CONSTITUTIONAL LAW I OUTLINE. Kendall

I. MARBURY V. MADISON (1803)

A. JUDICIAL REVIEW IS BORN

-FACTS: Marbury was appointed at end of Adams admin. But the Commission was not delivered. Jefferson did not want to deliver it when he became President. So, pursuant to Judicial Act of 1789, Marbury files for a Mandamus action in the Supreme Court to compel the commission of the order.

-ISSUE: Conflict between Judicial Act of 1789 and Constitution. Art.III, Supreme Court’s Jurisdiction limited only to certain “cases and controversies.” So does the Constitution win, or does the Congressional Enactment, which expands authority, win?

-HOLDING: Despite fact that Marbury has a legal right to the commission, and is entitled to a remedy, he cannot get the remedy by the Supreme Court, because the Supreme Court does not have Jurisdiction over Mandamus orders.

-Constitution vests judicial power in the Supreme Court, has Jurisdiction over certain “cases and controversies,” where it has “appellate authority.” The 1789 Act tries to expand on that Jurisdiction. “Repugnant to Constitution.”

-The National Govt is one of Limited and Defined Powers; is limited by the Constitution. No act by Congress can expand on the limitations. The Constitution is written, so it must have meaning.

-Per CJ Marshall, the Written Constitution is the single greatest improvement on Political Institutions.

-The duty and authority of the Supreme Court to declare whether an enactment is repugnant to the Constitution. Justified by Art. VI Supremacy Clause, and Judicial oath to “uphold the Constitution.”

-NOTE: Judicial Review by the Supreme Court is NOT in the text of the Constitution. Marshall reasons to this conclusion by saying that Constitution is written, so that it must have meaning. And that meaning is to limit the powers of Govt. Supreme Court has the authority to determine what is not Constitutional because it has authority granted by Art.III, as well as Supremacy Clause, and oath swearing to uphold the Constitution. Argument not all that great, but it’s the law.

B. CASES ABOUT JUDICIAL REVIEW.

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-US v. Carolene Products. Presumption is that all Acts of Congress are Constitutionally valid, with some exceptions, like where a Minority is getting screwed over. Then, Supreme Court gives it Stricter Scrutiny.

-Martin v. Hunter’s Lessee. SC remanded a civil case back to the VA Supreme Court, did not follow the SC’s order. Back to SC, rules that their order is binding. Cites the Supremacy Clause. Reinforces SC’s authority.

-Cooper v. Aaron (1958). After Brown v. Bd of Ed. SC cited Supremacy Clause again when AR laws contravened the desegregation. As result of SC, Eisenhower sent troops to Little Rock HS to make sure followed SC’s order. Reinforced SC authority.

-Cohnes v. Virginia. Same as Hunter’s Lessee, but a criminal case. VA Supreme Ct didn’t follow SC order. Exception.

II. FEDERALIST PAPERS

-FEDERALIST 37. Per Madison, Interpretation is a difficult thing. 3 Powerful Reasons for Interpretation of Constitution.

1) Nature of Constitution requires interpretation, and it is difficult.2) Our senses are limited, inherently flawed, have imperfect feedback.3) the Nature of language itself is ambiguous.

3 sources of Vagueness:1) Indistinctness of the object.2) Imperfection of the organ of conception3)Inadequateness of the vehicle of ideas.

-FEDERALIST 10. (not covd in class). A strong Union breaks and controls the violence of factions. Party conflicts lead to disorder. Democracy does not cure factionalism. Republican government refines popular passions.

-FEDERALIST 44. Limits on State Power and a Broad Interpretation of Federal Powers. Limit to express powers is not desirable. Complete enumeration of powers not possible. Implied powers unaviodable. Checks and Balances and the Election process ensures that Congress will not usurp power.

-FEDERALIST 47. Madison. Accumulation of all powers in the same handsmay justly be pronounced as… tyranny. But this does not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. Where the whole power of one dept is exercised by the same hands which possess the whole power of another dept, the fundamental principles of a free constitution are subverted.

-FEDERALIST 67. Hamilton is reacting to the Glenn Becks of his day, the intellectually dishonest.

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-FEDERALIST 69. Hamilton says that President is Not the King.

-FEDERALIST 70. Most relevant power to the Executive. Everyone would agree that unity of the Executive is one of the best provisions of the Constitution.

III. THE 6 MODALITIES OF INTERPRETATION

1) TEXTUAL. Interpretation by understanding the dictionary meaning of the words used.

-Example(s):

2) ORIGINAL INTENT. Interpretation by understanding the intention of the Founders or Statute drafters.

-Examples(s): -US v. Morrison. CONCUR, THOMAS. “The notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases… Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce.”

3) STARE DECISIS. Interpret by following a previous decision.

-Examples(s):

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4) PAST POLITICAL PRACTICE. Interpret with a view to non-judicial functions of the government.

-Examples(s):

5) STRUCTURALISM. Interpret by looking at how decision fits within the framework of the Constitution.

-Examples(s):-US v. Lopez. KENNEDY: Of various Structural Elements in the Constitution – Separation of Powers, checks and balances, judicial review, and Federalism – only concerning the last one does there seem to bemuch uncertainty respecting the existence, and the content, of standards that allow the judiciary to play a significant role in maintaining the design contemplated by the Framers.

6) CONSEQUENTIAL. Interpret with a view to what the consequences of this decision might be.

-Examples(s):US v. Butler. DISSENT, STONE. Majority’s reasoning [in holding the Agricultural Adjustment Act] would lead to absurd results. “The government may give seeds to farmers, but may not condition the gift upon their being planted in places where they are most needed or even planted at all. The govt may give money to the unemployed but may not ask that those who get it shall give labor in return, or even use it to support their families.”

IV. LIMITING JUDICIAL POWER

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A. NO ADVISORY OPINIONS; SUPREME COURT JURISDICTION LIMITED STRICTLY TO “CASES AND CONTROVERSIES.”

-Muskrat v. US (1911). SC says that it does not give Advisory Opinions. For SC to have Jurisdiction, the case requires CONCRETE ADVERSARIALNESS.

B. JUSTICIABILITY.

-In order for SC to have Jurisdiction over a Case or Controversy, the following 3 elements must be present.

1) STANDING. 3-Part Test:

1-Personal Injury (economic or otherwise); and2-Action must be traceable back to D’s action (no matter how attenuated; recall the Douglas’ Footsteps along the River case).3-Redressability (Ruling in P’s favor will make him whole again).

-Lujan. Use the 3 factors.

-Summers v. Earth Island. The environmental case. SC ruled their injury was no longer redressable because they had settled.

-Exception: 3rd Party Standing. Eg, if an abortion doctor challenges an abortion restriction, or where a bar owner challenges a drinking age. 3rd Party must be “within the zone” of interest.

2) RIPENESS. Claim must be mature enough so that all conditions must occur to create required Personal Injury. 2-Part Test.

1-Fitness of Issue for Judicial Review. Further factual development, Concrete Adversarialness.2-Hardship of parties of withholding court consideration.

-Lujan v. Defenders of Wildlife (1992). Environmental orgs filed for relief to enjoin compliance with Endangered Species Act. HOLDING (Scalia): lacked Standing, no personal injury by P.

-National Park Hospitality v. Dept of Interior (2003). Case not ripe.

3) MOOTNESS. A case must be “alive” at all stages of Judicial Review.

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-A’zonians for Official English v. Arizona (1997). When employee-challenger left state employment, her claims became moot since her job-related concerns had been removed.

-Exceptions: 1) “capable of repetition, yet evading review.” Abortion cases; when Claimant’s status necessarily changes during Appeals process. Roe v. Wade. 2) Class Action suits with fluid, new plaintiffs.

-POLITICAL QUESTION; an exception to Judicial Review . A Case or Controversy that satisfies the 3 elements is nevertheless not Justiciable if it is a Political Question. The power of the Government is within the 3 branches. If the power that is the basis of the claim is strictly within the powers of one of the branches, the issue is a political question, not justiciable. Based on Separation of Powers.

The Political Question 2-Part Test is: 1) Where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or 2) a lack of judicially discoverable and manageable standards for resolving it. Baker v. Carr.

-Baker v. Carr (1962). Reapportionment case. Issue did not present a non-justiciable Political Question case

-CONGRESSIONAL POWER TO LIMIT SC JURISDICTION.

-Ex Parte McCardle (1869). Congress repealed law that gave McCardle J’n to appeal to SC. SC’s J’n is granted by Art. III, but it can be lessened by Congress. Congress has abrogated J’n, which was McCardle’s case. But McCardle can get SC J’n by other means. The SC will never let Congress put it out of business.

V. CONGRESSIONAL POWER; MCCULLOUGH V. MARYLAND (1819).

MCCULLOUGH V. MARYLAND (1819)

-FACTS. MD enacted taxes on national bank as a way to discourage it from doing business. State agent goes to the bank to collect the tax, the banker says ‘go fuck yourself,’ MD makes the banker a criminal.

-ISSUE: Whether the state of MD has the power to exercise the kind of tax it imposed on the National Bank.

-HOLDING: NO! See below for highlights of CJ Marshall’s masterpiece

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-Constitution was created by the PEOPLE, not the States. Thus, the power of the national govt is not dependent on the States, but rather was delegated by the People. Points to the Text, “We the People.”

-Not all the powers are listed in the Constitution. The nature of the Constitution is fundamentally different from any other document. It is impossible to enumerate the every single power granted to Govt for all time. ‘In considering this question, we must never forget that this is a constitution we are expounding.’

-Constitution is a grant by the People to the Govt over 2 huge things: 1) The Purse, 2) The Sword. These are the means to an end. The Bank here is the manifestation of those means. So, within US’ power to incorporate the bank. What’s the ends? The Preamble, Mission Statement.

-powers extend ‘from St Croix, from Atlantic to the Pacific.’ Pretty expansive, exceptional view of the US govt and its powers. US, Hamiltonian view.

-The “Necessary and Proper” Clause. Placed among grants of power, not its limitations. It enlarges the Govt’s power, not diminish it. INTENDED to be a grant of power.

-Necessary = Convenient. NOT mean as in absolute necessity. - “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” RULE OF THE CASE for what is constitutional.

-The Power to tax is the power to Kill. And, the power to regulate = kill.

VI. THE COMMERCE CLAUSE.

-Article I, sec. 8, cl. 3: The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. A GRANT OF POWER!!!

-PERIOD 1; THE BEGINNING-1875. Power of national government is broadly defined. The power to reach into the States to regulate Commerce.

