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CONSTITUTIONAL LAW I - Professor ArrowOUTLINE - FALL 1993

A. The following Articles of the U.S. Constitution define and grant powersas follows:1. Article I: the legislative branch (Congress)2. Article II: the executive branch (the President)3. Article III: the judiciary (the Courts)

B. 1. Article I, sec. 9: rights a person has against the federalgovernment.

2. Article I, sec. 10: rights a person has against state government.

C. Only individuals have rights; governments have powers.

D. Name of the Game in Constitutional Law:1. Figure out what the Constitutional issue is.2. Figure out what standard of review applies.3. Apply the standard of review to the facts and argue it.4. Move on to the next issue.

E. Standards of Review: There are two types -1. Issue-specific standards of review: will only apply to one issue

(specific to one issue only).2. Generic standards of review: applicable to many issues depending

on when the court says they are applicable.a. Rational Basis Test (aka "Standard One", or "Minimal

Scrutiny" or "Lower-Tier Scrutiny") [most lenient - easiestfor government to pass]: in order to pass constitutionalmuster, the statute must be rationally related to alegitimate governmental goal (RB = R + L)

b. Intermediate Standard (aka "Standard 1-1/2"): in order topass constitutional muster, the statute must besubstantially related to an important or significantgovernmental goal (IS = S + I/S)

c. Strict Scrutiny (aka "Standard Two" or "Higher-TierScrutiny" or "The Compelling State Interest Test") [mostdifficult for government to meet]: in order to passconstitutional muster, the statute must be substantiallyrelated to a compelling governmental goal (or stateinterest) and there must be no less restrictive (orburdensome) alternative (SS = S + C & no LRA)

GOVERNMENTAL POWERSFEDERAL JUDICIARY POWER (ARTICLE III):

JUDICIAL REVIEW (the power of the Supreme Court to declare a lawunconstitutional):

A. Marbury v. Madison: There are 2 aspects to Marbury:1. procedural: judicial review exists.2. substantive: "that Congress, acting under its Article I powers,

cannot expand the original jurisdiction of the U.S. Supreme Courtbeyond limits established by Article III of the Constitution."

"Questions in their nature political, or which are, by theConstitution and laws, submitted to the executive, can never bemade in this Court."

B. Judicial review and democracy: Judicial review is countermajoritarian. The legislature acts for the people presumably. Assuming that to bethe case, to hold an act of legislature unconstitutional has to becountermajoritarian (must be to fulfill its function).

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C. Footnote 4 of the Carolene Products case (p. 18): deals with theconcept of democracy and distrust:If judicial review is too frequently and oppressivelycountermajoritarian, we have degenerated into a society of platonicguardians (U.S. Supreme Court under Marbury). Sometimes majoritarianismis good too - sometimes we want the democratic processes to prevail. The system cannot be too overbearing.

We need a balance = democracy and distrust. Sometimes we trust theoutcome of the democratic process; sometimes we do not. We must figureout when. The Court has done that through the adoption of a more andless rigorous (respectively) standards of review.

The stuff we trust - more lenient standard of review. With a morerigorous standard of review may come a presumption ofunconstitutionality that the state must overcome.

E. Martin v. Hunter's Lessee: held that the state supreme court is thefinal interpreter of state law.1. The U.S. Supreme Court may decide that the state law is in

violation of the U.S. Constitution, but it is not the finalinterpreter of state law.

2. Judicial review extends not only to acts of Congress, but also tothe highest courts of the states. (Constitutionality andsupremecy can be reviewed). Deals with enforcing supremecy clausere: federal questions only.

F. Cohens v. Virginia: USSC can review state criminal cases.

G. Article III of the Constitution: (p. [18])1. sec. 1: was important political decision. Supreme Court itself

is created by the Constitution. a. How many justices are on the Supreme Court is under the

control of Congress b. All lower federal courts exist at the sufferance of

Congress.c. To get rid of a justice, you must impeach him/her.

2. sec. 2: Judicial power extends to all cases, in law and equity,arising under . . .a. gives rise to "cases & controversy" requirement.b. Court has original jurisidiction over . . . and appellate

jurisdiction over . . . . Original jurisidiction is definedin the Constitution; appellate is not. See Exceptions andRegulations Clause.1. We could say that appellate jurisdiction is created by

the Constitution, which also creates congressionalpower to diminish it,

or2. we would speak of Congress as creating the appellate

jurisdiction (by the Judiciary Act of 1789). But whatCongress is really doing is exercising its "exceptionsand regulations" power.

3. Congress does have the power to deprive the U.S.Supreme Court of appellate jurisdiction over certainsubjects.

H. Limitations on Judicial Review. The two biggest structural limitationson federal judicial powers are:1. the text of Article III: only certain things are subject to

federal jurisdiction at all:a. specific limitations in Article III, sec. 2.b. more broadly, the "case & controversy" concept itself

(because proceeding everything under 1(a) is "case orcontroversy")

2. constitutional structure: separation of powers - justiciability.

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A justiciable controversy is something in which judiciary has someinput.a. political question doctrine: Holds that certain types of

decisions ought to be able to be taken as a final matter bythe political branches (President and Congress) and not bythe judicial branch. Judiciary has no say in politicalquestions - they are to be resolved by political branchesand are nonjusticiable. Separation of powers producesconcept of nonjusticiability.

II. CONCEPT OF "CASES OR CONTROVERSIES": These doctrines are often used inan outcome-oriented fashion, for the court to duck things it doesn'tlike.

A. ADVISORY OPINIONS: No real dispute - but an interesting question;generalized analysis.1. Muskrat v. U.S. (p. 1575): Court can only decide the

constitutionality of an act of the legislature when it is thesubject of a case of controversy. "Judicial power is limited to`cases' or `controversies'."

B. MOOTNESS: a moot case is one that has been resolved antecedent (prior)to judicial decision.1. Exception to mootness: cases capable of repetition yet evading

review (i.e., Roe v. Wade, takes 4 years to get to court, but noone will ever be pregnant for 4 years) MEMORIZE THIS.

2. De Funis v. Odegaard: Held to be moot. (case where law studentwas not let in because he was white).

3. Bahke (1978): same case as De Funis, but held that there was nomootness.

C. COLLUSIVENESS: a friendly case between 2 parties; kind of a test casewhere there is no real controversy between the parties.Rule: The Court will not hear collusive cases.Applied principally in constitutional cases on the notion that "it wasnever the thought that by means of a friendly suit, a party beaten inthe legislature could transfer to the courts an inquiry as to theconstitutionality of a legislative act."

D. STANDING: who may assert certain contentions. This is antecedent[prior] to any question on the merits. The sine qua non (indispensiblecondition) of all standing is that there be some injury in fact(ultimate constitutional requirement per Article III - case orcontroversy)1. There are subordinate types of standing:

a. taxpayer standingb. citizen standingc. associational standingd. general statutory standinge. specific standingf. legislative standingg. 3rd party standing (which can be any of the above-described

types)2. Standing derives from either

a. Article III case or controversy requirements orb. prudential rules of self restraintWe care from which source standing derives because there is nodiscretion in applying the Constitution - courts are bound to itand it cannot be changed by statute. If, on the other hand, it isa prudential rule of self-restraint (imposed by the Courts),Congress can pass a statute to widen standing.

3. example of prudential rule of self-restraint: Sieler Doctrine

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(Sieler v. Louisville National RR)a. First principle: we don't reach out to decide

Constitutional questions if we don't have to. If we candecide a case on the basis of a federal statute, we won'treach out to decide a constitutional question we don'treally have to decide.

b. Second principle: If we can decide a case based upon statelaw, we won't reach out to decide an unnecessary federalquestion, even on under federal statute.

4. Federal Taxpayer Standing: standing that an individual can assertbased solely on the fact that he's a taxpayer.a. Frothingham v. Mellon (p. 1582): federal taxpayer standing

does not exist where grievance is shared in anundifferentiated manner from the public at large. Taxpayermust suffer a particularized (direct) injury. If yourinjury is the same as everyone else, your remedy ispolitical (you should go to Congress). (prudential self-restraint).

*****b. Flast v. Cohen (p. 1583): Both prongs of the logical nexustest must be satisfied (1st issue-specific standard ofreview):1. Nexus between taxpayer status and type of legis.

enactment attacked (must challenge the exercise ofcongressional power under the taxing and spendingclause), and

2. Nexus between that status and the precise nature ofthe constitutional infringment alleged (must show thatthe challenged enactment exceeds specificconstitutional limitations imposed upon the exerciseof taxing and spending power).

This test will only be satisfied if the taxpayer attacks theArt.I, §8 taxing & spending powers of Congress with theEstablishment Clause (which is a specific constitutionallimitation upon Congress' taxing and spending powers).

This case distinguishes Frothingham becauseFrothingham failed to allege that it was also a limitationon taxing and spending power (Mrs. Frothingham failed tosatisfy 2nd prong of the test).

5. Congressional Power to Create Standing.a. Valley Forge Christian College (p. 1597): No standing where

prong 1 of the Flast test not met: no challenge of exerciseof taxing and spending power; challeged property transfer):1. All you have to do to make sure no one gets standing

as a federal taxpayer under challenge to taxing andspending power is to take the money and buy propertyor gold and tranfer that instead.

b. Warth v. Seldin (p. 1600): (Citizen's standing) No standingwhere (1) some of the claims were speculative and (2) theyplead evidentiary facts and conclusions of law (rather analleging facts from which it c/b concluded that there's asubstantial probability that they would have been able to dothat which they claim they have been prevented from doing).1. Court didn't know what to do with Warth in 1975, so it

booted them out for lack of standing. The next year,Washington held that impact discrimination only getsthe rational basis test. In Arlington Heights (p.1247), everyone gets standing, but they are hosed outand it still gets the rational basis test.

2. The prudential rule of self-restraint involved in thiscase is "Congress may grant an express right of actionto persons who would otherwise be barred by theprudential standing rules." p. 1601.

c. Schlesinger v. Reservists Comm. to Stop the War (p. 1594):

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deals with the Incompatibility Clause, which says thatmembers of Congress can't serve in two government positionssimultaneously. No standing because this is a generalizedgrievance shared with all members of the public. What itamounted to was that the Supreme Court didn't want to get inthe middle of the Viet Nam War.

6. Citizen Standing. Basic requirement is injury in fact. Generalized grievance limitation applies to both federal taxpayerand citizen standing. It is not an Article 3 requirement, but isa prudentially self-imposed limitation.a. Allen v. Wright, (p. 1608). Imposed a causation requirement

on standing, although the causation requirement isspeculative as a matter of law. The test for citizenstanding is:1. injury in-fact2. injury-in-fact must be traceable to the alleged

constitutional wrong (there must be a nexus betweenrelief requested and the conduct).

7. Statutory Standing. There are two types.a. Specific statutory standing: congress passes a statute

which statute itself contains a provision for standing.

1. Lujan v. Defenders of Wildlife, (supp. p. 223) Heldthat Congress cannot amend Article III by statute -Congress cannot remove the injury-in-fact requirementby not requiring it in statute. By removing theinjury-in-fact requirement, Congress was trying togive everyone standing.

2. Warth: says that generalized grievance is not Art.III - it is prudentially self-imposed. Therefore,Congress can change it by statute unless to do sowould effect the separation of powers and change thebalance. Nothing impedes Congress from loweringprudential self-restraint except separation of powers.

b. General statutory standing: Administrative Procedure Act. (Congress can create a legal right to standing by statute).1. Sierra Club v. Morton, p. 1589. (associational

statutory standing). The Sierra Club failed to meetthe associational statutory standing requirementbecause it did not allege that the association or itsmembers were injured-in-fact.The trend is towardsa. recognizing that injuries other than economic

harm are sufficient andb. discarding the notion that generalized grievance

is not a sufficient basis for judicial review(that an injury is widely shared does notnecessarily make it insufficient).

2. Trafficante v. Metropolitan Life Ins. Co., p. 1590. Congress gave white tenants in an apartment complexstanding to sue owner when blacks in the complex arediscriminated against. Defined standing broadly.

3. U.S. v. SCRAP, p. 1590. attenuated line of causation. Allowed standing where probable future injury wasalleged.

4. Simon v. Eastern Ky. Welfare Rights Org., p. 1606. "The federal court can only act to redress injury thatcan be fairly traced to the challenged action of thedefendant, and not injury that results from someindependent action of some 3rd party."

8. Legislators' Standing. *****a. Coleman v. Miller (p. 1596): ***Issue-specific standard of

review: Where the effectiveness of the legislator's vote

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has been threatened, they have a plain, direct, and adequateinterest in maintaining the effectiveness of their votes,and therefore, have standing.

9. Assertion of Third Party Rights.*a. Barrows v. Jackson (p. 1611) one of the exceptions to the

basic third-party standing rule (which is that even though aparty will suffer direct substantial injury from applicationof a statute, he cannot challenge its constitutionalityunless he can show that he is within the class whoseconstitutional rights are allegedly infringed).

White seller could assert the rights of the blackpurchaser. Under the special circumstances of this case(that the action of state court might result in denial ofconstitutional rights), if respondent could not raise theblack persons rights, it would be difficult for the blackpersons to raise them. The previous rule was outweighed bythe need to protect the fundamental rights which would bedenied by permitting the action to be maintained.

b. Pierce v. Society of Sisters: held that private andparochial school had standing to enjoin enforcement of anact requiring all parents to send their children to publicschools; schools were permitted to assert the constitutionalrights of parents in defense of their property rights.

*c. Griswold v. Connecticut: Very important case - predecessorto Roe v. Wade. Held that birth control clinic officialsconvicted of abetting married persons in violating the samestatute barring use of contraceptives, had standing toassert the constitutional rights of the married persons. (Dhad standing because he had a confidential relationship andwas the only effective representatives of these rights)

d. McGowan v. Maryland: store employees prosecuted forviolating a Sunday closing law held not to have standing toassert that the statute prohibited the free exercise ofreligion since they did not allege any infringement of theirown religious freedom due to Sunday closing.

*****e. Singleton v. Wulff: held that doctors - who alleged thatthey provided, and anticipate providing abortions to welfarepatients who are eligible for Medicaid - had standing tochallege a statute denying Medicaid benefits for abortions. (Issue-specific standard of review) Two part test todetermine whether the general rule against assertion of 3rdparty rights should apply in a particular case: The Courtmust consider1. the relationship of the litigant to the person whose

right he seeks to assert;2. and the ability of the 3rd party to assert his own

right.10. Standing is a threshold question. All of the federal judicial

power stuff on the syllabus are threshold questions.

E. TIMING OF ADJUDICATION (RIPENESS): Something is not ripe where we canonly speculate as to what the plaintiff's not charged wanted to do.

*****1. United Public Workers v. Mitchell: (p. 1616) Deals with standingto challenge on grounds of vagueness. Issue-specific standard ofreview. All there really is to ripeness is this test - KNOW IT!a. Conduct contingiency: Must plead exactly what you want to

do that is being chilled by the existence of the statute. (If the injury is unconstitutional, the statute will bestruck and must be rewritten by the legislature. P mustprovide hypothetical examples (to establish the existence ofthe chill) arguably proscribed by the statute.)

b. Prosecution contingiency: must plead the likelihood that

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you will be prosecuted if you do what you want to do.

2. Laird v. Tatum: (p. 1619) Found a problem with the 2nd prong ofthe Mitchell test. Found that plaintiffs who claimed to bechilled in violation of the first amendment by allegedly illegalsurveillance by the U.S. Army lacked sufficient standing tomaintain the action.Fear that the gov. is engaged in certain action or may takecertain action in the future (allegations of subjective chill) isinsufficient. The test is that to entitle a private individual to invokethe judicial power to determine the validity of executive orlegislative action he must show that he has sustained or isimmediately in danger of sustaining a direct injury as the resultof that action.

3. O'Shea v. Littleton: (p. 1623) held there was no standing forplaintiffs who brought a civil rights action against the StatesAttorney, etc., who allegedly engaged, under color of law, in acontinuing violation of Constitutional rights in theadministration of the criminal justice system by setting illegalbonds, imposing higher sentences on nonwhites, and requiringmembers of plaintiffs class to pay for trial by jury. Failed bothprongs of the Mitchell test: a. insufficient allegations of actual continuing injury (threat

of injury was too remote);b. and that respondents failed to establish the basic

requisites of equitable relief - likelihood of substantialand immediate irreparable harm, and the inadequacy ofremedies at law.

