Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc.

, et al 2-3 sentence: This case affirmed Flast v. Cohen which has yet to be overturned. This case layes out the basic standing requirements. Issue. Does the Respondent have standing as a taxpayer to bring this suit? Fact summary. The Respondents, Americans United for the Separation of Church and State, Inc. (Respondent), brought suit as taxpayers. They alleged that the Department of Health Education and Welfare grant of United States property to a religious college violated the Establishment and Free Exercise clause of the First Amendment of the United States Constitution (Constitution). Rule/Law. Taxpayer standing is appropriate when the plaintiff challenges an enactment under the taxing and spending clause and the enactment exceeds specific constitutional limitations on taxing and spending. Facts. Under the property clause, Art. IV, Section: 3, cl. 2 of the Constitution, Congress may dispose of and regulate property belonging to the United States. Under the Federal Property and Administrative Services Act of 1949 (the Act), the Department of Health, Education, and Welfare conveyed a 77-acre parcel to the Petitioner, Valley Forge Christian College (Petitioner). Respondent sued on behalf of its 90,000 taxpayer members, alleging that Congress violated the Establishment Clause with its grant of property. Holding. No. Reversed and remanded. Because Respondents sue on an administrative action authorized under the property clause of the, they fail the first prong of the standing test developed in Flast v. Cohen, 392 U.S. 83 (1968), requiring Congressional action under the taxing and spending clause. Dissent. Justice William Brennan (J. Brennan) sees the rise of standing jurisprudence as a means to sidestep deciding important rights issues by effectively slamming the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits. Discussion. Regardless of the dissents moral and fair play arguments, the majority holding in this case is a straightforward application of the rule developed in Flast v. Cohen, which has yet to be overturned. Lujan v. Defenders of Wildlife 2-3 senteces: This case was a check of powers by the judicial against the legislative branch. Congresss citizen-suit provision in the ESA was unconstitutional b/c it created a law where federal courts would be forced to recognize suits where no real world harm had occurred. This case gave 4 factors that can be used to determine whether or not a plaintiff has standing before the Supreme Court depends on the following factors: 1) the actual or likelihood of an injury in fact, 2) whether the injury is sufficiently concrete and individually affects the plaintiff, 3) whether the challenged action is the cause in fact of the injury, and 4) whether the Court will be able to redress the injury with its decision. Rule of Law. Congress cannot create standing when an injury in fact, a causal connection and redressability are not present. Rule of Law. In order to have standing to sue, a party must show that it has or will suffer actual or imminent injuries.

Rule of Law. There must be an actual cause in fact injury (but for the actions complained of, the party would not have suffered the injury) and a substantial or reasonable probability that a decision by the Court will address said injury. Facts. The Endangered Species Act of 1973 (ESA) was promulgated to protect endangered and threatened animals. Under the authority of the ESA, the Secretary declared that the ESA applied to actions outside of the United States. Upon further review, the Secretary reinterpreted the ESA to be applicable to actions only within the United States or the high seas. The Plaintiffs, organizations dedicated to wildlife conservation, filed an action against the Secretary seeking an injunction requiring the Secretary to reinstate the initial interpretation of the ESA. The Secretary moved for summary judgment due to a lack of standing and the Plaintiffs moved for summary judgment on the merits. The District Court denied the Secretarys motion and affirmed the Plaintiffs motion. The Court of Appeals Affirmed the District Court. Issue. Plaintiffs have standing to challenge the Secretarys interpretation of the ESA under either traditional rules of standing or the individual cause of action created within the ESA? Held. No. Judgment reversed. The case and controversy requirement of Article III creates three minimal elements in order to have standing. The plaintiff must have suffered (i) an injury in fact; (ii) there must be a causal connection between the injury and the conduct complained of; and (iii) it must be likely that this injury will be redressed by a favorable decision. In this case, the Plaintiffs failed to establish injury in fact or redressability. Because of the limited effect of the ESA, it is too speculative to claim that not enforcing an injunction on the Secretary would result in an injury in fact to any of the Plaintiffs. Likewise, it is too speculative to assume that any redress by the courts would have substantial impact on threatened species outside of the United States. The Plaintiffs claim that they suffered a procedural injury established by a citizen-suit provision within the ESA is also without merit. To permit standing based on this Congressional Act would usurp the power of the Executive to take Care that the Laws be faithfully executed. Dissent. The plaintiffs did show concrete evidence that they would suffer a cause in fact injury, namely, that the species they supported through their wildlife groups would be potentially harmed if not included for consultation by the Secretary in the ESA. Further, had the Court ruled in the plaintiffs favor, the Court could redress their injuries by ordering the Secretary to use the original interpretation, which covered foreign nations as well as the United States and the high seas? The Plaintiffs have raised genuine issues of fact as to both injury and redressability. Additionally, the courts enforcement of Congressional Acts through the citizen-suit provision do not violate separation of powers Justice Harry Blackmun stated that the requirement of showing concrete plans is an empty formula. Concurrence. Justice Anthony Kennedy (J. Kennedy) stated that while it may seem trivial to require Respondents to acquire airline tickets or announce a day certain when they will return to the site; this is not a case in which it is reasonable to assume they will return. I am not willing to foreclose the theory upon which Respondents base their claim for standing, however. Justice John Paul Stevens stated that The plaintiffs did suffer a cause in fact injury because they were supporters of critical habitats and may go and study these habitats in foreign nations. Further, an answer from the Court could potentially redress the injury by insuring that the ESA protected these foreign habitats. However, the wildlife groups/supporters lacked standing because Congress did not