-Gibbons v. Ogden (1824). MARSHALL. NY legislature granted a monopoly to navigate the waterways of the State, assigned to Ogden. Gibbons was granted a federal license to navigate the waterways. Gibbons sought an injunction enjoining him from navigating NY Waters.

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-HOLDING: The act of a State inhibiting use of navigable waters to any vessel having a federal license by Act of Congress comes in direct collission. NY monopoly invalid.

-Congress was granted the power to regulate Commerce among the several States. A Plenary Power.

-‘Regulate’ = Kill.

-‘Commerce’ = Intercourse.

-‘Among the Several States’ = Intermingled with.

-Congress has the power to regulate commerce that only occurs within a State’s borders if it affects other States.

-The Daniel Ball (1871). The Daniel Ball was a small vessel operating within a short distance with MI waterways. Some of the items it carried were destined for outside MI, or originated outside MI.

-HOLDING: Subject to Federal Regulation under the authority of the Commerce Clause. Did not matter that only operated within MI.

-PERIOD 2; 1875-1935. Dual-Federalism Era. Concerns over Federal Govt power infringing on States’ Power, Federalism issue. End of Slavery, Industrial Revolution. SC struggling with these different interests

-The Takeaway: Regulate Instrumentalities of Commerce, In-Stream of Commerce (NOT before or after), and Noxious Articles. Could not regulate anything before or after “Commerce.” Using the Direct-Indirect Effect Test.

US v. EC Knight (1895). G-men alleged a conspiracy to monopolize the manufacture of sugar, tried to prosecute under authority of the Commerce Clause.

-HOLDING: Manufacture is outside the scope of the Commerce Clause. Manufacture does affect Commerce among the States, but it is an indirect effect. Does not qualify.

The Shreveport Rate Case (1914). HUGHES. TX Railroad Commission prescribed commodity rates for INTRAstate TX ry carriage. Adversely affected trade between TX and LA.

HOLDING: Falls within Commerce Power. If Intrastate activity has a close and substantial relationship with Commerce, it can be regulated.

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Swift & Co v. US (1905). CHI Stockyards Monopoly case, all within a single State. HOLDING: can be regulated under Commerce Clause, in the Stream of Commerce.

Police Power.

The Lottery Case (1903). HARLAN. Feds pass law under Commerce Clause making it illegal to cross state lines with lottery tickets.

HOLDING: Feds can Regulate under Commerce Clause. Lotteries are corrupt, gambling. Federal intervention help States from keeping these bad elements out. Noxious Articles.

Hoke v. US (1913). HOLDING: The Mann Act, which prohibited crossing state lines for purposes of sex, enacted by authority of Commerce Clause, is within its scope because it regulates bad behavior.

Hipolite Egg v. US (1911). HOLDING: Fed. Regulation of commercial Rotten Eggs within Commerce Power, because it is a noxious article.…

Hammer v. Dagenhart (Child Labor Case) (1918). HOLDING: Fed Govt cannot regulate companies that use child labor under the Commerce Clause. Prior cases regulated output. Here, they are trying to regulate product from making it into commerce at all, not within Commerce Power.

Beginning of the End of Period 2; Schechter Poultry v. US (1935). Brooklyn Poultry guy sold a sick statute, which violated the National Industrial Recovery Act, a response to the Great Depression.

HOLDING, HUGHES: Enforcement of Industrial Code exceeded the Commerce Clause. NIRA Unconstitutional. Extraordinary conditions do not enlarge Constitutional Power. Used the “Direct-Indirect Test.”

-PERIOD 3; 1935-1995. New Deal Era. Reversion back to the McCullough/Gibbons expansive interpretation of the Commerce Clause.

-The Takeaway: Substantial Effects Test, Aggregation Principle. Extension of Commerce Clause to cure societal ills, like Race problems.

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NLRB v. Jones & Laughlin (1936). National Labor Relations Act protected union organizing under authority of the Commerce Clause, as a response to violent outbreaks of labor unrest. J&L challenged the Act.

HOLDING, HUGHES: The NLRA is valid under Commerce Clause. Labor relations has a substantial effect on Commerce. The commerce power is “plenary.” Cite Daniel Ball, Shreveport Case. Revert back to Marshall’s expansive view.

-But here was Production, same as in EC Knight. So how does SC distinguish? “that employees were engaged in production is not determinative. The question remains as to the effect upon interstate commerce of the labor practice involved.”

US v. Darby (1941). Congress passed the Fair Labor Standards Act, which prevented the shipment of certain products into Interstate Commerce by companies who did not comply with hour and wage standards.

HOLDING, STONE: Constitutional exercise of Commerce Clause. Manufacture, by itself, is not Interstate Commerce. A reversion to Gibbons. But the shipment of products is commerce, and thus within Congress’ power. SC likens what is regulated here to Noxious Articles; “Congress may exclude from Commerce articles it believes injures the public health, morals, or welfare… Not an invasion of State power.” Turns the ‘noxious article’ exception into the rule. “Congress may regulate intrastate activities where they have a Substantial Effect in Interstate Commerce.”

-Overrule Child Labor Case, cite its “classic dissent.”

-10th Amendment does not apply here, it is “but a truism.”

Wickard v. Filburn (1942). Under the Agricultural Act of 1938, Congress set certain quotas, which Filburn was subject to. Filburn went over the quota just a little bit to feed his livestock and for home consumption, which the government busted him for.

HOLDING, JACKSON: Enforcement of the quota here was a Constitutional exercise of Commerce Power. That the wheat at issue was wholly for home consumption, and that the activity was of an intrastate character is not dispositive. Filburn’s acts have a Substantial Effect on Interstate Commerce because of the AGGREGATION PRINCIPLE. In other words, if everyone who was similarly situated with Filburn did what he did, it would have a Substantial Effect on the wheat market, and therefore Interstate Commerce. So, it is within Congress’ power to regulate and enforce.

-That an activity is “production,” or that it is “local,” is no longer stops regulation under the Commerce Power.

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Civil Rights Cases.

Heart of Atlanta Motel v. US (1964). Congress passed Civil Rights Act of 1964 under authority of the Commerce Clause, which says “all persons shall be entitled to full and equal… accomodation without discrimination or segregation on ground of race… if its operations affect commerce.” Motel here has out of state guests. Challenges constitutionality of the Act.

HOLDING, CLARK: Valid exercise of the Commerce Power. Using the Substantial Effects Test. Discrimination by race places burden on Interstate Commerce, since Blacks cannot get lodging, thus discouraging lodging. Thus, discrimination substantially affects Commerce. That the motel is “local” is no matter, still affects Commerce.

Katzenbach v. McClung (1964). McClung, owner of Ollie’s BBQ, middle of nowhere. Civil Rights Act, “if serves interstate travelers, or if substantial portion of food has moved in Interstate Commerce, cannot discriminate.”

HOLDING, CLARK: Valid exercise of Constitutional authority. Follows Wickard; Ollie’s only serves locals and buys only a small amount of food out-of-state, but if aggregate the effect to all places similarly situated, would have a Substantial Effect on Commerce.

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Perez v. US (1971). Perez convicted of making “extortionate extension of credit,” in violation of Federal Consumer Credit Protection Act. D argued the Act exceeded Commerce Power. HOLDING, DOUGLAS: Even if loan-sharking was purely local, it affects Commerce. Organized Crime, which is all over the country, is financed by such activities. DISSENT, STEWART: To say loan-sharking affects Interstate Commerce, Majority must do more to distinguish it from local crime.

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Hodel v. VA Surface Mining (1981). Act restricted private surface-mining. Mining Ass’n claimed Act exceeded Commerce Power, because regulated use of private lands within borders of State. HOLDING, MARSHALL: Valid under the Commerce Power. Where Congress determined that an activity affects Interstate Commerce, courts only need inquire whether Congress’ findings are rational.”

Hodel v. IN. HOLDING, MARSHALL:Upheld Act; SC can invalidate a Congressional exercise of its Commerce Power only where it is clear that “there is no rational basis for Congressional finding that the activity affects Commerce.” CONCUR, REHNQUIST: The test is “Substantial Effect,” not this “Rational Basis” business.

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-PERIOD 4; 1995-PRESENT. Lopez/Morrison/Raich. Disaggregation and Limiting of the Commerce Clause.

The Takeaway: Commerce among the several States includes the following: Channels of Commerce, Instrumentalities of Commerce, and Activities that have a Substantial Effect on Commerce.

-How determine if an activity has a Substantial Effect? Look at the following 4 FACTORS: Nature of activity (is it local?); economic/non-economic activity?; the Jurisdictional Link in statute; and Findings, if relation between activity and Commerce is too attenuated, then probably not within Commerce Power.

US v. Lopez (1995).Congress passed under the power of the Commerce Clause the Gun-Free School Zone Act, criminalizes “possessing a firearm within a school-zone.”

HOLDING, REHNQUIST: the Act is NOT a valid exercise of the Commerce Power prescribed in the Constitution.

-3 categories of an activity that may be regulated under Commerce Clause: 1) use of channels of Interstate Commerce, 2) Instrumentalities, persons, or things in Interstate Commerce, including things in solely intrastate activities, and 3) (intrastate) Activities that have a Substantial Relation to Interstate Commerce.

-Gun Possession within a school zone is neither a channel nor an instrumentality, so it must fall under 3).

-Whether an activity has a Substantial Effect on Commerce is determined by looking at the following factors:

1) Is the regulated activity local? (Yes, law enforcement local)2) Is regulated activity economic? (NO, possession of a firearm is NOT economic).3) Is there a Jurisdictional element in the statute? (there is nothing in the statute that requires the gun crossed state-lines).4) Any connection between activity and Interstate Commerce? (Yes, there is between gun possession and Commerce. But, the connection is too attenuated to have a Substantial Effect on Interstate Commerce.)

-Cites all the New Deal and Civil Rights cases, so they are still good law. Just is stopping the expansion of the Power.

-CONCUR, KENNEDY: “Of various Structural Elements in the Constitution – Separation of Powers, checks and balances, judicial review, and Federalism – only concerning the last one does there seem to bemuch

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uncertainty respecting the existence, and the content, of standards that allow the judiciary to play a significant role in maintaining the design contemplated by the Framers.”

-“Federalism = Unique contribution of the Framers to political science and political theory. Freedom was enhanced by the creation of 2 governments, not 1.

-By Federalism, this is a State concern, for which power is reserved for the States.

