Con Law Reading:

Federalism: The Power of Congress to Legislate

• Congress must have Express or Implied Powers

The basic principle of American government is that Congress may act only if there is
express of implied authority to act in the Constitution; states may act unless the
Constitution prohibits the action. This is a play between Article I and the Tenth
Amendment.

Two questions in evaluating constitutionality of any act:

1. Does Congress have the authority under the Constitution to legislate?

2. If so, does the law violate another constitutional provision or doctrine, such
as infringement of separation of powers or interfering with individual
liberties?

Only the state has the police power where states and local governments can adopt
any law that is not prohibited by the Constitution.

McCulloch v. Maryland (1819) (P. 129) – Facts - In 1790 the US debated over
the establishment of a Bank of the United States. Opponents (Jefferson and
Randolph) said Congress did not have constitutional authority to create a
national bank and that by doing so it would take from the reserved state
powers left to states by the 10th amendment. Congress created the bank.
Charter expired in 1811 but after the war of 1812, was recreated in 1816.
The bank did not help the economic problems of the time and the bank was
largely blamed. It called in loans owned by the states which angered states.
States began to limit operations of bank through laws. Maryland taxed it. The
bank did not pay Maryland and so John James sued on behalf of himself and
Maryland. McCulloch was the cashier for the branch of the B of US. Proc - The
trial court rendered judgment in favor of the Ps and the Maryland Court of
Appeals affirmed. Issue - Whether it is constitutional for the State of Maryland
to tax the Bank of the United States. Holding - The law passed by the
legislature of Maryland, imposing a tax on the Bank of the US is
unconstitutional. Reasoning:

a. Defining the scope of Congress’s powers:

Enumerated Congressional powers includes that “all laws which shall

be necessary and proper, for carrying into execution the foregoing
powers.” The word “necessary” gives Marshall some talking points. He
decides that necessary is not defined by the limiting meaning of the
words, such that it is the only single way an end can come about , but
that it is “any means calculated to produce an end.” This interpretation
 gives the word “necessary” enlarges Congress’s powers, whereas the
stricter definition would limit it.

b. Delineating the relationship between federal and state governments:

The rules of the Constitution and the powers given to the government
by it, are the supreme laws of the land. Even though two sovereign
agents in charge of collecting taxes (state and federal), the state laws
are subordinate to the federal laws. If states can tax an agent of the
federal govt in this case, they may soon tax the constitutionally
provisioned for post offices or post roads, etc. This would go against
the desired ends of the government. “This was not intended by the
American people. They did not design to make their government
dependent on the states.”

Take-away:

1. Refuted “compact federalism” which is notion that since states

gave up some power to federal and ratified the Constitution, the
states are sovereign. Federal government is supreme over the
states and states have no authority to negate federal actions.

2. Expanded scope of federal congressional authority by allowing it

to choose any means not prohibited by the Constitution to carry
out its powers rather than limited to only those expressed.

3. Limits the ability of the states to interfere with federal activities,

such as by imposing taxes or regulations on the federal
government.

The Commerce Power:

• Article I §8 states, “The Congress shall have the power to regulate

Commerce with foreign Nations, and among the several States…”

Three questions:

1. What is commerce? Is it one stage of business or does it include

all aspects of business and even life in the US?

2. What does among the several states mean? Is it limited to

instances where there is a direct effect on interstate commerce
or is any effect on interstate activities sufficient.
 3. Does the Tenth Amendment limit Congress? If Congress is acting
within the scope of the commerce power, can a law be declared
unconstitutional as violating the Commerce Clause?

Gibbons v. Ogden (1824) (P. 141) – Facts - NY Legislature had given a

monopoly to operate steamboats in NY to Robert Fulton and Robert
Livingston. Fulton and Livingston licensed Ogden to operate a ferry boat
between NY and NJ. Thomas Gibbons operated a competing ferry service and
thus violated the exclusive rights given to Fulton and Livingston and their
licensee Ogden. Gibbons maintained that he had the right to operate his ferry
because it was licensed under a federal law a “vessels in the coasting trade.”
Proc - Ogden successfully sued for an injunction in the NY state courts.
Holding – SC reverses. Reasoning - Ct. found monopoly invalid because it
conflicted with a valid federal statute that held the right to engage in coastal
trade. Commerce is “intercourse.” Navigation is a part of commerce as well.
Congress could regulate commerce which concerns more than one state.
Commerce power, “like all others vested in Congress, is complete in itself,
may be exercised to its utmost extent and acknowledges no limitations other
than are prescribed in the Constitution.” Some internal commerce within a
state would be beyond the power of Congress to regulate. The only
commercial activities which were immune from fed power and reserved for
the state, were those “which are completely within a State, which do not
affect other States, and with which it is not necessary to interfere, for the
purpose of executing some of the general powers of the government.” Some
internal commerce beyond scope of Congress but created standard under
which few activities could be found to meet the definition of internal
commerce.

As in Gibbons:

What is Commerce? Commerce is intercourse not just the interchange

of commodities. Commerce includes all phases of business, including
navigation, which was the issue in this case.

What is “Among the States?” Court can regulate intrastate commerce

if it has an impact on interstate activities. The completely internal
commerce of state is reserved for the state itself. Marshal interprets
“among” in the middle of three possibilities where no clear line is
drawn and leaves discretion to court to define how direct or substantial
the impact must be to constitute interstate effects.

Does the State Sovereignty Limit Congressional Power? In Gibbons, at

least, the court rejected the constraint that that there is any limit on
 Congress because of state sovereignty except where otherwise
prescribed in the Constitution.

Commerce Clause 1890-1937:

• LIMITED FEDERAL COMMERCE POWER: During this period, the court was
controlled by conservative justices who were committed to the laissez-faire
economics and were strongly opposed to government economic regulations.

Many federal laws were invalidated as exceeding the scope of Congress’s

commerce power or as violating the Tenth Amendment and the zone of activities
reserved to the states. Ex. A min wage law would fail because it exceeded the scope
of Congress’s power.

Many state laws were invalidated as interfering with freedom of contract, which the
Court found to be protected as a fundamental right under the liberty of the due
process clause. Ex. A min wage law would fail as impermissibly interfering with
freedom of contract.

This is the first time the SC aggressively used its power of judicial review to
invalidate federal and state laws. Constitutional law since 1937 is very much a
reaction to this earlier era.

Dual Federalism: the view espoused during this time that the federal and state
governments were separate sovereigns, that each had a separate zone of authority,
and that it was the judicial role to protect the states by interpreting and enforcing
the Constitution to protect the zone of activates reserved to the states.

Dual Federalism embodied in three doctrines:

1. Court narrowly defined the meaning of commerce as to leave a zone of

power to the states. Specifically, commerce was one stage of business,
distinct from other phases such as manufacturing, mining, or
production. Under this view, only commerce could be regulated, others
left to states.
 2. Court restrictively defined “among the states” as allowing Congress to
regulate only when there was as substantial effect on interstate
commerce. In all other, regulation was left to the state.

3. Court held that Tenth Amendment reserved a zone of activities to the

states and that even federal laws within the scope of the commerce
clause were unconstitutional if they invaded that zone. Ex. Court held
that production was left to the states and therefore a federal law that
prohibited shipment in interstate commerce of goods made by child
labor was unconstitutional, even though it was limited to interstate
commerce, because it violated the 10th Amendment.

Commerce Clause 1937-1995:

• BROAD FEDERAL COMMERCE POWER: Leading into the Great Depression,

laissez-faire became more untenable. Roosevelt’s landslide election in 1936
was seen as a mandate for his New Deal programs that the court was
consistently invalidating. Roosevelt tried his court packing plan to get
majority for his programs. The number of justices is not set anywhere in the
Constitution and was initially set by the Judiciary Act of 1797 at six and has
changed over time. Before this could happen though, Roberts ended up
switching positions to allow for broader federal power known as “the switch in
time that saved nine.”

The court redefined “affecting commerce” as meaning in commerce or burdening or

obstructing commerce or the free flow of commerce.

The court broadened Congress’s commerce power by saying that their power is
plenary and may be exerted to protect interstate commerce no matter what the
source of the dangers which threaten it.

Wickard v. Fillburn (1942) (P. 166) – Facts - D, Filburn, owns a farm and uses
it to herd dairy cattle, sell milk, eggs and poultry. He would grow a small
acreage of winter wheat to sell, feed his livestock and consume in the home.
In 1938, the Agricultural Adjustment Act of 1938 set a crop acreage allotment
of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. In 1941, D
sowed 23 acres and harvested an average 239 excess bushels. He was
subject to a fine of .49 cents a bushel, or $117.11 in all. Issue - Whether the
regulation and production of wheat is “beyond the reach of Congressional
 power under the Commerce Clause, since they are local in character and the
effects on interstate commerce are ‘indirect.”’ Holding - Marketing quota
legitimately could be applied to a farmer who grew a small amount of wheat
although the wheat was primarily to be consumed on his own farm with some
to be sold locally. Reasoning - Total supply of wheat clearly affects market
prices, just as does the current demand for the product. The marketing
quotas were designed to control the price of wheat. If many farmers raised
wheat for home consumption, they would affect both the supply for interstate
commerce and the demand for the product. It was not for the judiciary to
restrict congressional power either by limiting the subject matter of the
power or independently reviewing the “directness” of connections to
commerce. The cts ruling effectively held Marshall’s broad definition of
commerce.

Cumulative effect of the home grown wheat on the national market –

home grown wheat accounted for 20% of the production and was the
single most variable factor in the market. Therefore, even though
Filburn’s wheat only had a negligible impact on the interstate
commerce, Congress could regulate his production because
cumulatively home grown wheat had a substantial effect on interstate
commerce.

Take away:

1. The court rejected the limits on the commerce power that were
enforced in the earlier era stating that their power was not to be
decided by questions of finding the activity in question to be
“production,” nor could considerations of its economic effects be
foreclosed by calling them “indirect.”

2. Congress could regulate any activity if there was substantial effect on

interstate commerce and after Filburn, it was not necessary that the
particular person or entity being regulated have a substantial effect on
commerce. The requirement is only that the activity, looked at
cumulatively across the country, have a substantial effect on
commerce.

Civil Rights Laws:

The 1964 Civil Rights Act prohibited private employment discrimination based on
race, gender, or religion and forbids discrimination by places of public
accommodation such as hotels and restaurants.

• Congress enacted this legislation under its commerce clause power rather
than §5 of the 14th Amendment because in 1883 the Supreme Court held that
Congress only could regulate government conduct and could not regulate
private behavior under the amendment.

Heart of Atlanta Motel v. US (1964) (P. 169) – Facts – This case is a

declaratory judgment action that attacks the constitutionality of Title II of the
Civil Rights Act of 1964. Heart of Atlanta is a motel that caters and advertises
to interstate travelers. Prior to the CRA, they refused to lodge African
Americans. They stated they will continue to do so regardless of the act. HoA
says that by passing the CRA with its Commerce Powers, it exceeded its
power to regulate commerce. The US says that by refusing adequate
accommodations to anybody, it interferes with interstate travel and that
Congress has the ability to remove these obstructions. Issue - Whether
Congress, through its commerce powers, has the ability to restrict
discrimination based on color in interstate travel through lodging. Holding -
Yes, Congress can use its Commerce Powers to do this. Reasoning - The court
is not the proper entity to review economic decisions of the legislature.
Commerce Power legislation would be upheld if there were any arguable
connection between the regulation and commerce which touched more
states than one. Congress’ motive did not have to be commercial because
the interstate commerce power was plenary.

Douglas Concurring: Douglas fully agrees that Congress has power to

regulate but that he believes that the right of people to be free of state action
that discriminates against them because of race, like the “right of persons to
move freely from State to State,” “occupies a more protected position in our
constitutional system than does the movement of cattle, fruit, steel and coal
across state lines.” He favors Congress citing section 5 of the 14th
Amendment more than Commerce Clause.

Test:

1. Whether Congress had a rational basis for finding that racial

discriminations by motels affected commerce.
 2. If so, whether the means it selected to eliminate that evil are
reasonable and appropriate.

Like lottery cases before it, it does not matter that Congress’s motive, in
part, was moral.

Katzenbach v. McClung (1964) (P. 171) – Facts – Ollie’s BBQ was a small,
family-owned restaurant in Birmingham, Alabama that received 46% of the
meat that it purchased annually from out of state. The restaurant refused to
serve African Americans in the restaurant. There was no claim that interstate
travelers frequented the restaurant. Issue – Whether title II, as applied to a
restaurant annually receiving $70,000 worth of food which has moved in
commerce, is a valid exercise of the power of Congress. Holding – District
Court erred in concluding that there was n connection between discrimination
and the movement of intestate commerce. Reasoning – The decision was not
based on the interstate impact of this particular restaurant but rather, that
Congress had rationally concluded that discrimination by restaurants
cumulatively had an impact on interstate commerce. There was ample basis
for the conclusion that established restaurants in such areas sold less
interstate goods because of the discrimination, that interstate travel was
obstructed directly by it, that business in general suffered and that many new
businesses refrained from establishing there as a result of it.

The power of Congress under the commerce clause is broad and sweeping.

Take away from both cases:

• These cases reflect the breadth of Congress’s commerce power.

• Under Wickard, racial discrimination by hotels and restaurants, looked at

cumulatively across the country, surely has an effect on interstate commerce

• There is no reason why it should matter that Congress’s primary purpose was
based more on a moral judgment to eliminate discrimination than on concern
for enhancing the economy.
The Commerce Clause After 1995: Narrowing the Commerce Power and Revival of
the 10th Amendment:

US v. Lopez (1995) (P. 184) – Facts – Lopez was a 12th grade high school
student who brought a gun to school and was arrested. He was charged with
violating the Gun-Free school Zones Act of 1990, which made it a federal
offense to carry a gun on school grounds. Proc – Lopez was given a bench
trial, found guilty and sentenced to 6 months in jail. On appeal, the 5th Circuit
of Appeals found that the law was unconstitutional due to inadequate findings
to show a sufficient relationship to interstate commerce. Issue – Whether the
Gun-Free School Zones Act of 1990 was an unconstitutional exercise of
Congress’s commerce power. Holding –SC upheld the 5th circuit but on the
grounds that, regardless of adequacy of findings, the law is unconstitutional
because it was not substantially related to interstate commerce. Reasoning –
Re-emphasis on the fact that the Constitution creates a national government
of enumerated powers. Thus, the court returns to the notion that Article I
limits Congress’s power to those that are express or implied in the
Constitution. The presence of a gun near a school did not substantially affect
interstate commerce and that the federal law was unconstitutional. The Court
specifically rejected the federal government’s claim that regulation was
justified under the commerce clause because possession of a gun near a
school may result in violent crime that can adversely affect the economy.

Three Categories of Activities that Congress can regulate under the

commerce clause:

1. The Congress can regulate the use of the channels of

interstate commerce. This was the holding in Hearts of
Atlanta which upheld the federal law that discrimination by
hotels and restaurants was an example of channels of interstate
commerce.

2. Congress may legislate to regulate and protect the

instrumentalities of interstate commerce. This includes the
power to regulate persons and things in interstate commerce
such as railroads in several previous cases.

3. Congress may regulate those activities having a substantial

relation to interstate commerce. The court said that the
previous case law was unclear whether an activity must “affect”
or “substantially affect” interstate commerce and that the more
 restrictive interpretation of congressional power is preferable
(substantially affects).

• This third category was the basis for the decision in

Lopez. A gun did not substantially affect interstate
commerce.