intend for the consultation requirement in the ESA to apply to foreign countries, and therefore it was within the Secretarys power to interpret the statute as such. Concurrence. Congress does have the power to create standing where it had not existed before, but must identify the injury it seeks to vindicate and relate that injury to those bringing suit. Massachusetts v. Environmental Protection Agency 2-3 sentences: this case challenged standing rules The EPA stresses that even if they help the State of Massachusetts, it will not actual combat the issue of global warming. In order to have a proper effect they would need to regulate the entire United States, and then because of China and India their efforts would not amount to much. However the EPA misses the point of what standing is for; standing is the right to bring suit against a party, not to decide the end result of that law suit. Rule of Law. In order to have standing to sue in a federal court the petitioner must have; injury in fact, causation, and redressability in the claim, these elements are easier to meet if you are a State rather than an individual. Facts. The coast of Massachusetts is in danger due to possible issues of global warming. In order to protect the States interest in the land on the coast, the State of Massachusetts petitions the EPA to regulate gas emissions from cars. There is much research to show such emissions add to green house gases that effect or cause global warming which in turn affects the water on the coast. The EPA denied the request. Now the State of Massachusetts is suing the EPA for not enforcing the Clean Air Act. Issue. Whether a State has standing to sue the EPA for not enforcing the Clean Air Act. Held. Yes. In order to have standing a petitioner must have injury, causation and redressability. Typically the injury of green-house gases would be too tenuous for an individual to claim is a direct injury. However this is the State that is filing suit not the individual. The State has a quasi-sovereign interest. The State has an interest in the land on its coast, and they have shown the injury of losing coastal property as the water rises. The State has also shown the casual connection, which the EPA does not deny, that global warming is a cause of the water rising. As for redressability, that is shown as well. If the EPA regulates emissions from cars, that will help the issue of global warming in the State of Massachusetts. Since all requirements are shown, standing is proper. Dissent. The issues of Global Warming are world wide; the injury claim does not meet the particularity requirements of standing. The injury is too big, and redressability needs to come from the legislature not the bench. McCulloch v. Maryland (S.Ct. 1819) 2-3 sentences: This case turns on the meaning of the word necessary in the Necessary and Proper Clause. Rather than interpret the word narrowly to mean absolutely necessary, Chief Justice John Marshall interprets the word broadly to encompass usages such as needful, useful, incidental, or conducive to. If Congress acts by explicit or implicit powers granted to it in the Constitution and the means used are rationally related to the objectives sought, the Supreme Court will not strike its action down. This case established review for means-ends rationality under the Necessary and Proper Clause. It also