4. Doe v. Bolton: (p. 1623) held that physcians with pregnantpatients had standing to seek federal declaratory judgment that astate criminal abortion statute was unconstitutional because thephysician is the one against whom these criminal statutes directlyoperate in the event he procures an abortion that does not meetthe statutory exceptions and conditions. (they assert asufficiently direct threat of personal detriment).

5. Poe v. Ullman: (p. 1624) action by married couples and theirdoctor challenging the constitutionality of state statutes whichprohibit the use of contraceptive devices and the giving ofmedical advice in the use of such devices. The state court upheldthe constitutionality of the statute. Failed prong 2 of theMitchell test:a. Held that the fear of enforcement of provisions that have

gone unenforced for several years could not be the basis ofconstitutional adjudication.

b. There are two limitations on the Courts exercise ofappellate power:1. cases and controversy requirement2. prudential rules of self-restraint

c. Standing, ripeness and mootness are but severalmanifestations of the primary concept that federal judicialpower is to be exercised to strike down legislation only atthe instance of one who is himself immediately harmed, orimmediately threatened with harm, by the challenged action.

III. POLITICAL QUESTION DOCTRINE (NON-JUSTICIABLE). We assume there is acase or controversy, and that it's a hot one. The question is whetherthe controversy is justiciable (Is it susceptible to and proper forresolution in the court?) This is a function of separation of powers

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(Baker v. Carr). The underpinning constitutional questions that giverise to political question are separation of powers.- Only separation of powers cases can ever be political questions

(but all separation of powers cases are not political questions).- Whenever we see a separation of powers question, at the

threshhold, we always have a political question issue. Always runit through the Baker v. Carr analysis.

A. Baker v. Carr (p. 32). Issue specific standard of review for politicalquestions (big 2, little 4):

*****1. Is there a TDCC (textually demonstrable constitutional commitmentof the issue to a coordinate political department)? (Where thereis a clear TDCC, the court will dismiss the case. If it is lessthan crystal clear the court will decide the case on the merits -justiciable).

*****2. Is there a lack of judicially discoverable and manageablestandards for resolving it?

3. or impossibility of deciding w/o an initial policy determinationof a kind clearly for nonjudicial discretion;

4. or imposibility of a court's undertaking independent resolutionw/o expressing lack of respect due coordinate branches ofgovernment;

5. or an unusual need for unquestioning adherence to a politicaldecision already made;

6. or the potentiality of embarrassment from multifariouspronouncements by various departments on one question.

B. Powell v. McCormack, p. 41. Where the Constitution does not giveCongress the authority to do something, it is not a political questionand is, therefore, justiciable.

C. Coleman v. Miller, p. 43. The question of a reasonable time beforeamending a state constitution is not within the purview of the courts(question involved is political and not justiciable).

D. Goldwater v. Carter, p. 43. The power of the President to unilaterallyterminate a treaty is a political question, and is, therefore,nonjusticiable.

IV. ELEVENTH AMENDMENT ISSUES. States can be a party P, but not a party D.

A. Article III, §2, para. 1: "Judicial power shall extend to . . .controversies between two or more states . . . between a state andcitizens of another state." The original understanding of Art. III wasthat there was no jurisdiction over an unconsenting state.

B. Chisolm v. Georgia (1793): Supreme Court held that Chisolm could sueGeorgia in federal court without Georgia's consent.- Georgia House of Rep. passed a statute that said that anyone who

attempted to execute this judgment would be executed withoutbenefit of clergy.

C. U.S. Supreme Court handed down a decision on 2/23/1794. In April bothHouses of Congress passed the 11th Amendment, and it took the states 4months to ratify it. George Washington refused to proclaim it adopted,so it was not adopted until his term ended, when Adams proclaimed itadopted in 1798.

D. Hans v. Louisiana (1890): Hans sued his own state. The 11th Amendmentjust says you can't sue another state w/out its consent. But Ct heldthat the 11th Amend. reversed Chisolm, and restored the originalunderstanding of Art. III. Therefore, the real source of the inability

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to sue the state without its consent is the original understanding ofArt. III. Therefore, the prohibition against unconsented suits isbroader than the 11th Amend. because its really a prohibition derivativeof the original understanding of Art. III. Therefore, Hans loses.

E. Ex Parte Young (1908), p. 1630. RR's sued in federal court to enjointhe Atty General of Minnesota (Young) from enforcing a state lawreducing RR rates. Relief was granted over Young's objection that thiswas really an action against the state to which the state had notconsented, and was, therefore, barred by the 11th Amendment.1. Held that the injunction against Young was proper. It was not

really a suit against the state, but was a suit against a stateofficial as an individual. The state can't give him any officialauthority to violate the Constitution. The Stripping Doctrine: an official is stripped of representative power when he actsillegally, and is subject personally to the consequences of hisindividual conduct.

2. This case is vitally important legal fiction, and is still goodlaw. It is necessary because if it did not exist there would beno jurisdiction in the federal court (no way for citizens to bringthese actions), because the state would simply plead the 11stAmendment (which states that an individual cannot sue a statewithout its consent). The effect of Young is to bring w/in thescope of judicial review matters which otherwise might escape suchreview.

F. Parden v. Terminal Railway (1967): (This case cut back on the scope ofthe 11th Amendment) State of Alabama was operating a railway. Congresshad passed a statute which had subjected the rr generally to federalregulation. Parden was injured and sued Alabama in federal court,alleging that Alabama had impliedly waived its 11th Amend. immunity bycontinuing to operate the railway where it knew that it was subject tofederal regulation. This is the Implied Waiver Doctrine. Parden won,but the decision was expresssly reversed 15 years later, and the ImpliedWaiver Doctrine is now dead.(Brennan wrote this. He hates the 11st Amendment because he hates thestates.)

G. Edelman v Jordan (1974), p. 1632. Rehnquist. Draws a bright linebetween purely prospective relief (injunctions), and retrospectiverelief (money damages). The theory is that money is going to come fromthe state treasury. Court said that Young is limited to prospective(injunctive) relief (still good law - no retroactive damages permitted).Rule: A suit by private parties seeking to impose a liability whichmust be paid from public funds in the state treasury is barred by the11th Amend..Reason: the state is really a real party in interest where payment issought from the state treasury (rather than from the D personally), evenwhere the state is not a named party of record.

H. Fitzpatric v. Bitzer (1976), p. 1632. This caes goes only to thequestion of Congressional abrogation of immunity. The intent behindpassing §5 of the 14th Amend. was to give Congress the power to abrogate§11.1. This case creates a constitutional (14th Amendment) exception to

the Edelman rule (says that individual rights under sec. 5 of the14th Amend. trump the 11th Amend. rights of the states).

2. Held that the 11th Amend. did not prevent a fed. court fromawarding retroactive money damages against the state treasury forviolation of Title VII Civil Rights Act. 11th Amend. isnecessarily limited by enforcement of sec. 5 of 14th Amend., whichembodies limitations on state authority. The Court said 2 things:a. to the extent that §5 creates additional power, it allows

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Congress to abrogate parts of the 11th Amend. (14th passedafter the 11th).

b. 14th Amend. itself limits state sovereignty, so §5 in itselfis enough to essentially allow Congress to abrogate the 11thAmendment immunities of the states. (After Young, allthat's left of immunity is immunity from money damages. Butnow, Congress can even abrogate that.)

- Fitzpatric is the beginning of the abrogation doctrine (what a highersovereign does to the immunity of a lower one). Congress does this tostates without the consent of the state. This differs from waiver,which is something states do voluntarily.- After Fitzpatric, there's a line of cases which hold that . . . whereCongress wants to abrogate the 11th Amend. immunities of the states, itmust do so in a spectacularly clear fashion.1. Pennhurst2. Atascadero3. Welch (expressly overrules Parden, so implied waiver is gone).

I. Pennsylviania v. Union Gas Co.: (1989 - Brennan) p. 1633. (****NOTE: PER PROF. ARROW, THIS CASE HAS UNWITTINGLY OVERRULED MARBURY V. MADISON(which held that (1) judicial review exists and that (2) Congress,acting under its Article I powers, cannot expand the jurisdiction of theU.S. Supreme Court beyond limits established by Article III.)1. This case creates a commerce clause exception to the Edelman rule

by holding that "Congress possesses the same power under thecommerce clause (Art I, sec. 8, para. 18) as it has under sec. 5of the 14th Amend. to abrogate state immunity from federal courtsuits for money damages, but it must make its intent to do sounmistakeably clear."

2. Held that in approving the commerce power, the States consented tosuits against them based on congressionally created causes ofaction (argued that the commerce clause gives full, unqualifiedpower to Congress, and that the 11th Amend. refers only tojudicial power, not congressional power, and only forbidsconstruing the judicial power to the enumerated suits, "languageplainly intended to rein in the judiciary, not Congress.")

3. Summary: Congress can abrogate pursuant to Art.I as long as itsatisfies rules of Penhurst, Atascadero & Welsh. Clear evidenceof intent to abrogate must be in the text.

J. Abrogation Analysis: All of this applies only in a situation in whichCongress has abrogated:1. Have they abrogated (annulled/revoked) with sufficient

specificity?2. If yes, pursuant to what power have they abrogated?3. If §5 of the 14th Amend., Fitzpatric controls and they can do it.4. If pursuant to Art. I commerce clause, Union Gas controls and they

can do it.5. If someone wants to sue a state in federal court and Congress has

not abrogated, we are left with Ex Parte Young.a. You can strip the AG when the AG (or whoever is in

authority) is enforcing an arguably unconstitutionalstatute.

K. Queen v. Jordan: extended Young to situation in which the AG isenforcing a statute which is arguably in violation of federal statutes.

L. The Commerce Clause and the 14th Amendment took power away from thestates and gave it to the federal government.

M. Rule re Damages Against State Officials: The 11th Amend. does not barfederal courts from awarding damages against individual defendants insome circumstances notwithstanding the fact that they hold publicoffice.

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N. Alabama v. Pugh: Pugh named state as a D. Court said no - can't name astate as a party D. Must go through the Ex Parte Young fiction.

O. Corey v. White (fn. 20, p. 1631): the 11th Amendment does bar federalsuits against state officers who are not alleged either to be actingcontrary to federal law or against the authority of state law.

P. Limits of Principle in Law: Courts will deny that which they are afraidof.1. Article III is a real limit on federal judicial power. (But Union

Gas kills this because Congress can expand by statute).2. Art. III gives you the "case and controversy" requirement

(generalized grievance is a prudentially self-imposed limitation). Congress can give people COA's by creating rights by statute.

3. Art. III is the source of 11th Amend. immunities of the States(Hans v. Louisiana). As to specific grants of power in Art. I, ifCongress can expand judicial power, then Art. III is just astatute which has been killed. Art. III, §2, therefore, sets theuppoer limits of jurisdiction rather than the lower.

V. ABSTENTION: PULLMAN.Abstention doctrine: Under some circumstances, a federal court maydecline to exercise jurisdiction where a constitutional issue rests onan unsettled interpretation of state law. In such cases the Courtshould abstain from exercising jurisdiction otherwise conferred. Thereare 4 kinds of abstention, but we will only talk about 2: Pullman andYounger.

A. Railroad Com'n v. Pullman Co.: (1941) p. 1633 A ruling on theConstitutional question would involve a sensitive issue of state policythat should be avoided so long as there is another basis foradjudication (the issue is triable before the State Supreme Court).Adecision by the federal court on the state law issue would merely be aprediction of the law because the Supreme Court of Texas, the finalauthority on the matter, had not interpreted the scope of the statute. The Pullman Doctrine: federal courts will abstain when there areunclear questions of state law.

B. The England Procedure (England v. Louisiana State, p. 1635): FederalCourts kept these cases on the docket and sent P back to state court tohave the state law questions resolved.1. But if P voluntarily submitted the whole case to the state court,

he could not go back to the federal court. He waived the right todo so.

2. If P didn't submit the federal questions to the state courtvoluntarily, then he could go back to the federal court.

C. Neo-Brandeisian Fallacy: The Seiler Doctrine: The Court does not goout looking for constitutional issues to resolve. It would ratherresolve federal questions on statutory grounds than on constitutionalgrounds. If it can decide a case based upon state law, it will notreach out to decide an unnecessary federal question, even one underfederal statutes. (This is an example of a procedural rule ofprudential self-restraint.)

D. Younger v. Harris: 2nd type of abstention - "Our Federalism." Thiscase involved a pending state criminal proceeding. D was in the middleof being prosecuted. The Court held that you can't enjoin a pendingstate court criminal proceeding. There were 2 parallel themes in thiscase: 1. Equitable remedy side: no irreparable injury here because D will

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be able to raise a federal claim as a defense to stateprosecution. There's an adequate remedy at law (it doesn't haveto be the best remedy at law).

2. "Our Federalism": a sensitivity to the legitimate interests ofboth State and National governments.- This case is specific to pending state criminal prosecutions. Threatened state prosecutions aren't good enough because you canget a federal injunction against that.

- Note: a specific chilling effect will not get you by Youngerv. Harris. Younger is an absolute principle.

E. Exceptions to Younger v. Harris:1. Dombrowski v. Pfister: Talks about bad faith prosecution. Once

an action is filed in state Court, that triggers Younger absentbad faith prosecution. The bad faith must be real bad faith . . .must be something spectacularly extraordinarily. Must have realmalice by the DA.

2. Hicks v. Miranda (1975), P. 1640. Race to the Courthouse Rule: If you have a threatened prosecution, the person who's about to beprosecuted runs to the federal court and seeks to enjoin the stateprosecution. Younger doesn't apply.

As soon as the DA find out that a federal action has beenfiled, he races to the state courthouse and files a state courtprosectution before the federal court reaches the action on themerits. Then, Younger applies.

If the DA can file the state action before the federal courtreaches the merits of the case, the federa court will abstain.

F. How far does Younger extend into the sphere of civil actions?1. In a criminal case, the state has an interest in judicial

proceedings because the executive branch brought action (the statebrought the action). However, the state does not have an interestin a civil proceeding. Therefore, the intrusion, from afederalism standpoint, is more radical.

2. Huffman v. Pursue, Ltd., p. 1642. Younger applies to a civilaction that is closely akin to a criminal action:a. when the state is a party to the proceedings, andb. the proceeding is both in aid of, and closely related to,

criminal statutes (i.e., obscenity, public nuisance).

3. Juidice v. Vail: extends Huffman a little further to actions notbrought by the state.

4. Trainor v. Hernandez: action by state when a state has a vitallyimportant enforcement interest (but this does not mean thatYounger applies to all civil actions).

5. Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc.: Younger may even apply to state administrative proceedings ifthey're proceedings in which the state has a vitally importantenforcement interest akin to a criminal proceedings.

VI. CONGRESSIONAL REGULATION OF JUDICIAL POWER.

Original Jurisdiction of U.S. Supreme Court:28 U.S.C.A. 1251: governs original jurisdiction of the Supreme Court (whichcomprises only a handful of cases each year, mainly concerning controversiesbetween 2 or more states).

Appellate Jurisdiction of U.S. Supreme Court:

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28 U.S.C.A. 1254: governs appellate juris. of federal courts of appeals. Methods of review: (1) writ of certiorari, or (2) certification.

28 U.S.C.A. 1257: governs appellate juris. of state courts. Method ofreviewing decisions of highest state courts: writ of certiorari.

A. Article III, §2, cl. 2: Exceptions and Regulations Clause: "In allCases affecting Ambassadors, other public Ministers and Consuls, andthose in which a State shall be a Party, the supreme Court shall haveoriginal Jurisdiction. In all other Cases before mentioned, the supremeCourt shall have appellate Jurisdiction, both as to Law and Fact, withsuch Exceptions and under such Regulations as Congress shall make."

B. Ex Parte v. McCardle: (1869 - post-civil war case), p. 51. Congressexercised its "Exceptions and Regulations" power to deprive the federalcourt of jurisdiction.1. Because Congress was afraid that if the Court heard the merits of

the case it would find the Acts unconstitutional, it took thepower to hear the case away from the Court. The Court compliedwith the withdrawal and dismissed the case for lack ofjurisdiction.

