Tufte's Constitutional Law Outline - Spring 2000 - Matheson

Basic Concepts

1. Standards of Review
   1. Rational Basis: Of the three standards, this is the easiest one to satisfy. Government actions will almost never be struck down if this standard is used. When the court applies this standard, the court will uphold the governmental action so long as two requirements are met:
      1. Legitimate state objective: First, the government must be pursuing a legitimate governmental objective. This is a very broad concept -- practically any type of health, safety or "general welfare" goal will be found to be "legitimate."

      2. Rational relation: Second, there has to be a "minimally rational relation" between the means chosen by the government and the state objective. This requirement, too, is extremely easy to satisfy: only if the government has acted in a completely "arbitrary and irrational" way will this rational link between means and end not be found.
   2. Strict scrutiny: At the other end of the spectrum, the standard that is hardest to satisfy is the "strict scrutiny" standard of review. Government actions will almost always be struck down if this standard is used. This standard will only be satisfied if the governmental act satisfies two very tough requirements:
      1. Compelling objective: First, the objective being pursued by the government must be "compelling" (not just "legitimate," as for the "mere rationality" standard); and

      2. Necessary means: Second, the means chosen by the government must be "necessary" to achieve that compelling end. The means must be narrowly tailored to meet the objectives..
         1. No less restrictive alternatives: In practice, this requirement that the means be "necessary" means that there must not be any less restrictive means that would accomplish the government’s objective just as well.

2. Sections of the Constitution
   1. Article 1 -- powers of the Congress
   2. Article 2 -- powers of the Executive
   3. Article 3 -- powers of the Judiciary

Judicial Review

1. Reading the Constitution
   1. Original Intent - try to identify the intent of the framers. Problems: who are the framers? ratifiers? convention delegates? Edwin Meese, Clarence Thomas, Federalist Society generally support this view.
   2. Strict Construction - related to original intent, this way of reading statutes refuses to expand the law beyond the plain meaning of the words.
   3. Living Constitution - Justice Brennan takes the view that the proper interpretation changes from generation to generation with the new circumstances. Critics rail against this judicial activism, but are frequently hypocritical when the activism goes the other way.
2. Origins
   1. Marbury v. Madison, 5 U.S. 137 (1803)
      Procedural Posture - Marbury moved for a writ of mandamus compelling Secretary of State Madison to deliver Judicial appointments. Outgoing President John Adams made many midnight appointments in the last hours of his term. One intended for Marbury was not delivered before Thomas Jefferson took office. A writ of mandamus can only compel ministerial duties, not discretionary duties. Marshall says mandamus is the appropriate remedy, he has a right to this remedy, but the court has no power to grant this remedy. This case created the principle of judicial review. It wasn't necessary for Marshall to rule this way, but he saved the court and the balance of power by doing so. Three issues: Does Marbury have a right to the commission? Do the laws of the country establish a remedy for the deprivation of the right? Can a mandamus be issued in an original action before the Supreme Court? Marshall ruled that where the action by the President was "political" in nature or was given by the Constitution solely to the executive, it was not subject to judicial intervention. Marshall interpreted Article III as limiting the original jurisdiction of the Supreme Court and so the statute authorizing jurisdiction for Marbury was unconstitutional and invalid, as Congress may not expand the Supreme Court's original jurisdiction. "[I]t is emphatically the province and duty of the judicial department to say what the law is." The Constitution is superior law, the court has the power to say that the conflicting law is invalid.
   2. The Supreme Court may review the constitutionality of a decision by a state's highest court. Martin v. Hunter's Lessee, 14 U.S. 304 (1816).
      Marshall, C.J. recused himself because of his personal interests in the case. This case established that the Supreme Court has power to review decisions of state courts -- to the extent that they are decided based on federal law. The Supremacy Clause indicates that federal issues may arise in state courts, and the Article III § 2 grant to the Supreme Court of jurisdiction over "all cases and controversies" was intended to include these cases. The conflict here was between state land confiscation statutes and a federal treaty with Britain.
3. Political Questions
   1. Where authority is explicitly committed to another branch, as is impeachment, the court will decline to rule because it is a non-justiciable political question. Nixon v. United States, 506 U.S. 224 (1993). After Nixon, a federal judge, was impeached he challenged the procedures used in the Senate to impeach him. The Senate had tried him in a committee, not in the whole Senate. The Supreme Court held that this was a non-justiciable political question, because it was explicitly given to the Senate to "try all impeachments," and for them to step in would only drag out any (presidential) impeachment that might occur.
   2. Where the practical consequences of a controversial decision would be too damaging, the court will find a political question. Pacific States Tel. & T. Co. v. Oregon, 223 U.S. 118 (1912). In a challenge to Oregon's initiative process under Art. IV, § 4, "guarantee . . . a Republican Form of Government," the Court said this was a nonjusticiable political question. The court doesn't want to examine a small step down the road to direct democracy, and further, if they decided that a state no longer had a republican form of government, it would be forced to not recognize the state and institute a new state government.
   3. Legislative district apportionment is justiciable because it is not textually committed to another branch and there are manageable standards for resolving it. Baker v. Carr, 369 U.S. 186 (1962)(Brennan, J.). The Court held that Tennessee's legislative district apportionment was justiciable, and remanded to the district court for trial. The Court laid out factors relating to separation of powers that should be considered in determining a political question:
      1. textual commitment to another branch
      2. lack of standards on which to resolve the issue
      3. policy determination required that is not in judicial discretion
      4. would require expression of lack of respect for other branches
      5. an unusual need for adherence to a political decision already made
      6. potential for multiple pronouncements from different departments on the same question.
4. Congressional Regulation of Judicial Power
   1. Congress has the power under Art. III, §2 to change the appellate jurisdiction of the Supreme Court. Ex Parte McCardle, 74 U.S. 506 (1869). Just prior to a ruling on McCardle's petition, Congress repealed part of a statute that allowed habeas corpus appeals to the Supreme Court. The Supreme Court held that Congress has the power to change the appellate jurisdiction of the Supreme Court under Art. III, §2. The Court no longer had the power to rule on the case after Congress repealed the appellate jurisdiction used in this case. The Court still had original jurisdiciton over habeas corpus petitions.
   2. Congress may completely remove the appellate jurisdiciton of the Supreme Court. The Human Life Amendment would have been within the Constitution if it had passed, removing all SCOTUS appellate jurisdiction for abortion.
   3. Under United States v. Klein, Congress may not selectively strip jurisdiction in order to compel the Court to come out a particular way. Any such removal must be neutral.
5. Discretionary Review
   1. Certiorari. Frankfurter laid out several considerations for granting or denying certiorari. If the record is cloudy, or the issue hasn't ripened enough through lower court consideration. Denial of cert doesn't mean anything. Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (1950).
   2. rule of four - four justices must vote to put a case on the Court's docket.
6. Prerequisites to federal jurisdiction and judicial review: introduction
   1. Generally. Federal power only extends to "cases" and "controversies." Art. III, §2. To have a "case" or "controversy," the court requires standing ("personal stake in the outcome", "concrete adverseness which sharpens presentation of issues") and ripeness (not specifically concrete enough to be adjudicated). To determine the constitutionality of a statute before someone is faced with adverse impact would be too remote and abstract.
   2. No advisory opinions -- If there are independent and adequate state grounds, the Court may not review the case. To review the decision of a state court, there must be independent federal grounds. "[If] the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." Herb v. Pitcairn.