US v. Morrison (2000). Congress passed Act that provided a federal remedy for victims of gender-motivated violence by authority of the Commerce Clause. Challenged by D.

-HOLDING: NOT a valid exercise of, and exceeds the power in Commerce Clause. Follows the Lopez methodology.

-Factors for Substantial Effect:1) Is the activity local? Yes, law enforcement is local2) Is activity economic? No, Rape is not economic.3) Jurisdictional element in statute? Nothing in statute claims that regulation is pursuant to Commerce Power.4) Connection between Activity and Commerce? Yes, there are findings that show a connection, but is too attenuated.

Gonzalez v. Raich (2005). Pot users in CA, complying with local law, a wholly local activity, nothing passes through Interstate Commerce. But, against Federal Law, pot illegal in almost all circumstances.

HOLDING, STEVENS: Valid under Commerce Clause. No need for a showing of Substantial Effect; just need to show that Congress had a Rational Basis in passing legislation. There is such a basis here. Cites to Lopez and Morrison, says caselaw broader than just those 2. Cites to Wickard to justify regulation of a purely local activity.

DISSENT, O’CONNOR: Federalism: States are “laboratories of democracy.” We are losing that here.

VII. THE TAX POWER AND SPENDING POWERS.

THE TEXT.

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Art. I sec. 8 cl. 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

Hamilton vs. Madison. For tax and spend power, 2 had differing views. Hamilton’s view was that the Tax and Spend Powers were not limited by the other powers in govt, but were independent powers; and that Tax power was an independent way to raise revenue for General Welfare and Defense.

Hamilton’s view has won.A. THE TAX POWER.

Bailey v. Drexel Furniture (The Child Labor Tax Case) (1922). This case was a result of the Child Labor Case. So Feds taxed the net profit of firms that employed child labor. HOLDING: Unconstitutional under the Tax Power. “Tax is defended on ground that it’s a mere excise tax. But this Act is something more. Its regulatory effects are palpable.”

The Takeaway: So long as a Tax is imposed uniformly throughout the US, and it raises revenue for purpose of General Welfare or common Defence, it is a Constitutional exercise of power under the Tax Power. It is an extensive power, with few restraints. Kahriger. Basically the law now is that as long as a tax is imposed for some purpose to raise revenue, it is Constitutional. Only where there is no purpose to raise revenue will a uniform Tax be held to be Unconstitutional.

B. THE SPENDING POWER.

THE 4-PART TEST, FROM DOLE. An act is constitutionally valid under the Spending Power if:

1) Spending power must be pursuant to the General Welfare, with deferrence to Congress’ judgment.

2) The condition must actually give States an unambiguous option, so that States may unambiguously answer the Fed’s volley.

3) Condition on Federal Grant of $ might be illegitimate if it is unrelated to a Federal interest; in particular, national projects or programs.

4) Other Constitutional provisions might be an independent bar to conditional grant of federal funds.

US v. Butler (1935). Agricultural Adjustment Act of 1933 being challenged. Act tried to balance production and consumption of ag. Commodities by empowering Sec. of Ag. to enter into contracts with farmersto reduce acreage planted, in exchange for “benefits.” Farmers challenged Act (had Standing), attacked the Regulatory aspect of Spending Power.

HOLDING, ROBERTS: AAA an unconstitutional exercise of the Spending Power. True, Spending Power, per Hamilton and J. Story, is an independent Power from those Enumerated

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in Art I sec 8. However, But Congress here cannot tax/spend their way around the Commerce Clause, because power of such regulation is reserved to the States under 10th Amendment.

DISSENT, STONE: Majority’s view would lead to absurd results.

South Dakota v. Dole (1987). SD allowed 19-yr olds to buy beers. Federal statute required the Sec of Transportation to withhold 5% of Federal Highway $ that would otherwise be payable to states that have a minimum drinking age below 21. SD wanted a declaratory judgment, claiming the statute violated the Spending Power.

HOLDING: Act is constitutionally valid under the Spending Power. Followed the 4-Part Spending Power Test above. Also, Act is not a “coercive” inducement, only 5%.

So, the Hamilton-view wins in the Spending Power. Expansive power.

VIII. FEDERALISM . National Power as Affecting the Powers of the States.

A. PREEMPTION. Of State Power by Federal Power.

THE TEXT.

Art. VI cl 2;THE SUPREMACY CLAUSE. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of he United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

1. IMPLIED PREEMPTION. Where Preemption is inferred as a matter of Congressional intent to displace possibly inconsistent State Regulation.

Pennsylvania v. Nelson (1956). Nelson was a Communist. PA arrested him for violating the PA Sedition Act, which prohibited bringing the Federal Govt into ‘contempt or disrepute.’

HOLDING, WARREN: PA Sedition Act is Unconstitutional because it is preempted by Federal Statute.

The Implied Preemption Rule.1) Scheme of Federal Regulation is so pervasive as to make reasonable the inference

that Congress left no room for States to supplement it.

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2) The Federal Statute touches a field in which the Federal Interest is so dominant that the Federal system be assumed to preclude enforcement of State laws on the same subject.

3) Danger of conflict between State statute and Federal administration of Fed Program. State involvement may create problems for achieving National goals.

Pacific Gas v. State Energy Resources Conservation and Development Cmsn (1983). CA Statute said that building a nuclear plant was conditioned on the CA Energy Comsn finding there would be an ‘adequate capacity’ for storage of fuel. The Comsn then imposed a moratorium on building new nuke plants until the US approved a permanent disposal method. Federal Atomic Energy Act deals with same subject matter. Does the Fed Statute preempt the CA statute?

HOLDING, WHITE: Fed. Statute does NOT preempt the CA statute imposing a moratorium on nuke plants. Cites to Nelson, and the ‘pervasive’ language.

-Field Preemption: ‘When Fed Govt totally occupies a field, or a portion of it, as in here, the test of Preemption is whether the matter on which the State asserts its right to act is in any way required by the Federal Government.’

-Here Fed Govt does totally occupy the field of Atomic Energy. However, because CA says the moratorium is based on economics, it is not preempted. If they made their decision out of safety concerns, then that decision would have been preempted.

-Here, SC has a Presumption against Preemption.

Crosby v. National Trade Council (2000). MA passed a statute barring State entities from doing business with any company doing business with Myanmar (Burma). Congress then passed an act imposing a set of mandatory and conditional sanctions on Burma, and delegated to Executive Branch implementation of sanctions and to monitor Burma’s progress. MA statute was challenged on basis that it was Preempted by the US Act.

HOLDING, SOUTER: MA Statute is impliedly preempted by the Federal Act. 3 Reasons; 1) MA statute an obstacle to Congressional intent to delegate discretion to President re: policies with Burma; 2) MA statute exceeded and interfered with Congressional intent to limit economic pressure to a selected range; and 3) MA statute conflicted with Executive’s authority to speak for country.

a. Presumption for, or Against Preemption? Where Court must infer Congressional intent from conflicting/ambiguous indications (like where attempt to occupy a Field by a less-than comprehensive regulatory scheme), the Court often has preferred not to find Preemption. Another factor; is the issue of traditional National Concern?

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2. EXPRESS PREEMPTION, by Congress. Congress sometimes includes express statements in its enactments, to effect that particular categories of State statutes or decisional law are preempted. Issue is NOT of Congressional Intent, but of the Scope of the Congressional Act.

Ingersoll-Rand v. McClendon (1991). ERISA enacted a regulatory scheme for private employment benefit plans. Contains broad and express Preemption Clause: “any and all State laws insofar as they may relate to any covered benefit plan.”

HOLDING, O’CONNOR: Federal Statute preempts any State action filed. Deliberately expansive, designed to exclusively make pensions a Federal concern.

Cippollone v. Liggett Group (1992). HOLDING, STEVENS: Cigarette 1969 Legislation preempted Cippollone from suing in State Court.

C. NEGATIVE (DORMANT) COMMERCE CLAUSE   ; Restrictions on State Power to Affect Interstate Commerce.

Note. A Negative effectof restriction on States flows from the affirmative grant of Power to Congress. So if Congress declines to regulate an aspect of Commerce, Congress’ silence is an expression of intent to leave that area unregulated and protected from State regulation.

THE TEXT.

Art I sec 8 cl 3. THE COMMERCE POWER. The Congress shall have Power to regulate Commerce… among the several States…

Art I sec 10. Restrictions on State Power.

Amendment X. The powers not delegated to the United Statesby the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

1. Historical Negative Commerce Clause.

Gibbons v. Ogden. Original source of the Negative Commerce Clause. Since Congress’ power to regulate commerce was exclusive, even Congressional silence constituted a prohibition of State Regulation.

Willson v. Black Bird Creek Marsh (1829). DE legislature authorized construction of a dam that blocked navigable waters. The Sally, fed licenses vessel, broke down the dam, later liable for damages. Issue: Could DE lawfully legislate in a manner that not only

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affected Interstate Commerce, but actually obstructed it? HOLDING, MARSHALL: Upheld the DE law. The dam improved the welfare of the locals, and that is within the power of the State. This is not repugnant to the Commerce Clause in its dormant State.

How reconcile BlackBird and Gibbons? IMPORTANT DETERMINANTS: 1-Dam legislation was non-discriminatory, while Gibbons monopoly obviously favored local interests. 2-Dam justifiable for local interests in health and welfare unrelated to Commerce, not so in Gibbons.

Cooley v. Board of Wardens of Port of Philadelphia (1851). PA Act required vessels arriving in port of PHI to ‘receive a pilot.’ HOLDING: When it is an inherently local thing, it is permissible for States to impose these regulations on Commerce.

2. The Modern Standard under the Negative Commerce Clause

-If State Statute discriminates against Commerce against the several States, for it to be a valid exercise of power, it must 1) be an important State interest, and 2) there is no other reasonable non-discriminatory alternative.

-If Statute is facially discriminatory, it is presumptively unconstitutional. The only example of it being valid was where the state of Maine prohibited the importation of bait from other areas, because doing so would cause irreparable harm to the local ecosystem and the fishing and lobstering economy.

-Pike Formulation. Where State Statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on Interstate Commerce are only incidental, it will be upheld UNLESS the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on Interstate activities.

-So basically, if statute is not facially discriminatory, and the effects on Commerce are incidental to purpose, SC will uphold the State statute unless it places an undue burden on Commerce in relation to the local benefits, and if there is an alternative with a lesser effect on Commerce.

a. Discrimination Against Interstate Commerce.