2. Reason: while the appellate jurisdiction of the Supreme Court isstrictly conferred by the Constitution, it is conferred subject toexceptions and regulations that Congress shall make. Art. III,sec. 2, clause 2.

3. This is still good law!

VII. DISCRETIONARY REVIEW. To remain effective, the Supreme Court mustcontinue to decide only those cases which present questions whoseresolution will have immediate importance far beyond the particularfacts and parties involved.

A. Maryland v. Bartimore Radio Show, Inc.: (1950), p. 58. It isimpractical for the Court to indicate its reasons for denial of a writof certiorari:1. time that would be required is prohibitive.2. different reasons not infrequently move different members of the

Court.

One cannot deduce any decision on the merits or other precedentialvalue from denials of certiorari.

B. Denial of certiorari simply means that fewer than 4 members of the Courtdeemed it desirable to review a decision of the lower court as a matterof sound judicial discretion.

C. Dismissal of the writ: When the Court feels an oral argument, or uponfurther study, or due to the occurrence of intervening factors, that thebasis upon which certiorari was granted no longer exists, the Court may"dismiss the writ as improvidently granted."

VIII. PREREQUISITES TO FEDERAL JURISDICTION AND JUDICIAL REVIEW

A. Michigan v. Long (1983), p. 64. The State is the final arbiter of stateconstitutional and statutory law."1. State constitutions cannot subtract from federal rights but can be

more protective of them than the federal constitution (seeHunters Lessee).

2. The U.S. Supreme Court said that if the states are going to dothis, they's better be real clear that the decision is based onstate law and not federal constitutional law. Otherwise, the U.S.

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Supreme Court will review it and reverse it.***a. Per Prof., all the state court judges have to do is add amagic sentence that "this decision is based on stateconstitution", and it will not be reviewable by the U.S. SupremeCourt (because of the Seiler Doctrine).

Thus, the Supreme Court takes review of cases where statecourts have created constitutional rights purportedly (andambiguously) relying on federal Constitution (rather than on stateconstitution).

FEDERAL LEGISLATIVE POWER (ARTICLE I)

I. SOURCES & NATURE OF NATIONAL LEGISLATIVE POWER.

A. Introduction.- Source: specified or enumerated broadly-stated legislative powersin Art. I, sec. 8 of the Constitution.- Art. I, sec. 8 "necessary and proper clause", gave Congress power "Tomake all Laws which shall be necessary and proper for carrying intoExecution the foregoing Powers, and all other Powers vested by thisConstitution in the Government of the U.S. or any Department or Officerthereof."- Today, the necessary and proper clause is irrelevant because theCommerce Clause swallows everything else.

B. McCulloch v. Maryland (1819), p. 68. The necessary and proper clause isan affirmative power - not a limitation on Congressional power. Itdoesn't really mean necessary - only proper. If its nice, and notexpressly prohibited, its permitted.

*****1. Issue-Specific Standard of Review: Classic Test for the Existenceof Federal Power: "Let the end be legitimate, let it be withinthe scope of the Constitution, and all means which areappropriate, which are plainly adaped to that end, which are notprohibited, but consist with the letter and spirit of theConstitution are constitutional."

2. Congress has the power, under the necessary and proper clause, toincorporate a national bank.

3. C.J. Marshall: Necessary and proper clause authorized the federalgovernment to select any reasonable means to achieve its ends.

II. NATIONAL COMMERCE POWER.

A. Origins of the Commerce Power. The commerce clause is called theaffirmative commerce clause becaue it is phrased as an affirmative grantof power to Congress.

B. Development of Basic Commerce Clause Concepts.1. Gibbons v. Ogden (1824), p. 79. Congress has the power to

regulate commerce in a state if it affects activities outside thestate. If commerce in a state doesn't affect other states - thestate regulates the activity. Commerce power is not to be limitedby the judiciary.a. Congress can pass a statute about anything that

affects commerce. Such statutes then become the supreme lawof the land - leads to federal preemption.

2. 10th Amendment: Powers not delegated to Congress are reserved tothe states and the people of the states. Framers intent was toexpand congressional power over that given in the Constitution.

3. Paul v. Virginia: upheld state regulation of interstate insurancebusiness on the ground that issuing a policy of insurance is not a

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transaction of commerce, and insurance contracts are not articlesof commerce.

4. Kidd v. Pearson: upheld an Iowa statute prohibiting themanufacture of intoxicating beverages within the state. Thisactivity could be regulated by the state because it wasmanufacturing and not commerce.

5. The Daniel Ball: So far as a ship is carrying goods destined foranother state or that came from another state to be delivered inMichigan, she is engaged in interstate commerce (even thoughnavigating only Michigan waters).

C. Foundations for Extending the Reach of Congressional Powers.1. The Lottery Case (Champion v. Ames) (1903), p. 85. Congress has

the power to prohibit as well as regulate interstate movement ortransportation. Expansion of congressional power.a. Congress can regulate the lottery if there is interstate

movement. Congress' motivation is irrelevant - had nothingto do with commerce - Congress was motivated to regulatebecause it felt the lottery was evil.

2. Houston, East & West Texas Ry. v. U.S. (Shreveport Case) (1914),p. 88. Congress had the power to regulate activities which had aneconomic effect on commerce among the states - although thistheory did not apply beyond railroad regulation cases. (Requireda close & substantial relation to interstate traffic.)a. Where the power of Congress to regulate commerce

exists, it dominates.

D. Regulation of National Economic Problems Through the Commerce Power.

Limitations on the Commerce Power Through 1936.*1. Hammer v. Dagenhart (1918), p. 90. First of the doctrines that

rise and fall together. The Court invalidated a federal statutewhich prohibited the interstate shipment of goods coming from amining or manufacturing establishment that employed children undercertain ages. The act exceeded the commerce power because itregulated the conditions of production (which was reserved forstate regulation by the 10th Amend.).

2. Per Prof: If you want to get the gov. off your back, you mustremove the power under the Commerce Clause. To do so,a. either resurrect Paul v. Virginia and Kidd v. Pearson,

repeal Gibson, or require that the affect be direct (becausenothing has a direct affect on commerce) - strictinterpretation of the commerce clause.

b. government taxing power: Create a new constitutionaldoctrine that says you can't tax with regulatory intent(this shuts down the taxing power). (see Bailey v. Drexel,p. 128.)

c. spending power: the government attempts to get rid of evilthrough it (see U.S. v. Butler, p. 132 - which says thatthis is a part of the State police power and the federalgov. can't do it because it violates federalism [the 10thAmend.]).

d. administrative agencies: shut them down also by coming upwith the "nondelegation doctrine" (which prevents Congressfrom delegating to administrative agencies - violatesseparation of powers).

By doing all of this, you strip power away from the federalgovernment to help you. Then we must figure out how to shut thestates down (under the 14th Amendment).

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Expansion of Commerce Power After 1936.3. NLRB v. Jones & Laughlin Steel Corp. (1937), p. 100. "Although

activities may be intrastate in character when separatelyconsidered, if they have such a close and substantial relation tointerstate commerce that their control is essential or appropriateto protect that commerce from burdens and obstructions, Congresscannot be denied the power to exercise that control.a. What is determinative is the effect upon interstate commerce

of the labor practice involved.b. Dissent (The 4 Horsemen: McReynolds, Van Devanter,

Sutherland & Butler [war, pestilence, famine and death]): Any effect on interstate commerce by the discharge ofemployees shown here would be indirect and remote in thehighest degree.

4. United States v. Darby (1941), C.J. Stone, p. 105. Congress hasthe constitutional power, under the commerce clause, to regulatecommerce in any manner not unconstitutional, and once Congress hasadopted such a policy, it can use the means to enforce it, even itthe means involve the control of intrastate activities.a. The Court unanimously recognized Congress' plenary power to

set the terms for interstate transportation; b. overruled Hammer v. Dagenhart; andc. upheld the direct regulation of the hours and wages of

employees engaged in the production of goods for interstatecommerce.

*****5. Wickard v. Filburn (1942), p. 110. Issue-specific standard ofreview for affirmative commerce clause question: Does it affectinterstate commerce? (Does it exert a substantial economic effecton interstate commerce, whether direct or indirect?) (If so, it issubject to commerce clause power.)a. Congress' power over interstate commerce is infinite.

(necessary and proper clause is no longer needed.) b. Holding: Congress' power to regulate commerce extends even

to regulation of marketing of products not intended forinterstate commerce if such activity exerts a substantialeconomic effect on interstate commerce, whether direct orindirect. (Here, Congress wanted to curb the overproductionof wheat in order to stimulate commerce.)

c. The power to regulate commerce includes the power toregulate prices at which commodities in that commerce aredealt in and practices affecting such prices.

6. Perez v. U.S. (1971), Douglas, p. 117. This takes Wickard beyondinfinite . . . a class of activities affect interstate commerce. Under modern commerce clause standards, congress has the power tocreate police statutes to prohibit criminal activity that affectsinterstate commerce (even if that activity is limited to oneindividual).a. Loansharking, though purely intrastate, may in the judgment

of Congress, affect interstate commerce. "Loan sharking, inits national setting, is one way organized interstate crimeholds its guns to the heads of the poor and the rich alikeand syphons funds from numerous localities to finance itsnational operations."

7. Heart of Atlanta Motel v. U.S. (1964) (Warren Court, JusticeClark), p. 120. Congress can use the commerce clause to protectcivil rights (the lottery case already told us we don't care whatits motive is).a. Congress' commerce power extends to racial discrimination by

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motels serving travelers because such discrimination effectsinterstate commerce by discouraging travel by Blacks.

b. Congress' motive does not have to be commercial because theinterstate commerce power was plenary (interstatetransactions and transportation fall under the commercepower regardless of whether they are commercial incharacter).

8. Katzenbach v. McClung (Ollie's Barbeque Case) (1964) (WarrenCourt, Justice Clark), p. 122. Again, Congress has the power toregulate interstate commerce, not just to facilitate it.a. Congress has the power to prevent discrimination under the

commerce clause on the ground that a discriminatingrestaurant receives a substantial portion of its food fromout of state in interstate commerce.

b. These type of discriminatory practices place a burden oninterstate commerce by1. prohibiting the Negro dollar from entering the stream

of commerce;2. imposing an artificial restriction on the market and

interfering with the flow of merchandise;3. causing unrest and having a depressant effect on

general business conditions;4. restricting interstate travel by Negroes;5. causing reluctance of industry to establish in places

where such practices occurred because the practicesdeterred professional and skilled persons from movingthere.

III. THE NON-DELEGATION DOCTRINE (Second doctrine that rose and felltogether)

There are 2 distinct conceptual aspects to non-delegation:A. Congress can't delegate power to an administrative agency because it

violates separation of powers to do that (Schecter came from this, butit is now dead after Yakus)

1. THE SCHECHTER CASE, p. 95 Schechter opposed legislation becausehe was involved only in intrastate wholesale poultry market, anddid not feel that federal legislation designed to resolve anational problem should affect him.a. The Court invalidated the act because it was an unlawful

delegation of power. We want the legislature to legislate,not to pass the buck to an administrative agency. It wouldbe different if the legislature gave the agency standardsfor administration and just left it to the agency to fillthe gaps. Legislature provided no means for achieving theend.

b. The employment practices of Schechter's poultry business didnot have a sufficiently "direct" connection to interstatecommerce. The wages the employees were to be paid and thehours they were to work were subjects reserved to thestates.

2. Yakus v. United States, (1944), p. 181. The Court held thatthis Act was unlike the NIRA in Schechter because this Actproscribes a method for attaining the end.a. Rule: If you can find any standards provided by the

legislature, no matter how broad, that's close enough forgovernment work. AND, the standards doen't even have to bein the statute that grants authority to the agency, as longas the agency can find anything in the USC. This aspect of

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the non-delegation doctrine is virtually dead.

B. Carter v. Carter Coal, p. 96. This 2nd aspect of non-delegation hassurvived. The Court expanded on Schechter's "direct effect" requisite inruling that the commerce clause did not give Congress power to requireBituminous Coal Code members to observe hours and wages agreed uponbetween . . . . (It was an unconstitutional delegation of legislativepower to private persons. Act allowed competitors to set regulationsfor other members of the industry).a. Reason: The effect of labor provisions of the act falls primarily

upon production and not upon commerce. Production is purely alocal activity, and there is no direct effect on interstatecommerce (only an indirect effect). The evils are all local evilsover which the federal government has no legislative control. (10th Amend. analysis)

b. Rule: The federal regulatory power ceases when interstatecommercial intercourse ends, and correlatively, the power does notattach until interstate commercial intercourse begins.

IV. THE NATIONAL TAXING AND SPENDING POWERS

A. REGULATION THROUGH TAXING.

Pre-1937.1. Bailey v. Drexel Furniture Co. (Child Labor Case), (1922), p. 128.

Child Labor Tax Law invalid - tax was not a true tax, but only apenalty for violation of a commercial regulation. So the Act wasinvalid under Dagenhart because it exceeded the power of Congressand invaded the areas reserved for control by the states. a. Test: Whether there is a congressional motive outside

Congress's regulatory power which appears on the face of thestatute.

b. Rule: The gov. can't tax with a regulatory motive. (whatis the purpose of the tax)

Post-1937.2. Sonzinsky v. United States, (1937), p. 131. Upheld a tax on

concealable firearms.a. We don't care about regulatory purpose (motive) anymore.

All taxes are regulatory in some sense. (End of restrictiveinterpretation of taxing power). It is beyond thecompetence of the courts to inquire into the hidden motivesof Congress.

b. Test: As long as the tax really raises some revenue it isokay. (The tax is productive of some revenue, and since itoperates as a tax, it is within the taxing power.)

3. United States v. Kahriger, (1953), p. 132. A federal excise taxdoes not cease to be valid merely because it discourages or detersthe activities taxed. Reason: regardless of its regulatoryeffect, it produces revenue. Further, the Court ordinarilydeferred to Congressional power where federal legislation restsupon this power.

4. U.S. v. Minor (not in text) - Cocaine Tax law.a. Tax on kids who sell drugs is valid even though it does not

produce revenue. (Here, the tax can't raise revenue becauseyou couldn't get a form from the fed. gov. to pay it.)

b. Rule: Congress can do whatever it wants to under the TaxingPower (as long as it does not amount to a taking under the5th Amendment).

c. A Fortiori Fallacy: Congress has the power to regulate

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drug trafficking under the Commerce Clause, a fortiori,Congress has the power to tax it. The Court uses one power(commerce) to sustain the exercise of a theoretical power(taxing).

B. REGULATION THROUGH SPENDING.

Pre-1937.1. United States v. Butler (1936), p. 132.

a. Agricultural Adjustment Act of 1933 invalid on the groundthat the tax and benefits payments were beyond the power ofCongress. (invaded the rights reserved unto the states underthe 10th Amendment - agricultural production is a stateconcern)

b. Basically, this Court refused to allow Congress to utilizeits regulatory powers as a form of economic coercion.

Post-1937.2. Chas. C. Steward Machine Co. v. Davis, (1937), p. 136. Upheld

Title IX of the Social Security Act by drawing a distinctionbetween motive and coercion.a. This law was neither the regulation of activities beyond the

federal powers, nor an unconstitutional coercion of stategovernment to enact such systems.

b. The national tax and spending powers were properly used toprevent the national economic consequences of unemploymentand to eliminate the obstructions to state systems caused bythe advantage of businesses in states without unemploymentcompensation taxes. (unemployment is a common evil)

3. South Dakota v. Dole, (1987), p. 140. Upheld the validity of afederal statute that conditioned each states receipt of itsportion of federal highway funds on the adoption of a minimumdrinking age of 21 years.a. Rule: encouragement to state action is a valid use of the

spending power. (Congress can regulate indirectly throughthe Spending Power.)

b. Reason: the condition imposed by Congress is directlyrelated to one of the main purposes for which highway fundsare expended - safe interstate travel, and is not coercive(states don't have to engage in the recommended behavior andthey will only lose 5% of state highway budget - not verypunitive).

4. Helvering v. Davis (1937). (Spending for the General Welfare). Spending must be for a common benefit, not purely a local purpose. (Upheld SSA old-age pension because it's a national problem.)