National Legislative Power

1. Sources and Nature of National Legislative Power
   1. Federalist papers
   2. Implied Powers. Where the means is rationally related to a constitutionally permissible end, the means also constitutional so long as it is not in violation of any specific prohibition. McCulloch v. Maryland, 17 U.S. 316 (1819). Maryland taxed any bank operating within the state. MD Court of Appeals upheld a judgment against a bank teller who failed to pay the tax. The Bank of the United States was chartered by Congress, and was very unpopular and mismanaged. This case addresses implied powers and tax powers. Creating a bank was deemed ok because it was merely a means to appropriate ends: taxing, regulating commerce, raising armies, etc. The constitution wasn't worded precisely enough to exclude this. The 10th Amendment does not read "The powers not expressly delegated. . ." and Art I. § 8 does not say "To make all Laws which shall be absolutely necessary. . ." Maryland may not tax the bank because it interferes with a valid federal activity.
   3. Implied powers doctrine says Congress can exercise powers that are related to express powers, so long as it doesn't conflict with the Constitution.
   4. McCulloch is still good law today. The Court won't strike down a law that is rationally related to constitutional objectives.
2. National Commerce Power
   1. trends: nature of industry, stream of commerce,
   2. The powers of Congress under the Commerce Clause are very broad, no area of interstate commerce is reserved for state control, even matters occurring within a state. Gibbons v. Ogden, 22 U.S. 1 (1824). Ogden had an exclusive NY steamboat charter, Gibbons had a federal license to so operator. The court held that commerce clause allows Congress to regulate commerce that affects more than one state. Commerce is more than traffic, it's intercourse, including navigation. This power is a broad regulatory power, the "wisdom and discretion of Congress . . . the influence which their constituents possess" are the "sole restraints . . . to secure them from its abuse."
   3. Insurance contract is not a transaction of commerce Paul v. Virginia, 75 U.S. 168 (1869). Upheld state regulation of interstate insurance business on the ground that "issuing a policy of insurance is not a transaction of commerce" and insurance contracts "are not articles of commerce," it's just a promise to pay...
   4. Manufacturing is not commerce. Kidd v. Pearson, 128 U.S. 1 (1888). Upheld Iowa's ban on manufacture of liquor, rejected contention that manufacture for out-of-state sale was interstate commerce subject only to congressional regulation. Court held that manufacturing is not commerce, if Congress could regulate manufacturing here, "[t]he result would be that Congress would be invested, to the exclusion of the States . . . with the power to regulate not only manufacturing but agriculture, horticulture, . . . in short, every branch of human industry."
   5. Commerce among the several states means commerce among the people of the several states? The Daniel Ball, 77 U.S. 557 (1871). Even a small ship navigating completely within Michigan is subject to interstate commerce regulation. To the extent that any of the goods were destined for other states or came from other states, the boat is engaged in interstate commerce.
   6. Congress may prohibit interstate commerce in articles that "harm the public morals." The Lottery Case (Champion v. Ames), 188 U.S. 321 (1903)(5-4 decision). Upheld Federal Lottery Act, which prohibited interstate carriage of lottery tickets. "[L]ottery tickets are subjects of traffic, and therefore are subjects of commerce." The Court was concerned with activites that "harm the public morals." The Court would not allow state laws to be defeated by interstate commerce. A powerful dissent argued that lottery tickets are indistinguishable from insurance contracts, and that this decision nationalizes all subjects relating to interstate communication.
   7. Regulations under the Commerce Power may have the quality of police regulations. Hoke and Economides v. United States, 227 U.S. 308 (1913). The Court upheld the Mann Act, which prohibited the transportation of women in interstate commerce for immoral purposes. Interpreting earlier interstate commerce cases, the Court held "[t]he principle established by the cases is the simple one, when rid of confusing and distracting considerations, that Congress has power over transportation among the several States; that the power is complete in itself, and that Congress, as an incident to it, may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulations."
   8. Congress may regulate activites that have a "substantial economic effect" on interstate commerce. Houston, East & West Texas Ry. v. United States (Shreveport Case), 234 U.S. 342 (1914). Internal Texas railroad rates were fixed by the Interstate Commerce Commission, because they were seen as discriminating between intrastate and interstate customers. Congress has the power to regulate anything that has a close and substantial relation to interstate commerce where the ultimate object was to protect interstate commerce. In a similar case, the Court upheld an ICC order raising Wisconsin passenger rates to equal the interstate rates, because this resulted in cost-shifting from intra to interstate passengers. See Wisconsin R.R. Com'n v. Chicago, B. & Q. R.R., 257 U.S. 563 (1922).
   9. Congress may regulate those activites that are part of the "stream of commerce." Stafford v. Wallace (Swift Case), 258 U.S. 495 (1922). Upheld federal regulation of rates and practices of local buying in stockyards aimed at stopping price fixing. As part of the "stream of commerce," this was subject to federal regulation because it posed a "direct and undue burden" on interstate commerce.
   10. Where the goods are not evil in themselves, but only the production is immoral, Congress has no authority to prohibit interstate transport of the goods. Hammer v. Dagenhart, 247 U.S. 251 (1918). The Court held that Congress had exceeded its authority under the Commerce Clause when it banned interstate transportation of the products of child labor. The [p]roduction of articles is a matter of local control." The evils of child labor are not associated with the transport, a chair is not bad in itself, where a lottery ticket may be. Dissenting, Holmes said that no matter how substantially it impairs a state's ability to regulate local affairs, Congress may regulate anything that comes under a constitutionally enumerated power.
   11. To be upheld, there must be a "direct effect" on interstate commerce. Shechter Poultry Corp. v. United States, 295 U.S. 495 (1935). The Court struck down part of the National Industrial Recovery Act, requiring a "direct effect" to be constitutional under the Commerce Clause. Schechter bought poultry only on the local market and sold it only to local retailers, so there was no direct effect.
   12. Production is a purely local activity and where there is no "direct effect" on interstate commerce, it is beyond the Commerce Power to regulate any local defects in employment relations. Carter v. Carter Coal Co., 298 U.S. 238 (1936). Expanded Schechter, holding that production and mining of coal is local in character, and the labor laws in question affect production and not commerce. "The word direct implies that the activity . . . operate proximately . . . to produce the effect. It connotes the absence of an efficient intervening agency or condition." No direct effect on interstate commerce.
   13. president roosevelt, furious that his collectivist plans were being foiled by the Court holding him to his constitutional bounds, threatened to pack the federal courts with his cronies to get the results he wanted.
   14. So long as there is substantial economic effect upon interstate commerce, it is within the Commerce power. This new view requires a much looser nexus, no direct effect required. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). The court made a complete reversal from Carter one year earlier after Roosevelt threatened to pack the court with his socialist allies. This case signals a major expansion in federal power under the Commerce Clause. This brings production and manufacturing within the scope of the Commerce power by holding that the federal government could meddle in a small labor dispute at a steel plant that happens to be owned by a large corporation. "The close and intimate effect which brings the subject within the reach of federal power may be due to activities in relation to productive industry although the industry when separately viewed is local."
   15. Congress may use any reasonable means to achieve a permitted end, regardless of motive or the 10th Amendment, thus criminalizing wage and overtime violations is a reasonable means to achieve the legitimate end of prohibiting the interstate transport of goods produced in that manner. United States v. Darby, 312 U.S. 100 (1941). Overruling Hammer v. Dagenhart, the Court upheld the Fair Labor Standards Act which set minimum wage and maximum hours for workers making goods "for interstate commerce." The criminalization of such employment conditions was seen as a means reasonably adapted to the attainment of the permitted end--prohibiting interstate shipment of such goods. The goods compete with the goods produced in other states with different labor standards. The Court read the 10th Amendment right out of existence wrt Commerce power, also, motive of Congress are not matters for the Court to consider.

       Under Darby, Congress may attack any problem, even one overwhelmingly local, by prohibiting all interstate activity associated with it and then as a means of implementing this interstate transaction ban it can prohibit the local activity.