US v. Morrison (2000) (P. 196) – Facts - Christy Bronzkala enrolled at Virginia

Tech and met the Ds Morrison and Crawford who both played on the varsity
football team. P says that 30 minutes after meeting the Ds, they sexually
assaulted her and raped her. During a school-held hearing, Morrison admitted
to having sexual contact with her despite her twice saying no. Crawford got
to go, but Morrison was found guilty of sexual assault and sentenced him to
immediate suspension for two semesters. This was appealed and they found
the same suspension but downgraded sexual assault to using abusive
language. The dean eventually set aside the conviction. P took D to federal ct
under the Violence Against Women Act of 1994 which gains its authority from
the congressional commerce clause. Issue- Whether the civil damages
provision of the Act could be upheld, either as an exercise of Congress’s
commerce clause or section 5 of the 14th Amendment. Holding – SC said
Congress lacked the authority to adopt the provision under either of these
powers. Reasoning - Gender-motivated crimes of violence are not economic
activity. In response to the large amounts of evidence presented during
Congressional hearings on the act showing that gender-motivated violence
does impinge on interstate commerce, the court stated: “The existence of
congressional findings is not sufficient, by itself, to sustain the
constitutionality of Commerce Clause legislation.” Furthermore, in a
concurring opinion, Thomas states that the “substantial effects” test under
the Commerce Clause is rootless in terms of the original understanding of
Congress’s power.

Here, the court reaffirms the three part test for Congress’s commerce
clause authority that was articulated in Lopez. The P defended the law
based on the third part of the test, on the ground that the violence
against women has a substantial effect on the national economy.
Unlike Lopez though, there was a lot of legislative history involved in
the legislation that showed that, cumulatively across the country,
violence against women had a substantial effect on interstate
commerce. Still the court rejects this as not “substantial.”

Take away:
  Morrison goes further than Lopez in limiting the scope of Congress’s
commerce power by narrowing the ability of Congress to regulate
based on findings of “substantial effects” on interstate commerce.

 At least in areas that the Court regards as traditionally regulated by

the states, Congress cannot regulate noneconomic activity based on a
cumulative substantial effect on interstate commerce.

Gonzalez v. Raich (2005) (P. 205) – Facts - Angel Raich and Diane Monson are
CA residents who have medical prescription to marijuana under Prop 215 or
Compassionate Use Act of 1996. Raich’s physician believes that that forgoing
cannabis treatment would cause T excruciating pain and could very well
prove fatal. In 2002, county deputies and the DEA came to Monson’s home
and after searching her premises, found that her use of marijuana was
entirely legal. Nevertheless, after a 3-hour standoff with the officials, they
seized and destroyed her six plants. Proc - D brought suit against the
Attorney general of the US and the head of the DEA for declaratory and
injunctive relief prohibiting the enforcement of the CSA to prevent them from
possessing, obtaining or manufacturing cannabis for their personal medical
use. Ct of Apps found in favor of Raich. Issue - Whether the power vested in
Article I (Commerce Clause) of the Constitution “to make all Laws which shall
be necessary and proper for carrying into Execution” its authority to
“regulate Commerce…among the Several States” includes the power to
prohibit the local cultivation and use of marijuana in compliance with
California law. Holding - The CSA is a valid exercise of federal power. Ct of
Apps overruled. Reasoning - These cases differ from Morrison and Lopez in
that they are substantially questions of economic activities. The diversion of
homegrown marijuana tends to frustrate the federal interests in eliminating
commercial transactions in the interstate market in their entity. This is in
comparison to the Wickard case where the diversion of homegrown wheat
frustrated federal interests in stabilizing prices by regulating the volume of
commercial interactions in the interstate mkt. That simple possession is a
noneconomic activity is immaterial to whether it can be prohibited as a
necessary part of a larger regulation.

DISSENT: Ct has taken away state as laboratory for change without any proof
that homegrown marijuana does effect interstate commerce.

Thomas challenges the definition the cts have been using regarding
commerce and narrows it as consisting of “selling, buying, and bartering, as
 well as transporting for these products.” He believes commerce or trade
stands in contrast to productive activities like manufacturing and agriculture.

How this decision fits with Lopez and Morrison:

The court, in this decision, did not change the test in Lopez in that
Congress may regulate the three. The court did not revisit its holding
in Morrison that in regulating noneconomic activities, substantial effect
cannot be based on cumulative impact. Instead this case stands for the
proposition that intrastate production of a commodity sold in interstate
commerce is economic activity and thus substantial effect can be
based on cumulative impact.

The Tenth Amendment and Federalism as a Limit on Congressional

Authority:

 The 10th Amendment states “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.”

The dispute over the meaning of the 10th Amendment concerns two interrelated
issue of constitutional policy:

1. How important is the protection of state sovereignty and federalism?

2. Should it be the role of the judiciary to protect state prerogatives or should

this be left to the political process?

As to question number 1, usually the Court speaks of three benefits of protecting

state governments:

1. Decreases the likelihood of federal tyranny: framers thought that the

possibility of federal abuses could be limited by restricting the authority of
the federal government by most of the governance coming from state or local
authorities with rare and limited federal actions.

This notion seems anachronistic in the face of a modern national

market economy and decades of federal regulation. Also, it is thought
 that if a federal action intrudes upon individual liberties, judicial review
will stand as an important check.

2. Enhances democratic rule by providing government that is closer to the

people: The smaller the area of government, the more responsive the
government to the interests of the voters.

This value of federalism could be inconsistent with the first value

previously discussed, in that it can bring up the danger of factions.

3. Allowing states to be laboratories of change: States with broader power can

serve as experiments in the development of new social, economic, and
political ideas.

Where does one draw the line between the state’s ability to
experiment and a need for a strong national mandate?

New York v. Printz (1992) (P. 216) – Facts – In 1985, the Low-Level
Radioactive Waste Policy Amendments Act created a statutory duty for the
states to provide for the safe disposal of radioactive wastes generated within
their borders. There were monetary incentives for states to comply with the
law and they were able to impose surcharges for wastes imported from other
states. Also, the law said that the state would have to “take title” of wastes
not disposed of by a certain time and they would be liable for all damages
directly or indirectly incurred. Holding – The take title provision in the federal
law was unconstitutional. Reasoning – Congress can regulate the disposal of
radioactive wastes, but it could not compel them to do so through the “take
title” provision. The state had to pick between either taking ownership of the
waste or regulating according to the instruction of the Congress. The 10th
Amendment and Article I limits Federal government’s power by not being
allowed to compel the states to enact or administer a federal regulatory
program.

Even though it is unconstitutional to compel states to adopt law or

regulations, the Congress is not powerless. Congress can still set
standards that the state and local governments must meet and
thereby preempt state and local actions. Also, Congress may attach
strings on grants to state and local government and through these
conditions induce state and local actions that it cannot directly compel.
 Take-away: If a federal law compels the state legislative or regulatory
activity, the statute is unconstitutional even if there is compelling
need for the federal action. The Court expressly rejected the argument
that a compelling government interest is sufficient to permit a law that
otherwise would violate the 10th Amendment.

Printz v. US (1997) (P. 226) – Facts – The Brady Bill required that state and
local law enforcement officers conduct background checks on prospective
handgun buyers. Issue – Whether compelling these state and local officials to
conduct checks is Constitutional. Holding – It is not constitutional. Reasoning
– Congress was impermissibly commandeering state executive officials to
implement a federal mandate. Scalia observed that historically, Congress had
not exercised such powers. In addition to finding the Brady bill
unconstitutional on this ground, the Court also said that it was a violation of
separation of powers. That is, the power of the president would be subject to
reduction if the Congress could act as effectively without the President as
with him, by simply requiring state officers to execute its laws.

Reno v. Condon (2000) (P. 236) – Facts – The Driver’s Protection Act is a
federal law that prohibited states from disclosing personal information gained
by departments of motor vehicles like phone numbers and addresses. The bill
came about after an LA actress was stalked and murdered because of
information given out by the DMV. Proc – The court of appeals of the 4th
circuit declared the law unconstitutional as violating the Tenth Amendment
because it commandeered the states to not disclose the information. Holding
– The SC reversed. This did not violate the 10th Amendment. Reasoning – The
law is constitutional as an exercise of Congress’s commerce clause power
because Congress found that many states sell the personal information to
individuals and businesses which generate revenues for the states. The law
is not limited to state governments but also private entities as well. Also, this
was not a violation of the 10th A because it was a prohibition of conduct
rather than an affirmative mandate as in NY v US or Printz v US. The law did
not require the state legislature to enact any laws or regulations and it did
not require state officials to assist in the enforcement of the federal statutes.

Take-away:

i. Here, the court limits the scope of the 10th Amendment’s

restrictions on Congress.
 ii. Congress may prohibit state governments from engaging in
harmful conduct, particularly if the law applies to private entities
as well.

iii. Congress may not impose affirmative duties on state

governments but can prohibit conduct

- However, with this last point, the distinction

between the two can often be blurry. Most duties
can be characterized either way. Ex. DPPA could be
characterized as imposing the affirmative duty on
states to keep information secret or the Brady Act
could be characterized as a prohibition on state and
local governments from issuing gun permits
without doing background checks.

Federalism: Limits on State Regulatory Power:

Two possibilities when considering whether a state or local law is invalidated due to
restrictions:

 If the Congress has acted (passed a law and is a lawful exercise of their
power) the question is whether the federal law preempts state or local
law (Supremacy Clause).

 If Congress has not acted, state and local laws can be challenged under two
principles:

1. The dormant commerce clause

2. The privileges and immunities clause

Preemption:

 If there is a conflict between federal and state law, the federal law controls
and the state law is invalidated because federal law is supreme (Supremacy
Clause).
Two major situations where preemption occurs:

1. Express preemption – where federal law expressly preempts state or

local law

2. Implied preemption – implied by clear congressional intent to preempt

state or local law. Absent explicit preemptive language, two types of
implied preemption:

i. Field preemption: where the scheme of federal law and

regulation is so pervasive as to make reasonable the inference
that Congress left no room for the States to supplement it. Ex.
Often found in foreign policy and immigration.

ii. Conflict preemption: if a state and federal law are mutually

exclusive so that a person could not comply simultaneously with
both, the state law is deemed preempted.

Congressional Intent is ultimate touchstone of Preemption.

The Dormant Commerce Clause:

 The principle that state and local laws are unconstitutional if they place an
undue burden on interstate commerce. Where the commerce clause
authorizes congressional actions, the dormant commerce clause limits states
and local regulation.

There is no Constitutional provision that expressly declared that states may not
burden interstate commerce, but rather, the SC has inferred this from the grant of
power to Congress in Article I, §8 to regulate commerce among the states.

In Gibbons, the Court broadly defined the scope of Congress’s power under the
commerce clause. The court also used Gibbons for considering the commerce
clause as an independent limit on state power, even where Congress has not acted.

Facially Discriminatory Laws:

Since the main issue under the dormant commerce clause is whether the state or
local law affects interstate commerce, one key initial question is whether the state
law discriminates against out-of-staters or whether it treats in-staters and out-of-
staters alike.

City of Philadelphia v. New Jersey (1978) (P. 464) – Facts – A New Jersey law
effectively kept landfills in the state exclusively for New Jersey’s use by
preventing the importation of any wastes from out of state. Those
immediately effected by the law were the operators of private landfills in NJ
and several cities in other states that had agreements with these operators
for waste disposal. Issue – Whether the statutory prohibition violates the
Commerce Clause. Holding – The prohibition was unconstitutional. Reasoning
– Even though the aim of the provision was to reduce the waste disposal
costs of NJ residents or to save remaining open lands from pollution, these
ends could not be accomplished by discriminating against articles of
commerce coming from outside the state unless there was some reason,
apart from their origin, to treat them differently. Both on its face and in its
plain effect, this law violated the principle of nondiscrimination.

Maine v. Taylor (1986) (P. 490) – Facts – Maine passed a law that prohibited
the importing of live baitfish into the state. The law was passed to protect
Maine’s fisheries from significant threats from parasites that were prevalent
in out-of-state baitfish, but were not common in Maine. Holding – The SC, in
the face of invalidity per se precedent, finds this law constitutional.
Reasoning – The court found that the law should be upheld because there is
no other less discriminatory way to prevent these threats. There was no
satisfactory way to inspect shipments of live baitfish for parasites or
comingled species.

Take-away: Basically, the court found that the ban on importation of

live baitfish:

1. Serves legitimate local purposes, and

2. Could not adequately be served by available

nondiscriminatory alternatives.
 Virtual per se rule of invalidity – (Maine v. Taylor overcame this) There
is a strong presumption against discriminatory laws that burden
interstate commerce. A state or local law that discriminates against
out-of-staters will be upheld only if it is proved that the law is
necessary to achieve an important government purpose. The Court has
said that a discriminatory law “invokes the strictest scrutiny of any
purported legitimate local purpose and of the absence of non
discriminatory alternatives.

Discriminatory laws must be justified by a purpose that is unrelated to

economic protectionism. Shielding in-state industries from out-of-state
competition is almost never a legitimate local purpose and laws that
do this have been subject to a virtually per se rule of invalidity.

C&A Carbone v. Town of Clarkstown, NY (1994) (P. 467) – Facts - Clarkstown

passed an ordinance requiring that solid waste be processed at a designated
transfer station before leaving the city. One company was conferred a
benefit of $81 per ton, “tipping fee” a cost higher than the market and a
guaranteed waste flow. Carbone began shipping its solid waste out of state
to save costs. Proc - Town filed for injunction compelling Carbone to conform
to the ordinance. St. ct sustained and issued an injunction. Issue - Whether
the flow control ordinance violates the Commerce Clause? Holding – It did.
Reversed. Reasoning - The ordinance regulates commerce. The immediate
effect of the ordinance is to direct local transport of solid waste to a
designated site within the local jurisdiction, while the economic effects are
interstate in breadth. Requiring Carbone to send waste to the transfer
station, at an additional cost, the ordinance drives up the cost for out of state
interests. The ordinance prevents everyone except the favored local
operator from performing the initial processing step. Out of state business is
denied access to a local market, thus it discriminates. Also, takes business
away from cheaper, out-of-state competitors.

United Haulers Assn v. Oneida-Herkimer (2007) (P. 471) – Facts – There was a
solid waste crisis in Oneida and Herkimer counties in NY. Too much waste
was coming in and clean up was needed. Some companies were
overcharging. In response, the counties requested and the legislature created
the Oneida-Herkimer Solid Waste Mgmt Authority. They were given power to
impose appropriate and reasonable limitations on competition. Also, the
counties enacted “flow control” ordinances requiring that all solid was
generated within the counties be delivered to the authority’s processing site.
 They charged a tipping fee. Holding – The counties action was constitutional.
Reasoning –

1. First, this case is different than Carbone in that it is a public

entity and not a private one. It is not the office of the commerce
clause to control the decision of the voters on whether
government or the private sector should provide waste
management services.

2. Also, the ordinances were not discriminatory on face because

they treat in-state/out-of-state the same. The discriminatory
effects were found to be incidental against the legitimate local
concerns and by using the Pike test, the benefits (incentivizing
and monitoring recycling) outweighed the burdens.

Take-away: The main distinction between the two different outcomes

in Carbone and United is that United is public and Carbone was private.
Some (Scalia and dissent) think this distinction is weak. Also, Scalia
doesn’t think the courts should perform the Pike balancing test
because it should be left to Congress in the “real commerce clause.”

Hughes v. Oklahoma (1979) (P. 478) – Facts – Oklahoma passed a law that
forbade the transport of natural minnows out of the state for purposes of
sale. Issue – whether the statute violates the commerce clause. Holding – It
does. Reasoning – the statute is discriminatory on its face which in itself,
regardless of the state’s purpose, invokes the strictest scrutiny test. Aside
from being facially discriminatory, and in spite of the state’s clam of
conservatory purposes, the state did not use the least discriminatory
alternative available. The court suggests a few like limiting the number of
minnows that can be taken by licensed minnow dealers or limiting how these
minnows may be disposed of within the state.

Facially Neutral Laws:

 The Court has held that facially neutral laws can be found to be
discriminatory if they either have the purpose or the effect of discriminating
against out-of-staters.
Hunt v. Washington State Apple (1977) (P. 480) – Facts – A North Carolina law
required that all closed containers of apples sold or shipped into the state
bear “no grade other than the applicable US grade or standard.” Washington
had a system for grading apples that was different and more stringent than
the federal standard. Since the ultimate destination of the apple boxes is
unknown at the time of shipment, Washington would have had to obliterate
the printed labels, giving their apples a damaged appearance, or changed
their marketing practices to accommodate the needs of the NC market.
Holding – The law did discriminate against interstate commerce. Reasoning –
The statute, while not facially discriminatory, had the practical effect of, not
only burdening interstate sales of WA apples, but also discriminating against
them. Three types of discrimination:

1. WA having to raise costs for doing business w NC while NC was left

unaffected.