V. FOREIGN RELATIONS POWERS - TREATIES.

A. Article VI, §2: Supremecy Clause: laws made in pursuance of theConstitution are supreme. A treaty is supreme over state law if it isunder the authority of the U.S. (valid treaty trumps state law pursuantto the Supremecy Clause).1. While laws must be constitutional, treaties must just be made

under the authority of the U.S., which authority would existanyway be virtue of sovereignty.

B. If Congress has no power to regulate directly, it has no power to enterinto a treaty to do it (Congress can't accomplish by treaty what it

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cannot accomplish by statute).

C. Treaty power is an independent power, so it is not limited to the goalsin Article I, §8.

D. Treaty authority is delegated by Article II, §2, [2].

E. In the heirarchy of Article VI, which is the highest - Constitution ortreaty?1. fed constitution v. law = constitution (Marbury v. Madison).2. fed constitution v. treaty = constitution. The treaty power is

limited by express provisions of the Bill of Rights (specificprovisions of the Bill of Rights prevail. (Reid v. Covert, p.145: Ct wanted to see specific constitutional prohibitions. Here, treaty was not inconsistent with any specific provisions ofthe Constitution.)

3. treaty v. fed. statute: last in time is first in right. Thelatest expression of Congressional will controls.a. Indian tribes are quasi-sovereign nations and sometimes

enter into agreements with the U.S. (see Cherokee Tobacco,Chie Chin Ping v. U.S.)

b. But we shouldn't be able to breach our obligation undertreaty by statute. Under international law, we would stillbe in breach of treaty and if we went into an internationallaw tribunal we will lose.1. Monist system: theoretically impossible for the

government to ever be in violation of the law.2. Dualist system: (U.S.) in American court,

international law will not help. Last in time isfirst in right, even if it puts un into delict withinternational law.

F. Missouri v. Holland (1920), p. 144. Upheld Migratory Bird Treaty Act,which implemented a treaty with Canada to protect migratory birds.1. "what an act of Congress could not do unaided, in derogation of

the powers reserved to the States, a treaty cannot do."2. No 10th Amendment limitation on the federal treaty power because

the power to make treaties is expressly delegated by Art. II, sec.2, and by Article VI, treaties made under the authority of theU.S. (along with the Constitution and laws of the U.S.), are thesupreme law of the land.

3. The treaty is valid, so the statute is valid under the necessaryand proper clause.

4. This could all be done by the Commerce Clause now, because flyingbirds affect interstate commerce. We don't care anymore becausewe can accomplish everything by statute now, via the CommerceClause.

SEPARATION OF POWERS

EXAM:1. Remember Baker v. Carr says that separation of powers cases

involve political questions.2. Distinguish between formalism v. pragmatism:

a. Formalism: abide by letter of documentb. Pragmatism: more concerned w/outcome - how it works in

practice.Which is the better approach? Is it self-aggrandized power?

I. EXECUTIVE ABRIDGEMENTS OF CONGRESSIONAL POWERS (Presidential ActionAffecting Congressional Powers).

A. Presidential Powers:1. Art. II, §1: executive power

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2. Art. II, §2: enumerated powers.a. Commander-in-Chiefb. Treaty Power

B. Youngstown Sheet & Tube v. Saywer (The Steel Seizure Case) (1952), p.169. Presidential order to the secretary of commerce to seize and runU.S. Steel Mills (in order to avoid a nation-wide strike during theKorean War) was unconstitutional.1. Congress had already rejected the idea of seizure. Only Congress

can make laws; the President can execute them.2. What made this action by Truman legislation was that he made

policy, and to make policy is to make the law.Test: Whoever makes the policy makes the laws.

3. Classic Levels of Generality Problem (Inherent Ambiguity indefining "policy")a. If you define "policy" at a high level of generality (i.e.,

to fight the Korean War), Truman wins.b. If you define "policy" at a low level of generality (i.e.,

Truman is making the policy to seize steel plants to procureweapons), Congress wins.

4. Note: If Harry had the power to do this, which he didn't,Congress couldn't stop him because Congress can't limitconstitutional powers by statute.

*****5. Jackson's concurring opinion is more persuasive (more pragmatic): (First zen-finger pointing: the idea that you can't know thething. Zen-fingers give you guidance but you will never see thething.) President must get his authority either from a statute orthe Constitution. 3 types of situations:a. When President acts pursuant to the express or implied

authorization of Congress, his power is at its highest ebb. He has all of his own powers + everthing Congress can givehim under Article I.

b. Twilight Zone: President acts under his own authoritywithout Congressional authorization. President must actwith caution. He can only rely on his own independentpowers. (But there is a zone where he and Congress may haveconcurrent authority or in which distribution is uncertain.) Per Arrow, whoever acts first probably has the power.

c. President acts against the express or implied will ofCongress. His power is at its lowest ebb.

*****6. Frankfurter's Concurring Opinion, (more formalistic): (2nd zen-finger pointing: "a systematic, unbroken executive practice, longpursued to the knowledge of Congress and never before questioned[may] be treated as a gloss on Executive Power vested in thePresident by §1 of Art. II."a. Congress has expressly chosen not to delegate this authority

to the Pres.b. Truman tried to self-aggrandize his power, but failed. He

claimed inherent authority to seize the plants.

C. Dames & Moore v. Regan: (p. 175) President has broad power to settleforeign claims by the use of Executive Agreements which are binding onthe nation.1. Reason: The source of Presidential power was implicit

congressional authorization under the International EmergencyEconomic Powers Act (IEEPA). Even though the statute did notspecifically authorize the President's action suspending claims,it indicates congressional acceptance of a broad scope forexecutive action in circumstances such as these.

2. Disclaimer/limitation: "We do not decide that the Presidentpossesses plenary power to settle claims . . . [But] where, ashere, the settlement of claims has been determined to be a

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necessary incident to the resolution of a major foreign policydispute between our country and another, and where as, here we canconclude that Congress acquiesced in the President's action, weare not prepared to say that the President lacks the power tosettle such claims."

D. If the Courts recognize the legitimacy of an executive agreement, it isa way for the President to circumvent senatorial approval (Belmont andthe Lifinov agreement.)

E. U.S. v. Guy W. Capps Co. (not in text). Answers the question "exactlywhen should the President have the power to enter into an executiveagreement, when it will become de facto law, without congressionalapproval?" Pres. had by executive order indicated that there would be aquota on imports of seed potatos from Canada. Capps said it couldn't bedone.1. Question was whether this was the supreme law of the land. We

know that Congress could pass a statute doing it and if it was atreaty it would be fine under Missouri v. Holland (and would besupreme under the Supremecy Clause). But 4th Circuit said that itcouldn't be done under executive agreement when:a. President acts pursuant to an already passed Congressional

statute.b. President does it on his own but Congress later ratifies it

by statute.c. President does it on his own (Pres. must be able to point to

some specific Art. II power. If he can't he's got aYoungstown problem.)

F. Yakus v. U.S. (1944) p. 181: Price Control Act was itself an exercise oflegislative power by Congress. In the act, Congress laid down thestandards to guide implementation of the Act by the President. The Actwas upheld as constitutional because these standards were laid down byCongress and there was no abdiction of Congressional powers.

II. CONGRESSIONAL ABRIDGEMENTS OF EXECUTIVE POWERS.

A. Legislative Vetoes.1. Immigration & Naturalization Service v. Chada: (p. 182). Under

the Immigration and Nationality Act, the AG suspended thedeportation of Chada for extreme hardship. The HR passed aresolution to deport Chada pursuant to a veto clause. Thiscongressional veto provision was held to be unconstitutional.a. A fortiori fallacy: If Congress can delegate the whole, can

they delegate part? No, it violates separation of powers. (power to impose a greater burden does not necessarily carrywith it the power to impose a lesser one)

b. Congress could've accomplished this a different way:1. private bill: something passed by Congress that

affects one person instead of the public at large. Could've passed a bill making Chada a citizen.

2. Congress could've kept all of this power to itself.c. Deportation of the alien involves determination of policy

that Congress can implement only one way - bicameral passagefollowed by presentment to the President. Congress mustabide by its delegation of authority until that delegationis legislatively altered or revoked.

d. Legislative vetoes are unconstitutional, whether one or twohouse vetoes:1. violates Presentment Clause, which requires a bill to

be presented to the President for signature afterpassed by both houses;

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2. violates separation of powers.e. Black's formalistic opinion in Youngstown: Presidential

power must extend from powers of CEO or Commander in Chief.f. Jackson's opinion in Youngstown is pragmatic; and Vinson's

is extreme pragmatic.g. White's dissent in Chada is very pragmatic. This is

political theory. We are forcing Congress to delegate powerwithout maintaining control.

h. majority opinion in Chada: bicameralism and presentmentclause (very formalistic).

i. severability: The Court severed the veto clause even thoughthe statute did not contain a severability clause. Rest ofstatute ok.

j. pragmatic argument that Chada is a good thing: AG is in abetter position to make these decisions, from anadministrative efficiency viewpoint. As a matter ofpolitics, the statute delegates some things to theadministration, and setting it up so President can't doanything without legislative veto.

2. The overarching theme over all of these separation of power caseswill be the tension between formalism and functionalism[pragmatism]. It doesn't get any clearer than it is in Chada. Wecan characterize cases as formalistic or functionalistic(pragmatic):a. Youngstown: is the leading case; it's got a little bit of

everything.b. Dames: very pragmatic.c. Chada: very formalistic.The continuum between formalism and pragmatism is used tocharacterize the outcome of a particular case, but will also helpus see what is happening.

3. Process Gas Consumers Group v. FERC, p. 187: Court affirmedthe invalidation of a one-house legislative veto of regulatoryrulemaking by the Federal Engergy REgulatory Commission, and atwo-house veto of such rulemaking by the FTC (neither includedpresentment to the President).

4. Four categories of legislative vetoes:a. Those that allowed the President and Congress to resolve

directly constitutional and policy differences on issues ofhigh political and small legal moment.

b. Those legislative vetoes that accommodate a necessarilycontinuing dialogue between Congress and the President onmatters internal to government.

c. Those in which Congress sheds the historic legislativeburden of private bills on "highly individual matters" bydelegating the decision-making to the executive, subject tolegislative veto in individual cases. (Chada)

d. Those in which the legislative veto is used for "oversightof agency conduct such as public rulemaking directlyaffecting obligations of the public."

B. CONTROL OVER APPOINTMENT AND REMOVAL OF OFFICERS. (Art. II, Sec. 2, cl.2 - Appointments clause) 1. Buckley v. Valeo, p. 190: Congress establishes the offices, and

the President appoints the officers. Congress may not appointofficers whose functions are executive in nature. Officers of theU.S. must be appointed pursuant to Art. II, §2, [2].a. The power to appoint officers is reserved to the President,

subject to the advice and consent of the Senate, even whenthe officers are members of administrative agencies.

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b. Even though the members of administrative agencies are notexecutive in day-to-day operations, the executive was notexcluded from selecting them.

2. Myers v. United States, p. 191: President's Art. II powerincludes the power to remove executive officers of the U.S. (atwill) without the advice and consent of the Senate, even thoughtheir appointment had been subject to the advice and consent ofthe Senate.

3. Humphrey's Executor v. U.S., p. 191: The removal power of thePresident, without the advice and consent of Congress, is limitedto the executive branch.a. The President can only remove executive officers performing

executive functions.b. Congress can remove quasi-legislative and quasi-judicial

officials. Reason: Congress has the authority to create quasi-legislative orquasi-judicial agencies and that authority includes the power tofix the period during which they shall continue, and to forbidtheir removal, except for cause, in the meantime.

4. Bowsher v. Snyar, p. 192: Congress cannot reserve for itself thepower of removal of an officer charged with the execution of thelaws, except by impeachment.a. To permit an officer controlled by Congress to execute the

laws would be, in essence, to permit a congressional veto. The question is whether the Comptroller General iscontrolled by Congress. Congressional removal powers overthe Comptroller General's office dictate that he will besubservient to Congress.

b. The act gives the CG executive powers, which he may not beentrusted with since Congress has retained removal authorityover him.

c. The act contained a fallback provision, which amounts topresentment.

d. This is a formalistic decision: Limiting the functions ofofficials at the expense of efficiency.

*****e. Zen finger pointing: the danger here is the ursurption ofExecutive branch functions.

*****5. self-aggrandizement (the act of making oneself greater) of powerby Congress: zen-finger pointing: congressional usurpation(wrongful seizure) of Executive branch functions. The Courtallows Congress to aggrandize the Court's power. The Court ismore likely to permit separation of powers when one branch is notaggrandizing (increasing) its power at the expense of another.

6. Morrison v. Olson, p. 196: Independent Counsel Act did notviolate the principle of separation of powers.

a.Congress had given itself no role in the removal process,as it had tried to do in Bowsher. Language of non-aggrandizement: The court said there was no real attempted aggrandizement ofpower: "this case does not involve an attempt by Congress itselfto gain a role in the removal of executive officials other thanits established powers of impeachment and conviction." (Noattempt by Congress to increase its own powers, and no judicialursurption.)b. The Acts provisions limiting the powers of the AG (or the

President through the AG) to remove the Independent Counselare constitutional because they are not of such a naturethat they impede the President's ability to perform hisconstitutional duty.

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c. The Act did not completely strip the Pres. of the power toremove the Independent Counsel. There could be removal ifthere was cause. Therefore, the removal restrictions didnot prevent the Pres. from engaging in the faithfulexecution of the laws.

*****d. mega zin-finger: Does the act impermissibly undermine thepowers of the executive branch? (This is the backstop ifaggrandizement doesn't work.)

e. No independent counsel may be appointed without a specificrequest by the AG, and the AG's decision not to requestappointment if he finds "no reasonable grounds to believethat further investigation is warranted" is committed to hisunreviewable discretion. (Okay for Congress to createindependent counsel as long as it gives the check to theAG.)

C. THE WAR POWERS. (Per Prof., this is a joke because if the Pres. doesn'thave to do it under the constitution, he doesn't have to do it.)1. The "Yale Paper" - Indochina: The Constitutional Crisis. Part

One: Theories upon which Presidents have relied for the use ofmilitary force abroad w/out congressional approval may be dividedinto 3 general categories:a. The Sudden Attack Theory: respond to an armed attack on the

territory of the U.S. w/out requesting congressionalapproval.

b. The Neutrality Theory (aka "interposition"): dispatchingtroops to act as security guards for American citizensabroad and their property.

c. The Collective Security Theory: may be justified asnecessary for the protection of American security eventhough the conflict may arise thousands of miles fromAmerican shores.

Part Two: a. When a decision in foreign or military affairs demands speed

and decisiveness, there is a presumption that it is withinthe exclusive power of the President.

b. All other decisions are within the power of Congress. Someof that congressional power is in the twilight zone and heldconcurrently with the President. But when the decisionentails a significant commitment of the nation's human,physican, and moral resources, there is a presumption ofcongressional exclusivity.

The presumption can be rebutted: The President canunilaterally commit a significant amount of the nation'shuman, physical, and moral resources; but he can do so onlyif there is a clear need for speed and decisiveness. Thereis a point at which decisions become so momentous - inhuman, physical, and moral terms - that power passes fromthe twilight zone in to the exclusively legislative zone.

c. "Within the twilight zone of shared power, if members ofCongress have views on the conduct of foreign and militaryaffairs which differ from those of the President, there isno reason - in the Constitution, in theory, or in precedent- why they should hesitate to write their policy preferencesinto law."

III. CONGRESSIONAL ABRIDGEMENTS OF JUDICIAL POWERS.

A. Minstretta v. U.S., (1989) p. 206: Ct adopted Madison's version ofseparation of powers, finding that "our constitutional system imposesupon the Branches a degree of overlapping responsibility, a duty of

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interdependence as well as independence the absence of which wouldpreclude the establishment of a Nation capable of governing itselfeffectively.1. The Act placed the sentencing commission in the judicial branch

(which commission was composed of 7 members appointed by thePresident. Here, Congress knows it doesn't have the courage tocome up with its own determinate sentencing guidelines, so itpushed it off on the judiciary by sticking the commission in thatbranch.

2. No violation of the non-delegation doctrine:a. sufficiently specific and detailed.b. allows for minimal standards as long as congress sets

policy.c. complies with Yakus.