   16. Congress may regulate activities that in their "cumulative effect" have a substantial economic effect on interstate commerce, even to the extent of regulating trivial instances. Wickard v. Filburn, 317 U.S. 111 (1942). The Roosevelt Court took their socialist reading of the Constitution to its logical conclusion here, saying that the federal government's power over interstate commerce means it can tell Filburn, a farmer, how much wheat he can grow on his farm for his own use. We can't have his production competing against the wheat that's for sale on the market. Hell, if everyone did this, the aggregate effect on the market price of wheat would totally screw up big brother's plans for us. Thank you, FDR. Is this case still good after recent Federalism cases??? Really?
   17. Congress may criminalize activities such as loansharking that have a "cumulative effect" on interstate commerce, even when a transaction is trivial and intrastate. Perez v. United States, 402 U.S. 146 (1971). The feds went after loan sharks, claiming authority under the (interstate) Commerce Clause. Partly because Perez and many loan sharks were tied to organized crime groups that operated interstate, the Court found an effect on interstate commerce. Quoting Maryland v. Wirtz, the court said "Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class."
   18. In McDermott and Sullivan, the Court upheld federal statutes regulating drugs under the Commerce power. Under the rational basis review, the Court is very deferential, and almost any lame justification will suffice.
   19. A moral or social motive doesn't matter when Congress wants to regulate purely local activities that have the effect of discouraging interstate travel by minorities.
       1. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)
          Citing "overwhelming evidence that discrimination by hotels and motels impedes interstate travel, the Court upheld § 201 of the Civil Rights Act of 1964 as applied to an Atlanta motel that "refus[ed] to rent rooms to Negroes." The Court could have decided under the 14th Amendment, but chose instead to use the more sure catch-all powers of the interstate Commerce Clause.
       2. Katzenbach v. McClung, 379 U.S. 294 (1964)
          Applied § 201 to a restaurant 11 blocks from the interstate. The record contained much testimony of the burdens placed on interstate commerce by restaurants not serving blacks. "The fewer customers a restaurant enjoys the less food it sells and consequently the less it buys." The court neglected to notice that the blacks will buy food elsewhere with a net zero effect on the amount of food that moved in commerce that is consumed. The aggregate effect from Wickard was applied to tie the one restaurant's purchases to interstate commerce, and the Court found that Congress had a rational basis for the legislation. Douglas, the lone dissenter, would have preferred to rely on the 14th Amendment.
       3. Daniel v. Paul, 395 U.S. 298 (1969)
          Applied § 201 to a rural whites-only lake club. The Court found that the small snack bar operated by the club served food that moved in commerce, and that although not in the record, it assumed that at least one of the 100,000 whites served annually must be an interstate traveller. Seems there is no end to the Commerce Power, the Court seems to use the butterfly in china affecting the weather in North Dakota analogy to find activities that "affect commerce."
   20. Congress may regulate any aspect of an industry that makes goods for interstate commerce. In the Hodel cases, the Court upheld federal regulation of surface mining which forced mine owners to restore the land to its prior state. Because the products move in interstate commerce, Congress can regulate (any aspect of) the industry. Rational basis is all that's required. "[O]ne of the greatest 'fictions' of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people." Rehnquist, C.J., concurring.
   21. Local activities (such as carrying a gun in a school zone) that are not commercial in nature, and don't have a substantial effect on interstate commerce are not within the federal Commerce power. United States v. Lopez, 514 U.S. 549 (1995). For the first time in 60 years, the Court invalidated a statute because it was beyond the reach of the Commerce Power. Woo hoo!!! The Gun Free School Zones Act prohibited any gun within 1000 feet of a school, regardless of whether it had moved in commerce, and without any findings that guns in school zones affect commerce. The Court identified three categories of activity that Congress may regulate under the commerce power: (1) the use of the channels of interstate commerce, (2) the instrumentalities of interstate commerce, (3) activities that substantially affect interstate commerce. The Court held that GFSZA did not fit within (3) because there was no substantial effect. Possession of a gun is not "commercial activity." Under the government's argument, anything could be regulated that affects "economic productivity." Power-grabbing pigs. Kennedy, J. was the weak sister among the five, wanting to limit this holding to those local activities that are non-commercial in nature, and substantially affect interstate commerce. In addition, education was traditionally left to the states.
3. Delegation (briefly)
   Only three cases have addressed non-delegation -- whether it is constitutional for Congress to delegate an enumerated power. In Carter, the court struck down the law in question in part because Congress delegated its power to private entities without providing adequate direction.
4. National Taxing and Spending Powers
   1. Taxing Power
      1. "The Congress shall have Power to lay and collect Taxes, Duties, Imposts, and Excises." U.S. Const. art. I, § 8.
      2. A tax may be struck down if it is clearly a penalty, such as when there is a scienter requirement and there is no proportionality between the tax and the taxed activity. Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922). Struck down the Child Labor Tax Law, which set a 10% exise tax on the profits of employers of child labor. The court said the "knowingly" requirement is associated with a crime, not a tax. Congress has authority to tax, but not to regulate in this area. "To give such magic to the word 'tax' would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the states." "cannot be distinguished from [Dagenhart]" The court would be "blind not to see" the intent is to stop child labor, not to tax it. Reasoning was that too much power would accrue in the federal government if it could buy compliance in areas off-limits to Congress.
      3. Since Bailey, the court has not been concerned with the motive of Congress, as it has no bearing on constitutionality. As long as some revenue is generated, a statute probably will be deemed constitutional. Regulatory effects are of no concern, if they have a reasonable relationship to the enforcement of the tax. Regulating through rate structure has been upheld: 1/4 cent for white margarine, 10c for yellow.
      4. A tax that might be unconstitutional today would be one where there were clear conditions such that the tax isn't paid unless the conditions are violated.
   2. Spending Power
      1. "The Congress shall have Power to lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States." U.S. Const. art. I, § 8.
      2. The power to spend is an enumerated power and it is not limited to supporting other enumerated powers, but may be used directly to support the "general welfare." United States v. Butler, 297 U.S. 1 (1936). All nine justices sided with Hamilton's view that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." The majority struck down the Agricultural Adjustment Act under which farmers contracted to reduce their yields in exchange for some of the taxes levied on grain processors. The Court held that if Congress could invoke taxing and spending powers to coercively purchase compliance in areas where they could not directly regulate, that would totally subvert federalism principles. "The power to confer or withhold unlimited benefits is the power to coerce or destroy." The minority opinion would only require a "national public purpose" to uphold a federal law. Only taxing and spending may be used to support the general welfare, Congress may not directly regulate for the general welfare, nor may it coercively purchase compliance, but it may make payments conditional on compliance.
      3. Regulatory motives are now ok. Steward Machine Co. v. Davis, 301 U.S. 548 (1937). Upheld part of the Social Security Act which provided a tax credit for contributions to a state unemployment fund that met federal criteria. Cardozo, writing for the majority, partially set aside Butler saying that there's no coercion here, states can choose not to, and "mere" regulatory motives or monetary temptations do not amount to coercion.
      4. Helvering v. Davis, 301 U.S. 619 (1937). Decided concurrently with Steward Machine, upheld old-age pensions portion of Social Security Act. Claiming that the growing number of old people unable to care for themselves was "plainly national in area and dimensions," Comrade Cardozo upholds this law because "[o]nly a power that is national can serve the interests of all."
      5. Conditions on federal highway grants are ok. South Dakota v. Dole, 483 U.S. 203 (1987). Upheld a federal law that withheld 5% of federal highway money from states that had a drinking age lower than 21. "[The] condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended -- safe interstate travel.
      6. Broad extent of spending power - Congress can spend millions to build a water purification plant for Casa Grande, for the Central Arizona Project, to bail out NYC from bankruptcy. The spending power is enormous.
5. Foreign Affairs Power
   1. The 10th Amendment doesn't limit what the feds can do under a treaty. Missouri v. Holland, 252 U.S. 416 (1920). Upheld Migratory Bird Treaty Act, which regulated taking of migratory birds pursuant to a treaty with Canada. "[What Congress can enact] 'by itself and not in pursuance of a treaty' cannot be accepted as a test of the treaty power." "The treaty in question does not contravene any prohibitory words to be found in the Constitution." Tenth amendment doesn't bar this any longer either. The court doesn't want to say there's no limit to treaty power, but it doesn't want to put any limits on it either.
   2. To the extent a treaty violates specific constitutional protections, such as the right to a jury trial, it is void. Reid v. Covert, 354 U.S. 1 (1957) (plurality opinion). Reversed murder convictions for lack of a jury trial in Britain where jurisdiction was under a treaty. "No agreement with a foreign nation can confer power on Congress, or any other branch of Government, wich is free from the restraints of the Constitution." Holland noted that the Treaty didn't violate specific provisions, and here we have a violation of a specific provision. The reason that Article VI. doesn't limit treaties to those made in 'pursuance' of the Constitution is to keep alive those treaties made under the Articles of Confederation.
6. State Immunity from Federal Regulation
   1. Maryland v. Wirtz (1968)
      Upheld extension of Fair Labor Standards Act to state schools and hospitals. "This Court [will] not carve up the commerce power to protect enterprises indistinguisable in their effect on commerce from private businesses, simply because those enterprises happen to be run by the States for the benefit of their citizens."
   2. National League of Cities v. Usery, 426 U.S. 833 (1976)
      Overruling Wirtz, the Rehnquist majority wrote that the 10th Amendment is one undoubted limit on Congressional power to override state sovereignty. State power to set employment terms for employees in their government functions should be left to the states alone. Blackmun joined the 5 member majority, hesitantly endorsing the balancing approach.
   3. Finding that line-drawing related to what are "traditional government functions" was too difficult and inappropriate for the courts, the Court returned to regulating states just like private parties, leaving them to protect themselves politically. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). Blackmun, J. wrote for the five member majority, stating National League of Cities "is overruled." Blackmun underscored the difficulty in drawing a line that delineated what "traditional government functions" were. The old rule prevented changes in the historical functions of states, and led to judicial policy decisions. The states are protected by the political process.
      Dissent: This "decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause. Judicial enforcement of the Tenth Amendment is required to maintain the federal system. The majority says that the federal government can assume state sovereign power and there is no judicial review. The political protection fig leaf is inconsistent with the Marbury v. Madison that it is the judiciary's role to say what the law is.
      This case is still good law.
   4. Congress may not command a state to enact a law. New York v. United States, 505 U.S. 144 (1992). Holding the "take title" provision in the Low Level Radioactive Waste Amendment Act invalid, O'Connor wrote for the majority that "Congress may not simply 'commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.' Hodel" Congress can use spending power, or preempt state law by use of Commerce power, but can't compel states to legislate. This would totally wreck federalism. This case, with Lopez, slows federal power grab.
   5. The federal government may not command a state officer to do its bidding. Printz v. United States, 521 U.S. 898 (1997) (5-4 decision). The Court struck down the provisions of the Brady Handgun Violence Prevention Act (sic) that required the local CLEO to conduct a background check prior to purchase of a handgun. The provisions were unconstitutional because it violates federalism principles by allowing the federales to force state agents to do their bidding.
7. Absence of Govt Power over Qualifications for Members of Congress
   1. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, (1995)
      In this 5-4 decision, the majority struck down Arkansas Constitution Amendment 73. The big argument between the Stevens Majority and the Thomas minority is over what powers were "reserved to the States" under the 10th Amendment. In Powell v. McCormack, 395 U.S. 486 (1969), the Court held that Congress had power to judge whether a member met the qualificaitons for office, but not to add to the enumerated qualifications set out in Article 1, § 2. The majority looked to fundamental principles, such as "the people should choose whom they please to govern them," and gave two reasons for its holding: (1) "power to add qualifications is not within the 'original powers' of the States, and thus is not reserved to the States by the Tenth Amendment," (2) the intent of the Framers was to divest the States of any power to add qualifications and make the Constitution the sole source of qualifications for Congress. The majority interestingly quips "[c]onstitutional rights would be of little value if they could [be] indirectly denied," quoting Harman v. Forssenius, conveniently ignoring the lack of application of this principle to Amendments 2 and 4-8.
      Dissent: Thomas, joined by Rehnquist, Scalia, and O'Connor, starts with basic principles. Our government is founded on the consent of the people of each state, not the people en masse. When their respective Constitution is silent, the feds lack the power and the State enjoys it. To invalidate Amdt. 73, the Court must point to something in the Constitution that deprives the people of Arkansas of this power. It doesn't make sense to say that the 10th Amendment can't reserve to the states a power they have not previously exercised. Any new qualifications are subject to challenge under, for example, the 1st and 14th Amendments, but the Constitution doesn't say the states can't add limitations. Constitution explicitly says 'no religious tests,' a plain reading of the majority says no state can require eligibility to vote, imprisonment, etc as a qualification.
      Kennedy is the swing vote here, usually goes with states rights, but broke ranks. raises questions for the future.
8. Trends - slow movement toward increased state authority at the expense of the feds.