2. The statute stripped away the competitive and economic advantages WA

had earned for itself.

3. It prohibited WA growers and dealers from marketing apples under their

state’s grades and created a leveling effect which operated to the
advantage of local owners.

Exxon Corp v. Governor of Maryland (1978) (P. 482) – Facts – A MD law

prohibited a producer or refiner of petroleum products from operating a retail
service station within the state. Because virtually all petroleum products sold
in MD were produced and refined out of state, the law meant that these out-
of-state oil companies could not own service stations in MD. The obvious
beneficiary was local business. Holding – The law was not discriminatory.
Reasoning – the law creates no barriers whatsoever against interstate
independent dealers, it does not prohibit the flow of interstate goods, place
added costs upon them, or distinguish between in-state and out-of-state
companies in the retail market. The absence of any of these factors fully
distinguishes this case from those in which a state has been found to have
discriminated against interstate commerce.

Take-away: The commerce clause protects the interstate market, not

particular interstate firms, from prohibitive or burdensome regulations.
Also, the reasoning section in this case can probably be used as a type
of non-facially discriminating check-list for what is or is not
discriminating in effect or purpose.
West Lynn Creamery v. Healy (1994) (P. 485) – Facts – MA imposed a tax on
all milk dealers but the funds from the tax went into a fund to pay subsidies
to in-state dairy farmers. Holding – The tax/subsidy combo is unconstitutional.
Reasoning – Even though the law was facially neutral for imposing tax against
all milk dealers, the impact was the same as a discriminatory law. In essence,
the state was taxing both in-staters and out-of-staters, but in effect refunding
the taxes paid by in-staters through the subsidy system. The net effect was
that the tax was borne disproportionately by out-of-staters.

Dean Milk v. City of Madison (1951) (P. 489) – Facts – A Madison city
ordinance required that all milk sold in the city had to be pasteurized within a
five mile radius of the city. The law prevented mild that was pasteurized in
other state from being sold in the city, but it also precluded milk that was
pasteurized in other parts of the state from being sold in the city. Holding –
The law was discriminatory against out-of-staters. Reasoning – This law was
not facially discriminatory because the law applied to the in-staters outside of
the five mile radius as well as out-of-staters. However, they still erected an
economic barrier that protected a major local industry. Also, even though the
health and safety of its citizens was cited as the reason for this law, they had
other less restrictive, nondiscriminatory alternatives. If they needed their own
inspectors to protect the milk, they could just charge the actual and
reasonable cost of such inspection to the importing producers and
processors.

State of Minnesota v. Clover Leaf Creamery (1981) (P. 487) – Facts – A MN

law prohibited the sale of milk in plastic disposable containers but allowed its
sale in paper disposable containers. MN had a substantial paper industry but
no plastic industry. Holding – this is constitutional. Reasoning – Even though
the law created a demand for paper products traditionally produced in-state
and prevented the out of state plastics industry from having access to this
MN market, and despite that the trial court found that the actual basis of the
statute was to promote the economic interests of certain segments of the
local dairy and pulpwood industries, the law is nondiscriminatory. MN does
not effect simple protectionism but regulated evenhandedly by prohibiting all
milk retailers regardless of whether the milk, containers, or sellers are from
outside the state. Also, used balancing test where the environmental benefits
of the law outweighed any harms to interstate commerce. There was no
approach with a lesser impact on interstate activities available to meet these
environmental interests.
 Take-away from facially neutral cases: In Hunt and Carbone disparate
impact against out-of-staters was enough for finding a law
discriminatory, yet in Exxon and Clover Leaf, proof of discriminatory
impact, even with evidence of a protectionist purpose, was insufficient
for the Court to deem the law discriminatory. The legal standard is not
different but the cases turned on the Court’s appraisal of the particular
facts and its assessment of whether there was discrimination. No clear
criteria for this, but several factors are important:

1. A law is likely to be found discriminatory if its effect is to exclude

virtually all out-of-staters.

In Exxon, only out-of-state petroleum producers and

refiners were kept from operating in the state. In Clover
Leaf, the out-of-state plastics industry was disadvantaged
but out-of-state paper companies could sell milk
containers in the state.

2. A law is likely to be found discriminatory if it imposes costs on

out-of-staters that in-staters would not have to bear.

In Hunt, the Court emphasized the costs imposed on WA

apples producers compared to the NC apple industry

3. The Court is more likely to find discrimination if it believes that a

law is motivated by a protectionist purpose, helping in-staters at
the expense of out-of-staters.

The Balancing Test:

 If the courts decide that a particular law is not discriminatory against out-of-
staters, then a balancing test is used: The court balances the law’s burdens
on interstate commerce against its benefits. The law will be unconstitutional
if the court decides that the burdens from the law exceed its benefits (Pike
test).

Kassel v. Consolidated Freightways Corp (1981) (P. 497) – Facts – Iowa passed a
law that banned 65-foot double trailers. The state said that they were less safe
than 55 foot singles and the law was passed for safety. Holding – The law is
 unconstitutional. Reasoning – The court weighed the asserted safety purpose
against the degree of interference with interstate commerce. The Court found
that the state failed to present any persuasive evidence that 65-foot doubles
were less safe than 55-foot singles. The court had statistical studies showing this
to be true. On the other hand, the court found that the law substantially
burdened interstate commerce by forcing the trucks to avoid Iowa or detach
trailers and ship them separately.

“Some burdens associated with state safety regulations must be tolerated, but
where, as here, the state’s safety interest has been found to be illusory, and its
regulations impair significantly the federal interest in efficient and safe interstate
transportation, the state law cannot be harmonized with the commerce clause.”

Take-away – The court will evaluate state laws on a case-by-case basis

considering the specific evidence as to the benefits of the laws compared to
their burdens on interstate commerce.

Exceptions to the Dormant Commerce Clause:

There are two exceptions where laws that otherwise would violate the dormant
commerce clause will be allowed:

1. Congressional approval – Since the Constitution holds that Congress has

the power to regulate commerce among the states, state laws are
permissible, even when they otherwise would violate the dormant
commerce clause, if they have been approved by the Congress.

This is one of the few areas where Congress has the power to
override a Supreme Court decision interpreting the Constitution.
This is still subject to other Constitutional concerns like Equal
Protection or Privileges and Immunities.

2. The Market Participant exception – Provides that a state may favor its own
citizens in dealing with government-owned business and in receiving
benefits from government programs. If a state is literally a participant in
the market, such as with a state-owned business, and not a regulator, the
dormant commerce clause does not apply:
Hughes v. Alexandria Scrap – Facts – Maryland passed a law designed
to rid the state of abandoned automobiles by having the state pay for
inoperable cars. The state required minimal documentation of
ownership from in-staters but required more elaborate proof from out-
of-staters through either a cert of title, police cert vesting title, etc.
Holding – The law was upheld. Reasoning – The state was a market
participant by purchasing cars and that therefore its discriminatory
actions against out-of-staters did not violate the dormant commerce
clause. Nothing short of congressional action forbids a state from
participating in the market and exercising the right to favor its own
citizens over others.

Reeves v. William Stake (1980) (P. 504) – Facts – South Dakota set up
a cement factory in response to a cement shortage in 1910. Over the
years, it started selling a lot of its cement to interstate buyers. Reeves
was one of them. When a cement shortage again hit the area, the
plant decided to meet all the needs of in-staters first, then give to out-
of-staters on a first come first serve basis. They told Reeves they could
not fill his orders. Holding – The law was upheld. Reasoning – The court
said that SD, as the seller of cement was clearly a market participant
and thus was able to favor in-state purchasers over those from out of
state.

White v. Massachusetts – Facts – A city ordinance required that all

construction projects financed by the city must use a workforce
comprised of at least 50 percent residents of the city. Holding – The
ordinance is upheld. Reasoning – The court used Alexandria scrap and
reeves to say that when a state or local government enters the market
as a participant it is not subject to the restraints of the Commerce
Clause. The city can favor its residents over out-of-staters in
employment because the projects were government-funded and so
made them a market participant.

Take-away: The market participant exception is not limited to

state-owned businesses; states may also favor their citizens in
receiving benefits from government programs.
Limitation on Market Participant Exception:

South-Central Timber v. Commissioner (1984) (P. 506) – Facts – Alaska

passed a law that required that purchasers of state-owned timber have
the timber processed in Alaska before it is shipped out of state.
Holding – The law was not upheld. Reasoning – The limit of the market
participant doctrine must be that it allows a state to impose burdens
on commerce within the market in which it is a participant, but allows
it to go no further. The market needs to be narrowly defined or else the
doctrine has the potential of swallowing up the rule that States may
not impose substantial burdens on interstate commerce even if they
act with the permissible state purpose of fostering local industry. There
is a distinction between the ability of a state to prefer its own citizens
in the initial disposition of goods when it is a market participant and a
state’s attachment of restrictions on dispositions subsequent to the
goods coming to rest in private hands.

Take-away: State businesses may favor in-state purchasers, but

they may not attach conditions to a sale that discriminate
against interstate commerce.

Should there be a Market Participant Exception:

Two criticisms:

1) The dormant commerce clause is meant to stop protectionist

actions by state governments. Protectionism should not be
allowed regardless of whether the state is acting in a proprietary
or a regulatory capacity.

2) There is not a clear distinction between situations where the

government is acting as a regulatory and when it is a market
participant.

a. Example: The court declared unconstitutional a law that

limited the ability of electricity to be shipped out of the
state without the permission of the state’s public utility
commission. The court said the state regulated more than
just a resource that it owns and that the water used to
 make the electricity is different than electricity itself and
so has regulated more than it owns.

Answer to this:

1) The market participant exception can be defended as allowing

citizens in a state to recoup the benefits of the taxes that they
pay.

Privileges and Immunities Clause:

 Article IV, §2: “The Citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states.”

The Court has interpreted this provision as limiting the ability of a state to
discriminate against out-of-staters with regard to fundamental rights or important
economic activities.

Discrimination will only be allowed if it is substantially related to achieving a

substantial state interest.

Who cannot sue under the privileges and immunities clause:

1. Corporations

2. Aliens

The dormant commerce clause and the privileges and immunities clause overlap.
Both can be used to challenge state and local laws that discriminate against out-of-
staters. They have a “mutually reinforcing relationship.”

Some key differences:

1. PI clause can be used only if there is discrimination against out-of-

staters. The DCC can be used to challenge state and local laws that
burden interstate commerce regardless of whether they discriminate
 against out-of-staters. Under the DCC, laws that discriminate are much
more likely to be invalidated.

2. Corporations and aliens can sue under DCC but not PI clause. PI clause
exclusively to citizens.

3. The two exceptions to the DCC do not apply to PI clause. If Congress

approves state laws, then they do not violate the DCC, but
congressional approval does not excuse a law that violates the PI
clause.

4. Also, the market participant clause does not provide exception for the
PI clause:

United Building & Construction Trades Council v. Mayor of

Camden (1984) (P. 514) – Facts – A city ordinance required that
at least 40 percent of the employees on city projects be city
residents. Holding- The court found that the ordinance violated
the PI clause. Reasoning – The market participant exception only
applies with regard to DCC challenges.

Analysis under the PI Clause:

1. Has the state discriminated against out-of-staters with regard to P&I that it
accords to its own citizens?

2. If there is such discrimination, is there a sufficient justification for the

discrimination?

The Test for Sufficient Justification of Discrimination:

a. There is a substantial reason for the difference in treatment

b. The discrimination against nonresidents bears a substantial

relationship to the State’s objective (considering the availability of less
restrictive means).

So far, the court has not found that any law meets this rigorous test.

THE FEDERAL JUDICIAL POWER:

Article III never expressly grants the federal courts the power to review the
constitutionality of federal or state laws or executive actions. This is changed by
Marbury v. Madison.

Marbury v. Madison – Facts – The election of 1800 was very political and hotly
contested. Adams lost to Jefferson. Adams’s secretary of state, John Marshall,
was named the third chief justice of the SC. Adams was a federalist and was
determined to exercise their influence before the Republicans took office. In
1801, less than a week before Adams left office, Congress enacted an act
that authorized the president to appoint 42 justices of the peace. Adams
made his picks the day before Jefferson took office and the Senate confirmed.
John Marshall (also Adams’s secretary of state at the same time he was chief
justice) signed these but not all were delivered before Jefferson came to
office and withheld the undelivered. Marbury was one who lost out and filed
suit in the SC for a writ of mandamus to compel Madison, Jefferson’s sec of
state, to deliver the commission. Holding – The court ruled that it could not
constitutionally hear the case as a matter of jurisdiction. Although the
Judiciary Act of 1789 authorized such jurisdiction, this provision of the statute
was unconstitutional because Congress cannot allow original jurisdiction
beyond the situations enumerated in the Constitution. The fact that there was
no jurisdiction should have ended the decision but instead Marshal was able
to go into the issues of whether or not the commissions had vested or
whether the judiciary had the ability to review the executive’s action. Marshal
also knew that he had to decide with Jefferson or else he would just ignore
the court which would undermine the court.

Issues within the case:

1. Does Marbury have a right to the commission?

Yes, because all appropriate procedures were followed. Ie.

The signing, appointment, seal, etc.

2. Do the laws afford Marbury a remedy?

The government is one of law, not men. Therefore, no

person—not even the president—could be above the law.

3. Can the Supreme Court issue this remedy? Is mandamus an

appropriate remedy?
 Yes, this establishes the power of the judiciary to review
the constitutionality of executive actions. Some though
are political questions and cannot be touched.

Having decided that Marbury had a right to the commission and that
the Court had the authority to issue mandamus as a remedy, the Court
turned its attention to the issue of jurisdiction:

Does the law authorize mandamus on original jurisdiction?

Marbury argued that the SC had original jurisdiction to

hear his suit for mandamus due to a section of the
Judiciary Act of 1789. The Court agreed even though
Marshall really could have read the section to apply only
to appellate jurisdiction. By construing it this way, Marshal
had a forum to declare it unconstitutional and thereby
grant the court this power to in the first place.

Does mandamus on original jurisdiction violate Article III?

Once it concluded that it had original jurisdiction under

the section of the JA of 1789, the court then considered
whether this violated Article III. Marshall found that Article
III’s enumeration of original jurisdiction would be entirely
without meaning if Congress could just add more areas of
original jurisdiction. Therefore, by viewing Article III as the
ceiling, rather than the floor of federal jurisdiction,
Marshall established the principle that federal courts are
courts of limited jurisdiction.

Can the Supreme Court Declare laws Unconstitutional?

Even after deciding the section in the JA of 89 was

unconstitutional, was the court bound to follow that
section or could it declare it unconstitutional? Marshall
found that it could in that it is inherent to the judicial role
to decide the constitutionality of the laws that it applies.
The Constitution applies limits on government powers and
these limits are meaningless unless subject to judicial
enforcement.

US v. Nixon (1974) (P. 329) – Facts – The Watergate burglary happened. Top
political officials were implicated in the cover-up. People found out that Nixon
 had a recording device in his office that recorded all of his conversations.
These tapes were subpoenaed but Nixon said that he would not comply. He
ended up having the special prosecutor fired by going through a chain of
people that he ended up firing until he got the person who would fire the
prosecutor. This all lead to impeachment calls. Holding – Court rejected
Nixon’s contention that the case posed a non-justiciable political question
because it was an inter-branch dispute and that the president alone had the
authority to control prosecutions. Also at issue was that of executive
privilege. The court said it was their role to decide whether the president has
executive privilege, and if so, the scope. The court rejected the claim that the
Constitution gave the president executive privilege. However, the court did
find that executive privilege does exist because of the need for candor in
communications with advisors. This power though is not absolute. It must
yield when there are important countervailing interests.