3. No separation of power's problem here. Congress got away withpushing evil/bad job off on judicial branch and not having to risknot being relected. a. Pragmatic, flexible approach.b. Sentencing has always been a shared responsibility.c. Commission located in judicial branch is exercising

administrative authority (Arrow says: quasi-legislative)d. Judicial branch didn't assign tasks more appropriately

accomplished by other branches.e. Law does not impermissibly threaten the institutional

integrity of the judicial branch.1. Not prohibited by Constitution.2. Complies with the Appointment Clause.

IV. EXECUTIVE PRIVILEGE.

A. United States v. Nixon (The Watergate Tapes Case) , p. 210. Theprosecutor subpoened the Watergate tapes, and Nixon claimed absolutepriv. under Art. II.1. Rule: President has no absolute privilege of confidentiality with

respect to general matters. The President has a prima facieprivilege to maintain the confidentiality of internal executivecommunications, but that privilege does not extend this far. President is presumptively privileged.

2. Source of privilege: implicit in the enumerated powers.*****3. Issue-Specific Standard of Review (Straight Balancing Test):

(This is a battle between Constitutional rights: 5th & 6th Amend.rights of criminal defendants v. Pres. constitutionally basedprivilege.) Must balance the policy interest behind theexecutive privilege against policy interest behind cross-examination (President's interests v. D's interests).a. The issue that triggers this standard of review is a

conflict of constitutional rights (not powers).1. What Nixon is asserting is a right, even though it

comes from Art. II.2. Remember, when we have rights on one side and powers

on the other, rights win.4. Executive privilege is not unqualified. It must yield to the

higher claims of judicial process in any criminal case where aneed for the evidence subpoenad has been demonstrated.

B. Nebraska Press. Assoc. v. Stewart (not in the book, but another classicSupreme Court case where there was a conflict between constitutionalrights) This involved a criminal trial for a D who committed a heinouscrime. Tried to ensure D a fair trial, but the crime was so infamousthat the Court had to close the trial to the public. NPA asserted its1st Amendment right to cover the trial. D waived his right to a speedyand public trial because he didn't want the trial open to the public.

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1. Freedom of the press (1st Amend.) v. fair trial (5th Amend.)2. After balancing the constitutional rights, the Court held that the

trial would be closed. (5th Amend. rights trumped 1st Amend.rights).

C. Nixon v. Administrator of General Services, p. 214. Congress has thepower to mandate custody and screening of Presidential papers (The Actdoes not violate Presidential privilege).1. No violation of separation of powers. On its face, the Act does

not create undue disruption of the executive branch.2. There are adequate safeguards to protect executive privilege. The

intrusion is minimal because it is limited to personnel already inthe executive branch who are sensitive to executive concerns.

3. Pres. privilege must yield to the important congressional purposesof preserving the materials and maintaining access to them forlawful government and historical purposes.

4. self-aggrandizement of power: Congress passed this statute. Didit self-aggrandize (ursurp executive branch powers)?

*****5. Frankfurter's zen-finger pointing: "a systematic, unbrokenexecutive practice, long pursued to the knowledge of Congress andnever before questioned [may] be treated as a gloss on ExecutivePower vested in the President by §1 of Art. II."

V. CONGRESSIONAL IMMUNITY: SPEECH OR DEBATE CLAUSE. (Art. I, §6).

A. Gravel v. U.S. (1972), p. 215. Sen. Gavel convened a meeting of hissubcommittee and read extensively from a copy of the top secret-sensitive Pentagon Papers. His aide was subpoenaed as part of theinvestigation.1. Speech or debate clause immunity extends to congressional aides as

long as it essential to speech or debate in either House. *****2. Issue-Specific Standard of Review: The privilege extends to

matters beyond pure speech or debate in either House only if theyare an integral part of the deliberative and communicative process(essential to legislative deliberations).

3. Congressmen and their aides are protected from suit only insofaras their actions are directly, essentially related to thelegislative process.

B. Hutchinson v. Proxmire (1979), p. 217. Senator Proxmire made defamatorystatements during a press release.1. The Speech and Debate Clause does not protect defamatory

statements because they are not essential to the deliberations ofthe Senate, and were not a part of the deliberative process. Thus, newsletters and press releases are not within the speech ordebate privilege. (Stmts would have been protected if made on thefloor.)

VI. EXECUTIVE IMMUNITIES - there is no express grant of immunity from theConstitution.

A. Nixon v. Fitzgerald (1982), p. 218. The President is entitled toabsolute immunity from damages liability predicated on his officialacts. (Pres. is absolutely immune from civil liability for acts withinthe "outer perimeter" of his official responsibility.)1. Pragmatic Reasons:

a. Pres. must be able to operate fearlessly and impartiallywith the duties of his office w/o concern for being sued.

b. The rule of absolute immunity will not leave the nationunprotected against misconduct on the part of the President- remedy of impeachment is still available.

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B. Harlow v. Fitzgerald, p. 219. Other Executive officials are entitled toqualified (good faith) immunity only.

1. Absolute immunity is justified only when the function is sosensitive as to require absolute immunity; i.e., national securityand foreign policy).

2. The official claiming absolute immunity has the burden todemonstrate that the responsibilities of his office embrace such asensitive function that he requires a total shield from liabilityand that he was performing such a function for which liability isasserted.

STATE POWERS

I. STATE IMMUNITIES FROM FEDERAL POWER (Taxation).

Art. I, §9 is the only specific constitional limitation on Congressionalpower.

The only sections of the Constitution that deal with the states are:a. 9th Amend.: deals with rights, not powers.b. 10th Amend.: powers not delegated to the feds are reserved to the

state or the people.

State power = police power: the power to regulate in the interest ofthe public health, safety and welfare (health, safety, and morality). State powers may overlap federal powers.

A. ORIGINS OF IMMUNITIES.

1. McCulloch v. Maryland, p. 148. A state tax on the federal gov.was unconstitutional. The Federal gov. is immune from statetaxation under the Supremecy Clause.Reasons:a. The federal goverment controls the Constitution and the laws

made in pursuance thereof, and cannot be controlled by thelaws of the States.

b. The power to tax is the power to destroy. To the extentthat states could tax the feds the Supremecy Clause would berendered a mere formality.

2. Collector v. Day, p. 149: Immunity from taxation was found to bereciprocal in this case: feds couldn't tax states either.a. Doctrine was extended to exempt a state judge from federal

income tax.1. The independent sovereign powers reserved to the

states by the 10th Amendment were viewed as thefoundation for state immunity from federal taxes,analogous to the role of the supremecy clause as thefoundation for federal immunity from state taxes.

2. The Constitution does not prohibit either the federalor the state branch from taxing each other, but thelaw of self-preservation makes such a prohibitionnecessary. (If one branch is subject to the controlof the other, it can exist only at the mercy of thatgovernment.)

b. Overruled in 1938. Since that time, the Court has notinvoked intergovernmental immunity to protect privatetaxpayers, even when their tax burden was passed on to theother government, except for discrimination favoring retiredstate employees over retired resident federal employees.

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B. STATE IMMUNITY FROM FEDERAL TAXES.1. Massachusetts v. U.S., (1978) p. 150. Economic burden on the

state is insufficient basis for state immunity from federaltaxation for traditional federal revenue purposes.a. Where the subject of tax is a natural and traditional source

of federal revenue, and where it is inconceivable that sucha revenue measure could ever operate to preclude traditionalstate activities, the tax is valid.

b. As long as the tax is nondiscriminatory, operates to defraythe cost of a federal program, and does not unduly burdenessential state activities, it is okay!

2. New York v. U.S., (1946) p. 152. Federal immunity still obtainson the McCulloch v. Maryland principle, but states immunity fromfederal taxation has dissipated.a. So long Congress generally taps a source of revenue by

whomsoever earned and not uniquely capable of being earnedby a State (nondiscriminatory nature of federal action), theConsititution of the U.S. does not forbid it merely becauseits incidence falls also on a State.

II. FEDERAL IMMUNITY FROM STATE TAXES.

A. Since McCulloch, the Court has never questioned the propriety ofabsolute federal immunity from state taxation. Nor has it upheld asingle state tax laid directly on the U.S., without the consent ofCongress, despite its wholesale erasure of immunity for privatetaxpayers in 1938.

B. But the Court has carefully restricted such immunity to state taxesimposed "on the U.S. itself, or an agency or instrumentality so closelyconnected to the Government that the two cannot realistically be viewedas separate entities, at least insofar as the activity being taxed isconcerned."

III. STATE IMMUNITY FROM FEDERAL REGULATION.

A. Maryland v. Wirtz (1968), p. 154. The regulation of the hours,conditions, and wages of laborers in the enterprises affectinginterstate commerce falls w/in the power of the commerce clause.

1. The employment practices of state and local governments are notexempt under the Constitution.

2. Rule: the federal government can act to achieve the proper goalsof its enumerated powers in a manner that might override importantstate interests, as long as Congress does not engage in the utterdestruction of the state as a sovereign political entity.

3. Reason: Congress has interfered with the state functions hereonly to the extent of providing that when the State employs peoplein performing such functions it is subject to the samerestrictions as a wide range of employers whose activities affectcommerce. (nondiscriminatory and does not completely impair statesovereignty).

B. National League of Cities v. Usery (1976), p. 154. (This caseoverruled Wirtz, but was itself overruled in 1985 in Garcia, whichreinstated Wirtz). Held that the Fair Labor Standards Act could not beapplied to employees of the state governments. 1. Reasons:

a. The regulation of all wages and hours of employees of

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enterprises such as these fell within the commerce power ofthe federal government. The 10th Amendment, however,invalidiated the application of the statute to employees ofstate and local governments. The commerce power, like allfederal powers, was limited by the specific guarantees andlimitations of the Bill of Rights.

b. Narrow immunity: Congress can't interfere with traditionalgovernmental function. Congress can't directly regulatestates as states when such states are performing traditionalgovernmental functions.

c. The 10th Amendment guaranteed that Congress would notabrogate a state's plenary authority over matters essentialto the state's separate and independent existence.

2. Justice Blackmun: saw the decision as establishing only abalancing test which required the judiciary to determine whether afederal interest in commercial regulation was demonstrably greaterthan the state's claim for an exemption whenever a state allegedthat the application of federal commercial regulations to itconstituted an impairment of its sovereignty. Blackmun wroteGarcia opinion, which overruled this case.

C. Garcia v. SAMTA (1985), p. 155. Overruled National League andreinstated Wirtz. At issue here was the application of federal minimumwage and overtime provisions of the Fair Labor Standards Act tomunicipally owned and operated mass transit system. Congress wanted toregulate the transit authority.1. Note: The court could have ruled in this case without overruling

National League. A ruling that the operation of mass transitdistricts - unlike the operation of a railroad - was a traditionalgovernmental function might have led to granting the state'simmunity from application of this federal law. A determinationthat the operation of these buses and trains was not a traditionalgovernment function would have allowed the federal governemnt toregulate employment practices of state and local governments intheir mass transit districts.

2. Reason for overruling National League: The majority rejected ajudicial role in supervision of the scope of the federal commercepower as it was applied to state and local government activities.a. Neither historical nor functional approaches had been able

to provide a clear and principled basis for judicialdetermination of the scope of state powers that were immunefrom federal regulations.

b. The political process established by the Constitution wasthe primary safeguard for state and local governmentsagainst legislation which impaired their ability to act assovereigns.1. states have a meaningful role in the creation of

federal legislation.2. states have a significant voice in congressional

deliberations and influence upon the executive.3. voters in a state are not likely to return to office

federal legislators whose actions they find to bedestroying the ability of their state and localgovernments to provide them with basic governmentalservices.

c. Article IV and the 10th Amendment limit the scope ofcongressional power to order states to make certain basicgovernemntal decisions, such as where each state may locateits capital.

d. "With rare exceptions, like the guarantee in Article IV, §3of state territorial integrity, the Constitution does notcarve out express elements of state sovereignty thatCongress may not employ its delegated powers to displace."

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D. FERC v. Mississippi (1982), p. 165. Congress can force states toimplement federal regulations in commercial areas or face the prospectof preemption from state law in that area in favor of federalregulation.1. Reason: The regulation of public utilites, even those which

operated in a single state, was within the scope of congressionalpower under the commerce clause.

3. No violation of the 10th Amendment because Congress, in thisinstance, was only setting the conditions for the sharing offederal power with the states rather than interfering with thesovereignty of the states or traditional local governmentfunctions.

E. NY v. United States (1992), Supp. p. 4. This case is fundamentallydifferent from Wirtz, Usuary, and Garcia because this is not somethingthat the private sector could have done (in the other cases, theregulations applied to everyone). The Low Level Radioactive WastAmendment Act of 1985 allowed the 3 existing radioactive waste disposalcites to utilize 3 types of incentives (financial, access, and damages)to induce or coerce each state to develop its own waste site. Congresstried to force the states to legislate because it didn't want to takethe political heat.1. Congress cannot compel states to regulate a matter within both

state and federal regulatory powers (violation of 10th Amendment).

2. Rules:a. Congress cannot require the States to govern according to

Congress' instructions.)b. There are methods, short of coercion, by which Congress may

urge a State to adopt a legislative program consistent withfederal interests:1. Under Congress' spending power, Congress may attach

conditions on the receipt of federal funds.2. Where Congress has the authority to regulate private

activity under the Commerce Clause, the Court hasrecognized Congress' power to offer States the choiceof regulating that activity according to federalstandards or having state law pre-empted by federalregulation. FERC v. Mississippi.

These methods are permissible because the residents of thestate retain the ultimate decision as to whether or not theState will comply.

F. Gregory v. Ashcroft (1991), p. 11. A federal Age Discrimination Act'sexclusion of appointees on a policy making level excluded state judgesfrom ADEA protection, which means that they could be forced to retireunder state law at the age of 70.1. Rule/Test - plain statement rule: "If Congress intends to alter

the usual constitutional balance between the States and theFederal Government, it must make its intention to do sounmistakeably clear in the language of the statute.

2. Because it is not clear from the Act that it covers judges, thecourt refused to conclude that it did.

G. South Carolina v. Baker (1988), p. 165. Dictum: Where the nationalpolitical process did not operate in a defective manner, the 10thAmendment is not implicated.1. No defect in political process.2. So. Carolina wasn't singled out in a way that left it politically

isolated and powerless.

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IV. FEDERAL STATUTORY PREEMPTION (EFFECT OF FED. REGULATION). The extent towhich Congressional legislation may contract [as opposed to expand]state power.- When a Congressional regulation of commerce expressly precludes stateregulation of the matter regulated, the supremecy clause controls.- Preemption issues may arise from the exercise of any federallegislative power shared concurrently with the states, but they arisemost commonly from exercise of the commerce power.

A. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev.Com'n (1983), p. 287. Within Constitutional limits, Congress maypreempt state authority by1. so stating in express terms (Congress says states shall not

regulate in area X);2. or intent to supercede state law altogether (implied preemption:

struggle to find an inference of presumed congressional intent)may be found from "a scheme of federal regulation that is sopervasive as to make reasonable the inference that Congress leftno room to supplement it," becausea. the Act of Congress may touch a field in which the federal

interest is so dominant that the federal systems will beassumed to preclude enforcement of state laws on the samesubject, or

b. the object sought to be obtained by federal law and thecharacter of obligations imposed by it may reveal the samepurpose.

3. Even where Congress has not entirely displaced state regulation ina specific area, state law is preempted to the extent that itactually conflicts with federal law. Such a conflict arises whena. compliance with both federal and state regulations is a

physical impossibility, orb. where state law "stands as an obstacle to the accomplishment

and execution of the full purposes and objectives ofCongress."

4. Where, as here, Congress regulates in a field which the Stateshave traditionally occupied, the States powers are not to bepreempted unless it was the clear and manifest purpose ofCongress. It was bifurcated here:a. Feds have preempted the issue of safety, and the states are

free to regulate in the area of economics.5. The test of preemption (when the federal government completely

occupies a given field or an identifiable portion of it) iswhether the matter on which the state asserts the right to act isin any way regulated by the federal government.

B. Maurer v. Hamilton (1940), p. 291. There must be deference to statelegislation where public safety and health are involved.

C. Burbank v. Lockheed Air Terminal (1973), p. 291. The state governmentmay not regulate aviation in opposition to the national scheme. Here,the Court found that a local curfew on aircraft traffic was preempted byextensive federal aviation, airspace, and noise-control legislation,despite absence of express preemption.