Separation of Powers

1. Presidential Action Affecting "Congressional" Powers
   1. The president may not make laws, he may only carry them out.
   2. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579 (1952)
      After Truman issued EO10340, ordering Sec. Commerce to seize privately owned American steel mills, the Court quickly granted cert to review the matter. The Court had to decide if the President had the power to do this without the consent of Congress -- it never decided whether there was an emergency in this case. Truman ignored the system Congress had set up for just such a situation, so he was enjoined from the seizure. Most power lies with Congress under the Constitution, and they can delegate, but they didn't delegate the power to Truman to do what he did.
      Douglas, J.'s concurrence: "The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected."
      Jackson, J.'s concurrence laid out three classes of presidential power:
      1. when the President acts pursuant to an express or implied authorization of Congress, his power is at maximum.
      2. When the President acts in the absence of congressional grant, he has only his independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority.
      3. When the President acts contrary to expressed or implied will of Congress, his power is at low ebb. He has only his constitutional powers minus those of Congress. Such power should be scrutinized, because federalism is at stake.
2. Congressional Action Affecting "Presidential" Powers
   1. Delegation
      1. Congress can delegate rule-making power if it guides sufficiently. A war-time delegation of price-fixing power to the president was upheld because Congress "stated the legislative objetive," "prescribed the method of achieving that objective,", "laid down standards" for implementation. Yakus v. United States, 321 U.S. 414 (1944).
   2. Legislative Veto
      1. A one-house legislative veto is unconstitutional under both the Presentment Clause and the bicameral requirement of Art. I, §7. Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919 (1983). The Court struck down legislative vetos. Congress had delegated to the AG to handle immigration issues, but reserved power to override the decisions. Here, only one house had to vote to reverse the AG's decision, and because this was essentially legislative in that it "alter[ed] the legal rights, duties, and relations of persons . . . outside the legislative branch," it violates bicameralism and presentment requirements for legislation. Congress could have accomplished the veto with a private bill, but didn't want the extra work of voting in both houses and presenting to the President.
         White, J., dissenting: This issue already passed bicameralism and presentment, and is just enforcement of existing law. Congress can still use spending powers to oversee administrators.
   3. Appointment and Removal of Officers
      1. The president may remove any executive officer, even those who must be approved by the Senate. Myers v. United States, 272 U.S. 72 (1926). President's executive power includes power to remove executive officers, even if their appointment was subject to Senate advice and consent. Very broad power.
      2. The president may not unilaterally remove quasi-legislative and quasi-judicial officers unless Congress explicitly delegated that power. Humphrey's Executor v. United States, 295 U.S. 602 (1935). Limited Myers to core executive appointees. Held that FTC was quasi-legislative and quasi-judicial and not subject to executive authority. Separation of powers prevents President from unilaterally removing the Commissioner.
      3. Congress may not appoint executive officials. Buckley v. Valeo, 424 U.S. 1 (1976). FEC appointments by House Speaker and Senate President Pro Tem violated Appointments Clause. The court decided "Heads of Departments" doesn't mean Speaker or Senate President Pro Tem.
      4. Congress may not reserve the right to remove an executive officer. Bowsher v. Snyar, 478 U.S. 714 (1986). Held unconstitutional the budget cutting procedure in the Graham-Rudman Act. The majority says that the Comptroller General's job is executive in nature, Congress can't retain sole power to remove him, or he would be an agent of the Congress. They can only impeach him.
         White, J., dissenting: The Comptroller General is merely helping Congress legislate, he's not performing an executive function. The removal process here satisfies the Chadha bicameralism and presentment requirements.
      5. Congress may put some limits on the president's power to remove an excutive officer, so long as the ultimate power is still in the executive branch. Morrison v. Olson, 487 U.S. 654 (1988). Breaking with the formalistic approach, the Court upholds the Independent Counsel Law. Removal power is still in the executive branch, it is just removed from the president one step. President can ask AG to remove Independent Counsel, but only for "good cause." This functional approach allows small violations of separation of power to be overriden by practical considerations.
      6. Congress may delegate legislative power to the judicial branch so long as it is not so much to upset the fundamental structural protections of the Constitution. Mistretta v. United States, 488 U.S. 361 (1989). Again using a functional/practical approach, the Court upheld creation of the U.S. Sentencing Commission within the judical branch. This puts some rulemaking power in the judicial branch, but not too much, not enough to undermine judicial independence or impartiality.
      7. Note: Pre-Morrison is formalistic, Morrison and Mistretta are a more functional approach.
3. The Foreign Affairs and War Powers
   1. Kosovo example: President never asked for congressional approval before bombing. Rep. Tom Campbell proposed a bill declaring war on TCFKAY. Soundly defeated. Was there a war? Kosovo went longer than 60 days, without express disapproval, can the President continue?
   2. Congress may broadly delegate power to the President in the foreign relations area, for he has "very delicate, plenary, and exclusive power . . . in the field of international relations." United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). A joint resolution of Congress authorized the President to prohibit sale of arms to Bolivia and Paraguay. Lower court found it to be an unconstitutional delegation of legislative power. The Court held that this was not an unconstitutional delegation of legislative power because the powers of the federal government over foreign affairs are different than those over internal affairs. The President was acting under executive authority plus delegated authority, and as the sole organ of the federal government in the field of international relations. Dicta: Constitution doesn't limit the actions of our government outside the US. Wow.
   3. Reading the Constitution historically, Congress has most of the power, even wrt foreign relations. Power to declare war, regulate commerce, raise and maintain armies, etc.
   4. Supreme Court has not decided the undeclared war powers because it's political, it's difficult to get standing, etc. In one case, plaintiffs sued because the didn't want to go to war. Cert denied, although one justice wanted to decide whether there was a war and whether the President could compel service w/o a declaration.
   5. War Powers Resolution, signed after Viet Nam went bad, says that after 60 days, the troops must come home. This has not been tested.
   6. Dames & Moore v. Regan, 453 U.S. 654 (1981)
      President was authorized to suspend all lawsuits against Iran in a hostage deal.
4. Executive Privilege and Immunity
   1. The President has an executive privilege but it is a qualified privilege subject to court determination of each claim. United States v. Nixon, 418 U.S. 683 (1974). Court definitively said there is an executive privilege, but it doesn't apply here. There was some argument on political question, interrupting the impeachment process, etc. Had he claimed national security, it may not have been reviewed. Later, the Court did say that a claim of national security must be supported by something more. The President is amenable to court power.
   2. Presidential immunity - immune from civil suits for anything done within scope of presidential duty. This also applies to aides, and a qualified privilege is afforded cabinet members.
   3. Clinton v. Jones, 520 U.S. 681 (1997)
      Court unanimously rejected Clinton's claims of immunity. The Jones suit was allowed to go forward. Neither the absolute immunity for presidential acts nor the purported burden of litigation prevented the suit's progress.
5. Formalism vs Functionalism
   1. formalism - takes very seriously the ideal of separation of powers among the three branches of government. Government acts must be classified as legislative, executive, or judicial, and then placed within that branch. No inter-branch interference except that which is specified in the Constitution.
   2. functionalism - more practical approach, as long as there are checks and balances in place, strict adherence to separation is not required.
6. General issues
   1. Delegation is deemed necessary because the burden on Congress would be too high otherwise. Of course if Congress stuck to common-sense interpretations of their Constitutional powers, their authority wouldn't be so burdensome. . .
   2. Congress has delegated much to the executive.
   3. There are few separation of powers cases because some are political questions, and some it's difficult to find someone with standing.
   4. The President can't legally make new law w/o congressional delegation or approval.

