (Pg. 665) FACTS NY law authorized D to install components on property of landlord, who cant interfere with installation & cant demand payment from any tenant for permitting CATV, or demand payment from any CATV company in excess of $1, amount found reasonable by state LL may ask CATV or tenant to bear cost of installation & indemnify for any damage caused. Appellant didnt discover existence of cable until after she had purchased the building. She brought a class action against Teleprompter in 1976 on behalf of all owners of real property in the State upon which Teleprompter had placed CATV components, alleging that Teleprompters installation was a trespass, and insofar as it relied on the New York law, a taking without just compensation. Appellant requested damages and injunctive relief. ISSUE Did actions of CATV company, taken under the authority of the New York law, amount to a taking which requires just compensation? RULE Permanent physical occupation authorized by government is taking regardless of public interests it may serve. HOLDING REASONING Yes. A permanent physical occupation authorized by government is taking without regard to public interests it may serve. Historical rule that permanent physical occupation of anothers property is a taking has more than tradition to commend it. Such an appropriation is a serious invasion of a property owners interest. Size of area occupied under taking is not important in this context. DISSENT No taking b/c invasion is slight & doesnt amount to a large physical intrusion CLASS NOTES Why did NY pass law? Communication, few channels, it was concern so increase Minimal intrusion Confiscation or physical per se taking no matter how small Regulatory Takings: When governments regulation leaves no reasonably economically viable use of property o (1) Economic impact of regulation on claimant o (2) Extent to which regulation interfered with investment-backed expectation & o (3) Character of governmental action o Rule is balancing courts see if regulation destroys all reasonably economically viable resources if it does, then its a taking, if it doesnt, then move onward o Pennsylvania Coal Co. v. Mahon (Pg. 668) FACTS Kohler Act prohibited mining causing subsidence of homes & surfaces near residential prop.

P had relied in K & deeds to retain valuable estate in land beneath the surface. Ps mining would cause damage prohibited by Act & sought prevention by injunction. Subsurface estate couldnt be valuably mined for profit & still support surface above. However, owners had consented to deed with express reservation of coal rights. As such deed gave P both contract and property rights which Kohler Act rendered useless. ISSUE Whether statute was permissible under police power or instead constituted an exercise of eminent domain that required just compensation. RULES Limitations on use of land through police power have limits & will be considered taking under eminent domain power when reduction in value of property reaches certain magnitude, which depends upon particular facts. HOLDING & REASONING Private owner had only acquired surface rights & not right to supporting property underneath land. When diminution reaches certain point, government must compensate for it. P couldnt exercise only valuable right it possessed which was to mine property for profit. Public may have use for support, & interest in their safety, however, subsurface rights to property cant be taken for the public without just compensation to P Diminution in value would destroy Ps existing rights of property & contract. Court thought notice would afford private owner adequate safety DISSENT-BRANDIS Legislature should have power to prohibit use of land that seriously threatens public welfare without any just compensation. Restriction upon particular use doesnt become inappropriate whenever it isnt compensated, even though it could alternatively be prevented through such compensation. o Miller v. Schoene (Pg. 670) FACTS State entomologist (D) ordered P to cut down large number of ornamental red cedar trees growing on their property to prevent spread of rust or plant disease to apple orchards in vicinity. Statute requires state entomologist to discover infected trees & direct owner to destroy them. Regulation is NY City Landmark preservation ordinance City of NY & Penn Central RULES Public interest outweighs property interest of individual, & state may use its police power to preserve public interest, even if that means property must be destroyed ISSUE When two classes property exist in dangerous proximity, may the state choose to preserve one, which is of greater value to the public over the other? HOLDING & REASONING Yes. Red cedar trees have occasional use & value as lumber but small compared with apple orchards Apple growing is principal agricultural pursuits in Virginia. Millions invested in orchards, which create jobs, etc. State doesnt exceed its constitutional powers by deciding upon destruction of one class of property in order to save another, which is of greater value to public. o Penn Central Transportation Co. v. New York City (Pg. 670) Read case closely: contains excellent discussion of permissible scope of zoning regulations & requirements for finding taking. Court did stretch to uphold Law based on its analogy to zoning FACTS Appellant owned Grand Central Terminal, which was designated by application of New Yorks Landmarks Preservation Law to be a landmark.