Noise control is within the police power of the States, but it ishere preempted by the pervasive control vested in the EPA and FAA underthe 1972 act. To uphold the Burbank statute would limit the flexibilityof the FAA in controlling air traffic.

D. Hines v. Davidowitz (1941), p. 291. Held that a state alienregistration requirement was preempted by the federal Alien RegistrationAct.1. Test: Whether the state law stood as an obstacle to the

accomplishment and execution of the full purposes and objectives

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of Congress.a. No direct conflict. This is supplemental legislation, but

the state legislation was statutorily preempted due to needfor uniform federal regulation. (State law stood as anobstancle to the accomplishment of the full purposes andobjectives of Congress.)

E. Louisiana Public Service Comm'n v. FCC (1986) (not in book). Nicelaundry list of big picture of federal preemption. Premption occurswhen:1. Congress, in enacting a federal statute, exresses a clear intent

to preempt state law;2. When there is outright or actual conflict between federal and

state law;3. where compliance with both federal and state law is in effect

physically impossible;4. where there is implicit in federal law a barrier to state

regulation;5. where Congress has legislated comprehensively, thus occupying an

entire field of regulation and leaving no room for the States tosupplement federal law;

6. or where the state law stands as an obstacle to the accomplishmentand execution of the full objectives of Congress.

Checklist for Analying Federal Powers on Exam:1. If separation of powers issues,

a. political question?2. If state statute is involved,

a. federalism issuesb. rights (because rights trump powers)c. does state have the power to do X

1. intergovernmental immunities2. is the state statute federally preempted? If so,

states can't do it under Art. IV.3. If the area (incorporate levels of generality here)

has not been federally statutorily preempted, is itconstitutionally preempted under the dormant commerceclause? If the are is has not been preempted then inthat area the federal commerce power lies dormant.

V. DORMANT COMMERCE CLAUSE.

A. State Regulation When no Federal Regulation.

1. Gibbons v. Ogden (1824), p. 222. Dictum: States have concurrentpower to regulate commerce with Congress under its police power. Black Bird Marsh Creek Case. Commerce power is not exclusive tothe federal government. States can regulate things which mayeffect interstate commerce sometimes (or, absent federal statutorypreemption, the states can sometimes regulate activities thateffect interstate commerce).

2. N.Y. v. Miln (1837), p. 225.: upheld state requirement that shipsreport details on incoming passengers as "not a regulation ofcommerce, but of police."

3. Cooley v. Board of Wardens of Philadelphia (1851), p. 225. ***National uniformity standard*** Note: this has never beenoverruled, although it has been supplanted. The states mayregulate with respect to commerce where Congressional intent isfor them to do so. States can do it because there is no federalstatutory preemption.a. Doctrine of selective exclusiveness:

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1. if the item is such that national uniformity isnecessitated, then Congressional power is exclusive(even absent federal statutory preemption, statescannot regulate where there is a need for nationaluniformity or where the item is national in nature).

2. If the item is representative of a peculiarly localconcern (even though within the reach of theCongressional commerce clause power, such as the Pa.pilotage laws) warranting diversity of treatment, thenconcurrent state regulation is authorized in theabsence of the congressional preemption.

4. Welton v. Missori (1876), p. 227. Using the Cooley formula(national uniformity), the Court struck down a state statute thatwas discriminatory (in that it required only peddlers of out-of-state merchandise to secure a license and pay a tax).a. Transportation and exchange of commodities requires

uniformity of regulation against discriminating Statelegislation. (State statute would place a significantburden on interstate commercial transactions.)

b. Object is uniformity against state legislation.

5. Leisy v. Hardin (1890), p. 228. Original package doctrine wasinvoked to invalidate state regulation of interstate liquortraffic vis-a-vis an Iowa Statute prohibiting the sale ofintoxicating liquor. a. Holding: (broad application of the Cooley national

uniformity standard) as "transportation, purchase, sale andexchange of commodities is national in its character andmust be governmented by a uniform system, so long asCongress does not pass any law to regulate it, it therebyindicates its will that such commerce shall not beregulated."

Congressional Authorization of State Regulation.6. Prudential Ins. Co. v. Benjamin (1946), p. 229. Commerce can

authorize the states to do something which might otherwise violatethe dormant commerce clause. (Congress's authority over commerceis plenary.)a. The Court upheld Congress' power to authorize state taxes

that discriminate against interstate commerce (Congressauthorized such taxes by the McCarran Act).1. Under the McCarran Act, Congress gave the states

extensive power to regulate insurance, which is notitself subject to interstate commerce.

The Role of the Judiciary.7. The judiciary has repeatedly reviewed state regulation and

taxation for possible conflict with commerce clause concerns, andhas struck down many state regulations as violating negativeimplications of the commerce clause in situations where Congresshad taken no action.

Origins of a More Adequate Standard.8. Question becomes an attempt to bifurcate direct and indirect

burdens on interstate commerce. This concept carried over fromthe affirmative commerce clause.a. If the states regulated something which directly burdens

interstate commerce, it is statutorily preempted.b. If burden is indirect, the states can do it.

9. Justice Stone/Di Santo: suggested that the validity of state

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regulation of commerce should depend upon whether "the nature ofthe regulation, its function, the character of the businessinvolved, and the actual effect upon the flow of commerce, lead tothe conclusion that the regulation concerns interests peculiarlylocal and does not infringe the national interest in maintainingthe freedom of commerce across state lines.

10. Professor Dowling: (very persuasive) "In the absence ofaffirmative consent a Congressional negative w/b presumed in thecourts against state action which in its effect upon interstatecommerce constitutes an unreasonable interference with nationalinterests, the presumption being rebuttable at the pleasure ofCongress."

This standard will require the Court to balance national andlocal interests and making a choice as to which should prevail.

Standard of National Uniformity v. Locality.11. Southern Pacific Co. v. Arizona (1945), p. 233. (Justice Stone)

(National uniformity v. locality test). The Court found invalid anArizona law limiting the length of trains in the state to 70freight cars.

*****a. Issue-specific balancing test: national interest in keepinginterstate commerce free from interferences which seriouslyimpeded it (interest in the free-flow of interstatecommerce)

v.state interest in safety.

b. Here, the court found that the burdens on interstatecommerce were outweighed the state's evidence of safety.1. The state's regulation of train lengths passes beyond

what is plainly essential for safety since it does notappear that it will lessen rather than incrase thedanger of accident.

2. "If the length of trains is to be regulated at all,national uniformity is practically indispensible tothe operation of an efficient and economic nationalrailway system."

*****c. Scope of Congressional Power: Congress has the power toredefine the distribution of power over interstate commerce. It may either permit the states to regulate the commerce ina manner that would not otherwise be permissible, or excludestate regulation even of matters of peculiarly local concernwhich nevertheless affect interstate commerce.

Special Deference for Highway Safety Regulations?12. Bibb v. Navajo Freight Lines (1959), p. 237. Held invalid an

Illinois law that required contour rear fender mudguards on alltrucks and trailers on Illinois highways, in place of straightmudflaps that were legal in at least 45 states.a. "This is one of those cases - few in number - where local

safety measures that are nondiscriminatory place anunconstitutional burden on interstate commerce" and must,therefore, bow to federal regulatory measures. So. Pacificstandard of review applied.

13. Raymond Motor Trans., Inc. v. Rice (1978), p. 239. Struck down aWisconsin truck length law when counsel for the state failed todefend the regulation as a safety measure.a. The Court used the Bibb balancing test and ruled the

regulations invalid because they place a substantial burdenon interstate commerce and cannot be said to make more thana speculative contribution to highway safety. Safetyinterests have been shown not to exist as a matter of law.

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There's nothing to put on the side of the balance favoringthe state where no safety justifications [no stateinterest].

15. Kassel v. Consolidated Freightways Corp. (1981), p. 239. Invalidated Iowa's 65-foot double trailer ban on the ground thatit substantially burdens the interstate flow of goods by truck.a. Rule: Regulations to promote the public health and safety

may further the purpose so marginally, and interfere withcommerce so substantially, as to be invalid under theCommerce Clause.

b. Test: If the statute is discriminatory in purpose oreffect, strict scrutiny applies. Is this statutediscriminatory in purpose or effect?

B. Standards of Review for Discrimination.1. Philadelphia v. N.J., p. 259. Statute prohibits bringing out-of-

state garbage into the state.a. Standard of Review: facially discriminatory (virtual per se

invalidity, aka strictest of strict scrutiny) (don't evenhave to look beyond the language of the statute to know thatthis is discriminatory).

2. Pike v. Bruce Church, Inc., p. 241. Watershed case.*****a. Issue-specific standard of review: applies only where the

statute regulates evenhandedly (where the statute isnondiscriminatory).

b. If statute is nondiscriminatory, standard of review isstrict scrutiny. (substantial relation to compellinggovernmental goal, and no less restrictive alternative. Theexistence of a LRA is individually dispositive (if there isa LRA, the state loses.)

c. Pike test: putative local interest v. free flowingcommerce, considering less restrictive alternative. Thetrigger is that this only applies where the state statutedoes not discriminate against interstate commerce.

3. Hughes v. Oklahoma, p. 262. "When discrimination against commerceis demonstrated (other than facial), the burden falls on the Stateto justify it both in terms of local benefits flowing from thestatute and unavailability of nondiscriminatory alternativesadequate to preserve the local interests at stake." Strictscrutiny is the standard of review where the statute has adiscriminatory effect..a. How statute can be discriminatory other than on its face:

1. purpose: discriminatory in its purpose againstinterstate commerce.

2. effect: discriminatory in effect against interstatecommerce. There are 5 particularized forms: a. straight discrimination: state A discriminates

against state B (state A tries to givecompetitive advantage to its own producers. Baldwin v. GAF Seely.

b. leveling effect type of discrim.: enables us tonegate a competitive advantage either in qualityor cost of production from out of state. Huntv. Wash. State Apple.

c. coerced relocation: Pike v. Bruce Church.d. projecting legislation into other states.

e.reciprocity. b. Except in a bizarre case, everytime you see discriminatory

purpose, you'll have discriminatory effect. The point is

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that the "purpose part is largely obiter dictum."

4. Discrimination Analysis:a. Is the statute facially discriminatory against interstate

commerce?b. Does the statute discriminate against the market or against

a particular firm? Exxon.c. If not, is there legally cognizable discrimination in terms

of the effect of the statute on interstate commerce? (Usethe 6 particularized forms to make this determination.) Ifso, apply strict scrutiny.

d. If no discrimination, apply the Pike test.

C. Regulation of Incoming Trade and Other Commerce: Burdens on Out-of-State Suppliers Seeking In-State Markets.

1. Pike v. Bruce Church, Inc. (1970), p. 241.a. Issue-specific standard of review (balancing test): Where

statute is not discriminatory it w/b upheld unless theburden on commerce outweights the local benefits.

2. Baldwin v. G.A.F. Seelig Inc. (1935), p. 242. N.Y. regulatedmilk prices and prohibited the sale of milk in N.Y. bought outsidethe state at lower prices. Pre-Pike case. a. Statute was invalid because NY was regulating out of state

prices. Purpose in doing so was to make sure that localresidents had plenty of milk in a time of shortage (economicprotectionism). They are really trying to create a barrierto competition.

b. particularized form of discrimination: straightdiscrimination - created an economic barrier againstcompetition with the products of another state or the laborof its residents.

c. Baldwin has been cited widely by the Court as basicauthority, and has never been questioned.

3. Dean Milk Co. v Madison (1951), p. 244. This case gives us the"least restrictive means test." This is the first case wherestrict scrutiny is applied. A local ordinance prohibiting thesale of milk not processed w/in 5 miles of the town imposed anundue burden on interstate commerce.a. Standard of Review: strict scrutiny: substantial relation

to a compelling governmental goal, with no less restrictivealternatives (LRA's) available.1. Where there is no LRA, the legislative purpose is

substantially related to the governmental goal.2. Where there is a LRA, legislative purpose is not

substantially related.b. LRA's: We are talking about LRA's which are likely to be

equally effective and not cost prohibitive.d. The fact that some interstate commerce is allowed to come in

will not save a discriminatory statute, nor does the factthat it also discriminates against intrastate commerce.

4. Breard v. Alexandria (1951), p. 246. Upheld an ordinanceforbidding door-to-door soliciting of orders for the sale ofsubcriptions to out-of-state magazines.a. We never get to strict scrutiny here because there's no

discrimination.1. The act creates no barriers against interstate

independent dealers.2. the clause protects the interstate market, not just

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particular interstate firms.b. Local homeowner's right to privacy outweighs the economic

burden even though "interstate commerce itself knocks on thelocal door."

c. Test that came from the sky and disappeared: When there isa reasonable basis for legislation to protect the social, asdistinguished from the economic welfare of a community, itis not for this court because of the Commerce Clause to denythe exercise locally of the sovereign power of Louisana.

5. Hunt v. Washington State Apple Advertising Comm'n (1977), p. 248. N.C. violated the commerce clause when it barred from the stateclosed apple containers bearing any grade marks except those ofU.S.D.A. or not graded mark. Leveling type of discrimination (theWash. grading standards are more rigorous).a. Rule: When such a state legislation comes into conflict

with the Commerce Clauses's overriding requirement of anational common market, the Court must effect anaccomodation of the competing national and local interests.

b. Statute not only burdens interstate commerce, butdiscrminates against it.

6. Exxon Corp. v. Maryland (1978), p. 249. The Court upheld a statestatute preventing producers of petroleum products from operatingservice stations in the state during times of short supply ofpetroleum products (because they were supplying their outlets 1stso they could run other gas stations out of business).a. The statute does not discriminate against interstate

commerce because there is no local commerce to favor.b. The Clause protects the interstate market, not particular

interstate firms, from prohibitive or burdensome regulation. To protect the market means:1. same amount of gas will flow over the borders of the

states as there was before;2. other out-of-state marketers can still come in and

market gasoline as long as they are not refiners(doesn't discriminate against particular firms).

c. No standard of review in this case. Threshhold matter iswhether it discriminates against particular interstatefirms. Since it doesn't analysis need not go any further.

d. Limits of the Exxon principle: It says it doesn't protectparticular interstate firms.1. reducing free-flow of interstate commerce over the

border.2. all interstate firms are discriminated against

simultaneously.

7. Minnesota v. Clover Leaf Creamery Co. (1981), p. 251. Upheld astate law that banned nonreturnable milk containers made ofplastic but permitted other nonreturnable milk containers, largelycartons made of pulpwood, though the plastic containers originatedout of state and the pulpwood containers in-state.a. Applied the Pike balancing test:

1. The statute does not discriminate between interstateand intrastate commerce (it prohibits all milkretailers from selling their products in plastic,nonreturnable milk containers, w/out regard to whetherthe milk, the containers, or the sellers, are fromoutside the State).

2. Nor is the incidental burden imposed on interstatecommerce clearly excessive in relation to the putativelocal benefits.

b. Even though the out-of-state industry is burdened relatively

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more heavily that the Minnesota pulpwood industry, theburden is not clearly excessive in view of the substantialstate interest in promoting conservation of energy and othernatural resources and easing solid waste disposal problems.

Regulation of Interstate Migration.8. Edwards v. California (1941), p. 252. People are interstate

commerce. Invalidated a California statute making it unlawful toknowingly bring any indigent person into the state.a. No single state may isolate itself from difficulties common

to all of them by restraining the transportation of personsand property across its borders. (straight discrimination: economic protectionism)

D. Regulation of Outgoing Trade and Other Commerce: Burdens on Out-of-State Interests Seeking In-State Resources.

1. H.P. Hood & Sons v. Du Mond (1949), P. 254. The Court rejectedthe existence of state power to develop a discriminatory plan thatwould curtail the volume of interstate commerce to aid localeconomic interests.a. The states are not separable economic units. Baldwin: One

state, in dealing with another, may not place itself in aposition of economic isolation.

2. Cities Services Gas Co. v. Peerless Oil & Gas Co. (1950), p. 257. A state may engage in price-fixing within the state because thereis no undue burden on interstate commerce (does not discriminateagainst interstate commerce).