State Power to Regulate

1. State Power when Congress' Power is Dormant
   1. Early Views
      1. States may regulate commerce if there is an actual conflict with an act of Congress. In Gibbons v. Ogden, 22 U.S. 1 (1824) (Marshall, C.J.), the first case to address the dormant commerce clause, the Court assumed that concurrent power was ok, but found a direct conflict between the NY steamship monopoly and the federal license to operate between NY and NJ. The effect of federal silence was not determined in the holding.
      2. A state may use its police powers to protect public health in a way that incidentally affects interstate commerce so long as the act is not discriminatory toward interstate commerce. Delaware dammed a creek on which a federally licensed boat operated. The boat broke the dam and the dam owners sued. The court held that Delaware was not discriminating against interstate commerce, but was acting to protect the health of the area and to increase land values. Held for the dam company, Delaware's action was not "repugnant to the power to regulate commerce in its dormant state." Wilson v. Black-bird Creek Marsh Co., 27 U.S. 245 (1829).
      3. Under the Cooley Doctrine, states are free to regulate things of a local nature that require different treatment from state to state and may not regulate things that require a uniform national treatment. Cooley v. Board of Wardens, 53 U.S. 299 (1851)
         The Cooley doctrine says that states are free to regulate those aspects of interstate commerce that were of such a local nature as to require different treatment from state to state. The states could not regulate aspects of interstate commerce which, because of their nature, required a uniform national treatment. In Cooley, the court upheld Philadelphia's requirement that ships had to take on a local pilot in order to use the port. Cooley is no longer good law, but the legacy that some but not all state regulations that affect interstate commerce are barred, and the distinction turns on a balancing of local interest versus need for national uniformity.
      4. Early application of Cooley struck down a state statute that required only out-of-state peddler. Welton v. Missouri, 91 U.S. 275 (1876).
      5. An Iowa prohibition law was found to be in violation of the Interstate Commerce Clause when applied to in-state sale of package liquor from another state. A need for uniformity requires states to defer to Congress power over the articles of interstate commerce. Leisy v. Hardin, 135 U.S. 100 (1890).
   2. Congressional Authorization of State Regulation
      1. If the Court finds a state regulation in violation of the Dormant Commerce Clause, Congress may grant the state the authority, effectively overriding the court decision. There is a dormant aspect to commerce power. Sometimes commerce power stops state regulations even when Congress is silent. This is a type of federal common law that Congress can overrule if it wishes.
   3. The Basis for Judicial Action
      1. The Commerce Clause embodies a national, free-trade philosophy. Although it authorizes judicial lawmaking to implement free trade values, does not uniquely require particular rules; and because commerce clause doctrine is judge-made common law, not "marbury-like" constitutional interpretation, the negative-impact cases are wholly subject to congressional revision. Constitutional Common Law, 89 Harv.L.Rev. 1.
   4. The Quest for an Adequate Standard
      1. State regulations that purposely discriminate against interstate commerce are invalid unless supported by some extraordinary justification.
      2. Pike test: "The general rule that emerges can be phrased as follows: Where the 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 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 extend of the burden that will be tolerated will of course 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." Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). The Pike test give a nondiscriminatory state statute a presumption of constitutionality which can be overcome by a strong showing of national interest in uniformity or free commerce.
      3. Dormant Commerce Clause cases tend to require 1) legitimate state end, 2) rational means to end, 3) "Pike" balancing test.
   5. Current Controversies
      1. Balancing standards may not be judicially manageable. Courts have to weigh "legislative" facts, and make policy judgements.
      2. "[In] my view, a state statute is invalid under the Commerce Clause if, and only if, it accords discriminatory treatment to interstate commerce in a respect not required to achieve a lawful state purpose. When such a validating purpose exists, it is for Congress and not us to determine if it is not significant enough to justify the burden on [comerce]." Balancing state needs against interstate commerce is something "ill-suited to the judicial function." Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988) (Scalia, J., concurring).
      3. watch for protectionist arguments
2. Cases and Doctrine
   1. Regulations that Burden out-of-state suppliers
      1. Where only out-of-staters are burdened by a regulation, it will be struck down as a violation of the Dormant Commerce Clause. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935). New York enacted a statute that set minimum prices to be paid to milk producers. The statute was held unconstitutional because it set a barrier to traffic between states. In Baldwin, only out of staters were burdened, thus there would be no strong group in NY to oppose the measure.
      2. "The Commerce Clause does not prohibit all state action designed to give its residents an advantage in the market place, but only action of that description in connection with the state's regulation of interstate commerce. Direct subsidization of domestic industry does not ordinarily run afoul of that prohibition; discriminatory taxation of out-of-state manufacturers does." New Energy Co. of Ind. v. Limbach, 486 US 269 (1988).
      3. A state can't just say it's for health reasons. In Baldwin, the relation to health and sanitation is too remote and indirect and would put them in economic isolation
      4. In Breard v. Alexandria, the Court upheld a local statute barring door-to-door solicitation. Even though it fell heavily on out-of-state merchants, the court found the social goals a reasonable basis for the statute.
      5. Where there are nondiscriminatory alternative means, a regulation burdensome on interstate commerce will fall. Dean Milk Co. v. Madison, 340 U.S. 349 (1951). The Court found a Madison, WI ordinance that required milk be pasteurized at a designated facilities within 5 miles of the city to be a unconstitutional burden on interstate commerce. Since it "plainly discriminates against interstate commerce" and there are "reasonable nondiscriminatory alternatives" the health and safety rationale for the regulation isn't sufficient. (This is a legislative test that not all justices like.)
      6. Tax and Subsidy combinations
         In the West Lynn Creamery case, the Court struck down a tax/subsidy scheme created by Massachusetts. MA taxed all sales of milk by wholesalers to retailers and then used the money to subsidize MA milk producers. The net effect was a tax on out-of-state milk producers, a clear discriminatory burden on interstate commerce. Scalia, joined by Thomas, enumerated four ways a state can accomplish this end: 1) discriminatory tax on industry, 2) tax on industry with credit or exemption for in-state producers, 3) tax on industry where revenues are kept separate and rebated to in-state producers as subsidies, and 4) a subsidy of in-state industry funded from general revenue. "I would therefore allow a State to subsidize its domestic industry so long as it does so from nondiscriminatory taxes that go into the State's general revenue fund. [A] State is less likely to maintain a subsidy when its citizens perceive that the money is available for any number of competing, non-protectionist, purposes."
   2. Regulation of outgoing trade -- states may not suppress competition
      1. H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949)
         A Boston man wanted to build a fourth milk-receiving depot in New York. The Court found that the NY statute requiring that a new depot not "tend to a destructive competition" was violative of the Commerce Clause. "A state may not use its admitted powers to protect the health and safety of its people as a basis for suppressing competition."
      2. In Parker v. Brown, the Court upheld a CA law that required raising producers to give up sales control of 2/3 of their crop to a state marketing committee. Price stabilization was deemed not to necessarily be in conflict with Congressional policy.
      3. A state minimum price on natural gas was upheld unanimously by the Court, which reasoned that price-fixing was not an undue burden on interstate commerce. Peerless Oil, 340 U.S. 179 (1950).
      4. Pike v. Bruce Church, 397 U.S. 137 (1970)
         Arizona violated the Commerce Clause when it required Arizona canteloupe growers to package their fruit in Arizona and label them with their address in Arizona. "[T]he Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere." Even when the local interest is legitimate, it's almost per se illegal.
   3. Regulation to protect the environment
      1. Some environmental regulations burdensome of interstate commerce may be OK under Pike given sufficient state interest. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981). Minnesota required that milk containers be made of paper, not non-recyclable plastic. Paper was made in-state, plastic not. The Court upheld this under the Pike balancing test, stating "granting that the out-of-state plastics industry is burdened relatively more heavily than the MN pulpwood industry . . . it is not clearly excessive in light of the substantial state interest in promoting conservation of energy and other natural resources . . . problems."
      2. A state may not reserve its natural resources for only its citizens. Philadelphia v. New Jersey, 437 U.S. 617 (1978). The Court struck down a NJ statute barring importation of solid or liquid waste. "[All] objects of interstate trade merit Commerce Clause protection." The health argument was patently bogus, and the court reasoned that the dump is a natural resource, and a State may not reserve its natural resources for only its citizens.
      3. In Maine v. Taylor, 477 U.S. 131 (1986), the Court upheld Maine's ban on importation of live bait fish. Maine had a clearly legitimate local interest of controlling spread of parasites and "[L]ess discriminatory means of protecting against these threats were currently unavailable." The Court added must only make reasonable efforts to avoid restraining the free flow of commerce.
      4. A town may not use a discriminatory regulation to give advantage to a local business. Clarkstown had a waste transfer station built then adopted an ordinance that required all residents to use the station. The Court held that this ordinance violated the Commerce Clause because it imposed an "excessive burden on interstate commerce." Further, while a town my subsidize a facility, it may not use a discriminatory regulation to give it an advantage over out of state rivals. C&A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994).
      5. Preserving Natural Resources for In-State Use
         1. Facial discrimination against interstate commerce invokes strict scrutiny instead of the normal rational basis review. In general, the Court applies a higher standard in natural resources cases.
         2. In Hughes v. Oklahoma, 441 U.S. 322 (1979), the Court struck down under the Commerce Clause Oklahoma's ban on transporting for sale out of state minnows collected in Oklahoma. The statute "on its face discriminates against interstate commerce," and thus "invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives." The state apparently chose the "most discriminatory means" even though there were nondiscriminatory means available to serve the state purpose in preserving natural resources.
         3. A Nebraska law forbade export of groundwater for use in another state unless that state granted reciprocal water rights. It didn't survive the strict scrutiny "compelling need/closely tailored" analysis.
   4. Regulation of transportation
      1. A clear discriminatory purpose will make a statute unconstitutional, where a statute that is merely burdensome must show a very high burden/benefit to move the Court to strike it. Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981). Iowa restricted truck length to 55ft on a safety rationale. Iowa was the only state in the West and Midwest to have such a restriction, and further, the District cour found that the "evidence clearly establishes that the twin is as safe as the semi." The court applied the standard from Raymond Motor Transportation: "[The] total effect of the law as a safety measure in reducing accidents and casualties is so slight and problematical that it does not outweigh the national interest in keeping interstate commerce free from interferences that seriously impede it." The statute was struck down because Consolidated incurred about $2M in costs, the law appeared to aggravate rather than reduce accidents and the burden was primarily imposed out of state. Brennan, concurring, would have struck the law because the protectionist purpose of deflecting through traffic "is impermissible under the Commerce Clause." In a strong dissent, Rehnquist argued that it is not the function of the courts to set public policy. "It is emphatically not our task to balance any incremental safety benefits from prohibiting 65-foot doubles as opposed to 60-foot doubles against the burden on interstate commerce."
      2. National uniformity in interstate transportation is important. In the first case clearly articulating a balancing approach to dormant commerce clause cases, the Court struck down an Arizona train length limitation. See Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945). While stressing the need for uniformity in an efficient national railroad system and the costs imposed by switching cars into shorter trains at the Arizona border, the court also noted that the increased number of shorter trains likely more than offsets the possible safety gains of shorter trains. Black, J., dissenting, argued that this is not a judical consideration but should be a legislative consideration, a view he later abandoned.
      3. Seven years earlier, the court had upheld width and weight limits in South Carolina State Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177 (1938). The statute passed a rational basis review, but as this was prior to the interstate highway system, there was much less interstate trucking that would be affected. Most probably would come out the other way today.
      4. In Bibb, the court struck down an Illinois statute that required contoured mud flaps because in conflicted with Arkansas statute that madated straight mud flaps. Even though there was evidence that the contoured ones were better, all states allowed the straight ones and the need for uniformity is too great to force truckers to go to the expense of stopping and changing mud flaps.
   5. State as market participant
      1. When a state acts as a business proprietor, it is free of Commerce Clause limitations. Reeves, Inc. v. Stake, 447 U.S. 429 (1980). When a state enters the market, it has a right to treat nonresidents differently. "Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others." South Dakota's state-owned cement plant was within its rights to refuse to sell to nonresidents, as it was merely "limit[ing] benefits generated by a state program to those who fund the state treasury." The four dissenters would only allow the state to discriminate in order to ensure an adequate supply for public projects.
      2. A state may not attempt to affect parties beyond those with whom it is contracting. South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82 (1984)
         Market participant concept doesn't allow Alaska to require purchasers of state-owned timber to perform first processing step in-state. It was "using its leverage in that market to exert a regulatory effect." They cannot impose conditions that are unrelated to their market participation. If they owned the processing plants, they'd be ok, but they can't required this of their buyers.
      3. A city may use tax money to discriminate in favor of its residents in construction contracts. The Court upheld an ordinance that required contractors on a public works project to hire 40% residents of the city. Under market participant exception to dormant commerce clause, the city can use the tax money of its residents to benefit the residents in the creation of public works projects. See White v. Massachusetts Council of Constr. Employers, 460 U.S. 204 (1983).
   6. Interstate privileges and immunities clause
      1. 14th Amendment § 1 Privileges and Immunities Clause was emasculated by the Slaughterhouse Cases, where the court held that Privileges and Immunities referes only to matters of national citizenship. Since then, Artcle IV, § 2 is what is referred to when Privileges and Immunities is referred to. This has been held to protect the right to travel, make a living, hold office, vote, access to the courts.
      2. Rational basis analysis will be applied to discrimination against non-residents absent a fundamental right. A much higher nonresident hunting fee was upheld in Baldwin v. Fish & Game Comm'n of Montana, 436 U.S. 371 (1978). This was not seen as a means to a nonresident's livelihood, a 'fundamental' right (also marry, procreate, travel, etc). If not a fundamental right, then only rational basis is applied. In dissent, Brennan writes for 3, arguing that discrimination against non-residents is only ok if they are the cause of the problem and it is related to their non-resident status.
      3. Where a fundamental right is at stake, the statute will be struck if the non-resident is a "peculiar source of the evil" or if the discrimination against non-residents does not bear a "substantial relationship" to the problem the statute attempts to solve. A unanimous court struck the Alaska Hire resident employment preference statute, using Brennan's method from his Baldwin dissent. "[No] showing was made on this record that nonresidents were 'a peculiar source of the evil' Alaska Hire was enacted to remedy, namely Alaska's 'uniquely high unemployment.'" Alaska residents weren't being hired because they lacked the education and the training. If Alaska wants to give a preference to unemployed Alaskans, but must be "more closely tailored to aid the unemployed." Hicklin v. Orbeck, 437 U.S. 518 (1978).
      4. Market participant exception only applies to Commerce Clause, not to Privileges and Immunities. A city may act as a market participant under the Commerce Clause and preferentially hire residents, but the Privileges and Immunities Clause bars this because the "opportunity to seek employment" is "sufficiently basic to the livelihood of the Nation" to fall under Privileges and Immunities as a fundamental right. See United Building & Construction Trades Council v. Mayor and Council of Camden, 465 U.S. 208 (1984).
      5. A Vermont lawyer took and passed the NH bar exam but was refused admission to the bar due to her non-residency. The Court ruled for Piper, because under the Baldwin majority it's her living, and under Brennan's test in Hicklin, her nonresident status has nothing to do with the problem NH is trying to address.
      6. The resurrection of 14th Amendment Privileges and Immunities The right to travel is a fundamental right, and "[i]t protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become residents, the right to be treated like other citizens of that State." Saenz v. Roe, 526 U.S. 489 (1999). The 7-member majority dislikes the one-year reduction of welfare benefits to that of the previous state because the cost savings would amount to only $0.47 if done across the board, and they distinguish welfare from college tuition because it is consumed in California.