How Relates to Marbury: Marbury had given the province and duty of
the judicial department to say what the law is. Although some argue
that Marbury does not indicate anything that precludes a constitutional
interpretation which gives final authority to another branch.

Limits on the Federal Judicial Power:

1. Interpretive Limits:

Narrow and with electoral accountability. Originalism v non-originalist.

Evolving through interpretation v. amendments

2. Congressional Limits

3. Justiciability Limits

Congressional Limits on the Power of the Supreme Court

There is dispute over the ability of congressional restrictions of Supreme Court

jurisdiction. Those who believe that Congress can limit jurisdiction to hear particular
matters point to the language of Article III, §2:

 “The Supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress shall
make.”
The claim is that Article III authorizes Congress to create exceptions to the SC’s
jurisdiction and that such exceptions include the ability to preclude review of
particular topics, such as abortion or school prayer.

People who argue against this say that the word “exception” applies to the
word “Fact,” meaning that the SC cannot overturn fact-finding by lower
courts.

Ex Parte McCardle (1868) (P. 35) – McCardle was a newspaper editor who was
arrested by federal officials for writing a series of newspaper articles that
were highly critical of the Reconstruction and military rule of the South
following the war. Mc Cardle filed for a writ of habeas corpus pursuant to a
statute adopted in 1867 that permitted federal courts to grant HC relief to
anyone held in custody in violation of the Const. or laws of the US be either a
state or the federal govt. Before 1867, under the JA of 89, federal courts
could hear HC petitions only of those who were held in federal custody.
McCardle contended that the Military Reconstruction Act was unconstitutional
because it provided for military trials for civilians and also several other
violations of his Bill of Rights. The US government claimed that the federal
courts lacked jurisdiction by reading the 1867 act as providing federal court
relief only for state prisoners. The SC rejected this claim and set the case for
arguments on the merits of the MRA. Soon after, Congress adopted a rider to
a tax bill that repealed the part of the 1867 statute that authorized SC
appellate review to writs of HC. The Congress wanted to keep the case out of
the court so that Reconstruction could not be deemed unconstitutional. The
court then had to decide if it had jurisdiction to hear the constitutional claims
in light of the recently adopted statute denying it authority to hear appeals.
HOLDING- The ct decided that it could not decide McCardle’s case
because of Congress’s authority to create exceptions and
regulations to the Court’s appellate jurisdiction.

For jurisdiction stripping: the supporters of jurisdiction stripping point

to this case as precedent. They say it establishes that Congress may
prevent SC review of constitutional issues and that the court can only
look into Congress’s power under the Constitution to make exceptions
and not to inquire into the motives of the legislature.
 Against jurisdiction stripping: McCardle is different than modern
attempts to prevent SC review of topics such as abortion and school
prayer. In McCardle, even after the repeal of 1867 Act, the SC still had
authority to hear McCardle’s case under the 1789 JA (which the 1867
Act modified but did not replace). Therefore, the court was only
deciding the constitutionality of statute that did not completely
preclude SC review, but rather only eliminated one of the two bases for
its authority. This was proven a year later in Ex Parte Yerger where the
court found jurisdiction over HC from a lower court due to the JA of 89.

United States v. Klein – Facts – In 1863, Congress adopted a statute providing

that individuals whose property was seized during the Civil War could recover
the property, or compensation for it, upon proof that they had not offered aid
to the enemy during the war. The SC held that a presidential pardon fulfilled
the statutory requirement of demonstrating that an individual was not a
supporter of the rebellion. In response to this and frequent presidential
pardons, the Congress adopted a statute providing that a pardon was
inadmissible as evidence in a claim for return of seized property. Moreover,
the statute provided that a pardon, without express disclaimer of guilt, was
proof that the person aided the rebellion and would deny the federal courts
jurisdiction over the claims. Holding – The court held that the statute was
unconstitutional. Reasoning – While acknowledging Congress’s power to
create exceptions and regulations to the Court’s appellate jurisidiction, the
SC said that Congress cannot direct the results in particular cases.

For jurisdiction stripping: Klein establishes only that Congress may not
restrict SC jurisdiction in a matter that violates other constitutional
provisions. Prior to Klein, the federal courts had the power to return
seized property. Why couldn’t Congress amend the statute to provide
that a certain class of citizens, those pardoned, were not entitled to
recover under the law. Really, anytime Congress amends the law will
create a change to substantive outcome.

Against jurisdiction stripping: Points to case. Klein establishes that

Congress may not restrict SC jurisdiction in an attempt to dictate
substantive outcomes

Response to proponents of jurisdiction stripping:

 Two features distinguish Klein, and that the statute violated
other constitutional provisions:

1. In the statute at issue in Klein, Congress was redefining

the president’s pardon power. The statute was arguably
unconstitutional as an infringement of the executive’s
power under Article II.

2. The statute in Klein may have deprived property without

just compensation or due process. The denial of
jurisdiction prevented the federal courts from vindicating
their protected property interest.

Robertson v. Seattle Audubon Society (1992) (P. 40) – An act was passed that
both required certain harvesting restriction on land, but also specifically
mentioned two pending lawsuits deeming that certain sections from the new
act was adequate consideration for the purpose of meeting the statutory
requirements that are the basis for the two law suits. Proc- The 9th circuit held
that the provision was unconstitutional under Klein because Congress was
directing the outcome of the pending litigation. Holding – The SC reversed.
Reasoning- The court found that Congress had changed the law itself and did
not direct findings or results under the old law. The court read Klein as
applying in a situation where Congress directs the judiciary as to decision
making under an existing law and not applying when Congress adopts a new
law.

Take-away: The court read Klein as applying in a situation where

Congress directs the judiciary as to decision making under an existing
law and not applying when Congress adopts a new law.

Justiciability Limits:

 Judiciability Doctrines – Determine which matters the federal court may hear
and decide and which must be dismissed. They include prohibition against
advisory opinions, standing, ripeness, mootness and the political question
doctrine.
Constitutional v. Prudential Requirements :

Some of these doctrines are a result of the Court’s interpretation of Article III
of the Constitution. The language defines judicial power in terms of nine
categories of cases and controversies.

Others are derived not from the Constitution but from prudent judicial
administration. The court has decided that in certain instances wise policy
militates against judicial review.

Reasons for Justiciability:

1. Separation of powers. The Justiciability doctrine define the judicial role by

determining when it is appropriate for the federal courts to review a matter
and when it is necessary to defer to the other branches of the government.

2. Conserves judicial resources. It allows the federal courts to focus their

attention on the matters most deserving of review. The idea of political
capital comes into play. The court depends on other branches to voluntarily
comply with judicial orders and that this acquiescence depends on credibility.
The court does not want to squander their political capital on inappropriate
matters.

3. Improve judicial decision making by providing the federal courts with

concrete controversies best suited for judicial resolution. The court is
centered on controversies being played out to get to the best decision. These
doctrines exist to ensure concrete controversies and adverse litigants.

4. Promotes fairness, especially to the individuals who are not litigants before
the court. It would be unfair to allow someone to bring a complaint on behalf
of a person who is satisfied with a situation.

Principles of Avoidance: along with these justiciability doctrines, the court said that
they would follow certain principles of avoidance. Brandeis laid these out best in the
Ashwander case:

1. The court will not pass upon the constitutionality of legislation in a friendly,
nonadversary proceeding.

2. The court will not anticipate a question of constitutional law in advance of the
necessity of deciding it.

3. The court will not formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.
 4. The court 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. If a case can be decided on either of two
grounds, one involving the Constitution, the other on a statutory construction
or general law, the court will decide only the latter.

5. The court will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation

6. The court will not pass upon the constitutionality of a statute at the instance
of one who has availed himself of its benefits.

7. When the validity of an act of Congress is raised, the court will first ascertain
whether a construction of the statute is fairly possible by which the question
may be avoided.

Prohibition of Advisory Opinions:

 Article III’s limitations on federal judicial power is that federal courts cannot
issue advisory opinions.

Many states are able to issue advisory opinions and one benefit is that the
legislature will be spared time and be able to correct legislation before it is
invalidated.

The justifications for prohibiting advisory opinions are basically the same as the
reasons for justiciability.

Criteria to avoid being an advisory opinion:

1. There must be an actual dispute between adverse litigants. (Like the case
involving America’s neutrality in the war between France and England p. 42)

2. There must be a substantial likelihood that a federal court decision in favor of

a claimant will bring about some change or have some effect.

Standing:
  The determination of whether a specific person is the proper party to bring a
matter to the court for adjudication. In essence, the question of whether the
litigant is entitled to have the court decide the merits of the dispute or of
particular issues.

Reasons for Standing:

1. Concern for separation of powers. Separation of powers can be undermined

by the overexpansion of the federal court or by undue restriction.

2. Serves the judicial efficiency process by preventing a flood of lawsuits by

those who have only an ideological stake in the outcome.

3. Improves judicial decision making by ensuring that there is a specific

controversy before the court and that there is an advocate with a sufficient
personal concern to effectively litigate the matter.

4. Serves the value of fairness by ensuring that people will raise only their own
rights and concerns and that people cannot be intermeddlers trying to
protect others who do not want the protection offered.

Requirements for Standing:

Constitutional Restrictions (cannot be overridden by statute):

1. Must allege that P suffered or immediately will suffer an injury.

2. P must allege that the injury is fairly traceable to D’s conduct.

3. P must allege that a favorable federal court decision is likely to

redress the injury.

Prudential Standing Principles (Congress may override by statute):

1. A party generally may only assert their own rights and cannot raise
the claims of third parties.

2. A P may not sue as a taxpayer who shares a grievance in common

with all other taxpayers. (although, general grievance in a citizen suit
is constitutional, not prudential)

3. A party must raise a claim within the zone of interest protected by

the statute in question.
Constitutional Standing Requirements:

Allen v. Wright (1984) (P. 46) – Facts – Parents of black public school
children brought a class action suit challenging the failure of the IRS to
carry out its statutory obligation to deny tax-exempt status to racially
discriminatory private schools. Issues – 1. The parents and their
children were stigmatized by government financial aid to schools that
discriminate. 2. Their children’s chances to receive an integrated
education were diminished by the continued tax breaks to
discriminatory schools. If the IRS enforced the law, the schools would
either stop discriminating or have to charge more money because of
the loss in tax break. Either way, more white students would likely
attend the public schools. Holding – 1. The first injury was too abstract
to confer standing. 2. The second claim state an injury but is denied of
standing because of an absence of causation. Reasoning – Even in the
second claim, the injury is not fairly traceable to the government’s
conduct—it is too indirect and results from the independent action of
some third party not before the court. Also, even though a change in
the IRS policy might have been redressability, it was still insufficient for
standing because the IRS did not cause the segregation.

Take-away: Issues of injury/redressability both at work, but also the

notion of separation of powers as reason for standing limitations.

Massachusetts v. EPA (2007) (P. 53) – Facts - Massachusetts and

several other states petitioned the Environmental Protection Agency
(EPA), asking EPA to regulate emissions of carbon dioxide and other
gases that contribute to global warming from new motor vehicles.
Massachusetts argued that EPA was required to regulate these
"greenhouse gases" by the Clean Air Act - which states that Congress
must regulate "any air pollutant" that can "reasonably be anticipated
to endanger public health or welfare." EPA denied the petition,
claiming that the Clean Air Act does not authorize the Agency to
regulate greenhouse gas emissions. Even if it did, EPA argued, the
Agency had discretion to defer a decision until more research could be
done on "the causes, extent and significance of climate change and
the potential options for addressing it." Massachusetts appealed the
denial of the petition to the Court of Appeals for the D.C. Circuit, and a
divided panel ruled in favor of EPA. Issue - 1) May the EPA decline to
 issue emission standards for motor vehicles based on policy
considerations not enumerated in the Clean Air Act? 2) Does the Clean
Air Act give the EPA authority to regulate carbon dioxide and other
greenhouse gases? Holding/Reasoning - No and yes. By a 5-4 vote the
Court reversed the D.C. Circuit and ruled in favor of Massachusetts.
The opinion by Justice John Paul Stevens held that Massachusetts, due
to its "stake in protecting its quasi-sovereign interests" as a state, had
standing to sue the EPA over potential damage caused to its territory
by global warming. The Court rejected the EPA's argument that the
Clean Air Act was not meant to refer to carbon emissions in the section
giving the EPA authority to regulate "air pollution agent[s]". The Act's
definition of air pollutant was written with "sweeping," "capacious"
language so that it would not become obsolete. Finally, the majority
ruled that the EPA was unjustified in delaying its decision on the basis
of prudential and policy considerations. The Court held that if the EPA
wishes to continue its inaction on carbon regulation, it is required by
the Act to base the decision on a consideration of "whether
greenhouse gas emissions contribute to climate change." Chief Justice
Roberts's dissenting opinion argued that Massachusetts should not
have had standing to sue, because the potential injuries from global
warming were not concrete or particularized (individual and personal).
Justice Scalia's dissent argued that the Clean Air Act was intended to
combat conventional lower-atmosphere pollutants and not global
climate change.
Take-away: MA as a state deserves special solicitude. Does this
apply only to states? The ruling is unclear when it says “litigant”
rather than “states.”
Injury: loss of coastal wetlands but is not imminent but
rather decades away.
Redressability: Some favorable federal court holding
would slow rate of loss of coastal wetlands, but not be
able to get rid of it. To show injury, need to frame to slow
down this loss rather than stop it. This is a lenient test for
demonstration of causation especially when compared to
some of the other cases.

Injury:

 The SC has declared that the “irreducible minimum” of Article III’s limit
on judicial power is a requirement that a party show he personally has
suffered some actual or threatened injury.

In Sierra Club v. Morton, the Sierra club sought to prevent the

construction of a ski resort in Mineral King Valley. The issue was
whether the P was adversely affected or aggrieved so as to be
entitled to seek judicial review. The club asserted a special
 interest in the conservation of the park but the court found this
insufficient for standing.
The Sierra Club failed to allege that it or its members
would be affected in any of their activities or pastimes.
Nowhere in the affidavit did the club state that its
members use the park for any purpose. They needed one
member to walk through the park. In fact, on remand, the
club amended its complaint to allege that its members did
use the park and they were accorded standing.

Again, in the SCRAP case, the SC upheld standing to a group of

students who said that a hike in railroad freight rates would
discourage the use of recycled goods because of the extra cost.
The decrease in recycling would lead to more use of natural
resources and thus more mining and pollution. The students
maintained that their enjoyment of the forests and streams in
the area would be lessened as a result.
The SC upheld the standing saying that aesthetic and
environmental injuries are sufficient for standing so long
as the P claims to suffer the harm personally.

City of LA v. Lyons (1983) (P. 60) – Facts – Lyons brought suit to enjoin
as unconstitutional the use of chokeholds by the LAPD in instances
where the police were not threatened with death of serious bodily
injury. Result – The court ruled that Lyons did not have standing to
seek injunctive relief. Reasoning – Although Lyons could bring a suit
seeking damages for his injuries, he did not have standing to enjoin
the police because he could not demonstrate a substantial likelihood
that he, personally, would be choked again in the future.

Take-away: Perhaps the most important application of the

requirement for a personally suffered injury is the requirement
that a P seeking injunctive or declaratory relief must show a
likelihood of future harm.

Criticisms: Is it not enough to show future psychological harm or

fear of a future choke-hold so long as the policy goes
unchanged?

Defenders of decision: The court did not deny his standing to

pursue a damages claim and the constitutionality of the
chokehold could be adjudicated there.
Lujan v. Defenders of Wildlife (1992) (P. 62) – Facts – The SC
considered a challenge to a revision of a federal regulation that
provided that the Endangered Species Act does not apply to the US
government activities outside of the US. The Ps claimed that the failure
to comply with the Act increased the rate of extinction of endangered
and threatened species. Holding – The court said that they lack
standing because they could not show sufficient likelihood that they
would be injured in the future by a destruction of the endangered
species abroad. Reasoning – The fact that the women had visited the
country in the past did not prove that they would return. Their desire
to return someday is insufficient for standing without any concrete
plans or any specification of when that someday will be.