City of Philadelphia v. New Jersey (1978). NJ statute prohibited importation of waste from outside the State. Statute attacked under the Negative Commerce Clause. HOLDING, STEWART: Statute invalidated under the Negative Commerce Clause. Here, Federalism vs Commerce. Burden on State to find a more reasonable alternative to protect local health. Unless all options are exhausted, then such a facially discriminatory statute will be invalid.

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Fort Gratiot Garbage case (1992). Statute applied to in-staters as well as out-of-staters. Still held invalid.

Oregon Waste Systems v. Dept of Environmental Quality of State of Oregon (1994). State of OR levied fees on landfill operators, charged more for out-of-state waste. HOLDING, THOMAS: Unconstitutional under Dormant Commerce Clause. Commerce Power’s negative aspect denies States the power to unjustifiably discriminate against or burden Interstate flow of articles of Commerce. This statute is facially discriminatory, and there are other reasonable alternatives. “Balkanization;” Court worried about protectionism, isolationism, consequences would be bad if this happened.

Maine v. Taylor. The Maine lobster and bait case. Only case where a facially discriminatory State Act was upheld as not violative of Negative Commerce Clause because big local interest, and no other reasonable alternative.

b. “Non-discriminatory Regulation: The Balancing Test. See the Pike Formulation.

Hunt v. Washington State Apple Advertising Commission (1977). NC statute required all apple shipments to have certain kind of packaging, neutral facially. WA Apple Growers sued because the effect of the law was to isolate and protect in-staters’ interests. Conferred all the benefits to in-staters, and out-of-staters got all the burden. HOLDING, BURGER: Invalid under Dormant Commerce Clause.

Bibb v. Navajo Freight Lines (1959). The Illinois mudflap case. HOLDING: Not discriminatory on its face, but the effects place an unconstitutional burden on Interstate Commerce compared to the local benefits. All the burden is on out-of-staters to comply. So discriminatory in effect.

Southern Pacific v. Arizona (1945). AZ statute limited the # of cars that a train could pull, in order to preserve the safety of its residents. HOLDING, STONE: Unconstitutional, violates the Dormant Commerce Clause. Not facially discriminatory, but effect is, because it places all the burden on out-of-staters. The national interest for Interstate Commerce outweighs the local safety interest.

Pike v. Bruce Church (1970). The AZ Cantoloupe case. AZ Statute requires AZ cantoloupes to be labelled as ‘made in AZ.’ Bruce Church wants them packaged in CA bc no reasonable alternative close-by. HOLDING, STEWART: Use the Pike Rule (duh), say

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that the Statute preserves a minimal State interest, compared to the burden it places on Bruce. Violates the Negative Commerce Clause.

c. Subsidies to In-State Residents. Subsidies given from the general State Treasury are legal. Taxing for Revenue is legal. But where the tax revenue from all is conjoined with the Statute to only In-Staters, then it is discriminatory and violates the Negative Commerce Clause.

West Lynn Creamery v. Healy (1994). Conjoined tax revenues and subsidies to in-state dairy farmers. HOLDING, STEVENS: This is a protective tariff, and therefore violates the Dormant Commerce Clause. It places a burden on out-of-staters for an obvious benefit to in-Staters by unfairly giving locals competitive advantage.

d. MARKET PARTICIPATORS; States’ Own Purchases, Sales, and Resources in the Marketplace. The State is allowed to discriminate by managing its own resources to benefit its own citizens.

White v. MA Council of Construction Employers (1983). Boston required city-funded construction projects to be performed by a work force consisting of half Boston residents. HOLDING: Ordinance is Constitutional. Does not violate Negative Commerce Clause, because the city is a Participant.

Reeves v. Stake (1980). South Dakota built a State-owned cement plant in 1919, operated by State Cement Cmsn. Sold to in- and out-of-state customers for 50 years. During concrete shortage in 1978, stopped selling to out of staters. Sued by an out of State contractor.

HOLDING, BLACKMUN: SD’s sales policy is NOT invalidated by the Negative Commerce Clause because it is a MARKET PARTICIPATOR. As such, it is not within the scope of the Commerce Clause, which ‘regulates commerce among the several States.’ Nothing in Commerce Clause contemplates the State as a Market Participant. So, SD policy is valid.

United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgt Authority. Govt-owned trash plant. HOLDING: not violative of Dormant Commerce Clause, market participator.

-Contrast this with all the other cases (Oregon, City of Philly, Ft Gratiot…) that invalidated garbage-related statutes where owned privately.

e. Abandoning the Dormant Commerce Clause? Scalia no likey…

American Trucking v. Smith (1990). Scalia’s dissent, Negative Commerce Clause is in a quagmire, and takes SC beyond its judicial role.

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D. THE TENTH AMENDMENT.

THE TEXT.

Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

a. History.

-The CT Compromise: Bicameral Legislature. Compromised between big and small States.-State Sovereignty is Inviolable.

b. Current Law.

10TH AMENDMENT RULE: If a Federal statute applies to many different entities that includes States (see Garcia), then it is not justiciable. But, if a Federal statute singles out the States (New York), then the Federal Govt cannot commandeer the States’ activities, and violates 10th Amendment.

National League of Cities v. Usery (1976). HOLDING, REHNQUIST: Overruled Wirtz (which held that Fed. Wage law applies to State employees too). Say that 10th Amendment ‘is more than a truism.’ 10th Amendment guarantees that the Federal Govt does not interfere with “Traditional Governmental Functions.”

-But what exactly is a ‘traditional govtal function?’ where draw the line?

Garcia v. San Antonio Metropolitan Transit Authority (1985). Employees of SAMTA, state-operated public transit system, sued to enforce certain wage and hour provisions of the Federal Labor Standards Act. SAMTA said that under National Cities, should not be subject to FLSA.

HOLDING, BLACKMUN: State regulatory immunity to States based on the National Cities “Traditional Govt Function” is unworkable, and should be overruled. Federalism is a Policy, not a Rule, and requires a more fluid approach. And Federalism is adequately taken care of by the creation of the bi-cameral legislature.

-So under Garcia, to argue that a Federal Statute violates the 10th Amendment, remedy is to go to Congress, because Federalism was not intended to be adjudicated, but rather the proper channel is through the Congress. It is intended to be part of political process, and therefore not justiciable.

New York v. United States (1992). Congress enacts Low-Level Radiation Waste Policy. Contains 3 provisions, 1 of which is a “Take Title” provision, which says that if a State

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fails to provide for disposal of nuclear waste, it takes title of that waste, and is thus liable for any damages that it creates.

HOLDING, O’CONNOR: Unconstitutional, violates the 10th Amendment. Congress cannot COMMANDEER the States to perform something. States have autonomy that cannot be infringed upon. Commandeering diminishes accountability, which harms the People.

Printz. Brady Bill case, applied only to States, commandeering of local law enforcement, violated 10th Amendment. No longer an agent accountable to the people who elected them.

E. INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE

THE TEXT.

Art IV sec 2 cl 1. The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Paul v. Virginia (1868). The Framers’ goal for the Privileges and Immunities Clause: “No provision of the Constitution has tended so strongly to constitute the citizens of the United States one people as this.” Object of the clause was to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.

Purpose of clause: to promote Interstate Harmony.

Supreme Court of New Hampshire v. Piper (1985). Piper a resident of VT, passed the NH bar. But NH Supreme Court rule forbade any non-resident of NH to be admitted to NH bar. Piper sued by Privileges and Immunities Clause.

HOLDING: Rule violates Privileges and Immunities clause, unconstitutional. Per the clause, States must accord same treatment to residents and non-residents alike. Piper being admitted to the NH bar is protected under the clause.

To establish a case under P & I clause, you must show the following 3 things:1) some inequality in treatment between State-residents and non-State-residents2) Inequality does not need to be a right; it can be a mere privilege.

If those are established, for the State to win a P & I case, it must show the following:1) there is a substantial reason for the difference in treatment that furthers a State

interest, AND;

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2) discrimination bears a substantial relationship to the State’s objective, and there is no less restrictive means to accomplish that objective.

5 WAYS P&I IS DIFFERENT FROM DORMANT COMMERCE CLAUSE:1) A corporation does not have Standing under P & I clause.2) Under P&I clause, the challenger MUST be an out of State resident.3) P&I only protects interests considered fundamental “Privileges”4) Congress cannot waive P&I clause (it can waive dormant comm cl)5) There is a form of behavior that is not a regulation; that of a Market Participant.

Under P&I, there is no such behavior.

F. THE ELEVENTH AMENDMENT

THE TEXT.

Art III sec 2 cl 1. The judicial Power shall extend to all Cases… arising under this Constitution, the Laws of the US, and Treaties made, or which shall be made, under their Authority; - …between a State and Citizens of another State; - …between Citizens of the same State claiming Lands under Grants of different States, and between a State…

Amendment XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

THE HISTORY, IN THIS ORDER.

-Art III sec 2 cl 1.

-Chisholm v. Georgia (1793). Diversity action by non-citizens of GA against GA. GA claimed sovereign immunity as defense, but SC upheld damage award for plaintiffs, citing Art III sec 2 cl 1.

-Passage of Amendment XI (1798). Terms of text prohibited the federal courts from hearing cases where States were defendants in Diversity Jurisdiction cases.

-Hans v. Louisiana (1890). Amendment XI expanded to preclude suits against a State by its own Citizens on basis of a Federal Question Jurisdiction.

-Alden v. Maine (1999). SC (Kennedy) held that claims against a State in State Court was precluded, not on authority of 11th Amendment, but on broader State Sovereign Immunity.

EXCEPTIONS TO AMENDMENT XI; HOW TO SUE A STATE.

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4 ways to sue a State:1) By waiver/consent of the State (think torts).2) By the Federal Govt suing the State, by authority of Supremacy Clause.3) Ex Parte Young (1908) Exception. By naming the pertinent State official as the

defendant. In these cases, the State official commits an illegal act ultra vires by attempting to enforce an allegedly unconstitutional act. Indulges in a Legal Fiction.

4) By abrogation by Congress, via Amendment 14, sec 5. Allows for Congressional Act to set aside State Immunity.

Seminole Tribe of Florida v. Florida (1996). Indian Gaming Regulatory Act passed by Congress, allows tribes to operate casinos after tribes enter into contract with State. IGRA states that Tribes may sue States in Federal Ct to compel performance. FL claims violates 11th Amendment Immunity.