         Much more intelligent dissenting opinions by Rehnquist and Thomas point out that a person is no longer travelling when they stop to establish residency, that a welfare subsidy is just as much an investment in human capital as is college education, and the 'fundamental rights' meant by Privileges and Immunities does NOT mean "every public benefit established by positive law."

         The 14th Amendment P&I meant only a select few aspects of national citizenship from the Slaughterhouse Cases until Saenz, the Court didn't have to decide this case based on the 14th Amendment. The Right to Travel has been implied in Substantive Due Process and in fundamental liberties.

3. Effect of Federal Regulation: Preemption
   1. A state regulation that claims to be about economic regulation does not conflict with a federal regulation of the same area that deals with safety. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190 (1983). The Court held that the Atomic Energy Act, which regulates safety of nuclear plants did not preempt California's regulatory scheme which required a contract for waste disposal before certification. The claim was that California was interested in economic viability, not safety, so there was no preemption. Bullshit. "We accept California's avowed economic purpose as the rationale for enacting § 25524.2. Accordingly the statute lies outside the occupied field of nuclear safety regulation."
   2. Three types of preemption:
      1. express preemption -- Congress says it is preempting the field
      2. conflict preemption -- conflict between state and federal law
      3. field preemption -- even without a conflict, when Congress legislates so pervasively as to signal an intent to occupy the field.
   3. There is no standard for preemption, it is a case-by-case analysis.
   4. In a recent case, AZ tried to deny drivers licenses to those who were bankrupt. This was preempted by federal bankruptcy laws.

Congressional Enforcement of Civil Rights

1. Historical Framework
   1. Statutes based on the 13th Amendment
      1. 42 U.S.C. § 1981. "Equal rights under the law. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
      2. 42 U.S.C. § 1982. "Property rights of citizens. All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."
      3. 18 U.S.C. § 242. "Deprivation of rights under color of law. Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life."
   2. Statutes founded on the 14th Amendment
      1. 42 U.S.C. § 1983. "Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the person injured in an action of law, suit in equity, or other proper proceedings for redress."
      2. 42 U.S.C. § 1985. "Conspiracy to interfere with civil rights.
(3) Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
      3. 18 U.S.C. § 241. "Conspiracy against rights of citizens. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having exercised the same; or
"If two or more persons go on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured --
"They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life."
   3. After the Civil Rights Cases, the 14th Amendment barred only "state action" -- Congress could not legislate against "private individuals" violating people's rights.
   4. United States v. Williams, 341 U.S. 70 (1951)
      A limited category of rights protected by § 241 that Congress may secure against deprivation by private individuals. Voting, peacable assebly, right to travel, etc.
2. Modern Developments
   1. Congress may use "any rational means" to enforce the 15th Amendment ban on racial discrimination in voting -- it may even outlaw practices the court has not found to violate §1. South Carolina v. Katzenbach, 383 U.S. 301 (1966). South Carolina challenged the Voting Rights Act of 1965, which was enacted under the 15th Amendment, § 2. The Court said that Congress may use any rational means. Citing McCulloch v. Maryland, they found the power of Congress under § 2 to be expansive: "Let the end be legitimate . . . and all means which are appropriate . . . are constitutional." The Act specified covered areas which were places that used a 'test or device' and had < 50% voter registration. Literacy and other tests were suspended in these covered areas.
   2. A private citizen acts under color of law when he acts in conjunction with law enforcement officers. United States v. Price, 383 U.S. 787 (1966). The Mississippi Burning case. Three MS cops and fifteen "nonofficial persons" killed three civil rights workers, charges under §§ 241 and 242 were dismissed. "To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a wilful participant in joint activity with the State or its agents."
   3. Private interference with the fundamental right to travel may be punished by Congress. United States v. Guest, 383 U.S. 745 (1966). State involvement in the discrimination here was limited to false records and reports. The majority holds that § 5 "empowers Congress to enact laws punishing all conspiracies -- with or without state action -- that interfere with Fourteenth Amendment rights." Brennan, concurring, states that § 241, invoking Amendment 14 § 5 power, prohibits all conspiracies to interfere with the exercise of a right secured by the Constitution.
   4. The Court upheld congressional prohibition of voter literacy tests with two rationales: this was a purely remedial enactment, or Congress may have judged the literacy test a violation of the Equal Protection Clause, thus defining the substantive scope of § 1. Katzenbach v. Morgan, 384 U.S. 641 (1966). The issue here was whether Congress could prohibit the enforcement of New York's English literacy statute by legislating under § 5. The first argument for sustaining the lower court was that § 5 should be viewed like the Necessary and Proper Clause, the remedial power of Congress gives them this authority. The second argument stated that Congress had concluded that New York's statute was in violation of the Equal Protection Clause. This seems to say that Congress can make a determination of the constitutionality of a statute under the Fourteenth Amendment, in essence interpreting the substantive content of the 14th Amendment. A power to ratchet up protections follows from this, does power to ratchet protection down also? This was broad language: the Court need only 'perceive a basis' that the statute 'may be viewed' by Congress as securing equal protection.
   5. A divided court backed off the Katzenbach holding giving Congress interpretive powers. Oregon v. Mitchell, 400 U.S. 112 (1970). The Court begins to abandon Katzenbach v. Morgan here, in divided opinions holding that Congress has the power to lower the voting age to 18 in federal elections, but not state elections.
   6. Congress has expansive remedial powers under the 15th Amendment. Rome v. United States, 446 U.S. 156 (1980). Even though Rome, GA, had proved that their electoral changes had no discriminatory motive, the AG's refusal to approve the changes under VRA § 5 was upheld because they had a discriminatory effect. This was approved even if § 1 was assumed to prohibit only intentional discrimination. Expansive remedial powers -- similar to Necessary and Proper clause. Rehnquist and Steward had federalism problems with this, Congress is not "acting remedially when it continues the presumption of purposeful discrimination even after the locality has disproved [it]." This decision means that Congress can "determine for itself" that this is unconstitutional. That's supposed to be the judiciary.
   7. Without "congruence and proportionality" between the injury and the means adopted to remedy it, Congress has ventured into prohibited substantive interpretation of the 14th Amendment. After the Court held in Smith that peyote use in a religious ceremony was not protected by the 1st Amendment, the Senate voted 97-3 for the Religious Freedom Restoration Act, attempting to go back to the strict scrutiny analysis for laws that impact religion. Congress essentially told the Court to change their opinion, this raises separation of power issues. Congress can't, in the guise of 14th Amendment enforcement powers, overrule Smith. Smith still stands, because RFRA would alter the meaning of Free Exercise -- no can do. Boerne v. Flores, 521 U.S. 507 (1997). Congress' power under 14th Amd. § 5 is limited to remedial enforcement powers. It has the power "to enforce" not to find constitutional violations. There must be congruence and proportionality between the injury and the means adopted to remedy it. Morgan language which suggests congress may expand the rights in Amd. 14, § 1 is incorrect. The RFRA is "beyond congressional authority."
   8. Where there is no widespread deprivation of rights and the legislated remedy is out of proportion to the objective, the 14th Amendment does not give Conress the power to subject states to suit. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct. 2199 (1999). Patent infringement case -- can states be sued for this? Congress passed the Patent Remedy Act to make stats subject to suits for patent infringement, but the Court held it was beyond the enforcement power of the 14th Amendment: The Act didn't respond to a widespread deprivation of constitutional rights, and the Act was so out of proportion to the remedial objective that it clearly wasn't designed to prevent unconstitutional behavior.
   9. Housing discrimination is a "badge or incidence of slavery" that is within Congress' 13th Amendment power to pass all laws necessary and proper to abolish all such "badges and incidences." Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). Under the 13th Amendment, Congress has the power "rationally to determine what are the badges and incidences of slavery" and to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." It doesn't say "No state" as does the 14th. Congress intended to "prohibit all discrimination against Negroes in the sale or rental of property" with § 1982. Housing discrimination was found to be a "badge or incidence of slavery" in this case.
   10. The 14th Amendment prevents a private school that advertises for students from refusing to accept black students. This infringes on the constitutionally protected right to contract? Runyon v. McCrary, 427 U.S. 160 (1976) held that under § 1981 private schools may not refuse to accept black students if they are "operated commercially and open to the public in that they engaged in general advertising to attract students." This invitation to contract followed by refusal may be construed as an infringement on the right to contract.
   11. Private conspiracies to abridge the Privileges and Immunities of citizens founded on a discriminatory motive are within the scope of §1985. Griffin v. Breckenridge, 403 U.S. 88 (1971) held that § 1985 covered "private conspiracies," but that it didn't create a federal tort law because "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action."
   12. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)
       The Court held that §1985 does not apply to private conspiracies directed at obstructing access to abortion clinics because it involves "a right only against state interference." The target of the protest was abortion, not the women.
   13. 13th Summary - enforcement power reaches to private citizens, the power now encompasses all racial discrimination
   14. 14th Summary - specifically limited to state action. Guest and Price lean toward extension to private citizens.
   15. 15th Summary - broad powers under enforcement clause, even reaches those not intended to be covered.