DISSENT: The requirement that a P have a specific plan to return

to a foreign country created only a silly formality that a P must
purchase a plane ticket in order to sue. Also, Blackmun
dissented over the issue that a P is only harmed by the
destruction of the environment only if the individual has
concrete plans to visit the harmed place.

US v. Hays (1995) (P. 65) – Facts – Hays claimed that the State of LA’s
congressional district plan is such a racial gerrymander and that it
violates the 14th Amendment but the appellees do not live in the
district that is the primary focus of the gerrymandering claim. They
had also not shown that they, personally, have been subjected to a
racial classification. Holding – There is no standing. Reasoning – Only
individuals that reside within a district suffer an injury from how the
lines are drawn.

Could Hays not claim injury as having been excluded from that
district due to the drawing of the lines?

FEC v. Akins (1998) (P. 66) – Facts – Congress created a statute that
created a right to information. A group of voters brought suit
challenging a decision by the FEC that the American Israel Public
Affairs Committee was not a political committee subject to regulation
and reporting requirements under the FEC. A federal statute authorizes
suit by any person aggrieved by the FEC decision. Holding – The court
 granted standing. Reasoning – They concluded that Congress had
created a right to information about political committees and that the
Ps were denied the info by virtue of the FEC’s decision.

Take-away – Congress had created a method for petitioner to be able

to bring an action. Claimant has statute to go by. No generalized
grievance here. Congress gave specific grievance which they cited.

Causation and Redressability:

 Injury is necessary for standing, but not sufficient. A P must also allege
and prove that the personal injury is fairly traceable to the Ds allegedly
unlawful conduct and likely to be redressed by the requested relief.

Linda R.S. v. Richard D. (1973) (P. 67) – Facts – An unwed mother sought
to have the father of her child prosecuted for failure to pay child support.
The state of Texas had a policy of prosecuting fathers of legitimate
children for not paying required child support, but did not prosecute
fathers of illegitimate children. The Ps argued that this was
unconstitutional discrimination on the basis of the child’s legitimacy.
Holding – The court dismissed the case for lack of standing. Reasoning –
Even an injuction commanding the state prosecutions would not ensure
that the mother would receive any additional child support money. If the
appellant were granted the requested relief, it would result only in the
jailing of the child’s father and the payment would at best be speculative.
There is a redressability problem.

Warth v. Seldin (1975) (P. 67) – Facts – Several Ps challenged the

unconstitutionality of exclusionary zoning practices in NY. The Ps included
residents who wanted to live in Penfield but claimed that they could not
because of the zoning practices that prevented construction of multifamily
dwellings and low-income housing. Also, an association of home builders
that wanted to construct such housing joined as Ps in the suit. Holding –
The Ps lacked standing Reasoning – Even though they alleged violation of
their constitutional rights, they could not demonstrate that appropriate
housing would be constructed without the exclusory zoning ordinances.
The court felt that the low-income residents seeking to live in Penfield
might not be able to afford to live there even if the ordinances were
invalidated. Also, the builders might not choose to construct the new
housing regardless of the outcome of the lawsuit.

Take-away: Causation problem because they wouldn’t be able to afford

the housing anyways. Also, the redressability problem is because even
if the zoning was changed, there was no definite plan to build low-
income housing.

Simon v. Eastern Kentucky Welfare Rights (1976) (P. 67) – Facts – The Ps
challenged an IRS revision of a revenue ruling limiting the amount of free
medical care that hospitals receiving tax-exempt status were required to
 provide. Whereas previously tax-exempt charitable hospitals had to
provide free care to indigents, under the new provisions only emergency
medical treatment of indigents were required. The Ps were individuals
who claimed that they were denied needed medical care and hence
injured by hospitals receiving tax-exempt status. Holding – The court
denied standing. Reasoning – Causation and redressability were lacking.
The court said that it was purely speculative whether the new revenue
ruling was responsible for the denial of medical services to the Ps and that
the complaint suggests no substantial likelihood that victory in this suit
would result in respondents receiving the hospital treatment they desire.

Take-away: Causation problem that tax exempt status may not have
been cause of problem. Would not have brought about any change and
so no redressability. Not have status did not cause hospitals to deny
free care beyond emergency care. By threatening status w suit would
not take away or give any redressability to the issue.
Duke Power Co v. Carolina Environmental Study Group (1978) (P. 68) – Facts
– 40 individuals and two organizations challenged the constitutionality of the
Price-Anderson Act, which limited the liability of utility companies in the
event of a nuclear reactor accident. The Ps argued that the P-A Act violated
the due process clause because it allowed injuries to occur without
compensation. Holding – The SC found standing. Reasoning- The construction
of a nuclear reactor in the Ps area subjected them to many injuries, including
exposure to radiation and other harms. Furthermore, the court accepted the
lower court’s conclusion that the causation and redressability tests were met
because but for the P-A Act the reactor would not be built and the Ps would
not suffer these harms.

Take-away: Inconsistent case – It is talking about future injuries and its

not clear if its going to affect claimants at all. An action by Congress
and expenditure of money because of need…might relax standing.

Prudential Standing Requirements:

 Can be overruled by Congressional statute because these standings are not

derived from the Constitution but from the court’s view of prudent judicial
administration.

The Prohibition of Third-Party Standing:

 Even when the P has alleged injury sufficient to meet the ‘case or
controversy” requirement, the Court has held that the P generally must
assert his own legal rights and interests, and cannot rest his claims to
relief on the legal rights or interests of third parties (jus tertii standing).

Singleton v. Wulff (1976) (P. 69) – Facts – two physicians challenged a

state statute that prohibited the use of state Medicaid benefits to pay for
nontherapeutic abortions (abortions that were not necessary to protect
the health of life of mother). Holding – The Ps were granted standing.
Reasoning – The doctors were injured by the statute because it denied
 them payments for particular medical services. Moreover, the court
emphasized the closeness of the doctors relationship to the patient and
that the physician is intimately involved in the decision of abortion. The
court said it is generally appropriate to allow a physician to assert the
right of women patients as against governmental interference with the
abortion decision.

Take-away: This case lays out two of the exceptions to the rule of
prohibition of third-parties:
1. The close relationship between P and the third-party
(mainly this in Singleton).
2. The likelihood that the third party can sue on its own behalf (but
also obstacles).

Barrows v. Jackson (1953) (P. 71) – Facts – Barrows, a white person who
had signed a racially restrictive convenant, was sued for breach of
contract for allowing nonwhites to occupy the property. The defense was
raised on the rights of blacks, who were not parties to the lawsuit for
breach of contract. Holding – The court allowed third-party standing.
Reasoning – The court allowed the white dude to raise the interests of
blacks to rent and own property in the community. The court said it would
be difficult if not impossible for the persons whose rights are asserted to
present their grievance before any court. Because blacks were not parties
to the covenant, they had no legal basis for participation in the breach of
contract suit.

Take-away: Genuine obstacles exception. Parties may not have

even known that they were being excluded. Genuine obstacle for racial
minorities and best advocate is the person who owns the land.

Craig v. Boren (1976) (P. 72) – Facts – OK adopted a law permitting women to
buy 3.2% beer at age 18 but denying men that privilege until age 21. A
bartender sought to challenge the law on behalf of male customers between
the ages 18-21. The bartender suffered economic loss from the law, thus
fulfilling the injury requirement. Holding – Standing was granted. Reasoning –
After an injury was alleged, the court observed that generally vendors and
those in like positions have been uniformly permitted to resist efforts at
restricting their operations by acting as advocates for the rights of third
parties who seek access to their market or function.

Take-away: Vendors can assert right of their customers based on the

exception of the close relationship between P and third party.

Gilmore v. Utah (1976) (P. 72) – Facts – Gilmore was sentenced to death in
the state of UT but chose not to pursue collateral challenges in federal court.
His mom sought a stay of execution on his behalf. Holding – The court
refused the mother’s claim. Reasoning- The D had waived his rights by not
pursuing them himself. The mother should not be granted standing because
there was no reason why her son could not protect and assert his own rights.
 Take-away: This case did not by-pass the prohibition of third party
claims. It is not enough for the third party to have a close relationship
but the advocate must also be part of the third party’s exercise of the
protected right. Contrary intent.

Elk Grove School District v. Newdow (2004) (P. 72) – Facts – A father sued on
behalf of his daughter to challenge the use of the words “under God” in the
pledge of allegiance in public schools. Holding – The court dismissed the case
for lack of standing. Reasoning – The father lacked the third party standing to
sue on behalf of his daughter. The court stressed that the girl’s mother, and
not Newdow, had legal custody and the court also emphasized a traditional
unwillingness of federal courts to get involved in domestic relations matters.

The Prohibition of Generalized Grievances:

 Prevents individuals from suing if their only injury is as a citizen or a taxpayer

concerned with having the government follow the law.

United States v. Richardson (1974) (P. 77) – Facts – P claimed that the statutes
providing for the secrecy of the CIA budget violated the Constitution’s
requirement for a regular statement and accounting of all expenditures. Holding
– The court ruled that the P lacked standing. Reasoning – The P presented a
generalized grievance and did not allege a violation of a personal constitutional
right, but instead claimed injury only as a citizen and taxpayer. He lacked
standing because he was seeking to employ a federal court as a forum in which
to air his generalized grievances about the conduct of government.

Ripeness:

 Seeks to separate matters that are premature for review because the injury is
speculative and never may occur, from those cases that are appropriate for
federal court action. It prevents the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements.

Customarily, a person can challenge the legality of a statute or regulation only

when he or she is prosecuted for violating it.

The Declaratory Judgment Act – permits people to avoid the choice (between having
to break the law and hope it is invalidated or refrain from the prohibited conduct
rather than risk criminal punishment) and obtain preenforcement review of statutes
and regulations.
This is constitutional because the stateu does not permit advisory opinions
because it limits federal court action to justiciable cases. That is, it does not
allow preenforcement review in all instances.

Two considerations for ripeness:

1. The hardship to the parties of withholding court consideration:
The more a P can demonstrate substantial hardship to a denial of
preenforcement review, the more likely a federal court is to find
 ripeness. Conversely, the more speculative and uncertain the harm,
the less likely it is that review will be granted.
i. Hardship from choice between possibly unnecessary compliance
and possible conviction.
1. Ex: In possible arrest due to anti-vietnam war pamphlets,
court found the case ripe because he would have to
choose between giving up freedom of speech or
imprisonment.
ii. Hardship where enforcement is certain.
1. Where the application of a law is inevitable and
consequences attach to it, the court will find it ripe.
iii. Hardship because of collateral injuries.
1. Duke Power case again. Even though the injuries that the
P-A act limited liability for had not occurred, there were
other damages like exposure to raidiation, etc. that would
not have been created but for the P-A act. Ripeness.
iv. Hardship is Prerequisite for Ripeness.
1. Poe v. Ullman falls into this category, below. There was
minimal harm to denying review and so it was found not
ripe.
2. The fitness of the issues for judicial review:
The more a question is purely a legal issue the analysis of which does
not depend on a particular factual context; the more likely it is that the
court will find ripeness. But the more judicial consideration of an issue
would be enhanced by a specific set of facts, the greater the
probability that a case seeking preenforcement review will be
dismissed on ripeness grounds.

Poe v. Ullman (1961) (P.92) – Facts – Married women for whom pregnancy
was medically unadvisable and their doctors filed a lawsuit challenging a CT
law preventing the distribution or use of contraceptives. Holding – the court
found this case not ripe. Reasoning – There had only been one other
prosecution under the law in more than 80 years. Contraceptives were
commonly and notoriously sold in CT drugstores. The fact that CT had not
chosen to press the enforcement of the statute deprived these controversies
of the immediacy which is an indispensible condition of constitutional
adjudication.

Criticism: What were the people to do? Were the supposed to violate
the law and go to prison? Violate the law surreptitiously and hope they
did not get caught? This decision left them no choice. Under the
regime of the declaratory judgment they should not have to make
these choices.

Take-away: Do you need both 1 and 2 above to have ripeness, or just

one of them? The interaction is not clear. In this case, the court seems
to say that you need some of both. The case was not deemed ripe
even though it was a purely legal question that did not depend on the
factual record. There was not enough hardship.
 Thus it appears that preenforcement review is possible only if there is
both hardship to denial and an adequate factual record. Because the
hardship requirement is constitutionally based, in all likelihood it is less
flexible, whereas the prudential concern about the record is to be
given less weight.

Mootness:

 An actual controversy must exist at all stages of federal court proceedings, at

both the trial and appellate levels. If events subsequent to the filing of the
case resolve the dispute, the case should be dismissed as moot.

The doctrine derives from Article III’s prohibition of advisory opinions. By definition,
if a case is moot, there no longer is an actual controversy between adverse litigants.
Ex: criminal D dies during trial, if a challenged law is repealed or expires, a Ds
challenge to state law denying him pretrial bail was deemed moot after his
conviction, and a suit by students against school censorship was moot after
they graduated.

Four exceptions due to the flexible character of the mootness doctrine:

1. Collateral Consequences: Injury survives after the P’s primary injury has been
resolved.
Even after a D has served a sentence, the challenge to criminal
convictions is not moot because of the adverse effects still felt—things
like not being able to get jobs, not being able to vote, and the increase
of severity of future convictions.
Ex: two Ds challenged the constitutionality of the legality of
evidence seized from them during a stop-and-frisk. Although
they served their time, the court held that their challenge to the
constitutionality of their convictions was not moot.

2. Wrongs Capable of Repetition Yet Evading Review: Some injuries are over so
quickly that they always will be moot before the court litigation process is
completed.

i. Roe v. Wade (1973) (P. 99) – Facts – The P was pregnant when
she filed her complaint challenging the constitutionality of a TX
state law prohibiting abortion. However, by the time she
reached the SC, her pregnancy was completed and she no
longer sought an abortion. Holding – Her case was not moot.
Reasoning – Intervening circumstances meant that there no
longer was a live controversy between the P and the state. But
the SC refused a request to dismiss because the duration of
pregnancy was inherently likely to be shorter than the time
required for federal court litigation. The challenge to the state
law prohibiting abortions truly could be capable or repetition yet
evading review.
 Take-away: Two criteria must be met in order for a matter
to fit within the wrong capable of repetition yet evading
review exception:
a. The injury must be of a type likely to happen to the
P again. Not enough to say that it will happen to
someone at sometime again.
b. It must be a type of injury of inherently limited
duration so that it is likely to always become moot
before federal court litigation is completed.
Typical in restraints on speech, challenges to
election laws.

ii. Moore v. Oglivie (1969) (P. 98) – Facts – a suit was brought
challenging a state law requiring the obtaining of a certain
number of signatures in order for an independent candidate to
get on the ballot to run for president or vice-president. The
election was held before the case was heard by the SC. Holding
– The court held that the case was not moot. Reasoning – It
presented a wrong capable of repetition yet evading review. The
court said that the P might again seek access to the ballot for
independent candidates and that the matter would always
escape review because litigation could never be completed
before the election.

iii. DeFunnis v. Odegaard (1974) (P. 99) – Facts – The P, a white

male, applied for admission to the U of W law school and was
denied acceptance. He sued the school contending that he was
discriminated against because of the school’s preferential
treatment of minority candidates. The court ordered a
temporary injunction allowing him to attend school while the
case was pending. By the time the case reached the SC, the P
was in his final year and that he would be allowed to complete
his studies regardless of the outcome. Holding – The court held
that the case was moot. Reasoning – The controversy between
the parties had clearly ceased to be definite and concrete and
no longer touched the legal relations of parties having adverse
legal interests.

Criticisms: Some people think the case should have

constituted a wrong capable of review yet evading review.
However, like the court said, there was no chance
that P would again be subjected to the law school
admissions process. Also, there was no reason to
believe that the issue would evade review because
not every challenger would obtain an injunction
securing law school attendance while the case was
pending.