HOLDING, REHNQUIST: IGRA does NOT grant Seminoles right to sue States here. The only way for the 11th Amendment to be abrogated is for Congress to enact legislation under the authority of the 14th Amendment sec 5 (the enforcement clause). CANNOT abrogate by the Commerce Clause (FIRST IN TIME PRINCIPLE). Here, legislation not granted by 14th Amendment, so not a valid abrogation of the 11th Amendment.

Fitzpatrick v. Bitzer (1976). Valid abrogation of 11th Amendment, thru 14th Amendment.

G. ATTEMPTS BY STATE TO CONTROL FEDERAL GOVERNMENT

McCullough v. Maryland. “The power to tax is the power to destroy.”

US Term Limits v. Thornton (1995). AR passed term limit bill for US Reps. HOLDING: Unconstitutional, States cannot abrogate power.

-Congressional requirements in the Qualifications Clauses Art I sec 2 cl 2: Representatives must be 25 yrs old, US citizen for 7 yrs, Inhabitant of State in which he was elected; and Art I sec 3 cl 3: Same, but for Senators. These Limitations are exhaustive. People have right to vote for whoever they want. Not a ‘reserved’ power by 10th Amendment to alter the qualifications.

Powell v. McCormack (1969). Qualifications Clause case, said then that qualifications in clause were exhaustive.

Bush v. Gore (2000). Under 3 USC 5, “Legislature has the last word.” Under Art II sec 1 cl 2: “Electors are chosen in a manner as Legislature may direct.” Under FL Constitution,

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Judicial Review of such “manner.” HOLDING: 3 USC 5 wins over FL Constitution. This is a Federalism case, Federal Govt steps on State’s toes here.

H. STATE TAXATION OF INTERSTATE COMMERCE.

Complete Auto Transit v. Brady (1977). 4-Part Test; Tax burdens Interstate Commerce if:1) Activity that is taxed does not have a sufficient nexus with the State; 2) Tax discriminates against Interstate Commerce; 3) Tax is unfairly apportioned; OR4) Tax is unrelated to services provided by the State.

IX. SEPARATION OF POWERS.

A. FROM THE BEGINNING; FROM ENGLISH CIVIL WAR TO DECLARATION OF INDEPENDENCE TO CONSTITUTION.

-Prerogative: The quartering of Troops in private homes.-Declaration: For quartering large bodies of troops among us-Constitution: Amendment III. No soldier shall in time of peace be quartered in any house…

-Prerogative: King has dissolved Parliament for many years at a time.-Declaration: He has dissolved representative houses for opposing his invasion of rights…-Constitution: Art I sec 1 cl 2, Congress shall meet at least once in every year.

-Prerogative: Extra-judicial declarations of judges, without hearing of counsel or argument in criminal matters.-Declaration: Depriving us of trial by jury-Constitution: Amendment VI. Right to speedy trial, By an Impartial jury.

-Prerogative: Forced Loans-Declaration: Imposing taxes without consent-Constitution: Art. I sec. 8 Tax and Spend Power to Congress; and Art I sec 9 cl 7 No money shall be drawn from the treasury except by appropriations made by law.

-Prerogative: Great delays had been used against those in custody-Declaration: Transporting us beyond seas to be tried for pretended offenses-Constitution: Amendment V. No deprivation of life liberty or property without Due Process of Law.

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B. CONGRESS AND THE PRESIDENT

Youngstown Sheet & Tube Co v. Sawyer [Steel Seizure Case]. Korean War. Labor unrest at steel mills. Truman notified Congress twice that he was going to take control of the steel mills, Congress did nothing. Action challenged, charged that seizure was not an act of Congress, or by authority of Constitution. -Truman responded, had ‘inherent’ power to act, under his Commander-in-Chief power, and his power under the “Take Care that laws be faithfully executed” provision, both Art. II.-Court Plurality held Truman had no authority to act; Congressional silence is NOT acquiescence.

CONCUR, BLACK: No Power to Act. TEXTUAL Argument. FORMALISTIC. The order cannot be maintained on President’s reliance on the “executive power vested” clause, the “take care laws faithfully executed” clause, or the “Commander in Chief” clause. A seizure is for the lawmakers, not the military. The President is not a lawmaker; “all legislative power vested in a Congress.” The seizure is a law-making decision, and the President is not a law-maker.

CONCUR, JACKSON: FUNCTIONAL. Da Tripartite Approach:-When President acts pursuant to express or implied authorization of Congress, his authority is at its maximum; included all power he possesses + all powers that Congress can delegate. If his actions are not Constitutional in these instances, it probably means the Federal Govt as an undivided whole lacks such power.

-When President acts in absence of either a Congressional grant or denial of authority, he can only rely on his own independent powers. But Congressional inertia invites Executive activity.

-When President acts incompatible with express or implied will of Congress, his power is at its lowest ebb. He can only rely on his own constitutional powers, minus any Congressional power in the matter.

-Here, no Congressional authorization; and no Congressional inertia, since this field of activity has been legislated before. So here, President acted incompatibly with Congressional will.

CONCUR, FRANKFURTER: PAST POLITICAL PRACTICE argument. Constitution is a framework for govt. Deeply embedded traditional ways of conducting Govt cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.

-This seizure does not comport with past political practices, after looking at some past examples of President’s making seizures, but were with Congressional grant.

DISSENT, VINSON: The President is not a mere messenger. Emergency and immediacy of threatened disaster create power within Executive to take such measures.

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1. THE EXECUTIVE VETO POWER; THE PRESIDENT’S QUASI-LEGISLATIVE POWER. Checks and Balances.

THE TEXT. Art I sec 7 cl 2, Presentment and Veto Clause. Every Bill which shall have passed the House and the Senate shall before it become a Law, be presented to the President of the US; if he approve he shall sign it, but if not he shall return it… If two thirds of both Houses vote for the Bill, it shall become Law.

-President may veto legislation, but may be overridden by 2/3 majority in both houses.

2. POCKET VETO.

THE TEXT. Art I sec 7 cl 2. If any Bill shall not be returned by the President within ten days (Sundays excepted) after is shall have been presented to him, the Same shall be a Law… unless the Congress by their Adjournment prevent its Return, in which case it shall not be law.

-Only comes into play when Congress passes a Law right before it adjourns and President doesn’t sign it. An absolute veto. But in reality Congress always appoints someone to receive President’s veto.

3. (STATUTORY) LINE-ITEM VETO. Not Constitutional.

Clinton v. City of New York (1998). Statute gave President the power to line-item veto on taxing or spending bills. Clinton used power, did harm to New York. Sued, said its unconstitutional.

HOLDING, STEVENS: Not Constitutional. Past Political Practice and Intent of Founders and Washington.

4. IMPOUNDMENT. When the President refuses to spend all the money that has been appropriated, pursuant to a valid Congressional Act. Controversial, and Constitutionality of measure has never been ruled on by SC. But…

Train v. City of New York (1975). SC rejected Nixon’s claim that Federal Water Pollution Control Act permitted the Executive to withhold funds, as a matter of statutory construction.-Majority of lower courts have not allowed impoundment of funds.

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C. LEGISLATURE’S EXERCISE OF QUASI-EXECUTIVE POWERS: BICAMERALISM AND PRESENTMENT.

THE TEXT.

-Art I sec 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Reps.

-Art I sec 7 cl 2; Presentment Clause. Every Bill which shall have passed the House and the Senate, shall, before it becomes a Law, be presented to the President of the US…

-Art I sec 7 cl 3. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House may be necessary shall be presented to the President of the US; and before Same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of House and Senate.

1. THE LEGISLATIVE VETO

INS v. Chadha (1983). Immigration and Nationality Act . Attorney General recommended the suspension of deportation of Chadha, per statute. It was then, pursuant to statute, conveyed to Congress; either House of Congress, acting independently from the other House, had the power to veto the Attorney General’s suspension of deportation. So it was done in Chadha’s case; not submitted to Senate, nor presented to the President. Chadha challenges as unconstitutional use of power by Congress.

HOLDING, BURGER. Unconstitutional. FORMALIST APPROACH. This violates the Separation of Powers between the Executive and the Legislature.

-Violates the Presentment Clause.--Violates the Bicameral Requirement.

CONCUR, POWELL. Yes, unconstitutional, but prefers a narrower Formalist reading of Congress violating Separation of Powers by assuming a Judicial function.

DISSENT, WHITE: FUNCTIONALIST APPROACH. The statute as it is set up works; both President and Congress agree with how it works. There is no upset of the balance of power between the 2 branches. Congress uses the Legislative veto in many instances, it has become a part of political practice.

D. CONGRESSIONAL DELEGATION OF QUASI- LEGISLATIVE POWER TO “INDEPENDENT REGULATORY AGENCIES” OR OFFICERS.

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1. NONDELEGATION DOCTRINE. A valid delegation must establish “an intelligent principle to which the person or body authorized to take action is directed to conform.” Otherwise, Congress would not be retaining “all” its legislative authority. JW Hampton.

-Nondelegation Doctrine no longer part of the adjudication process.

2. Separation of Powers; delegating functions between the branches.

Bowsher v. Synar (1986). Gramm-Rudman-Hollings Act; purpose is to eliminate federal budget deficit. Act sets a maximum deficit amount for Federal Spending each year. If Spending exceeds maximum amount, the Act requires cuts across the board, exempting certain programs. Each year, the Directors of OMB and CBO estimate amount of federal deficit. Then, the Comptroller General reviews these reports, and reports his conclusions to the President. President then orders a “sequestration” mandating the spending restrictions specified by the Comptroller General. Sequestration order becomes effective if Congress cannot change budget on its own… Challenged under Separation of Powers.

HOLDING, BURGER: Formalist Approach. Unconstitutional, violates Separation of Powers. Here, an agent of the Legislature is entrusted with Executive functions, which violates Separation of Powers.

-Art II sec 2: President appoints officers of the US, with advice and consent of the Senate. -Here, an officer answerable only to Congress has reserved executive powers. Comptroller General only removable by Congressional initiative. This violates Constitution.

STEVENS, CONCUR: Legislative Authority cannot be delegated to an independent, free-standing authority who is not subject to Art I procedures.

DISSENT, WHITE: Takes the Functionalist Approach. Says that SC’s role in Separation of Powers cases should be limited only to determining whether an Act so alters balance of authority among the Branches as to pose a threat to basicdivision between lawmaking and execution powers. Here, not so.