State Action

1. Introduction
   1. The Constitution, except for the 13th Amendment, protects only against action by the state. In The Civil Rights Cases, the Court held that the 14th Amendment applies only to state action, and absent congressional legislation the Court will not find private conduct to violate § 1. The Court did recognize the 13th Amendment as giving Congress the power to pass all laws necessary and proper to abolish all badges and incidents of slavery.
   2. The Court held a narrow view of what constituted state action until the 1940s when it developed the 'public function' and 'nexus' theories.
2. Government Function
   1. Texas Primaries Cases
      1. The Court attributes state action to the parties because the entire electoral process is a public function. The Democrat always won the general election, and the Democrat primary excluded blacks.
      2. Smith v. Allwright, 321 U.S. 649 (1944)
         Statutory control of primary elections in Texas amounted to a delegation by the state of the power to fix the qualifications of primary elections. The Court relied on Classic, a 1941 case that held Congress could regulate primary elections under Art I, § 4.
      3. Terry v. Adams, 345 U.S. 461 (1953)
         The Jaybird Democratic Association, composed of all the white voters in a Texas county, held "pre-primary" elections. The winners of these pre-primarys nearly always ran unopposed in the Democratic primary and won the general election. In a split opinion, this "pre-primary" was held subject to the 15th Amendment.
   2. Company Towns and Shopping Centers
      1. Marsh v. Alabama, 326 U.S. 501 (1946)
         A Jehovah's Witness was arrested in a company town for distributing literature. The Court held that this privately owned town functions as a municipality, and operation of the town was a public function. Thus, it is subject to the same constitutional limitations as other cities. This town had downtown shopping and the whole works, had it been only residential, it may have been ok.
      2. Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968)
         Peaceful union picketing could not be enjoined from the mall because it was the "functional equivalent of the business district in Marsh.
      3. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)(5-4)
         Distinguised Logan Valley where a shopping center prohibited distribution of antiwar handbills because the union had no other way to reach their audience and these antiwar people did.
      4. The operator of a shopping center does not have to open his business up to picketers or leafleters. Hudgens v. NLRB, 424 U.S. 507 (1976) overruled Logan Valley on the ground that Lloyd had totally rejected it.
         Note: the California Supreme Court has said that the California Constitution makes shopping malls open to the public for 1st Amendment activities.
      5. Marsh is now limited to its facts in that operation of a company town is still a public function, but operation of less than the full range of municipal services probably is not a public function.
   3. Operation of a park may be a public function.
      1. Evans v. Newton, 382 U.S. 296 (1966)
         Senator Bacon deeded land to Macon, GA for a whites-only park. The city appointed private trustees to avoid the 14th Amendment, but the management and maintenance make it a public function. The services of the park were "municipal in nature" and a park "traditionally serves the community." The reverter clause of the deed kicked in and Bacon's heirs regained the park.
      2. This case is perhaps more about the municipal management of the park, as the Flagg Bros. court says this case was about day-to-day maintenance of the park, and that only functions exclusively provided by the state are to be considered public functions. Thus a privately operated ordinary park probably is not a public function.
   4. Operation of a regulated public utility is not a state action, state action is limited to powers "traditionally exclusively reserved to the State." Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)(Rehnquist, J.). A woman didn't pay her bill and the power was shut off. She alleged violations of Due Process under 42 U.S.C. § 1983. The court looked to see if there was a "sufficiently close nexus" between the regulated power company and the alleged violation such that it "may be fairly treated as [the action] of the State itself." It found no state action. The Court rejected the idea that any regulated utility "affected with a public interest" should be bound, and stuck with finding state action where the person exercised powers "traditionally exclusively reserved to the State," or were related to state sovereignty.
      This decision narrows public function.
3. State Involvement or Encouragement
   1. Generally -- If the state is sufficiently involved in, encourages, or benefits from a private party's actions, they will be deemed state actions. This is the nexus approach. If the state commands the action, it will be a state action.
   2. A racially restrictive covenant is not illegal, but state enforcement of it against two willing parties violates the 14th Amendment. Shelley v. Kraemer, 334 U.S. 1 (1948). A racially restrictive covenant is not illegal by itself, it is only illegal under the 14th Amendment if the state judicially enforces the covenant, bringing in clear state action. This is not similar to the state standing back and letting private parties discriminate, because there are two willing parties, a seller and a buyer, and absent state intervention (covenant enforcement), the blacks would be able to take possession of the land. This decision should probably be read narrowly to apply only to a willing buyer and seller that would be prevented from making a deal by state intervention.
   3. Barrows v. Jackson, 346 U.S. 249 (1953)
      A damages action by co-covenantor to recover lost property values after sale to black was barred by the Equal Protection Clause.
   4. Shelley wasn't used in the sit-in cases because there weren't two willing participants. The lunch counter owners didn't want the blacks in the store. It'd be different if it was a state segregation law and the shop owner wanted to let the blacks in.
   5. Codifying the right to discriminate in state law may be seen as state "encouragement" of discrimination. Reitman v. Mulkey, 387 U.S. 369 (1967). California repealed its anti-discrimination laws by a constitutional amendment that guaranteed the right to discriminate, as existed under the common law prior to the anti-discrimination laws. The Court, deferring to the CA Supreme Court's judgment, held that this provision would encourage discrimination and thus was unconstitutional. The repeal of the laws might have been ok, but because the change was made to the constitution, it served as a bar to future anti-discrimination laws, possibly equating to unequal protection of the laws.
   6. Granting a liquor license to a private club that discriminates is not the "significant involvement" required to bring the club into the sphere of state action. Moose Lodge v. Irvis, 407 U.S. 163 (1972) (Rehnquist, J.). This private club, holder of a state-issued liquor license, refused service to a black man. The Court, reluctant to expand state action, held that Irvis was only entitled to injunction against enforcement of the state provision that required the club to adhere to its by-laws, which in this case were racially restrictive. The Court limited state action to where the state was significantly involved with the discrimination. Burton was distinguished because the city owned the building and had a symbiotic relationship with the tenant in that it benefited from the discrimination. Burton clearly was state action because there were so many ties -- it even flew the state flag over the building.
      The dissenters noted that the licenses were quite scarce, the quota in the county had been full for years, and there were few places for blacks to buy liquor many times of the week.
   7. Look to see if the state action can be divorced from the discriminatory choice. Dad sues because he has to pay child support (state mandate) to mom who sends kid to racist school.
   8. Norwood v. Harrison, 413 U.S. 455 (1973)
      The Court enjoined the state from lending books to all students, even those in segregated private schools. Must balance free association with need to keep state action out of discrimination.
   9. Gilmore v. Montgomery, 417 U.S. 556 (1974)
      The court held that a city may not give exclusive access to public recreational facilities to segregated private schools, but use in common with others does not involve the government so directly in the actions as to warrant intervention.
4. Recent Cases
   1. The fact that a private entity receives most of its funding from the state doesn't convert its activites into state action -- the activities must be "traditionally the exclusive prerogative of the State." Rendell-Baker v. Kohn, 457 U.S. 830 (1982)(Burger, C.J.). A teacher was released from a private school that serves kids that can't make it in public schools. most of the funding and students come from the public school system. There are certain hiring regulations in place as well. The teacher's § 1983 claim for lack of Due Process was rejected because the school was a private entity, and its actions didn't become state action due to it getting most of its funding from "public contracts." Just because the private school serves a public function doesn't make it a state actor. The Court still requires that the function be "traditionally the exclusive prerogative of the State."
   2. Gay Olympics Case -- USOC was not a state actor. Dissent found some ties, such as US President served as honorary president, US flag flies over USOC, etc, but not enough.
   3. Private dispute resolution is not an exclusive public function -- a warehouseman selling the belongings of a non-paying bailor according to statute was not a state actor. Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978)(Rehnquist, J.)
      State eviction statute provided for how warehouse owners may sell the belongings of evictees if they don't pay for storage. The majority rejected the notion that private dispute resolution is not traditionally an exclusive public function that is required to find state action. The Court left open education, fire, police, and tax collection as possibly public functions because of a "greater degree of exclusivity" even if they are not completely exclusive. If a state compells the action, it's state action, but not if the state merely acquiesces.
      This decision narrows public function.
   4. Racially motivated peremptory challenges are (wrongly) considered to be state action because they involve state procedures, state officials and state courthouse. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)(Kennedy, J.). Race-based peremptory challenges were found to be state action because they were in the courthouse, state procedures, state officials, courts are traditional function, etc. O'Connor, Rehnquist, Scalia point out that a peremptory is "wholly within the discretion of the litigant," "by design, an enclave of private action in a government-managed proceeding."
   5. The Due Process Clause does not create an affirmative right to government aid or protection, thus a state agent failing to protect a kid from his father is not a state actor. DeShaney v. Winnebago Dep't of Social Serv., 489 U.S. 189 (1989) (Rehnquist, C.J.). The Court found no state action for failure to rescue a child from child abuse about which the social worker knew. There was no "special relationship" found, and the harms the kid suffered were while in the custody of his father, who was "in no sense a state actor." "The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular law-making process. But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment."
   6. Encouragement is determined on a case by case basis. The court will look at the facts of the individual case: "state action depends in each case on shifting facts and the weighing of circumstances." Compare Burton (symbiotic relationship), Shelley v. Kraemer (racial covenant, limited to facts), and Rendell-Baker (private school w/ public funding not state actor). Absent state action, the determination of the constitutional claim is avoided.
   7. Two inquiries required for private actor to act with "state action"
      1. Is the actor breaking the law? If yes, it's unlikely state action unless he's in a conspiracy with state authorities.
      2. Can the acts be described "in all fairness" as state action? ("public function" + "entanglement") Edmonson.
         1. extent to which the actor relies on governmental assistance and benefits
         2. whether the actor is performing a traditional government function
         3. whether the injury caused is aggravated in a unique way by the incidence of government authority

Eleventh Amendment

1. recent buildup to Kimel
   1. Federalism and states rights are on the rise, partly under the 11th Amendment.
   2. Sovereign immunity is based in federal common law.
   3. The specific language of the 11th doesn't prevent a suit against a state by its own citizen, but the Court has interpreted it to include this, as it seems more logical.
   4. The subdivisions of states have no 11th Amendment immunity.
   5. Congress has no power under the Commerce Clause to abrogate states' 11th Amendment immunity from suit. In Seminole Tribe of Florida v. Florida (1996), the Court held that Congress lacked power under the Commerce Clause to abrogate states' 11th Amendment immunity from suit in federal courts. The statute at issue was based on the Commerce power.
      IS THERE MORE TO THIS?
   6. In Boerne v. Flores, 521 U.S. 507 (1997), Congress attempted to overrule Smith (peyote case) with the RFRA. The Court held that Congress exceeded its powers under 14th Amd, §5 by deciding what a substantive violation was, rather than staying with the remedial enforcement powers.
   7. In Alden v. Maine (1999), the Court held that Congress has no Article I power to abrogate state immunity from employee suits. This state immunity is not defined or limited by the 11th Amendment, but is a fundamental aspect of sovereignty that existed prior to the Constitution. Held: the Commerce power is insufficient to extend FLSA to suits against states.
   8. In Florida Prepaid (1999), the court held that states cannot be sued for patent violations absent a finding of conduct transgressing the substantive provisions of the 14th Amendment. The Patent Remedy Act's remedies were out of proportion to the purported objective. To be valid under 14th, there must be congruence and proportionality.
   9. College savings bank -- misleading advertising??? [add more here]
   10. The scope of sovereign immunity unclear. Look for the 5 cases on the 2000 docket. The five member majority seems to have nothing to say to the other four, as the dissenters have taken such a firm stand there's no room for discussion.
2. Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000)(O'Connor, J. 5-4 decision)
   P sued under Age Discrimination in Employment Act (ADEA). Two questions: (1) did Congress intend to abrogate state immunity (it must be explicitly clear)? 8 justices say yes. (2) Did Congress have the authority to extend this act to the states, abrogating state immunity? 5 say no, it exceeded Congressional authority under §5 of the 14th Amendment. Congress has remedial powers under the 14th, it is somewhat broad, allowing Congress to both remedy and deter violations, but there are limits. The remedy must have congruence and proportionality with the scope of the problem. As age isn't a suspect category, the age classification need only be rationally related to the legitimate state interest. State reliance on the "imperfect generalization" of age is permissiable under this analysis.