3. Voluntary Cessation: A case is not to be dismissed as moot if the D voluntarily

ceases the allegedly improper behavior but is free to return to it at any time.
 Only if there is no reasonable chance that the D could resume the offending
behavior is a case deemed moot under this exception.

i. Friends of the Earth v. Laidlaw (2000) (P. 100) – Facts –

Environmental groups brought a lawsuit pursuant to a citizen
suit provision of the Clean Water Act against a holder of a
National Pollutant Discharge Eliminations System permit,
alleging that it was violating the mercury discharge limit. The Ps
sought declaratory and injunctive relief. The D sought to have
the case dismissed as moot on the ground that it had changed
its conduct and complied with the permit requirements and had
closed one of its facilities. Holding – The case was not moot.
Reasoning – Voluntary changes in behavior by a D are not
sufficient to make a case moot because the D would be free to
resume the behavior once the case was dismissed.

Take-away – Ginsberg says that the “heavy burden of

persuading” the court that the challenged conduct cannot
reasonably be expected to start up again lies with the
party asserting mootness. This is quite different from the
standing requirements where the P is responsible for
showing the constitutional and prudential requirements
are met.

4. Class Actions: The court has taken a particularly flexible approach to the
mootness doctrine in class action suits. In a series of cases, the SC has held
that a properly certified class action suit may continue even if the named P’s
claims are rendered moot.

The Political Question:

 Certain allegations of unconstitutional government conduct should not be

ruled on by the federal courts even though all of the jurisdictional and other
justiciability requirements are met. The political question doctrine refers to
subject matter that the court deems to be inappropriate for judicial review.

Baker v. Carr (1962) (P. 104) - is an equal protection case from 14th A. the reason
why the ct does not resolve a political question is because of separation of
powers. Has authority to decide this case. Contrasted with the Colgrove case
where the ct said the case wasn’t brought under equal protection clause. Had to
do w gerrymandering and without equal protection was a political question. Got
rid of gerrymandering by getting around the political question doctrine of not
hearing cases that question the republican form of government and the electoral
process that had been established in Colgrove.

Six areas of political question:

1. The republican form of government clause and the electoral process.

The Guarantee Clause: The US shall guarantee to every state in this
union a republican form of government. The SC consistently has held
 that cases alleging violation of this clause presents nonjudiciable
political questions.

2. Foreign Affairs: Issues relating to the conduct of foreign affairs pose political
questions, but this does not mean the court will throw away every case that
touches it.
Ex: ct has upheld the constitutionality of the president’s use of
executive agreements instead of treaties to implement major foreign
policy agreements. Also, the court has ruled in favor of the
constitutionality of the use of the treaty power for specific subject
matters.

Will not usually touch: declaration of when war starts or ends,

recognition of foreign governments, issues concerning the ratification
and interpretation of treaties, challenges to the president’s use of the
war powers

3. Congress’s ability to regulate its internal processes.

4. The process for ratifying constitutional amendments.

Ex: the history of the 14th Amendment with Reconstruction Act by
placing rebel states under military rule and denying them reentry into
the union until they ratified the 14th amendment. Finally enough states
did ratify it but were obviously coerced into it.

5. Instances where the federal court cannot shape equitable relief:

Ex: After the Kent state shooting, students sued the government
saying that the Ohio State National Guard was improperly trained. The
court dismissed this as a political question because it would require a
judicial evaluation of a wide range of possibly dissimilar procedures
and policies approved by different law enforcement agencies and it
would be inappropriate for a judge to do this. Relief would require
ongoing supervision and control of the ONG.

6. Impeachment Process:
i. Nixon v. US (1993) (P. 121) – Facts- Nixon was a federal district
court judge who had been convicted of making false statements
to a grand jury. Nixon refused to resign from the bench and
continued to collect his judicial salary while in prison. The HofR
adopted articles of impeachment and the senate, in accord,
created a committee to hold a hearing and make a
recommendation to the full senate. The Committee
recommended removal from office and the entire senate voted
accordingly. Nixon argued that the senate’s procedure violated
the constitution in that the entire senate did not sit and hear
evidence. He contested the use of the committee. Holding – The
judiciary will not review the Senate’s use of a committee to hold
a hearing and make a recommendation on an impeachment.
Reasoning – The Constitution holds two separate proceedings
against officeholders charged of wrongdoing: a judicial trial and
 legislative impeachment proceedings. The fact that the framers
deliberately made two distinct forums made the judicial review
of the senate’s methods inappropriate.

Take-away – This case leaves open the question of

whether all challenges to impeachment are nonjusticiable
political questions. What if the senate flipped a coin, or
impeached with less than two-thirds of the senators? They
probably would step in then.

Is It Constitutional or Prudential?

It is uncertain if its one or the other, or both. Could Congress direct the
federal courts to adjudicate a matter that the SC deemed to be a political
question? Unlike the other justiciability doctrines, the political question
doctrine is not derived from Article III’s limitation of judicial power to “cases”
and “controversies.”

The political question doctrine might be treated as constitutional if it is

thought to be based on separation of powers or textual commitments to
other branches of the government. On the other hand, the doctrine is
prudential if it reflects the court’s concerns about preserving judicial
credibility and limiting the role of an unelected judiciary in a democratic
society.

Bush v. Gore (2000) (P. 1113) – Facts –

The Application of the Bill of Rights to the States:

The first 8 Amendments in the Bill of Rights detail protection of individual rights.
The 9th Amendment maintains that by enumerating rights that omission of a right
would deny such right. The 10th Amendment holds that powers not delegated to US
are reserved to the states.

Barron v Mayor:

Early in history, SC held that the application of the bill of rights applied only
to the federal govt, not to state or local govts. In Barron, the SC expressly
held that the Bill of Rights was a restriction of federal actions, not state or
local conduct.

Facts- Barron sued the city for taking his property without just compensation
in violation of the 5th Amendment. He contended that the city ruined his
wharf by diverting streams and thereby made the water too shallow for
boats. Issue- whether the takings clause of the 5th amendment applied to the
city. Holding- the Bill of Rights was clearly intended to apply only to the
federal government. Reasoning – “the constitution was ordained and
established by the people of the US for themselves, for their own govt, and
 not for the govt of the individual states.” If the framers had intended the Bill
of Rights to apply to the states, “they would have declared this purpose in
plain and intelligible language.”

Argument against: at least some of the provisions of the Bill of Rights,

such as the takings clause, do not limit themselves only to the federal
government. The 5th Amendment states “no person shall” and ends
“nor shall private property be taken for public use, without just
compensation.” It does not say that the fed govt cannot commit such
taking. In contrast, 1st Amendment starts, “Congress shall make no
law.”

Take away: Barron meant that the Bill of Rights applied only to the federal
government.

Privileges and Immunities Clause:

The 14th Amendment states that “No state shall make or enforce any law which shall
abridge the privileges and immunities of citizens of the United States.” It could be
argued that this provision was meant to apply the Bill of Rights to the states. These
words were already a part of the Constitution at Art. IV §2. Dispute over framer’s
intent on what these words meant and likely that Congress that adopted the 14th
Amendment also had disputes amongst themselves.

Slaughter-House Cases:

Facts – seeing a huge surplus of cattle in Texas, the Louisiana

legislature gave a monopoly in the livestock landing and the
slaughterhouse business for the City of New Orleans to the Crescent
City Livestock Landing and the Slaughter-House Company. The law
required that the company allow any person to slaughter animals in
the slaughterhouse for a fixed fee. Butchers brought suit challenging
the grant of the monopoly. They argued that the state law
impermissibly violated their right to practice their trade. They argued
involuntary servitude, that they were deprived of their property
without due process of law and denial of equal protection and that it
abridged their privileges and immunities as citizens. Issues – how the
court should construe the newly implemented amendments 13-15 in
regard to the claims above. Holding – narrowly construing these
provisions, the court rejected the plaintiffs claims. Reasoning – Justice
Miller believes that the 13th and 14th amendment were solely to protect
former slaves. The court interpreted each provision narrowly and solely
to achieve this limited goal.

Take-away: the ruling in this case basically stripped the 14th

amendment of all its meaning. In the dissent, Justice Field says, “If the
 [privileges and immunities clause] only refers, as held by the majority
of the court..to such privileges and immunities as were before its
adoption specially designated in the Constitution or necessarily implied
as belonging to citizens of the United States, it was a vain and idle
enactment, which accomplished nothing, and most unnecessarily
excited Congress and the people on its passage.” Privilege and
immunities clause was rendered a nullity by this case and has been
ever since.

Revival of the Privileges and Immunities Clause:

Saenz v. Roe – Facts – A California law was passed that limited welfare
benefits for new residents in the state to the level of the state that
they moved from for their year of residence. Issue – What is at issue in
this case is the right of the newly arrived citizen to the same privileges
and immunities enjoyed by other citizens of the same State. Holding -
The right is protected not only by the new arrival’s status as a state
citizen, but also by their status as a citizen of the US. Reasoning – The
right to travel is a fundamental right. One aspect of this right of new
residents to be treated the same as longer term residents of a state,
and this aspect of the right to travel is protected by the privileges and
immunities clause.

Take-away: Dissenting disagreed with the revival of the privileges and

immunities clause as a basis for protection rights. Court breathed life
into this clause of the 14th amendment that had been relied upon in
only one other court decision, Colgate v. Harvey, that was overruled 5
years later by Madden v. Kentucky. Also, another dissent was that the
decision did not give enough evaluation of the framers of 14th A intent.
Without regard to these considerations, the P&I clause “will become
yet another convenient tool for inventing new rights, limited solely by
the predictions of those who happen at the time to be members of this
court.”

Note: Could be, and has been, used to dispute in-state tuition.
Although, can argue that Saenz is distinguishable because in-state
tuition preferences draw a distinction between in-staters and out-of-
staters and involve the state’s ability to define when a person becomes
a resident of the state for purposes of receiving particular benefits; in
Saenz there was no dispute that the P was a resident of California.

Tutorial 10-19:
In Lopez, guns free zone act. Not a lot of congressional discussion into effect, as
opposed to Morrison. The ct struck it down. In doing so Rehnquist created a new
test: activity in question must be economic or commercial in nature for the
aggregation to apply. This decision on the commerce clause is not as important in
the range of things

Morrison had a lot more hearings and evidence into the effect of the commerce.
Went all out in using the rational basis test. The results showed that bias against
women did affect the economy. However, ct did strike it down. Used one fo the tests
from Lopez. Activity was not economic in nature. The activity to be regulated can
only be aggregated using the Wickard analysis if it is economic in nature. They
disregarded the rationality test which had been used a lot before.

Gonzalez – some of the people who followed the decisions in M and L are trapped.
They go back to the rational basis test. The court held that you can aggregate non-
economic activity under the Wickard test. This goes against the previous rulings.
1. Inconsistent w Morrison
2. Holding that you can aggregate non-economic activity
3. Re-activation of the rational basis test.

Brandeis brief: if could be two rational ways to decide a contentious issue, and if
Cong has decided one way, that is enough for the court to give deference to the
rational basis test.

Problem 2, pg 7: “For the transfer of any human organ…if the transfer affects
interstate commerce.” What would the prosecutor have to show to prosecute? In
this specific instance, this traffickers trafficking of organ effects xstate commerce.
Some questions on test that are similar to this.
Should we read Lopez as a broad or narrow decision? It’s narrow. Narrow because of
the facts and the rememdy. All they need to do to change the statute is to say that
we can regulate any gun that comes through school that comes through interstate
means. It’s just a drafting issue that Congress could fix quickly. Lopez doesn’t affect
CVR cases because all the others are economic.
Problem 5: fed statute prohibits carjacking with gun or vehicle…is constitutional?
Yes. Cars move through interstate commerce. Cars are instrumentality. Carjacking
is an economic activity even though illegal. All exam shit.

NY v US – 10th Amendment.
If you don’t figure out what to do with the waste, going to make them to take title.
Forcing to make some sort of regulation.
Prinz v US:
The rule is that the fed govt in this case cannot commandeer the powers of the
state to enact fed programs. Holding comes from three things:
1. Historical understand: original intent
2. Jurisprudence of ct and holdings
3. Structure of constitution

Reno v Condon:
Fed. govt can regulate some state activities but not in a specific manner. The rule
applies to everyone uniformly in the state.
Two parts to the dormant comm. Clause:
1. Cannot discriminate burden interstate commerce
a. Face
b. Effect
If either is “yes,” then move to:
Facial Discrimination:
i. Has state shown legitimate local concerns?
ii. Even if they have, have they also shown that they are using the
least restrictive means? Examples:
1. Taylor v Maine: any out of state fish cannot come in. On
face & effect, no discrimination. There is local concern
with the disease. Also, no less restrictive means to
achieve end.
2. Hughes v Oklahoma: discriminated on face like Taylor.
Local concern was conservation but there was a least
restrictive means available. Could have treated the
instate minnows the same way they did with the out of
state minnows.
3. Carbone: discriminatory on face. No explicit mention of
local concern. Least restrictive means fail by singly out
and favoring one private employer who at the same time
regulated all others.
4. United Haulers: Ct upholds it. Market participant
exception because of the local govt got together and
bought the recycling center. Not only regulating but
running. No disc on face but in effect. Govt can favor
instate public orgs but cannot favor private orgs. When
state acts as participant the dormant clause does not
apply. Does not even get into the test.
Effect Discrimination:
1. Hughes: state could subsidize…
2. Hunt Washington Apple: not discriminatory on face
because applied to everyone. Washington apple was
superior to FDA system. Although not on face, in effect
because Washington apple labeling system was lost
and were not able to differentiate themselves from
other apples. Labeling never even got to the actual
consumer so local concern that people wouldn’t
understand the labeling was not justified. Possibly
discriminatory purpose. Do not go to test if
discriminatory purpose.
3. Dean Milk: Disc in effect. Almost disc on face because
of 5 mile radius. Ct uses disc in effect analysis. There
is some local concern in the quality of the milk perhaps
but was not the least restrictive means. There was
some better method that was being developed at that
time that would have been less restrictive. Operation
of the market and the way the statute is working
within it, the market was broader than the 5 mile
 range and so was going to have an effect on those
people.
If you want to uphold the statute if its in effect
discrimination, you want to stick with Clover and Exxon
and if you want to strike it go with Dean and Hunt
Exxon is inconsistent with Hunt on the facts because both
dealt with parties that were disc to some but not all and
Exxon comes to a different decision than Hunt. But if not,
itd be too broad and would allow a lot of laws to be struck
down.

2. Cannot unduly burden interstate commerce

Economic Liberties

Refer to constitutional rights concerning the ability to enter into and enforce
contracts, to pursue a trade or profession, and to acquire, possess, and convey
property. Art I, §10 of Constitution states, “no state shall pass any law impairing the
obligation of contracts.” Also, 5th Amendments Taking Clause states, “nor shall
private property be taken for public use without just compensation.”

Note: Substantive due process is the issue whether a government action is

justified by a sufficient purpose whereas procedural due process focuses on
whether the government has provided adequate procedural safeguards in
taking away a person’s life, liberty or property.

History: It is clear that the framers wanted to protect economic liberties. SC

has wavered over time regarding the protection of economic liberties. Late
19th century to 1937, court found that the freedom of the contract was a
basic right under the liberty and property provision of the due process clause.
This is usually referred to as the Lochner era where the courts aggressively
protected economic liberties under the due process clause. Due process of
the 14th Amendment protected the freedom of contracts but this is not the
contracts clause in Art I, §10. 14th amendment encompassed contracts
already.

Concurrent to this era, the courts were also using federalism to limit the
ability of Congress to regulate the economy. The courts narrowly defined the
scope of Congress’s powers under the commerce clause, and also found that
the 10th amendment reserved a zone of authority exclusive to the states.
Therefore, if a state passed a labor law, it would have been struck down for
violating the due process clause but if federal government adopted the same
law, it would have been declared unconstitutional as exceeding the scope of
Congress’s powers or as violating states’ rights and the 10th Amendment.
Loan Association v Topeka – courts struck down city law that imposed a tax to fund
bonds to attract private businesses to Topeka. Did not refer to Constitution, but
ruling held that this was beyond legislative power and an invasion of private right.

Munn v Illinois – sets precedent for test of reasonableness to be decided by

judiciary.

*These cases dictated by a sense of “natural law” that was formed by laissez-faire
philosophy and social Darwinism.