Morrison v. Olson (1988). 1978 Ethics in Govt Act granted authority to a Special Division of US Court of Appeals, DC Circuit, to appoint an “independent counsel” to investigate and prosecute criminal acts by high-level Executive branch officials. Act provided that the Attorney Generalmust apply to this division of the court for appointment of an independent counsel whenever an investigation disclosed ‘reasonable grounds to believe further investigation was warranted;’ purpose was to make sure no conflicts of interest within Executive branch would not compromise investigations. Independent Counsel could only be removed by “personal action of the Attorney General, and only for good cause…”

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-Act challenged on Constitutional grounds, as a violation of principles of Separation of Powers; of the Art. II Appointments Clause; and of Art. III re: authority and independence of the Judiciary.

-HOLDING, REHNQUIST: Act is Constitutional, it does not violate Separation of Powers principles. Functionalist Approach.

-Not a violation of the Art II sec 2 cl 2 Appointments cl, which says that President appoints “Officers of the US”, but that Congress may vest appointment of “Inferior Officers in the Courts of Law, or in Heads of Dept.”

-Independent Counsel = “Inferior Officer,” so appointable by Congress; because was subject to removal by a higher executive branch official (the Atny Gen.), had a restricted role, had limited Jurisdiction, and held office temporarily. Also, an “inferior officer” could be appointed by the Judicial Branch.

-Appointment did NOT violate limits on Judicial power under Art III, because “inferior officers” provision in the Appointments clause was a separate source of Judicial power. Also, DC Circuit’s duties did not in any way undermine its authority or independence; they were prevented from adjudicating independent counsel’s duties.

-Act does NOT violate Separation of Powers by interfering with Executive Branch’s functions.

-Removal power in the Act is within the hands of the Executive Branch (by Atny Gen, for good cause), distinguishes from Bowsher.

-Whether the Constitution allows Congress to impose a “good cause” restriction on President’s power to remove an official does not turn on whether or not that official is classified as “purely executive.” Analysis in Removal cases is designed not define rigid categories of employees who may or may not be removable by the President at will, but to ensure that Congress does not interfere with President’s exercise of his “executive power”, and his Art II duty to “Take care that laws be faithfully executed.”

-Here, the “good cause” standard does not unduly undermine executive authority.

-So no usurpation on Executive Function by Congress, no Judicial usurpation of executive functions (appointment of inferior officials not restricted to the Executive), does not violate the balance of power between the Branches.

DISSENT, SCALIA: Statute deprives President of exclusive control over an “executive” activity, the Independent Counsel performs a wholly Executive Function, that should be

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enough to find this Act violative of Separation of Powers. The primary check on the President is Political. It is NOT to take Executive Power away.

Mistretta v. US (1989). Sentencing Reform Act of 1984 created the US Sentencing Cmsn, an ‘independent cmsn in judicial branch’ given authority to set and determine binding sentencing guidelines to Federal crimes. Cmsn made up of 7 members; appointed by President with advice and consent of Senate. At least 3 members are to be Federal judges. President can only remove for ‘neglecting duties or malfeasance.’ Here, D a convicted cokedealer, challenging constitutionality of Commission, contending that 1-Congress had delegated excessive lawmaking authority to Cmsn, and 2-Act violated Separation of Powers doctrine; specifically Art III Judiciary powers by (a) placing policymaking body in the Judicial branch, (b) by requiring Art III judges to serve on it and share power with non-judges, and (c) by subjecting them to Presidential removal for cause.

HOLDING, BLACKMUN: Act is Constitutional; does not violate Delegation doctrine, nor does it violate principles of Separation of Powers.

-Delegation Principle: So long as Congress shall lay down by legislative act an intelligible principle to which the person or body authorized is directed to conform, such legislative action is not forbidden. Constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. Here, Congress meets the Intelligible Principle standard.

-Separation of Powers. D contends that Congress, in creating the Commission, effected an unconstitutional accumulation of power within the Judicial Branch; while also undermining its independence and integrity; and that Congress has unconstitutionally required Art III judges to exercise Legislative Authority.

-Location of the lawmaking Commission within the Judicial Branch. Doing so in not Unconstitutional unless Congress has vested powers in the Commission that are more appropriately vested elsewhere, or if undermines Judicial integrity.

-Sibbach; allowed for creation of FRCP. Sentencing function is shared among the Branches.

-Composition of Cmsn; requirement of 3 Federal judges sharing authority with non-judges. Does not impermissibly interfere with Integrity of the Judiciary.

-Art I sec 6 cl 2, the Incompatibility Clause. “No Senator or Rep shall be appointed to any civil Office under Authority of US,which shall have been created; and no Person holding any Office under the US, shall be a Member of either House during his Continuance of Office.

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-No mention of Incompatibility with the Judiciary Branch. Therefore, Constitutionally permissible.

-Judges have, in the past, performed Governmental functions; Warren on JFK Cmsn, etc.

-Ultimate inquiry: does assignment undermine Judicial Integrity? Here, NO.

DISSENT, SCALIA: Cmsn is performing a law-making function. Not for Judges. The balancing approach is wrong; this is Separation of Powers, not Checks and Balances.

E. APPOINTMENTS POWER; AND PRESIDENTIAL POWER OVER PERSONNEL AND PROPERTY.

1. APPOINTMENTS POWER.

THE TEXT.

Art. II sec 2 cl 2. He [President] shall have power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of theUS, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may be law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Dept.

2. PRESIDENTIAL POWER OVER PERSONNEL AND PROPERTY.

Myers v. US (1926). HOLDING, TAFT: Court held it was Unconstitutional that a Congressional provision required that certain types of postmasters, appointed by the President, could not be removed by the President without the consent of the Senate. Since President was empowered to enforce the laws, he has the responsibility for deciding who to appoint and which officers should be removed. Congressional limits on President’s right to remove officers held Unconstitutional.

Humphrey’s Executor v. US (1935). Congress may restrict President’s right to remove a federal official who holds a quasi- legislative, or quasi-judicial role. Here, involved FTC official. Said Myers only talked about “purely executive officials.”

Nixon v. Administrator of General Services (1977). SC upheld Constitutionality of Presidential Recordings and Materials Preservation Act of 1974, which directed the GSA

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to take custody of Nixon’s papers and tapes, screen them, and return those that were personal and private. Nixon alleged violation of Separation of Powers; but SC stressed a “flexible approach” to Separation of Powers was necessary.

F. LEGISLATIVE IMMUNITY.

THE TEXT.

Art I sec 6 cl 1. Senators and Reps…shall in all cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

US v. Brewster (1972). HOLDING: Speech or Debate Clause did NOT preclude prosecution of former Senator for accepting a bribe. Clause “does not protect all conduct relating to Legislative process; only against inquiry into acts which occur in the regular course of the legislative process.”

Hutchinson v. Proxmire (1979). HOLDING: Press releases and newsletters are not subject to legislative immunity.

G. EXECUTIVE PRIVILEGE FOR CONFIDENTIAL INFORMATION.

US v. Nixon (1974). Pres. Nixon named as an unindicted co-conspirator to defraud US and obstruct justice. Special Prosecutor subpoenaed his tapes. Nixon challenged, claiming Executive Privilege.

HOLDING, BURGER: Executive Privilege does NOT apply in this case. Executive Privilege is not a right in and of itself. To use it, must be in furtherance of a National Interest; like “National Security,” or something like that. Otherwise, in a conflict between the Judiciary Branch and a claim of Executive Privilege standing alone, Judiciary Branch will win. Criminal Justice is more important than keeping a secret not in furtherance of any National Interest.

1. EXECUTIVE IMMUNITY AGAINST DAMAGES LIABILITY.

Nixon v. Fitzgerald (1982). Nixon wrongfully fired Fitzgerald. HOLDING: President has absolute Immunity against suits for damages for being sued for acts as President.

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Harlow v. Fitzgerald (1982). Harlow is the official who carried out Nixon’s order to fire Fitzgerald. HOLDING: Presidential aids have qualified immunity; incur liability if conduct was ‘wilful and wanton.’

Clinton v. Jones (1997). Action arose out of conduct before President Clinton was elected. HOLDING: Executive immunity did not apply in this case; Immunity does extend to conduct that occurred before became president. So, Paula Jones’ suit allowed to proceed.

H. PARDON POWER.

THE TEXT.

Art II sec 2. The President… shall have the power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

I. FOREIGN AFFAIRS.

1. TREATY POWER.

THE TEXT.

Art II sec 2. The President shall have Power, by and with the advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.

Art VI. All Treaties made… shall be the Supreme Law of the Land.

Missouri v. Holland (1920). Migratory Bird Treaty Act. Missouri claims that Act, which came from Treaty, infringes upon its sovereignty, as reserved in the 10th Amendment.

HOLDING, OWH: Statute and Treaty are Constitutionally valid. So long as a Treaty does not contravene any express prohibitions listed in the Constitution, it is Supreme Law of the Land.

2. EXECUTIVE PROCLOMATIONS AND AGREEMENTS.

US v. Curtiss-Wright Export (1936). HOLDING: Joint Resolution falls wholly within the realm of Foreign Affairs. Before the Constitution, there was the Union. States never had the

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power to operate internationally. “The President is the sole organ of the Nation in its external relations, and its sole representative with foreign affairs.” Notwithstanding Treaty, Senate.

3. EXECUTIVE AGREEMENTS BASED ON UNCLEAR CONGRESSIONAL AUTHORITY

Dames & Moore v. Regan (1981). The Iranian Hostage case. Hostages were released pursuant to a negotiated deal between the President and Iran people. Part of the deal was that Iranian assets in the US would become unfrozen, and that all trials would then be resolved in tribunals. Creditors objected, claimed that President is unconstitutionally infringing on their rights of contract.

HOLDING, REHNQUIST: Constitutional. Youngstown analysis controls here. President’s actions here fit somewhere between explicit Congressional authorization and explicit Congressional prohibition. IEEPA and Hostage Act delegated broad powers to President; no evidence of contrary legislative intent.

a. LIMITS OF EXECUTIVE POWER.

Medillin v. Texas (recent, Bush2 era). International Court of Justice said US violated 51 Mexican nationals were entitled to reonsideration of State court convictions because of State’s failure to inform them of their consular rights. W asked Texas to comply, they said no. HOLDING: Texas is not bound to the Ruling because it was never implemented by the Congress. W claimed that under Dames & Moore, he had the authority to settle foreign claims by Executive Agreement. But here, there is no long standing acquiescence, so does not satisfy the test.

J. WAR AND PEACE; GUANTANAMO.

THE TEXT.