3. Pike v. Bruce Church (1970), p. 257. Pike balancing test was notapplied here because there is discrimination against interstatecommerce. Arizona violated the commerce clause when it requiredthat growers of Arizona's canteloupes pack them in Arizonacontainers bearing the Arizona name and address of the packer.a. Coerced relocation: (particularized form of discrimination)

The commerce clause cannot permit a state to require aperson to go into a local packing busines solely for thesake of enhancing the reputation of other producers, if itwill not allow it for the purpose of creating jobs in thestate.

4. Philadephia v. New Jersey (1978), p. 259. Held invalid a statutewhich prohibited importation into New Jersey solid or liquid wastefrom outside the state. Garbage is interstate commerce.a. The statute is facially discriminatory. The statute

differentiated between instate and out-of-state garbage. (virtual per se rule aka strictest of strict scrutiny)

b. Unconstitutional because a presumably legitimate goal issought to be achieved by illegitimate means of isolating thestate from the national economy (protectionism).

5. Hughes v. Oklahoma (1979), p. 262. Wildlife is interstatecommerce. Held invalid under the commerce clause an Ok. statuteprohibiting the transport of minnows from the waters of this statefor sale outside the state. The legitimate state concern here wasfor the conservation and protection of wild animals.a. The statute is facially discriminatory because it completely

bans the sale of minnows from inside the state, outside ofthe state.

b. Standard of review: strictest of strict scrutiny (virtualper se invalidity). Even if there is a legitimate stategoal, there are nondiscriminatory alternatives available.

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6. Maine v. Taylor (1986), p. 263. The Court upheld a Maine law thatprohibited importation into Maine of live baitfish that competedwith Maine's native baitfish industry (clearly protectionism).a. The statute is facially discriminatory, and strictest of

strict scrutiny (virtual per se invalidity rule applies).b. But, there was a legitimate and substantive local purpose,

and there were no less restrictive alternatives here, so thestatute was permitted to stand.

7. Chemical Waste Management v. Hunt (1992), Supp. p. 13 (reaffirmsPhiladelphia v. N.J.). The Court invoked Philadephia v. N.J. toinvalidate an additional fee imposed by Alabama on disposinghazardous waste from out of state. The Act's additional feefacially discriminatory because Alabama targets only interstatehazardous waste to meet its legitimate local goals. Lessdiscriminatory alternatives are available.

Reciprocity.8. Great A & P Tea Co. v. Cottrell (1976), p. 264. Held that a

reciprocal statute was invalid (Mississippi could not refuse toaccept milk from another state if that state refused to acceptmilk from it). Reason: the State had other adequate alternativesfor protecting its interests.a. Reciprocity is another particularized form of discrimination

that is different from the others because it is faciallydiscriminatory rather than discriminatory as to purpose oreffect.

Extraterritorial Regulation. (involves both incoming and outgoingcommerce)9. Brown-Foreman Distillers Corp. v. New York State Liquor Auth.,

(1986) p. 271. NY passed a statute that made it illegal for adistiller of liquor to reduce its price in other states during theperiod it is posted in NY, thus directly regulating commerce inother states.a. projecting legislation into other states: (another

particularized form of discrimination) regulating commercein other states is considered discriminatory in effect.

10. Healy v. Beer Institute, Inc. (1989), p. 272. expounds upon Brown-Forman. States cannot regulate activity outside of its borders. A state may not adopt legislation that has the practical effect ofa. establishing a scale of prices for use in other states;b. controlling conduct beyond the boundaries of the state.

VI. THE STATE AS A MARKET PARTICIPANT (MARKET PARTICIPANT EXCEPTION).

A. Reeves, Inc. v. Stake (1980), p. 275. The Court upheld a S.D.statute giving preference to S.D. buyers of cement over out-of-state purchasers, as not violative of the commerce clause becausethe state was characterized as a market participant rather than amarket regulator.1. market participant: where state has entered the market

itself to bid up its price as a purchaser of a potentialarticle of interstate commerce, and has restricted its tradeto its own citizens or businesses within the state.

2. market regulator: where state seeks to prohibit the flow ofinterstate commerce or to regulate the conditions underwhich it may occur.

3. When a state acts as a market participant it is immune fromsccrutiny under the dormant commerce clause (but is not

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immune from constitutional scrutiny).

B. South-Central Timber Develop., Inc. v. Wunnicke (1984), p. 279. This case is an exception to the market participant exception.1. When the state is just buying or selling, the market

participant exception applies. But when the state is buyingor selling upon conditions that go downstream in interstatecommerce, then it is regulating.

2. Although the State is a market participant, if it uses itsleverage in that market to exert a regulatory effect in theprocessing market, the market participant exception does notapply. The state can't do what is essentially regulatingupstream or downstream in the market.

3. Holding: Alaska's log processing requirement falls withinthe Pike and Philadelphia rule of virtual per se invaliditybecause of its protectionist nature.

VII. THE ARTICLE IV INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE.There are 2 privileges and immunities clauses: 14th Amendment - §1, andArt. IV, §2.The words "privileges and immunities suggest the possibility of parallelinterpretation. However, P&I has something to do with fundamentality,and fundamentality for the purposes of Art. IV is not the same thing asfundamentality for purposes of the 14th. DO NOT MIX THEM UP.

A. Corfield v. Coryell (1825), p. 281. Test for determining whether P&Iare fundamental in nature for purposes of Art. IV:"those which, of right, belong to the citizens of all free goverments;and which have, at all times, been enjoyed by the citizens of theseveral states, from the time of their becoming free, independent, andsovereign."

8 Fundamental principles under the P&I Clause:1. protection by the government2. enjoyment of life & liberty with the right to acquire and possess

prop.3. right to pursue and obtain happiness4. right to go to the gov. and assert any claim against it.5. right to transact business w/the government.6. right to hold gov. office.7. right to engage in administering gov. functions.8. right to peaceably assemble

B. Toomer v. Whitsell, p. 282. So Carolina charged $2500 for nonresidentsto get license to shrimp, and considerably less for residents. Voidunder the P&I Clause.1. The right to work is fundamental and the Court cannot abridge the

right of a citizen from one state to work in another.2. In the context of Art. IV P&I Clause, what is fundamental is the

right of a citizen of state A to work in state B (the right isvery narrow).

3. Even without Art. IV, you can reach the same result through thecommerce clause because the statute is facially discriminatory(strictest of strict scrutiny/virtual per se rule).

C. Article IV, §2 (interstate P&I Clause):1. Whatever rights the citizens of state B have against state B,

citizens of state A have also.2. Ensures receiprocity of rights between citizens of state A and

citizens of state B.

D. Baldwin v. Fish & Game Comm. of Montana (1978), p. 280. The Court

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upheld Montana's non-resident license fee of $225 compared to $30 forresidents.1. The interstate P&I Clause (Art. IV, § 2) is not applicable because

recreational hunting is not a fundamental right. The activity isnot sufficiently fundamental to be considered privileges orimmunities.

2. However, this statute bites the dust under the dormant CommerceClause: The statute discriminates facially against interstatecommerce (strictest of strict scrutiny). Philadelphia v. NJ. Italso discriminates against particular market (hunting or elk). Exxon.

E. Hicklin v. Orbeck (1978 - same year as Baldwin), p. 284. The SupremeCourt invalidated, under the P&I clause, the Alaska Hire Act, which gaveemployment preferece to Alaska residents over nonresidents for all oiland gas leases and other such agreements to which the state was a party.1. The right to work is a fundamental right protected under Art. IV

P&I Clause.2. Under the dormant commerce clause, it is facially discriminatory

(economic protectionism).Even if not facially discrim., still fails under strict scrutinyanalysis (Hughes v. Oklahoma) because there was no relationship betweenthe problem sought to be solved and the act, and less restrictivealternatives were available.

F. United Bldg & Construct. Trades Council v. Camden (1984), p. 285. Acity ordinance requiring that at least 40% of the employees ofcontractors and subcontractors working on city construction projects becity residents was subject to the restriction of the privileges andimmunities clause.1. The out-of-staters opportunity to seek employment from contractors

on city-funded projects was sufficiently basic to the livelihoodof the Nation to fall within the purview of the clause.

2. The market participant concept does not create an exception fromthe P&I clause as it did from the the dormant commerce clause,because there is only an implied restraint with respect tocommerce clause and there is a direct restraint with the P&Iclause.

3. This demonstrates the divergence of the P&I Clause from thedormant commerce clause.

G. Supreme Court of New Hampshire v. Piper (1985), p. 286. A state may notexclude an otherwise-qualified lawyer from law practice because ofnonresidence in the state.1. the law practice is a fundamental right under the Article IV P&I

clause, both becausea. practice of law is important to the national economy, andb. because nonresident lawyers may be the only means available

for vindication of unpopular federal rights,2. and hence, is important to the well-being of the Union.

INDIVIDUAL RIGHTS

-14TH Amendment: "No person shall be deprived of life, liberty, and propertywithout due process of law." (Due process is protects against the states bythis clause. 5th Amendment protects against feds.)

-Remember: rights can trump powers.

-Analysis: Does the government have the power to do what its doing? (Fed: diff. articles; State: police power)

-Rights:1. liberty: fundamental bifurcation between things which are fundamental

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and everything else.2. property: economic interests.

ECONOMIC INTERESTS(Protection of the Economic Rights of Citizens)

I. SUBSTANTIVE DUE PROCESS.

A. Calder v. Bull (1798), p. 337. gives us 2 fundamentally different viewsregarding the protection of economic interests:1. Justice Chase: natural rights trump everthing.

(noninterpretivism)2. Justice Iredell: written word is what counts. (textualist)

This is the beginning of the interpretist/non-interpretist debate. Thefollowing represents a continuum:

-textualism: interpret the test literally.-interpretivism: begins with the text, but believes that you have tointerpret the test.-noninterpretivism: means that we are not confined to just interpretingthe text. We, as judges, just do our own thing.

-or living document analysis: may interpret Constitutionconsistently with the changing times. Noninterpretivist know what'sbest for us and want to help us.

B. Fletcher v. Peck (1810), p. 339. Effort of the Court to control statelegislation through the contracts clause ("no state shall pass law thatimpairs the obligations of contracts"). The contracts clause could meanthree things:1. protects the right to enter into a contract.2. protects only executory contracts (stops you from having all debts

forgiven)3. protects fully executed contracts. (This is the one that applies

here).

The search for a Constitutional Basis.C. Doctrine of Vested Rights: the freedom to use property without

government restriction. Protection under this doctrine is based on thefollowing clauses of state constitutions.1. due process2. law of the land

D. Barron v. Mayor & City Council, p. 340, note a. Big Case! The Bill ofRights only applies as against the federal government (does not apply tothe states).- If the Bill of Rights doesn't apply, all you have is Art.I, §10.

We are left with the state constitution for protection because thestate's due process clause applied to the states.

E. Stone v. Mississippi, p. 340, note b. State cannot contract away itspolice power. The contract will carry with it the affirmity of thesubject matter.

F. Two theoretical formulations of due process:1. procedural due process: "you, the state, can't do this to me

through the processes you have followed."2. substantive due process: "you, the state, can't do this to me

through any process." (state can't do it period!)

G. 9th Amendment: "The enumeration in the Constitution, of certain rights,shall not be construed to deny or disparage others retained by the

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people." (There are some rights we retain in liberty and property thatthe government can't take away from us - things it can't do to us.) Prof. likes this approach better than substantive due process becauseonce you get into substantive due process you get into Dred Scott.

H. Wynehamer v. People (1856), p. 341. NY prohibition statute violated thestate due process clause as applied to the sale of liquor owned at thetime of the enactment of the statute.1. Substantive due process began here. But this is before the 14th

Amendment. It is a state constitutional law decision.2. Main proposition of this case was that the legislature could not

destroy (by any method) whatever was considered property by law -it did not have the power under the state's social compact withits citizens. Reason: prohibited by the state due processclause. It affected the vested rights of owners in their property(here, alcoholic bevereged intended for sale).

Fourteenth AmendmentI. - The original version submittee to Congress authorized Congress to

enact laws to protect equal rights.

- After the Civil Rights Act of 1866 was passed, however, theCommittee produced a revised proposal that added as limitations onthe states:- privileges and immunities- due process- equal protection

J. Slaughter-House Cases (1873), p. 343. First case interpreting the 14thamend. deals with whether you can kill a pig in your backyard. Upheld alegislatively-granted monopoly to operate slaughterhouses in the NewOrleans area, subject to letting others use the facilities at state-regulated fees. (Upheld on basis of police power - health, safety andwelfare - get slaughterhouses out of the city.)2. Reasons:

a. P&I (14th Amd): 14th Amend. only prohibited states frommaking and enforcing laws that infringed on privileges ofnational citizenship. The statute did not infringe on anyprivileges and immunities of national citizenship - so noCOA under this clause.

b. Due Process (14th Amend.): this provision only guaranteedthat states would enact laws according to the dictates ofprocedural due process. It did not guarantee thesubstantive fairness of the laws passed by state legis.. Sono COA here.

c. Equal Protection (14th Amend.): argument rejected becausethe court believed that the drafters only meant to protectblacks from discriminatory actions by the state.

3. Per Prof., w/in 5 years of its birth, the 14th Amend. is dead.

K. Allgeyer v. Louisiana (1897), p. 347. Struck down a Louisiana statutewhich prohibited anyone from giving effect to marine insurance on anyLa. property if the insurance company that issued the policy had notcomplied in all respects with Louisiana law.1. This case has nothing to do with the Contract Clause. This is

substantive due process with a vengeance.a. protection of economic interestb. protection of freedom to contract (liberty).

L. Lochner v. N.Y. (1905), p. 348. Substantive due process/fundamentalright to K case. LIBERTARIANISM. Struck down a state law that limitedthe number of hours that a baker could work.1. The law was uncnstitutional because it was an arbitrary and

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unnecessary interference with the liberty to contract between anemployee and employer - a liberty interest protected by the 14thAmendment.

2. Justice Holmes dissent is what is important in this case. Laterbecomes the law:a. Case is decided upon an economic theory to which a large

part of the country does not subscribe (laissez faire - gov.has no business helping the bakers).

b. The big Kahuna which begins the undermining of Lochner: "But a Constitution is not intended to embody a particulareconomic theory, whether of paternalism and the organicrelation of the citizen to the state or of laissez faire."

c. The Court should invalidate a law only when "a rational andfair man necessarily would admit that the statute proposedwould infringe fundamental principles as they have beenunderstood by the traditions of our people and out law."

3. This case bites the dust in Nebbia, which sustained NY pricefixing for milk on the ground that a state is free to adoptwhatever economic policy reasonably deemed to promote publicwelfare.

Control over Hours of Labor.M. Muller v. Oregon (1908), p. 352. Sustained regulation of work hours for

women. Basis was special considerations relating to women as set forthin the Brandeis brief. (general welfare/arguable social benefit.)

Control over anti-union discrimination.N. Adair v. U.S. (1908), p. 352. Struck down legislation forbidding

discrimination by employers for union activity and requiring employeesto sign yellow-dog sheet not to join union. Interfered with due process(liberty to contract.)

Regulation of wages.O. West Coast Hotel Co. v. Parrish (1937), p. 353. Upheld minimum wage

even though it was a limitation on freedom to contract.

Regulation of prices.P. Nebbia v. N.Y. (1933), p. 353. Sustained NY price fixing for milk.

State is free to adopt whatever economic policy reasonably deemed topromote public welfare.

Limitations on entry into business.Q. New State Ice Co. v. Liebmann (1932), p. 353. Relying on liberty of

contract, struck down legislation limiting entry into a business,despite strong demonstrations of need for such limitations.

R. Test for subtantive due process today: RATIONAL BASIS TEST. It isapplied when the economic interest is being abridged and the challengeis under due process:1. Rational relationship to a legitimate government goal?

S. Williamson v. Lee Optical (1955), p. 358, note b. Upheld legislationrequiring that people get new prescriptions to get new lenses unlessthey had a copy of original prescription.1. Lenient version of rational basis test: "The statute need not be

in all respects logically consistent with its ends in order to beConstitutional. It is enough that there is an evil at hand forcorrection, and that it might be thought that the particularlegislative meaasure was a rational way of correcting it."

2. How do you find (articulate) the legislative goal?a. statute might have an articulated purpose;b. look for the true purpose (what is the real purpose);

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c. conceivable purpose (the purpose the lawyer invents on theway to the courthouse).