Allegeyer v. Lousiana (1897) Facts – A state law was made in Louisiana that
prohibited payments on marine insurance policies issued by out-of-state
companies that were not licensed or did not have a place of business located
in Louisiana. Holding - The state law was declared unconstitutional because
it interfered with freedom of contract and that it thus violated the due
process clause of the 14th Amendment. Reasoning – “The liberty mentioned in
the amendment is deemed to embrace the right of citizens to be free in the
enjoyment of all his faculties, to be free to use them in all lawful ways, to live
and work where he will…and for that purpose to enter into all contracts which
may be proper, necessary and essential.”

Take-away: In this case, the court moved from speaking only in dicta of
due process as a limit on economic regulations to invalidating a state
law based on it. Set key themes of economic substantive due process
that would be followed for next 40 years.

Lochner v New York (1905) Facts – New York made a law that set the max
hours that bakers could work to sixty hours per week or 10 hours a day.
Holding – SC declared this law unconstitutional because it violated the due
process clause of the 14th Amendment. Reasoning - The law interfered with
freedom of contract and also did not serve a valid police purpose.

Three major principles in ruling:

1. Court in Lochner, and throughout era, stated that freedom

of contract is a basic right protected as liberty and
property rights under the due process clause of the 14th
Amendment. In this case, right to purchase and sell labor
is part of the liberty protected by the amendment.

2. Court said that the government could interfere with

freedom of contract only to serve a valid police purpose:
to protect the public safety, health or morals. There was
no reasonable end in Lochner, according to the court.
 3. Court said that ti was the judicial role to carefully
scrutinize legislation interfering with freedom of contract
to make sure that it served a police purpose. “Is it a fair,
reasonable, and appropriate exercise of the state?”

Notes: in this case, the court intended that many laws that purport to
be exercises of the police power in reality are to redistribute wealth or
to help a particular group at the expense of other. This is what was
meant by the “passed for other motives” quotation on the bottom of
pg 611.

Dissents:

Harlan – emphasized the need for judicial deference to the legislature.

He said that the legislation was a reasonable way to pretect the health
of bakers who suffered serious medical conditions as a result from
exposure to flour dust and heat.

Holmes – rejected that the Constitution should be used to limit

government regulation and protect a laissez-faire economy. The
Constitution should not embody a particular economic theory.

Lochner era in sum: Freedom of contract was a right protected by the due
process clause of the 5th and 14th Amendments; the government could interfere with
the freedom of contract only to serve a valid police purpose of protecting public
health, public safety, or public morals; and the judiciary would carefully scrutinize
legislation to ensure that it truly served such a police purpose.

Changes to Lochner era:

Nebbia v. NY (1934) – Facts- The legislature of NY established a Milk Control

Board with power to fix minimum and maximum retail prices to be charged
by stores for milk. The price set was 9 cents a quart and Nebbia sold two
quarts and a loaf of bread for 18 cents. Issue – Whether the Constitution
prohibits a state from fixing the selling price of milk and whether the
enforcement of such denied the appellant the due process secured to him by
the 14th Amendment. Holding – A state is free to adopt whatever economic
policy by legislation adapted to its purpose. Reasoning – the courts are
without authority to override a reasonably passed law by the state
legislature. The requirements of due process were satisfied as far as the court
was concerned.

Notes: This case can be viewed as a narrow decision based on the fact
that milk was an Important and unique industry and that the market
would not be able to fix itself through ordinary means. The Lochner
court had both upheld and invalidated some price control, upholding
 ones that it deemed to affect the public interest more. Therefore,
Nebbia may be seen in this light.

It could also be construed as broad by questioning the decisions of the

Lochner era. It sort of questioned the absolute right of contracts and
property rights and also declared the need for judicial deference to
legislative choices. In other words, Nebbia questioned the issue that
the government could only regulate to achieve a police purpose and
that the court needed to review laws aggressively to ensure that they
truly served that purpose.

Williamson v Lee Optical of Oklahoma (1955) Facts – Oklahoma made a law

that any person not licensed as an optometrist or ophthalmologist could not
fit lenses or replace frames lenses or other optical appliances, except upon
written prescriptive authority of one. Procedure – Dist ct found law
unconstitutional as failing the rational basis test. This SC reversed. Holding –
The Oklahoma law was not unconstitutional. Reasoning – The decision
stressed the need for judicial deference to legislative choices. The court
admitted that the law might be illogical in some of its applications but noted
that the “day is gone when the court uses the due process clause to strike
down state laws regulatory of business and industrial conditions because
they may be unwise, improvident, or out of harmony with a particular school
of thought.”

The Takings Clause

Both the fed government and the states have the power of eminent domain
—the authority to take private property when necessary for government
activities. However, the 5th Amendment states, “nor shall private property be
taken for public use without just compensation.”

Purposes: The principle purpose of the takings clause is “to bar the
Government from forcing some people alone to bear public burdens which, in
all fairness and justice, should be borne by the public as a whole.” There is
no bright-line test for determining whether a taking has occurred. Few
coherent principles come out of cases.

What is a Taking?

Two types of taking can occur: “possessory” taking occurs when the
government confiscates or physically occupies property. A “regulatory”
taking occurs when the governments regulation leaves no reasonable
economically viable use of the property.

Possessory takings:
 Loretto v Teleprompter Manhattan CATV – Facts – A city ordinance
required apartment building owners to make space available for cable
television facilities. It amounted to a small box and some cables on the
owner’s roof. Holding – This did constitute a taking. Reasoning –
Although the amount of space involved was ony about one cubic foot,
the Court applied “the traditional rule that a permanent physical
occupation of property is a taking.” Earlier cases clearly established
this as a taking (including wires, pipes, telephone lines, etc.) even
though they do no interfere with the landowner’s use of the rest of his
land.

When Is There a Physical Occupation? Occupation becomes more difficult

when one considers the issue of when the government requires public access
to property. An example of this issue is the case of Kaiser Aetna v US, where
the owners of a Hawaii pond spent a substantial amount of money to dig a
channel connecting it to the Pacific Ocean. The US Corps of Engineers
deemed it to be “navigable waters” and thus open to use by the government
and the general public. The court ruled that this was a taking because the
government was transforming private property into public property and in
essence allowing the public to occupy the property.

In contrast to this is the issue of whether private shopping centers could

restrict free speech in Pruneyard Shopping Center v. Robins. California
decided that there was a state constitutional right to use shopping centers for
speech activities and the owners appealed to the SC saying that the mandate
to access was a physical invasion of the property. The SC ruled this was not a
taking. The distinction between these two cases is that in Kaiser Aetna, there
was a substantial interference with “reasonable investment backed
expectations,” but in Pruneyard the Ps failed to show that excluding speakers
was “essential to the use or economic value of their property.”

Regulatory Takings:

Pennsylvania Coal v. Mahon – Facts – a Penn statute prohibited the mining of

coal in any manner that would cause the subsidence of property. The effect
of the law was to prevent companies from exercising certain mining rights;
they were required to leave columns of coal underground to support the
surface. Unlike other cases, the government did not confiscate, occupy,
destroy or invade the property, the government just regulated its use. Issue –
whether this government regulation constituted a taking. Holding – Yes, it
was a taking. Reasoning – “When regulation reaches a certain magnitude, in
most if not in all cases there must be an exercise fo eminent domain and
compensation to support the act.” Holmes recognized that the government
could not function if it had to compensate every person whose property
values decreased because of government action, but he said that “while
property may be regulated to a certain extent, if regulation goes too far it will
be recognized as a taking.”

When Does a Regulation Become a Taking? It’s a taking once the regulation
has gone “too far.” There is no formula or rule to answer this question.
However, general criteria that should be considered in evaluating whether a
regulation is a taking include:

1. The economic impact of the regulation on the claimant.

2. The extent to which the regulation has interfered with

investment-backed expectations.

3. The character of the governmental action

One important principle si that government regulation is a taking if it leaves

no reasonable economically viable use of property; government regulation is
not a taking simply because it decreases the value of a person’s property, so
long as it leaves reasonable economically viable uses.

Penn Central Transportation Co v City of New York – Facts –Through

the city’s Landmarks Preservation Law, the government designated a
building as a historical landmark and prevented the owner from
constructing a substantial expansion on top of the building. Holding –
There was not a taking. Reasoning – The regulation did not deny the
owners all profitable use of the building and, in fact, had not even
precluded all development of the air rights above the building.
Because designating the building a historic landmark had the effect
only of decreasing the value of the property, and because it served an
important purpose, the Court concluded that there was not a taking
requiring just compensation.

Lucas v. South Carolina Coastal Council – Facts – Lucas purchased

beachfront property for almost $1 million, the state adopted a coastal
protection plan that prevented the construction of any permanent
habitable structures on the property. Proc – the state trial ct concluded
that this prohibition rendered the property “valueless.” Holding – There
was a taking. Reasoning – There is a taking “where regulation denies
all economically beneficial or productive use of the land.” Scalia said
that “there are good reasons for our frequently expressed belief that
when the owner of real property had been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is,
to leave his property economically idle, he has suffered a taking.”
 Take away: From these two cases, it is clear that, at the very least,
there is not a regulatory taking when the government’s action leaves
reasonable economically viable use of the property. Also, crucial in
evaluating whether there is a regulatory taking is the relationship of
the government’s actions to the property owner’s expectations.

Miller v. Schoene – Facts – the State of Virginia ordered the destruction

of a large number of ornamental red cedar trees to prevent the spread
of cedar rust, a highly infectious plant disease. The state acted to
protect many apple orchards in the vicinity. Holding – the court sided
with the state and did not require that it provide compensation to the
owners of the trees. Reasoning – When the government is forced to
make a choice between the preservation of two types of property –
either the cedars or the apples—“the state does not exceed its
constitutional powers by deciding upon the destruction of one class of
property in order to save another which, in the judgment of the
legislature, is of greater value to the public.”

Zoning Ordinances:

Zoning ordinances limit the way in which a person may use his or her
property and, therefore, frequently have the effect of diminishing the
property’s economic value. Generally, though, the court has refused to find a
taking concluding that the regulation does not eliminate all reasonable
economic viable uses of the property.

In Euclid v. Amber Realty Co, land that was originally worth $10,000 per acre
was rezoned so that it could be used only for residential purposes, and its
value was reduced to about $2,500 an acre. Nonetheless, the SC rejected a
due process challenge to the revised zoning ordinance and emphasized the
government’s strong police purpose in the zoning regulation. The court said
“the segregation of residential, business, and industrial buildings will make it
easier to provide fire apparatus available for the character and intensity of
the development in each section, that it will increase the safety and security
of home life…”

Government Conditions on Development:

The above cases concerned government prohibitions or restrictions on the

use of propert, but what if the government allows the development of
property but subjects it to specific conditions that the developer must meet?
The court has answered this by deeming a condition a taking if the burden
imposed by the condition is not roughly proportionate to the government’s
justification for regulating.
 Nollan v California Coastal Commission – Facts – The government
conditioned a permit for development of beachfront property on the owner’s
granting the public an easement to cross the property for beach access.
Holding – the court said that there would be a taking if the government were
to require the property owners to grant an easement. Reasoning – Scalia
wrote, “had California simply required the Ps to make an easement across
their beachfront property available to the public on a permanent basis…we
have no doubt that there would have been a taking. We think a permanent
physical occupation has occurred…where individuals are given a permanent
and continuous right to pass to and from, so that real property may
continuously be traversed, even though no particular individual is permitted
to station himself permanently upon the premises.”

What Is A Taking For Public Use?

The Fifth Amendment authorizes the government only to take private property for
“public use.” IF the taking were deemed to be for private use, the taking would be
invalidated and the government would have to return the property to the owner.

The Supreme Court has expansively defined “public use” so that virtually any taking
will meet the requirement. They have indicated that a taking is for public use as
long as it is an exercise of the state’s police power. The rational basis test is used to
determine if taking is for public use; that is, it is public use so long as the
government acts out of a reasonable belief that the taking will benefit the public.

In Berman v. Parker, the District of Columbia used its eminent domain power to
acquire slum properties and planned to sell or lease them to private interests for
development. The owners argued that the taking was not for “public use.” In an
expansive view of public taking, the court delivered this ruling: “In such cases, the
legislature, not the judiciary is the main guardian of the public needs to be served
by social legistlation….once the object is within the authority of Congress, the right
to realize it through the exercise of eminent domain is clear.”

Take away: A taking is for public use so long as the government is taking property
to achieve a legitimate government purpose and so long as the taking is a
reasonable way to achieve the goal.

Hawaii Housing Authority v. Midkiff – Facts – The state of Hawaii was

concerned that so much land was owned by a relatively few amount of
people which was a result of Hawaii’s precolonial property system that
restricted ownership to the island’s chiefs and nobility. The state used its
eminent domain power to take the property, with just compensation, and
with the plan of selling ownership to a much larger number of people. Issue –
whether or not the government was impermissibly taking from some private
owners to give to others. Holding – the taking was for public use. Reasoning
– the government met the rational basis test. The action was for public use
 because it acted out of a reasonable belief that distributing ownership among
a larger number of people would benefit the public. Also, it is in congruence
with the Berman case and the need for great deference to the legislature.
O’Connor said, “The Court has made it clear that it will not substitute its
judgment for a legislature’s judgment as to what constitutes a public use
unless the use be palpably without reasonable foundation.”

Kelo v. City of New London - Facts – An economically depressed city sought,

through a private economic development corporation, to take private
property for purposes of a new economic development project. Some of the
owners did not want to sell their land. Issue – whether this is a public taking.
Holding – Yes. Reasoning – The court, relying on Berman and Midkiff, held
that a taking is for public use so long as the govt acts out of a reasonable
belief that the taking will benefit the public. The court said that in this case
the taking would benefit the public by creating new jobs and increase
economic growth.

Note: Some people were upset with this holding, saying that it
dramatically changed the law. In reality, the court applied the exact
same standard that had been articulated for decades: that as long the
government acts out of reasonable belief that the taking will benefit
the public, it will be a taking for “public use.” The way around this if
dissatisfied is to create state laws that restricts this notion.

Fundamental Rights for Due Process

The Supreme Court has held that some liberties are so important that they are
deemed to be “fundamental rights” and that generally the government cannot
infringe upon them unless strict scrutiny is met. Strict scrutiny means that the
government must justify its interference by providing that its action is necessary to
achieve a compelling government purpose.

Almost all of these rights cases have been protected but the Court under the due
process clauses of the Fifth and Fourteenth Amendment and/or equal protection
clause of the Fourteenth Amendment. The main difference between the two as the
basis for protecting fundamental rights is in how the constitutional arguments are
phrased:

1. Due Process: If a right is safeguarded under due process, the

constitutional issue is whether the government’s interference is
justified by a sufficient purpose.

2. Equal Protection Clause: the issue is whether the government’s

discrimination as to who can exercise the right is justified by a
sufficient purpose.
 If a law denies rights to everyone, then the due process would be the best
grounds for analysis, but if a law denies a right to some, while allowing it to
others, the discrimination can be challenged as offending equal protection or
the violation of the right can be objected to under due process.

The Ninth Amendment: often mentioned in discussion of fundamental rights,

especially not rights explicitly mentioned in the Constitution. It states, “The
enumeration in the Constitution of certain rights, shall not be construed to
disparage others retained by the people.” There are no ninth amendment rights in
that rights are not protected under it. Rather, the ninth amendment is used to
provide a textual justification for the Court to protect nontextual rights, such as the
right to privacy.

Framework for Analyzing Fundamental Rights:

1. Is there a fundamental right? If a right is deemed fundamental, the

government will usually be able to prevail only if it meets strict scrutiny. If
the right is not fundamental than only the rational basis test is applied.
Debates and theories exist regarding how the Court should decided which
rights are fundamental that are not supported by the text or clear intent of
the framers.

2. Is the Constitutional Right Infringed? If there is a fundamental right, the next

question must be: Has the government infringed upon the right? The
Supreme Court has said that in evaluating whether there is a violation of a
right it considers “the directness and substantiality of the interference.”
Basically, under what circumstances is the government’s action an
infringement?