Art I sec 8 cls 11-16, 18. Congress shall have power to [11] Declare War…, [12] to raise and support Armies… [13] to provide and maintan a Navy, [14] to make rules for the Government and Regulation of the land and naval Forces, [15] to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, repel invasions, [16] to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the US… [18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…

Art II sec 2 cl 1. The President shall be Commander in Chief of the Army and Navy of the US, and of the Militia of the several States…

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RULES FROM THESE CASES:

MILITARY TRIBUNALS; they are allowed in the following 3 circumstances:1) When Martial Law is declared2) While in Enemy Territory, and3) On the Battle Field.

GENEVA CONVENTION, COMMON ARTICLE 2:

1) Right to have facts determined in a Tribunal; and 2) Defendants have the right to be present

Woods v. Cloyd W Miller (1948). Congress passed Housing and Rent Act of 1947, continued rent controls that were imposed during the war. Challenged by LL, said that Congress did not have power under the War Power to pass statute. HOLDING, DOUGLAS: War Power does not end with hostilities, but extends to “remedy the evils which have arisen from its rise and progress.” Domestic regulations permitted under the War Power under Congress’ War Power, can continue even after fighting stops.

1. Gitmo Cases

Rasul. Foreign citizen captured in foreign land. HOLDING: Habeas Relief is available. Guantanamo is essentially the United States; longterm lease, control. Captured citizens’ nations are not at war with US.

Hamdi. US citizen. HOLDING: Due Process applies here. ‘No person shall be deprived…’

Hamdan. Got a Military Tribunal. HOLDING: President lacked authority to impose military tribunal, not approved by Congress, violated the Geneva Convention.

Boumediene (2008). Constitution protects detainees’ habeas corpus rights. Not held ‘outside the US’, as govt claims; Gitmo is functionally American property, and it is not a battlefield.

X. “STATE ACTION” – PRIVATE ACTORS AND THE 14 TH AMENDMENT.

A. BASIC PROCEDURAL STRUCTURE OF DUE PROCESS AS PROTECTION AGAINST STATE ACTION.

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-Due Process Clause only applies to State Action; NOT to Private Conduct. Private individuals are free to discriminate.

-Sometimes, hard to draw the line between State and Private Conduct.When Private Conduct is somehow intertwined with Government Action, Court must decide if action is really attributable to the State. 4 Theories of State Action by Private Actors:

1. THE GOVERNMENT FUNCTION DOCTRINE. A private person engaged in a governmental function may be treated as a State actor. Broad test for Government function; where private acts which have any parallel function conducted by the State.

-Stricter view: functions “traditionally” and “exclusively” performed by the State.

a. Expansion; the “White Primary” Cases.

THE TEXT.

Amendment XV. The right of citizens of the US to vote shall not be denied or abridged by the US or by any State on account of race, color, or previous condition of servitude.

Amendment XIV. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Smith v. Allwright (1944). Blacks were excluded by statute from the electoral process within the Democratic Party. HOLDING: Violated the 15th Amendment. Political Party a private entity. Still, State Action, conducted primary by power delegated from the State.

Terry v. Adams (1953). Involved a “private and voluntary” Political organization called the Jaybird Association, which excluded Blacks from the organization’s “pre-primary” elections. HOLDING: Jaybird Party’s actions are unconstitutional, they are doing precisely what the 15th Amendment seeks to prevent.

Marsh v. Alabama (1946). The town of Chickasaw is owned by a corporation; so it is technically private property. However, it practically functions as a public

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municipality; public roads, ingress and egress. Marsh distributes Jehovah’s Witness literature while on the sidewalk, told to stop, then arrested for Criminal Trespass. D says she has a 1st Amendment right. Town says they are Private. She says STATE ACTION!

HOLDING, BLACK: That the town is owned by a private company is no matter here. It functions in every other way as a governmental entity. Therefore, this constitutes State Action. Important here; factors that align Town with a governmental actor. Too many here not to find State Action.

b. Contraction. Shopping Center cases and utility company.

Logan Valley Case (1968). SC extended the Government Function doctrine to cover a shopping center. Here, union members were picketing a market in the shopping center. Per Marshall, “the shopping center sidewalk is like the business block in Marsh. Shopping Center is open to the public to the same extent as the commercial center of a normal town.”

Lloyd Corp v. Tanner (1972). Court limited Logan Valley application in holding that a shopping center’s refusal to allow a Vietnam protester was NOT State Action.

Hudgens v. NLRB (1976). Same deal, union protesting on shopping center property. Conflict between 1st Amendment and Property rights. HOLDING: Logan Valley is overruled, Shopping Ctr refusing protesters is NOT State Action.

Jackson v. Metropolitan Edison (1974). D, a private utility company, cut off Jackson’s power after she didn’t pay her bills. P is suing Edison, claiming that her power should not be shut off until she has notice, a hearing, and a chance to pay the amount due. Edison said that they don’t owe her that because they are a private company. Jackson says that this is State Action because they are performing a State Action; they are heavily regulated by the State, they provide a necessary service, and they run their business only because of a State-conferred monopoly.

HOLDING, REHNQUIST: Edison is not a State Actor, they are not performing a Government function. Yes, they are a Monopoly in a heavily-regulated field. But, there is not a nexus between the State and the action, such that action of Edisonmay be fairly treated as an action of the State. This is a “Public Function,” but there is no obligation, or delegation of State power, to do so.

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2. SYMBIOTIC RELATIONSHIP BETWEEN STATE AND PRIVATE ACTOR. When the Government is entangled in a private activity, the Court has found State Action. State support of private activity may show State Action. But, a bit murkier waters beyond that.

Burton v. Wilmington Parking Authority (1961). Here, Burton, a Black guy, goes to Eagle Coffee Shop. He is refused service because the owner is a racist. Eagle is a lessee of Wilmington Parking Authority, a state-owned parking garage, who depends on the rent money from Eagle in order to function. Burton says discrimination, under the 14th Amendment. Eagle says theyre a private company. Burton says State Action.

HOLDING, CLARK: Refusal to serve Burton bc of his race was State Action, and violated the 14th Amendment. Construction of the garage was a State Action; revenues go to the State. Land is publicly owned, dedicated to the public use. Supported by Govt $.

-Relationship between Eagle and Parking garage: they conferred into each other mutual benefits via lease agreement. Plus, in state-owned building. Indicates a degree of State participation. State is a “joint-participant.” Falls within scope of 14th Amendment.

Norwood v. Harrison (1973). SC enjoined MS from lending textbooks to segregated private schools. The State does not violate 14th Amendment merely by providing any state services that benefit a private school that discriminates. But here, textbooks are a basic educational tool and are provided only in connection with schools. They are not like general services, like water and electricity, which the government provides to schools as well as other entities.

-This opinion doesn’t really go with any of the theories; but it most likely goes to the original intent of the drafters of the 14th Amendment.

Moose Lodge No 107 v. Irvis (1972). Moose Lodge is a private club, owns the building. They kick out Irvis, a Black guy. Irvis sues, saying they violated his 14th Amendment rights. Moose Lodge says no way, we’re private. Irvis says State Action, owing to the fact that they operate by a liquor license given by the town.

HOLDING, REHNQUIST: No State Action here. Distinguished from Burton because D owns the building here. The license does not encourage or foster racism, nor does it make the State a partner in the club’s enterprise.

NCAA v. Tarkanian (1988). Tark was fired after the NCAA threatened sanctions on UNLV if it did not fire him. Tarkanian sued claiming he was denied Due

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Process. NCAA said we don’t owe you due process, Then Tark said STATE ACTION! claiming State Action by the NCAA, a private entity which is an organization of independent schools from all over the country.

HOLDING: No State Action here, NCAA is not a State Actor, they were merely the impetus for him getting fired. Here, the State Actor was UNLV, and the NCAA the private actor; kind of backwards. Here, NCAA is a private actor that is in fact at odds with the State Actor. No symbiotical relationship here. Even if saw NCAA monopoly, Edison tells us that a monopoly alone is enough for State Action.

Lebron v. Amtrak (1995). Lebron wanted to lease a billboard at Amtrak station for the purpose of talking shit about the Coors family. Amtrak denied, saying they didn’t allow for political ads. Lebron said Amtrak was denying him his 1st Amendment Right. Amtrak said they are a private actor so they could do whatever they want. Lebron said… STATE ACTION! due to the close relationship Amtrak has with the Federal Govt.

HOLDING, SCALIA: Amtrak denying Lebron’s right is State Action, because the relationship between Amtrak and Govt is so symbiotic and mutually beneficial that its actions are like those of the State. Here, Amtrak was created by statute, for the furtherance of federal govt goals, six of 9 Amtrak’s directors are appointed by the President – 4 with the advice and consent of the Senate. This is State Action, especially when the right that is being denied is the 1st Amendment.

Richardson v. McKnight (1997). A privatized prison held to be a State Actor subject to liability.

3. STATE ENCOURAGEMENT, ENFORCEMENT, OR APPROBATION. State encouragement/enforcement of a private activity may also amount to State Action.

Shelley v. Kraemer (1948). This one is an outlier, not really followed much. Black family wants to buy a house that is subject to a restrictive covenant based on race. Neighbors sued to enforce the covenant; all involved here were private parties.

HOLDING, VINSON: This is a State Action. Restrictive covenants themselves are not State Action. But, the action of the States to which the 14th Amendment references, includes action of State courts and judicial officials. Here, State has made available the full coercive power of the State to discriminate. That is against the 14th Amendment as State Action.

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Reitman v. Mulkey (1967). CA Proposition 14: ‘There can be no laws by this State or any municipality therein that prohibit discrimination in buying, selling, or leasing of property rights.’ Here, Black family was denied a lease because of their race. They sued the lessor claiming they were discriminated against, he says he can discriminate because he is a private actor, they say STATE ACTION! because he is encouraged by the State Law.

HOLDING, WHITE: Denial of the lease was State Action. Here, Prop 14 establishes a private right to discriminate on grounds which would be unavailable under the 14th Amendment should State Action be involved. Yes, the State was allowed a neutral position with respect to private discrimination. Prohibited State involvement could be found “even where the state can be charged with only encouraging.”

Flagg Bros v. Brooks (1978). Plaintiff puts stuff in storage, doesn’t pay the storage fee. So, per NY law, storage co sells her shit without any notice. She sues, saying that the bailee’s selling of her stuff is a deprivation of her Due Process and constitutes State action, because the law encouraged the conduct.

HOLDING, REHNQUIST: No State Action here. “State acquiescence is not enough for State Action.”

-No real discrimination here, as opposed to Reitman.

Batson v. Kentucky (1986). SC prohibited prosecutors in a criminal trial from exercising peremptory challenges based on race.