T. Usery v. Turner Elkhorn Mining Co. (1976), p. 360. A statute thatprovided that the employer had to pay for medical expenses, even withoutproof of causation, if an employee or ex-employee came down with blacklung disease, was constitutional under economic substantive due process,even though it was retroactive.This is the exception to the rational basis test: "The prospectiveaspects of a statute as well as the retroactive ones, must meet the testfor substantive due process, and the justifications for the former willnot necessarily suffice for the latter."

There's also a takings clause claim here and a contract clauseclaim.

U. ON FINAL: analyze the statute under substantive due process, thetakings clause, and the contracts clause.

II. TAKINGS CLAUSE.

A. 5th Amendment: " . . . nor shall private property be taken for publicuse, without just compensation."

Analysis:a. is it for public use?b. is there a taking?c. is there just compensation?d. who should bear the burden?

1. Public Use:a. Berman v. Parker: public use means public benefit.b. Hawaii Housing Auth. v. Midkiff: rational basis test.

2. Just Compensation: fair market value.3. Taking: classic taking is the exercise of eminant domain power

(where fmv is paid).a. Loretto - permanent physical occupation (per se rule).

B. bundle of rights approach. Unless everything is taken, it is not ataking. Must look at the bundle of rights as a whole, not at eachindividual component.

C. Penn Central 3 part issue specific standard of review:1. the economic impact of the regulation on the claimaint (Hadacheck:

must be severe) - [this prong will likely be dispositive].2. interference with distinct investment backed expectations (did the

right to do what the owner wants to do exist prior to theregulation?)

3. character of the governmental action (is it a permanent physicaloccupation? Loretto.)

D. Examples of permissible regulatory taking:1. Miller v. Schune: cedar trees c/b cut down to save apple trees

(no taking)2. Hadacheck: brickyard inconsistent with neighbording uses can be

zoned out (no taking)

E. Andrus v. Allard: (eagle feathers case) Bundle of rights approach (thisis always a good argument for the state: whatever the statute does, itdoes not wipe out everything - something of value is left.). Stillvalue here: can possess, devise, donate, etc.1. must ask how badly your economic impact has been hinked with.

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Keystone Bitumninous (54 tons v. 27 + 27 tons).2. If bundle of rights has not been taken away entirely, no taking.

F. First English Evangelical: re temporary taking/inverse condemnation(take and pay): cause of action against the gov. in which a landownermay recover for the taking of his property, even though formalcondemnation proceedings have not been instituted by the gov..1. Temporary takings are compensable (fmv for loss of use of property

while the gov. hinked around with the zoning process.)

G. Nollan v. Calif. Coastal Comm., p. 375. Conditional permanent easement= taking.1. Standard: if there is a substantial relationship between the

condition and the request, there is no taking (no suchrelationship here).

2. Issue specific as to denial of permit on condition that it couldnot ordinarily impose as to the granting of permit.

H. Yee: No physical taking where the owner is not required to submit tothe physical occupation.

I. Lucas: Depriving a property owner of all economically beneficial use ofhis property is a taking, regardless of the important state interest.1. But, must determine if building on the prop. would've been a

nuisance before the statute was passed. If so, no taking. Ifnot, a taking.

J. Causby: Taking where gov. airstip built next to chicken ranch and flewright over, making chickens nervous - couldn't lay eggs. (Here, it wasa taking & the chickens were still alive. In Nollan, his property wascompletely dead - no other use.)

III. CONTRACT CLAUSE. (No state shall pass a law impairing the obligationsof contract.)

A. History of the Contract Clause. Problem was a problem with debtorrelief laws. There are a number of possibilites in terms of what thecontract clause applies to:1. to abridgements of private contracts.2. to executory contracts.3. to both public and private contracts (contracts between state & A

as well as between A & B).4. fully executed as well as executory contracts.

B. Fletcher v. Peck (1810), p. 339. Public contract to purchase land fromthe state of Georgia. The contract was fully executed. 1. Held that Georgia could not pass a law that impairs obligations of

contracts, even fully executed (public) contracts.

C. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge(1837), p. 340, note b. Ct will not imply obligations to contracts thatdidn't exist before.

D. Stone v. Mississipi (1880), p. 340, note b. (Takings clause argument: Has state regulated?) One cannot evade the strictures of the policepower by making a contract about something. The K will carry with itthe infirmity of the subject matter. (Can't bring suit against thegovernment based on the contract clause, but can't sell coca colaw/cocaine in it either. Is this a taking?)

E. Connolly v. Pension Benefit Guaranty Corp. (1986), p. 389. This differsfrom the other cases because here, the fed. gov. passed a law impairing

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the obligations of a state ("no state shall pass a law impairing theobligations of K's").a. Threshhold question: To whom does the K clause apply?

1. solely to the states by virtue of the text?2. or also to the fed gov. by virtue of reverse incorporation?

b. Rule: The K clause only applies to the states.c. Perhaps the framers were aware that some things that Congress

would do under the commerce clause c/b construed as impairingcontracts (otherwise, why place the K clause in Art.I, §10, andnot Art.I, §9?).

d. The Court rejected the K clause analysis and shifted back to atakings clause analysis. Then it applied Penn Central (P saw itcoming, so no taking). Then Usery (due process clause analysis),then Spannus (K clause analysis), then facts of Connolly (notanalyzing pursuant to K clause because its the fed gov., not thestate.) The point is, analyze pursuant to the taking, K, andsubstantive due process.

F. Threshhold questions re: applicability of K Clause:a. sweeps to fully executed and executory.b. sweeps to public and private.c. applies only to state, not feds.

G. Home Loan v. Blaisdell (1934), p. 382. Someone borrowed $ from bank,didn't pay it back, and bank wanted to foreclose. Minnesota passed astatute which said "pay what you can when you can, but the bank can'tforeclose." Court created a laundry list approach, which is not astandard of review because we don't know which elements are dispositive. Under the laundry list, 5 reasons the Ct said the statute wasunconstitutional:a. state legis. declared in the act that there was an emergency.b. enacted to protect a basic societal interest, not a favored group

(Clearly it is intended to protect mortgage debtors. But thatgroup is probably broad enough to have a broad societal interest.)

c. relief was appropriately tailored to the emergency.d. imposed conditions were reasonable.e. legis. was limited to the duration of the emergency.

H. Supreme Ct folded on the K Clause at the same time it folded on therestrictive interpretation of the commerce clause in 1934. So the KClause fairly well went out of existence (didn't make a K Clauseargument unless you were desparate) until . . .

I. U.S. Trust v. N.J. (1977), p. 387. Public K case. NY & NJ wanted tobuild tunnels under the Hudson. They needed to float bonds to pay forthis stuff. NJ passed legis. allowing them to get out of contract topay the bondholders, and use that $ instead "for the social benefit"(building new tunnels and bridges). NJ statute violated the K clause.a. If a state could reduce (abridge) its own obigations, the K Clause

would provide no protection at all. b. democracy & distrust: generally, we trust democracy, but in some

kinds of situations we apply more rigorous scrutiny (when weinherently distrust). We saw this in the dormant commerce clause(facial discrimination - strict, strict scrutiny). We applyheightened standards of review w/any classifications we distrust.

c. When a state is trying to get out of its contractual obligations,we give it a higher standard of review. We distrust more wherethe legislature can abrogate its own contracts.

d. In this case we begin to get the Cronic bifucation: private v.public contracts: irony comes from the fact that in 1787, whatthey probably had most on their mind was private K's. So strictinterp. of framers intent would never have gotten to Fletcher v.Peck (public K). But now we realize that even though the framers

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were thinking about private K's, when we bring in democracy anddistrust, we realize that maybe public K's ought to concern usmost now (because if not, State can abrogate its own K's).

e. Strict scrutiny here. It was not necessary for the state to dothis. The need for public transit could've been satisfied byleast restrictive means (i.e., raising bus fares, etc..)

J. Allied Structural Steel v. Spannaus (1978), p. 381. Private contractre: pension plans. Minnesotra passed legis. requiring that employervest every employee's pension, even though the K between the parties didnot require it. Allied tried to leave the state as a result of thislegis. and the state tried to charge it $185K. Court said that thestatute was unconstitutional.a. Usery (black lung case/substantive retroactive due process): the

statute retroactively imposed a new burden. (The retroactiveimplications of the statute must meet . . .) be able to make thisdue process argument as well as K clause argument).

b. Threshold question: Is there an impairment? Yes. Here, the actsuperimposed an obligation on the company beyond those itvoluntarily agreed to take on in the K (subtantially altered). Does it subtantially alter the contractual positions of theparties? Yes.

*****c. Issue Specific Standard of Review for K Clause Questions:1. Has there been an impairment of K obligations?2. Is the impairment substantial?3. Reliance4. Suddenness5. Not necessary to meet a general social problem.

d. This case is distinguishable from Blaisdell because this is classlegislation.

e. Dissent: statutes that impose new burdens s/b analyzed undersubstantive due process (Usery), and subsequently validated.

K. Exxon v. Eagerton (1983), p. 388. This case is important because itdefines broad societal interest more clearly (remedying of broad &general social or economic problem will be part of the test). a. The legislation imposed a generally applicable rule of conduct (it

applied to all oil and gas producers regardless of whether theywere parties to existing K's) and its effect on existing K's wasincidental to its main effect of protecting consumers from theburden of the tax increase. (required oil & gas producers toabsorb the tax-increase - couldn't pass it through to consumers).

L. Energy Reserves Group v. Kansas Power & Lights (1983) handout. 3-step Issue-specific standard of review for Contract Clause Claim:

a. Threshold inquiry: whether the state law has, in fact operated asubstantial impairment of a contractual relationship. (totaldestruction of contractual expectations is not necessary)1. Interference w/investment-backed expectations?2. Has the industry been regulated in the past? If so,

impairment is not substantial.b. If the state regulation constitutes a substantial impairment, the

State must have a significant and legitimate public purpose behindthe regulation (such as the remedying of a broad and generalsocial or economic problem). (This is a hybrid of theintermediate standard of review). See Exxon v. Eagerton.1. This requirement guarantee's that the state is exercising

its police power, rather than providing a benefit to specialinterests.

c. Once legitimate public purpose has been identified, the nextinquiry is whether the adjustment of the rights andresponsibilities of the contracting parties is based upon

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reasonable conditions and is of a character appropriate to thepublic purpose justifying the legislation's adoption. (are themeans chosen to implement these purposes deficient?)

1. Unless the State itself is a contracting party, courtsproperly defer to legislative judgment as to the necessityand reasonabless of a particular measure. (Either strictscrutiny applies as in U.S. Trust v. N.J. or we don't deferto legis. judgment if the state is a contracting party.

IV. CONCEPT OF INCORPORATION.

A. Barron v. Baltimore: Bill of Rights doesn't apply to the states,only to the fed. gov.. State could still pass a law establishingreligion, abridging freedom of speech, etc.. (This was the periodprior to the adoption of the 14th Amd. The only real limits onstate power were Art. I, §10: 1787-1860.) Primary protectionsagainst states were found in state constitutions.

Incorporated stuff into the due process clause of the 14thAmendment, thereby making it applicable against the states. (certain provisions of the Bill of Rights were incorporated)

B. Bolling v. Sharpe (1954). Reverse incorporation: the 5th Amd.,which applies to the fed. gov., does not have an equal protectionclause (just a due process clause). The 14th Amd. applies to thestates, but D.C. is not a state - its the federal gov.. Thequestion was whether the 14th Amd. c/b reverted back to the 5thAmd. due process claue so that the equal protection clause c/bmade applicable as against the feds.

This case says that reverse incorporation exists. At leastpart of the concept of equal protection is inherent part of dueprocess, such that it is applicable against the fed. gov.

C. Total incorporation: view that the 14th Amend. made all of theprovisions of the Bill of Rights fully applicable to the states. This has never been the majority view, and was rejected in1. Twining v. N.J.: 5th Amend. priv. against self-incrim. is

not incorporated.2. Palko v. Connecticut: 14th did not encompass at least

certain aspect of double jeopardy prohibition of the 5th.3. Adamson v. California: Same as Twining. Total incorp.

received its strongest support in the dissent in this case.

D. Ordered liberty - fundamental fairness test: (concerned withfundamental principles of justice) Whether a particular guaranteewas implicit in the concept of ordered liberty or required byimmutable principles of justice as conceived by a cifilizedsocity.

E. Selective Incorporation: Palko (View adopted by the Court) thesuggestion that the 14th incorporates the first 8 Amendments.Basis of selection is that these provisions of the 1st 8 Amd's areincorporated which commend themselves to individual justice asindispensible to the dignity and happiness of a free man(subjective test).1. Under this concept only those provisions of the Bill of

Rights that the Court considers fundamental to the Americansystem of law are applied to the states through the dueprocess clause of the 14th Amendment. Therefore, the statescannot violate the 1st 10 Amdmts directly. They are onlycapable of violating them insofar as they are incorporatedin to the 14th Amend.

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2. Of the 1st 8 Amdmts, the Supreme Court has held explicitlythat only 3 of the individual guarantees are inapplicable tothe states. The 3 unincorporated guarantees are: (a) the2nd Amd. guarantee of the right to bear arms; b) the 5thAmd. clause guaranteeing criminal prosecution only on grandjury indictment; and (c) the 7th Amd. guarantee of a jurytrial in a civil case.

F. Duncan v. Louisiana (1968), p. 396. (held the 6th Amd. right tojury trial applicable to the states viathe 14th.) Test: whether the proceduralsafeguard included in the Bill of Rightswas fundamental to the American scheme ofjustice, or fundamental in the context ofthe criminal processes maintained by theAmerican states." 1. Heldthat trial by jury was guaranteed by the14th Amd. because trial by jury incriminal cases is fundamental to theAmerican scheme of justice.

2. Court selectively incorporated (or absorbed) more and moreof the specifics of the Bill of Rights into the 14th in1969. Some of the rights protected under the 14th are:a. 4th Amd. right to be free from unreasonable searches

and seizures and to have excluded from criminal trialsany evidence illegally seized;

b. the right guaranteed by the 5th to be free ofcompelled self-incrimination;

c. the 6th amd. rights to counsel, to a speeky and publictrial, to conrontation of opposing witnesses and tothe compulsory process for obtaining witnesses.

G. Pacific Mutual Life Ins. Co. v. Haslip (1991), supp. 27.The Due Process Clause did not render the punitive damage award inthis case constitutionally unacceptable. The general concern withpunitive damages awards is reasonableness. The Court found thatthe following standards imposed a sufficiently definate andmeaningful contraint on the discretion of Alabama fact finders inawarding punitive damages:1. whether there is a reasonble relationship between the

punitive damages awarded and the harm likely to result fromthe D's conduct as well as the harm that has actuallyoccurred;

2. the degree of reprehensibility of the D's conduct, theduration of that conduct, the D's awareness, anyconcealment, and the existence and frequency of similar pastconduct;

3. the profitability to the D of the wrongful conduct and thedesirability of removing that profit and of having the Dalso sustain a loss;

4. the financial position of the D;5. all the costs of litigation;6. the imposition of criminal sanctions on the D for its

conduct, there to be taken in mitigation; and7. the existence of other civil awareds against the D for the

same conduct, there also to be taken in mitigation.

Comments by Justice Scalia: Traditional practice is conclusive offundamental fairness. No procedure firmly rooted in the practicesof our people can be so fundamentally unfair as to deny dueprocess.

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H. TXO Producction Corp. v. Alliance Resources Corp. (1993), supp.31. Punitive damages award 526 times greater than actual damageaward is not an arbitrary deprivation of property w/o due processof law.1. General concern = reasonableness.2. The disparity between the punitive and actual damages is not

controlling. One must consider the potential loss to therespondents.

3. Stevens, concurring: The Constitution does not concernitself with $ amounts. Its fundamental guarantee is thatthe individual citizen may rest secure against arbitrary orirrational deprivations of property.

4. Scalia & Thomas, concurring: Would take the authority toreview state punitive damages awards away from federaljudges - states can do it.

5. O'Connor, dissenting: Unhappy because this decision offersno guidance to futher courts. Errs in result as well as inapproach. "Due process requires judges to at least engagein searching review where the verdict discloses such greatdisproportions as to suggest the possibility of bias,caprice, or passion. If Haslip was close to the line, thismust cross it.