3. Is There a Sufficient Justification for the Government’s Infringement of a

Right? If a right is deemed fundamental, the government must present a
compelling interest to justify an infringement. If a right is not fundamental,
only a legitimate purpose is required for the law to be sustained. The
Supreme Court has never articulated criteria for determining whether a
claimed purpose is to be deemed “compelling.” The government has the
burden of swaying the court that a truly vital interest is served by the law in
question.

4. Is the Means Sufficiently Related to the Purpose? Under strict scrutiny is not
enough for the government to priove a compelling purpose behind a law, the
government must also show that the lawa is necessary to achieve the
objective. This requires the government to prove that it could not attain the
goal through any means less restrictive of the right. In comparison, under
rational basis, the means only has to be a reasonable way to achieve the goal
and the government is not required to use the least restrictive alternative.
Constitutional Protection for Reproductive Autonomy:

The Right to Procreate: The Supreme Court has held that the right to
procreate is a fundamental right and therefore government imposed
involuntary sterilization must meet strict scrutiny. Initially this position was
rejected by the Court in Bell v. Buck.

Bell v. Buck (1927) – Facts – Virginia sterilized and 18-year-old woman

named Carrie Buck, pursuant to a law that provided for the involuntary
sterilization of the mentally retarded who were in state institutions.
Holding – this sterilization was constitutional. Reasoning – “It is better
for all the world, if instead of waiting to execute degenerate offspring
for crime, or to let them starve for their imbecility, society can prevent
those who are manifestly unfit from continuing their kind…Three
generations of imbeciles are enough.

The court rejected this approach in Skinner v. Oklahoma in 1942. The Court
declared unconstitutional the Oklahoma Habitual Criminal Sterilization Act
that allowed courts to order the sterilization fo those convicted two or more
times for crimes involcing “moral turpitude.” The court found that the law
violated equal protection. The court did not explicitly overrule Buck v Bell but
the right to procreate is deemed fundamental and any attempt to impose
involuntary sterilization is to be met with strict scrutiny.

The Right to Purchase and Use Contraceptives:

Griswold v. Connecticut – Facts – A state law prohibited the use and

distribution of contraceptives. Griswold, the executive director of the
Planned Parenthood League of Connecticut, and a physician, was
prosecuted for providing contraceptives to a married woman. Holding –
The right to privacy is a fundamental right. Reasoning – Douglas
rejected the right coming from the Due Process Clause but instead said
privacy was found within many of the specific provisions of the Bill of
Rights, such as the First, Third, Fourth, and Fifth Amendments. He said
that the “specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life
and substance. Various guarantees create zones of privacy.” He then
concluded that the Conn law violated the right to privacy in prohibiting
married couples from using contraceptives.

Notes: Douglas wanted to avoid the use of substantive due process

and instead used the “penumbra” of the Bill of Rights. This approach
has been criticized and was not followed in subsequent cases.
Essentially, even though he was trying to avoid due process, the Bill of
Rights is guaranteed to the states through the 14th Amendment and so
ultimately penumbra approach is a due process analysis.
 Also, Douglas did not focus on a right to avoid procreation or to make
reproductive choices. Rather, Douglas focused on the need to protect
the privacy of the bedroom from intrusion by the police and the ability
to control information about contraceptive use.

Other concurring opinions: Goldberg, Warren, and Brennan wrote

concurring opinions focusing on the ninth amendment as the authority
for the court to protect this privacy. Harlan said that the right to
privacy should be protected under the due process clause. While White
said that the law did not even need to meet a rational basis test. White
said that he “wholly failed to see how the ban on the use of
contraceptives by married couples in any way reinforces the State’s
ban on illicit sexual relationships.”

Dissenting opinions: Black and Stewart said that the law was
constitutional because there was no right to privacy mentioned in the
Constitution.

A Fundamental Right to Control Reproduction:

Eisenstadt v Baird (1972) – Facts – Massachusetts made a law that

prohibited distributing contraceptives to unmarried individuals and that
only allowed physicians to distribute them to married persons. An
individual was convicted for giving a woman a package of
contraceptive foam at the completion of a lecture on birth control.
Holding – the court found that the law denied equal protection because
it discriminated against nonmarried individuals. Reasoning- “If the right
of privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to
bear or beget a child.” Also, the court said that prohibiting the
distribution of contraceptives served no legitimate legislative purpose.

Notes: This case expands Griswold in recognizing a right to

control reproduction as a fundamental right. It also establishes
rights for unmarried couples as well as married couples, and in
protecting the distribution of contraceptives and their use.

Also, Carey v. Populations Services International declared a New York law

that prohibited the distribution of contraceptives to minors under the age of
16 unconstitutional. The case also restricted distribution to licensed
pharmacists to those under 15. The court found that limiting the distribution
unduly restricted access to birth control and infringed the right to control
procreation. The court said that they doubted that prohibiting the distribution
of contraceptives would deter teenage sexual activity and they thought it
 irrational that the state would want an unwanted pregnancy to be the
punishment for fornication.

Take away: These cases exemplify how the Court should interpret the
Constitution where a basic right, such as the ability to control procreation, is
constitutional protected even though it is nowhere mentioned in the text of
the Constitution and was not considered by its framers.

The Right to Abortion:

Roe v. Wade protects a right for a woman to choose to terminate her pregnancy
prior to viaility—the time at which a fetus can survive on its own outside the womb.
Specifically, the Court ruled that the government may not prohibit abortions prior to
viability and that government regulations of abortions had to meet strict scrutiny.
Casey v. Planned Parenthood modified some of the framework set in Roe, ruling that
the government may regulate abortions before viability so long as it does not place
an “undue burden” on access to abortions.

Roe v. Wade (1973) – Facts – A Texas law prohibited all abortions except
those necessary to save the life of the mother. This case challenges that law.
Holding – the law is unconstitutional. Reasoning – Blackmun says that it does
not matter whether you turn to the ninth amendment or the 14th amendment
to find right of privacy, right of privacy is broad enough to encompass the
woman’s right to decide whether or not to terminate her pregnancy.
Blackmun did say that, unlike Griswold and his penumbra argument, the right
to privacy is found within the due process clause of the 14th Amendment. He
cited the emotional and psychological harm of the woman that may result
from maternity and also the distress for all concerned associated with an
unwanted child. The court did state that the right to abortion is not absolute
and that it must be balanced against other considerations such as the stat’s
interest in protecting prenatal life. The Court held that strict scrutiny must be
used when balancing these two because the right to abortion is a
fundamental right. The court also held that the term “person” in the
Constitution was never meant to apply to fetuses. The state has “compelling
interest” in protecting maternal health after the first trimester because it was
then that abortions became more dangerous than childbirth. Viability became
the courts distinction for the “compelling” point and they divided pregnancy
into three trimesters. During the first trimester, the state could not prohibit
abortions and could regulate them only as it regulated other medical
procedures. During the second trimester, the government also could not
outlaw abortions, but the government “may, ifit chooses, regulate the
abortion procedure in ways that are reasonably related to maternal health.”
Finally, for the stage subsequent to viability, the government may prohibit
abortions except if necessary to save the mother’s life or health.
Dissent: White and Rehnquist said the question of abortion should
have been left to the legislative process

Objections to Roe:

1. The Court was wrong to protect abortion because the right is

neither mentioned in the text nor intended by the framers. Many
argue that this is a bad decision because it is bad constitutional
law.

2. The Court gave insufficient weight to the state’s interest in

protecting the fetal life. Some people focus less on the issue of
judicial methodology and more on the Court’s substantive
judgment that protecting the fetus was not a sufficiently
compelling interest to justify the prohibition from abortion.

3. The Court erred in using due process rather than equal

protection as the basis for its decision. The argument is that
laws prohibiting abortion apply exclusively to women, and thus
should be marked as gender discrimination. Forced motherhood
is sex inequality.

Responses to these objections (in order):

1. The Court has protected other rights concerning family and

reproductive autonomy. Such rights include the right to marry,
the right to custody, the right to keep the family together, etc,
and none of these are explicitly mentioned but are still aspects
of “liberty” which the Fourteenth Amendment protects.

2. Two responses to this:

a. The court was correct in not deciding the question of

when personhood beings. Since there is no scientific
determination as to when life begins, it is often left to
values centered around social meanings and sexual
politics. Therefore it was correct for the Court to leave the
decision to the woman to decide for herself when life
begins.

b. Even if the fetus is regarded as a person, the law should

not force the woman to be an incubator against her will.
Parents are not require to donate organs to save their
children’s lives and so neither should a woman be forced
to donate their wombs and bodies to sustain fetal life,
even if you grant that the fetus is a person at the moment
of conception.
 3. An equality analysis, like a privacy approach, still comes down to
the same basic question of whether or not the government’s
interest in protecting fetal life justifies prohibiting abortion.
Under equal protection law, gender discrimination is okay if
intermediate scrutiny is met, that is, if the government’s action
is substantially related to an important government interest.
Basically, nothing is gained by shifting to an equal protection
analysis.

Webster v. Reproductive Health Services (1989) – Facts – Missouri passed a

law that declared the stat’s view that life begins at conception, prohibited the
use of government funds or facilities from performing or “encouraging or
counseling” a woman to have an abortion and allowed abortions after 20
weeks of pregnancy only if a test was done to ensure that the fetus was not
viable. Holding – The SC upheld the Missouri law. Reasoning – The court did
not see why the state’s interest in protecting potential human life should
come into existence only at the point of viability, and that there should
therefore be a rigid line allowing state regulation after viability, but
prohibiting it before viability.

NOTES: The Rehnquist opinion did expressly urge the overruling of Roe
v Wade but it was the implication of declaring that states have a
compelling interest in protecting fetal life from the moment of
conception. Scalia said that the plurality opinion effectively would
overrule Roe v Wade but that he thought it should have been done
more explicitly. O’Connor was the fifth vote for the result in Webster
but ruled only on the specifics of the Missouri law and did not speak on
the question of whether Roe should be revisited. The dissent saw this
ruling as a Court on the verge of overruling Roe.

Planned Parenthood v. Casey (1992) – Facts – A Pennsylvania law regulated

abortions, requiring physicians to inform women of the availability of
information about the fetus, requiring parental consent for unmarried minors’
abortions, creating requirements for reporting and record keeping, and
requiring spousal notification. Holding – Where state laws place an undue
burden on access to abortion, the court finds them unconstitutional.
Reasoning – The essential holding of Roe v. Wade should be reaffirmed.
Reproductive autonomy is a fundamental right even though it is not explicitly
mentioned in the text of the Constitution. The court also brought in the
concept of stare decisis and the circumstances that justify overruling an
earlier precedent. The court said only overrule if the decisions had proven
unworkable, if there was an evolution of legal principles that undermined the
doctrinal foundation of the precedents or if there was a change in the factual
predicate for the decisions.
 NOTES: The court reaffirmed the viability dividing mark as the line
during pregnancy: before viability the court cannot prohibit abortion,
but after viability, abortions may be prohibited except where necessary
to protect the woman’s life or health. The court did overrule the
trimester framework articulated in Roe. The court said the framework
misconceives the nature of the pregnant woman’s interest and in
practice, undervalues the State’s interest in potential life, as
recognized in Roe. The test then moves to whether state regulation
places an “undue burden” on access to abortion. As to the
Pennsylvania laws, the court found that none of the regulations placed
undue burdens on access to abortion except for the spousal
notification requirement.

CONCURRING: Stevens and Blackmun, concurring. Blackmun wrote

that he would have maintained the strict scrutiny and continued the
basis framework in Roe. He did not think that the trimester framework
had been undermined. Thus, he would have rejected all of the
challenged provisions in the Pennsylvania law.

SPOUSAL NOTIFICATION REQUIREMENT: Majority noted the prevalence

of men abusing their wives and said that a spousal notification
requirement could trigger such abuse. They pointed out that there are
millions of women who are the victims of regular physical and
psychological abuse at the hands of their husbands. Should these
women become pregnant, they may have a good reason to choose not
to inform their husbands or their decision to obtain an abortion. They
also recognized that a husband has an interest in whether his wife has
an abortion but “the inescapable fact that state regulation with
respecft to the child a woman is carrying will have a far greater impact
on the mother’s liberty than the father’s.” Therefore, this requirement
is likely to prevent a significant number of women from obtaining an
abortion and that the choice is theirs alone.

What Is An Undue Burden on the Right to Abortion?

Stenberg v. Carhart was the first time that the court said that the undue burden test
is to be used in evaluating laws regulating abortion. There are some problems in
determining what constitutes an undue burden:

1. The undue burden test is confusing because it melds three issues

together: is a fundamental right infringed? Is the infringement justified
by a sufficient purpose? Are the means sufficiently related to the end
sought? No level of scrutiny is articulated by the court. There is no
statement that the goal of the alw must be compelling or important or
 that the means have to be necessary or substantially related to the
end.

2. The joint opinion says both that the state cannot act with the purpose
of creating obstacles to abortion and that it can act with the purpose of
discouraging abortion and encouraging childbirth. This causes internal
tension within the same decision. How is it to be decided which of
these laws is invalid as an undue burden and which is permissible? The
definition can be circular. The court implied that an undue burden
exists only if a court concludes that a regulation will prevent women
from receiving an abortion, but the spousal notification requirement
was struck down because it was “likely to prevent” abortion where the
24-hour wait requirement was constitutional because there was
inadequate evidence to show that this would keep someone from
getting an abortion.

Constitutional Protection for Sexual Orientation and Sexual Activity:

Bowers v. Hardwick (1986) – Facts – Hardwick was arrested fro engaging in

homosexual activity in his bedroom. A police officer came to his apartment
on a totally unrelated matter. A roommate answered the door and directed
him to Hardwick’s room where he witnessed homosexual behavior. He
arrested Hardwick for violating the Georgia sodomy law. Holding – In a 5-4
decision, the SC upheld the Georgia statute. Reasoning – The earlier decisions
protecting privacy pertained to matters of family and reproduction;
homosexuality activity did not fall within these rights. White asserted that
there was no connection between family, marriage or preocration on the one
hand and homosexual activity on the other.

White said that the Court should protect rights as fundamental only if they
are supported by the Constitution’s text, the framer’s intent, or a tradition of
being safeguarded. White did not find in the text or tradition a fundamental
right to engage in homosexual activity.

Lawrence v. Texas (2003) – Facts – Police in Texas received an anonymous

tip of a disturbance in an apartment. They went to investigate and entered
the apartment and found two men engaged in sexual activity. The men were
convicted under a Texas law prohibiting “deviate sexual intercourse,” defined
as sexual activity between same sex couples. Holding – the court struck down
the Texas law and, by doing so, overruled the decision in Bowers. Reasoning
– There is a constitutional protection for all individuals in the most intimate
and private aspects of their lives. Kennedy said that the laws involved in
Bowers and in this case, are statutes that purport to do nothing more than
prohibit a particular sex act. Their penalties and purposes, though, have more
far-reaching consequences, touching upon the most private human conduct,
sexual behavior, and in the most private of places, the home.

Lawrence does three things:

1. This case means that the laws in 13 states prohibiting private

consensual homosexual activity are unconstitutional. These
statute are often the basis for discrimination against gays and
lesbians.

2. Lawrence is a powerful affirmation of a right to privacy under

the Constitution. Kennedy pointed out that the Court has
safeguarded privacy, even though it is not enumerated in the
Constitution, for almost a century in decisions involving family
autonomy, contraception, and abortion.

3. This case recognizes that sexual activity is a fundamental aspect

of personhood and that it is entitled to constitutional protection.

Problems: the court did not articulate the level of scrutiny to be used. Also,
the court did not mention the idea that this was a fundamental right or
mention strict scrutiny at all. On the other hand, the court did rely on privacy
cases where strict scrutiny had been used. Also, Texas justified the law as
advancing its moral judgment and traditionally this is enough to meet the
rational basis test. The court’s rejection of this can be seen as implying
heightened scrutiny. The silence of the decision about the level of scrutiny
leaves this issue open until the SC returns to it and offers needed
clarification.