 Appellant entered into renewable 50-year lease with UGP Properties, Ltd., UK Company, under which UGP agreed to construct multistory office building on top of terminal. Plans for new office building submitted to Commission for approval & were denied. Plans conformed to existing zoning regulation, but Commission of Landmarks Preservation nonetheless denied applications for certificates of no external effect and for appropriateness. No administrative remedies & no new plans submitted but Appellant filed suit in state court seeking declaratory judgment, injunctive relief barring City from using Landmarks Law to impede construction of any structure that might otherwise be lawfully constructed, & damages for temporary taking that occurred between designation date (August 2, 1967) & date when restrictions arising under Law would be lifted. TC granted injunctive & declaratory relief, but severed question of damages for temporary taking. NY C of Appeals affirmed, & summarily rejected any claim that Landmarks Commission had taken any property without just compensation because law had not transferred control of property to city, but only limited Appellants use. The Appellants appealed. RULES (1) effect of regulation on property (2) extent to which reasonable expectation of property owner interfered (3) character of government action ISSUE Was there a taking? HOLDING No. Affirmed. Taking is more readily found when govt. physically invades property than when interference arises from public program adjusting benefits & burdens of economic life to promote common good. City tax block designated as landmark site. Appellants contended taking resulted by diminished value of terminal as result of Law. Precedent cases held diminished value as result of rezoning didnt amount to taking. Interference with Appellants property was not such that interference amounted to a taking requiring just compensation. Impact of regulation on Appellants parcel was insufficient to require government to institute eminent domain proceedings. DISSENT Shouldnt equate Landmarks Law with zoning regulation. Effect of Landmarks Law is to place an affirmative duty on owner of designated property to maintain property as landmark at own expense. o Lucas v. South Carolina Coastal Counsil (Pg. 675) DISCUSSION Majority describes two types of regulation considered takings: (1) Physical invasion of property and (2) Regulation denies all economically beneficial or productive use of the property. Majority also focuses on original intent & plans of property owner to preserve common law property rights as means of determining whether taking exists. FACTS Petitioner purchased two beachfront lots for $975,000 in 1986. Intended to build single-family homes on each lot. But, in 1988, South Carolina legislature passed Beachfront Management Act barring building. Acts purpose to protect property from storms, tides &beach erosion & as environmental protection. Petitioner didnt challenge states right to pass Act or its justifications for doing so. Petitioner did claim Act resulted in taking of property since he cant use it for intended purpose. ISSUE

 Does no-build regulation result in compensable taking? RULES If regulation prohibits all economically beneficial use of land & proscribed use could not have been prohibited under given states nuisance law, regulation is taking requiring just compensation HOLDING Yes. Unreasonable for state to prohibit owner from using land as he originally intended, unless it can be shown that use results in nuisance or that general property law prohibits such use. Mandated preservation of private land is like conversion of private prop. to public. A classic taking. Regulation of land use must account for owners traditional understanding as to states power over their property rights. Ex: Owner of lake bed is always aware that he may be stopped by law from flooding adjacent property to create landfill. But, here, since states common law principles would not prohibit from building on land, then taking has occurred. DISSENT BLACKMUN Majority creates new rule & exception not based on precedent & would apply in situation not here o Nollan v. California Coastal Commn. (Pg. 681) FACTS P own beachfront lot in Ventura County, CA w/ ocean side Public Park & public beach nearby. Concrete seawall separates beach portion of P property from rest of lot. Originally, P leased lot with option to buy. Small bungalow on lot fallen into disrepair. Ps option to purchase conditioned on their promise to demolish bungalow & replace it. Under California Public Resources Code, P required to obtain coastal development permit from California Coastal Commission. 1982, P submitted permit application to Commission, which proposed to demolish their bungalow & replace it with three-bedroom home, which was in keeping with rest of neighborhood. Commission granted application, but placed condition on approval requiring P to grant public an easement across their property to make it easier for people to get to public beaches. P then argued imposition of condition constituted taking & was unconstitutional. Appeal ruled condition didnt violate constitution. P appealed to the United States SC RULES Land use regulation does not constitute taking if it substantially advances legitimate state interests & doesnt deny owner economically viable use of his land. ISSUE Does requirement of easement as condition for issuing land use permit constitute taking? HOLDING Yes. Reversed. CA required P to make easement across their property available to public on permanent basis in order to increase public access to beach, rather than conditioning permit to rebuild their house on their agreeing to do so. No doubt that there would have been taking. Court agrees with Commission that where permit condition serves same legitimate police power as refusal to issue permit, then condition would not be taking. However, where condition utterly fails to further end advanced as justification for prohibition, constitutionality disappears. Unless permit condition serves same governmental purpose as development ban, building restriction is not valid regulation of land use but an out and out plan of extortion. DISSENT Majority opinion is narrow, however, its rule seems to have beneficial effect of ensuring governmental agencies act within their narrow grants of power