Limits on Judicial Power and Review

1. Advisory Opinions and Executive Revision
   1. Article III, §2 limits federal jurisdiction to "cases" and "controversies." This means that the court may not issue opinions on hypothetical questions -- thus, no advisory opinions.
   2. example: Jefferson wrote to Jay, C.J. asking about the United States' rights and duties under a treaty. Jay held that the constitution limits the President to advice from the executive. The Court may not give him it's opinion.
   3. The Court only decides those issues it must, even in "cases." It avoids the constitutional question when it can.
   4. Declaratory judgment is not an advisory opinion, it is an alternative remedy to damages or injunction.
2. Standing
   1. "Injury in fact" -- standing generally boils down to this
      1. If there is no injury, the case may not be properly adversarial to bring out the important issues involved.
      2. Only those who are personally discriminated against have standing to sue. The Court declined to extend standing to all members of a minority group who were denigrated by the IRS failing to withdraw tax exempt status from discriminatory private schools. Allen v. Wright, 468 U.S. 737 (1984)(O'Connor, J.)
         
      3. Sierra Club v. Morton, 405 U.S. 727 (1972)
         Non-economic harm can satisfy the injury requirement, but the claimant must be an injured party. Sierra sued to stop construction of a ski resort in a national forest. Standing was denied as Sierra didn't allege they had used the forest or would be damaged. Later they amended the complaint and gained standing.
      4. Standing will not be denied just because many others suffer the same injury, so long as the plaintiff has suffered an individual injury. United States v. SCRAP, 412 U.S. 669 (1973)
         
      5. M had standing to contend that a statute denied him social security benefits based on gender. Even though invalidation of the statute wouldn't extend benefits to M, the "appropriate remedy is a mandate of equal treatement", which "can be accomplished by a withdrawal of benefits from the favored class." Heckler v. Mathews, 465 U.S. 728 (1984).
   2. "Causation in fact"
      1. There must be a substantial probability that the challenged law caused the harm and a near certainty that the remedy will cure the ill. Standing was denied to plaintiffs who failed to show that absent the restrictive zoning there is a substantial probability that P would have been able to buy or lease in Penfield or that if the court struck down the zoning the plaintiffs would almost certainly then be able to buy or lease. Warth v. Seldin, 422 U.S. 490 (1975).
      2. Constitutionalizes the requirements of causation and redressability, with the result that it doesn't matter if Congress intended to give standing to the plaintiffs. The requirement that the challenged action be the cause of the injury and that the remedy sought would remove that injury are imposed by Article III, §2. EKWRO attacked IRS rules that reduced the freebies hospitals had to give to the poor in order to qualify for tax breaks. EKWRO failed to show that the change in tax law had caused the reduced freebies or that a court order changing the tax law back would retore the freebies for the poor. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976).
      3. Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
         Bakke's standing was upheld. He didn't have to show that absent (reverse) discrimination he would have been admitted. His injury "consisted in his deprivation, on grounds of race, of the chance to compete for every place in the entering class."
      4. A "substantial likelihood" that the challenged action was a "but for" cause of the injury and that the relief would remove the injury is sufficient. CESG only had to show that absent statute limiting liability for nuke plants, the plant in question would not have been built. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978).
      5. Redressability. Where plaintiff has multiple claims, he must have standing for each claim for relief. In a suit following being choked unconscious at a traffic stop, Lyons had no standing to ask for injunctive relief to stop the practice because it was too speculative that it would happen to him again, thus injunctive relief would redress his injury. He was able to sue for damages, however. Los Angeles v. Lyons, 461 U.S. 95 (1983).
   3. Third parties. One may not assert the rights of another to gain standing. For example, a doctor may not sue on behalf of his patients right to use contraceptives. Tileston v. Ullman, (1943). This is not required by Article III, but is a prudential consideration, so the Court has made exceptions such as the one set out in Powers v. Ohio, (1991): (1)litigant suffered an 'injury in fact' giving him an interest in the dispute, (2)litigant must have a close relation to the third party, (3)there is some hindrance to third party's ability to protect his own interests.
   4. taxpayer standing and status-based standing
      1. Frothingham v. Mellon, 262 U.S. 447 (1923)
         The Court unanimously held that Frothingham had no standing because her interest was minute and was shared with millions of others. One must sustain or be in immediate danger of sustaining a direct injury.
      2. Flast v. Cohen, 392 U.S. 83 (1968)
         If a taxpayer can show a "logical nexus," he can challenge a federal taxing or spending program. This nexus requires: (1) Congress relies on Art. I, §8 Taxing and Spending Clause and (2) the challenged law violates "specific constitutional limitations", not a general "beyond their power" argument.
      3. A citizen has no standing based on an asserted right to have the government act in accordance with law. The injury is too generalized and abstract. Schlesinger v. Reservists to Stop the War, 418 U.S. 208 (1974).
      4. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982) (Rehnquist, J.)
         Plaintiffs lacked standing under the first prong of Flast because the land grant to the religious college was not an act of Congress based on the Taxing and Spending Clause, but was an executive act based on the Property Clause, Art. IV, §3, Cl. 2.
      5. Taxpayers
         1. A municipal taxpayer may sue, but only for a "good-faith pocketbook action." Doremus sued to stop Bible reading in public schools, but because there was no showing that any money was spent on the activity, he lost. Doremus v. Board of Educ., 342 U.S. 429 (1952).
         2. Doremus exception for municipal taxpayers does not apply to state taxpayers -- they must show a 'direct injury.' The state taxpayer may, however, sue in state court on the federal question and if he wins on the merits, the Supreme Court will allow standing to review the case, even though standing would not lie were it originally brought in federal court. ASARCO Inc. v. Kadish, 490 U.S. 605 (1989).
      6. Voters. "[P]ersons living outside a voting district lack standing to challenge the legislation establishing the district as an unconstitutional racial gerrymander." United States v. Hays, 515 U.S. 737 (1995).
      7. Legislators generally only have standing if they allege that their votes have been nullified. Twenty-one KS Senators sued to nullify ratification of a constitutional amendment because the Lt. Gov. had broken the 20-20 tie. The Court found standing because if they were right, their votes were effectively nullified, because they had the numbers to defeat ratification. Coleman v. Miller, 307 U.S. 433 (1939).
   5. congressional power to create standing
      1. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Scalia, J.)
         DoW failed to demonstrate 'injury in fact' because the alleged injuries were not "actual or imminent". The injuries alleged were speculative in that DoW had no particular plans to revisit the areas affected by the projects.
      2. Administrative Procedures Act is still alive and well.
   6. Notes
      1. Lack of standing terminates the case. The merits are not reached.
      2. Some issues may only be raised in Congress because noone has standing.
3. Timing of Adjudication
   1. A case is moot if events occurring after the filing have removed the litigant's stake in the outcome.
      1. DeFunis sued UWash, claiming law school admissions were racially discriminatory. By the time the Court is ready to decide the case, he has registered for his last semester and will be allowed to graduate. Dismissed as moot. Dissent: only after oral argument were heard did the case become moot, there is a full record and strong public interest and conservation of judicial resources demand a decision here. DeFunis v. Odegaard, 416 U.S. 312 (1974).
      2. If plaintiff seeks an injunction and and defendant voluntarily ceases activity, that usually won't make the case moot, as defendant can resume the activity at any time.
      3. Dismissal for mootness is viewed as constitutionally mandated because if there's no live controversy, it doesn't satisfy Art. III, §2 "cases" and "controversies" requirement.
      4. Denial of class action certification followed by the named plaintiff's claim becoming moot was insufficient to deny standing. The Court reasoned that the class action certification might be reversed on appeal and allow review on the merits for the class. Four dissenters argued that the FRCP cannot create a new right sufficient to confer jurisdiction where Art. III does not. United States Parole Com'n v. Geraghty, 445 U.S. 388 (1980).
   2. Ripeness properly should be understood as involving the question of when may a party seek preenforcement review of a statute or regulation. A case is not ripe when it is not yet sufficiently concrete to adjudicate.
      1. Federal employees who wanted to attack the Hatch Act claimed that they desired to engage in prohibited political activities, but had not done so. The majority held that this hypothetical threat was not enough, the plaintiffs were not adequately specific in what they wanted to do, thus the case was not ripe. United Public Workers v. Mitchell, 330 U.S. 75 (1947).
      2. Abbott Labs criteria -- (1) "the hardship to the parties of withholding court consideration," (2) "the fitness of the issues for judicial decision."
      3. Adler v. Board of Educ., 342 U.S. 485 (1952)
         [add something here]
      4. remote or hypothetical threat
         1. Physicians sued for declaratory judgment against a state criminal abortion statute. Standing was allowed even though none had been prosecuted or threatened with prosecution. Doe v. Bolton, (1973).
         2. The Court found no standing for plaintiffs to sue for a federal injunction against discriminatory police practices. Some had suffered these wrongs in the past, but the threat of future injury is "simply too remote to satisfy the case-or-controversy requirement." O'Shea v. Littleton, 414 U.S. 488 (1974).