Edmonson v. Leesville Concrete (1991). HOLDING, KENNEDY: Developed a 2-Part Test to determine if private conduct is State Action, thus subject to the 14th Amendment. 1) whether the deprivation resullted from the exercise of a right or privilegehaving its source in State authority; and 2) whether the private party charged with deprivation could fairly be described as a State Actor.

4. ENTWINEMENT THEORY. See below for application of this theory.

Brentwood Academy v. TN Secondary School Athletic Association (2001). Brentwood Academy, high school, a member of TSSAA, which controlled all inter-scholastic athletics in TN. TSSAA found that Brentwood violated recruiting rules, penalized them. Brentwood sued for deprivation of procedural due process, TSSAA responded that they are a private entity and are not subject to the 14th Amendment. Brentwood says that their conduct constitute State Action.

HOLDING, SOUTER: TSSAA’s conduct is State Action. Said that TSSAA hired a lot of State employees. Members are mostly public schools. TSSAA used to be public

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until recently. Because of pervasive Entwinement between TSSAA and State school officials, their conduct is subject to the 14th Amendment.

DISSENT, THOMAS: This “Entwinement” business is pretty new; we only follow the 3 Categories, this is a new category here.

XI. THE BILL OF RIGHTS AND THE STATES – DUE PROCESS.

A. INCORPORATION DOCTRINE.

-The Bill of Rights, on its face, only limits Congress. So, how is it that now, many of the Bill of Rights apply to the States?

-Because the 14th Amendment Due Process Clause, which is a limit on STATE power, has incorporated the Bill of Rights.

-3 Views on Incorporation of the 14th Amendment Due Process Clause:

1) TOTAL INCORPORATION (J. BLACK). That ALL the Bill of Rights should be incorporated by the 14th Amendment. Not followed.

2) SELECTIVE INCORPORATION. SC has adopted this view, holds that some amendments in the Bill of Rights are NOT incorporated by the 14th Amendment

-Amendments NOT incorporated: -5th Amendment Grand Jury Provision.-7th Amendment right to jury trial in Civil Cases.

3) NO INCORPORATION (J. HARLAN). The ‘correct’ view. Argues that the Due Process Clause in the 5th Amendment does not incorporate all the other amendments in the Bill of Rights. The language in the 14th Amendment is exactly the same, it should therefore carry the same effect; that is, NO incorporation. Basically, “Due Process” under this theory means “basic fairness.” J. Harlan would always concur in these cases and come to the same outcome as the majority, but by using his rules. Not followed.

Duncan v. Louisiana (1968). HOLDING, WHITE: Due Process Cl in 14th Amendment incorporates the right to a jury trial in criminal cases; right is fundamental to American scheme of justice.

Johnson v. Louisiana (1969). CONCUR, POWELL: By holding that 14th Amendment incorporates “jot for jot” and “case for case” every element of the 6th Amendment,

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derogation of Federalism principles that are basic to system. It deprives States the freedon to experiment with adjudicatory process that are different from federal model.

B. PROCEDURAL DUE PROCESS.

THE TEXT.

AMENDMENT XIV. Nor shall any State deprive any person of life, liberty, or property, without due process of law.

-Procedural Due Process: Guarantees that any deprivation of life liberty, or property must not be arbitrary or capricious. Limits States from erroneously depriving person of a protected interest.

Board of Regents v. Roth (1972). Un-tenured Assistant Professor alleged that university’s decision not to re-hire him without a hearing deprived him of a property interest.

HOLDING: NO Property interest in un-tenured position. “If there were a protected right, court would have to look outside the Constitution, to State law, to ascertain whether interest is protected.” Here, Roth had a mere Expectancy. To get 14th Amendment Protection, he needs a PROPERTY ENTITLEMENT.

Arnett v. Kennedy (1974). Works for Fed Govt. Statute says that before discharged for making defamatory comments. Not at-will. By statute, he was entitled not to be discharged except for “cause;” but same statute said that he was denied a pre-termination hearing.

HOLDING, REHNQUIST: No Deprivation. His rights are in the statute, have to take “the bitter with the sweet.” (Later overturned).

Bishop v. Wood (1976). Fired cop without a hearing alleges that he was denied Procedural Due Process of Property interest, and his Liberty interest, because now there is a stigma in the community. HOLDING, STEVENS: No deprivation; no property interest, but a mere expectancy. Sufficiency of Property interest must be decided with reference to State law. No deprivation of liberty interest, no public discourse of the matter.

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Cleveland Bd of Ed v. Loudermill (1985). Loudermill lied on application about never being a criminal. By statute, he can only be fired for cause, and only after an administrative hearing.

HOLDING, WHITE: Rejects the “bitter with the sweet” rule. Once it is determined that the Due Process Clause applies, the question remains; what Process is due? THE ANSWER TO THAT IS NOT IN THE STATE STATUTE.

-So, Deprivation of a Property ENTITLEMENT entitles you to a hearing; Deprivation of a Property expectancy will not.

Daniels v. Williams (1986). Prisoner fell on a pillow because of accident. Says he was deprived. HOLDING: Negligence is NOT a deprivation.

But, Davidson v. Cannon (1986): Deliberate Indifference/Recklessness DOES count as a deprivation.

1. SO, WHAT PROCESS IS DUE?

-DUE PROCESS = SOME KIND OF A HEARING. Almost never means a trial.

Matthews v. Eldridge (1976).

3 Factors that determine whether entitled to a hearing:

1- Private Interest2- Risk of erroneous Deprivation by denial of protection requested, and3- government (public) interest; efficiency, order.

Bd of Curators v. Horowitz. The hearing was the letting go of the student by the “experts,” ie her professors.

XII. THE ENFORCEMENT CLAUSE IN CIVIL RIGHTS AMENDMENTS.

THE TEXT.

Amendment XIV sec 5; Amendment XV sec 2. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

-Enforcement Clauses: Additional grants of power to Congress.

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-Legislation passed by grant of Power.

-Freedom to Contract. -Right to Real and Personal Property-

South Carolina v. Katzenbach (1966). Voting Rights Act of 1964. Passed by authority of Enforcement clause in Amendment XV. So.Car. challenged constitutionality of enforcement. HOLDING: Constitutional. The Enforcement clause is a plenary power, think McCullough.

Katzenbach v. Morgan (1966). VRA of 1964 stated that all Puerto Ricans who finished 6th Grade could vote. NY State law stated that all voters needed to know English. NY challenged, cited Lassiter, which held that the NY Literacy statute was constitutional.

HOLDING, BRENNAN: VRA is constitutional, NY Statute is NOT. Enforcement clause is an enlargement on Congressional power. Congress is authorized to enforce prohibitions with Legislation.

-NY: “Enforcement” should be read narrowly.

-SC: Under the VRA Legislation by authority of Enforcement Clause, Congress may prescribe Prophylactic Measures to ensure that there is no undermining the legislation.

City of Boerne v. Flores (1997). Religious Freedom Restoration Act, enacted under Enforcement Clause, prohibits govt from ‘substantially burdening’ a person’s exercise of their religion, unless govt can show 1-compelling govt interest, and 2-least restrictive means of furthering govt interest. Boerne denied church a zoning permit to expand church bc it’s a landmark. Church suing under RFRA.

HOLDING, REHNQUIST: RFRA is not Constitutional under 14th Amendment. Sec 5 of 14th Amendment is a “remedial” power. “Congress does not have the power to amend the Constitution.”

-What about Morgan?? Morgan is still good law. But, its application is limited; the Statute can still be a Prophylactic measure, but it must be “Congruent and Proportionate” to the injury.

Bd of Trustees of University of Alabama v. Garrett (2001). 2 State employees sued State under Americans with Disabilities Act, which prohibits certain employers, including States. Here, suing Alabama. AL’s defense is 11th Amendment immunity. Plaintiff claiming that Immunity is abrogated by the 14th Amendment Enforcement clause.

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HOLDING: Congress’ abrogation of the 11th Amendment was NOT Constitutional. Yes, Congress intended to abrogate the 11th Amendment. But, it did not act within a valid grant of power.

-Sec 5 legislation that reaches beyond substance of sec 1 must be “congruent and proportionate to the injury prevented and the means adopted to that end.

-So 1st, identify scope of the Constitutional right at issue (use “Rational Basis” standard), and then determine if Congress identified a pattern of Unconstitutional employment.

-Here, no findings that States have been discriminating against cripples. So the Act here is NOT proportionate and congruent.

NV Dept of Human Resources v. Hibbs (2003). Family and Medical Leave Act allows for unpaid time to be taken for variety of reasons; created a private right of action against employers, including States, for denial or interference of this right. Here, Hibbs was an NV employee, had dispute with boss over FMLA leave, was fired. Suing per MFLA, NV claiming 11th Amendment Immunity.

HOLDING: Suit against State is Constitutional. Congress’ abrogation of 11th Amendment is valid. Follows the City of Boerne test. FMLA is a prophylactic remedy. FMLA purpose was to remedy gender-based discrimination, which is prevalent in the workplace. Therefore, FMLA remedy is proportionate and congruent to injury.

XIII. ENFORCING 13 TH AND 14 TH AMENDMENT AGAINST PRIVATE CONDUCT.

“Under Color of State Law”; 14th Amendment.

US v. Price. MS cops lead civil rights workers to 15-member mob, where they get beaten to death. Charged ALL with federal statute

HOLDING: Yes, extension of State Action, acting under “Color of Law” because cops took the victims to them.

US v. Guest (1966). Federal Statute, which punished private citizens who conspire to injure, oppress, threaten, or intimidate any citizen in free exercise or enjoyment of any right or privilege secured to him by Constitution or US laws. Here, Ds kept Blacks from using public

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facilities, and from keeping them from travelling freely on instrumentalities of Interstate Commerce.

HOLDING: Upheld as valid. Allegation includes State involvement, ok to survive dismissal. Also, Constitutional right to travel Interstate Commerce.

ENFORCEMENT OF 13TH AMENDMENT AGAINST PRIVATE ACTION.

Jones v. Alfred H. Mayer (1968). Federal Statute: No discrimination to contract. Applied to ALL citizens, not just State actors. Here, D discriminated agaisnt P bc he was Black.

HOLDING, STEWART: Valid under enforcement clause of the 13th Amendment. Discrimination from Contract is a Badge of Slavery; and thus is covered by 13th Amendment. A Relic of Slavery.

Extension of Civil Rights Act. To all ethnic groups who are discriminated against.

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