Facts: Congress chartered a bank that established an active branch in Maryland. Because the bank was not chartered by the Maryland legislature, it was subject to a Maryland state tax that applied to all banks operating without that states authority. The bank failed to comply with the tax law, arguing that the tax constituted a wrongful interference with Congress lawmaking powers. Issue 1: Does the exercise of federal power predominate over a states claims to power? Rule 1: (Marshall, C.J.) The federal government emanates from the people, not from the states. Therefore, the states may not limit the powers granted to Congress by the Constitution. Issue 2: To what extent has the Constitution granted Congress the power to make laws? Rule 2: (Marshall, C.J.) Although the federal government is one of enumerated powers, i.e., having only the powers granted to it, the powers are not limited to those explicitly stated in the Constitution, but also include those powers which are implied in the nature and spirit of the Constitution. In granting specific powers to Congress to achieve certain national goals, the Framers of the Constitution intended that the federal government have the means available to achieve those goals, although not expressly stated. An example would be Congress power to punish for the violation of its laws. Although not expressly granted, such a power is implied for Congress successfully to bring about the desired goals of its lawmaking. The necessary and proper clause of the Constitution is an explicit grant to Congress to enact laws which are necessary to carry out its objectives. a) The Supreme Court defines necessary as something which is convenient, useful, or essential to achieving a desired purpose. It does not mean indispensable. b) The decision of whether a law is necessary should be left to the Congress to determine and should not be invalidated by the Court unless it is clear that the law is not within Congress powers. Issue 3: May a state tax federal entities located within its jurisdiction? Rule 3: (Marshall, C.J.) The power to tax is the power to destroy. Therefore, a state tax statute that interferes with Congress power to make laws is invalid. Fact Summary. The state of Maryland enacted a tax that would force the United States Bank in Maryland to pay taxes to the state. McCulloch, a cashier for the Baltimore, Maryland Bank, was sued for not complying with the Maryland state tax. Synopsis of Rule of Law. Congress may enact laws that are necessary and proper to carry out their enumerated powers. The United States Constitution (Constitution) is the supreme law of the land and state laws cannot interfere with federal laws enacted within the scope of the Constitution. (1.) The Necessary and Proper Clause authorizes Congress to make laws pursuant to the unenumerated powers of the United States Constitution (Constitution) so long as such laws are necessary and proper for carrying into execution the powers expressly vested in the federal government by the Constitution. (2.) The Constitution and the laws made pursuant to it are supreme and control the constitution and the laws of the states and cannot be controlled by them. Facts. Congress chartered the Second Bank of the United States. Branches were established in many states, including one in Baltimore, Maryland. In response, the Maryland legislature adopted an Act

imposing a tax on all banks in the state not chartered by the state legislature. Plaintiff, John James (Plaintiff), brings suit on behalf of himself and the state of Maryland against Defendant, James McCulloch, a cashier for the Baltimore branch of the United States Bank, was sued for violating this Act. Claiming Defendant had failed to pay a state tax assessed against the Bank. Defendant argued that the Bank, as an institution incorporated under the laws of the United States, was not obligated to pay a tax levied upon it by a state and called into question the validity of such a tax.McCulloch admitted he was not complying with the Maryland law. McCulloch lost in the Baltimore County Court and that courts decision was affirmed by the Maryland Court of Appeals. The case was then taken by writ of error to the United States Supreme Court (Supreme Court). Issue. Does Congress have the authority to establish a Bank of the United States under the Constitution? Was the tax an unconstitutional intrusion upon congressional powers? Held. Yes. Judgment reversed. Congress power to incorporate a bank derives from its incidental powers conferred by the Necessary and Proper Clause for carrying into execution the powers vested by the Constitution in the United States government. Although we dont see the word bank or incorporation among the enumerated powers of the Constitution, we do see express powers such as to (i) lay and collect taxes, (ii) to borrow money; (iii) to regulate commerce and (iv) to raise and support armies, etc. The fact that the necessary and proper clause was placed among the powers of Congress, not the limitations thereof, is also significant. This placement shows that the framers intended to enlarge, not diminish, the powers vested in Congress. He clarified that the word necessary, as used in this clause, need not mean that the action is absolutely necessary, but only that the end goal be legitimate and the means to achieve it appropriate. Counsel for the state of Maryland claimed that because the Constitution was enacted by the independent states, it should be exercised in subordination to the states. However, the states ratified the Constitution by a two-thirds vote of their citizens, not by a decision of the state legislature. Therefore, although limited in its powers, the Constitution is supreme over the laws of the states. There is no enumerated power within the Constitution allowing for the creation of a bank. But, Congress is granted the power of making all laws which shall be necessary and proper for carrying into execution the foregoing powers. Yes, Marylands tax was unconstitutional. The Constitution and the laws made pursuant to it are supreme and control the constitution and the laws of the states and cannot be controlled by them. The sovereignty of Maryland could not impose a tax on upon those it does not represent. Thus, the states have no power to impede, burden or in any way control, the operations of the laws enacted by Congress. The Constitution derives its authority from the people, not from the states. The power to tax is the power to destroy. When a state taxes an entity created by the Congress, it acts upon an entity created by people over whom it has no control. U.S. Term Limits, Inc. v. Thorton 2-3 sentences: this case represents a common theme in Constitutional Law, the attempt to balance federalism with state regulations. Rule of Law. The Tenth Amendment of the United States Constitution (Constitution) does not reserve rights for the States that were not within the original powers of the States. Facts. An amendment to the Arkansas State Constitution prohibited an otherwise-eligible candidate for

Congress from appearing on the election ballot, if that candidate had already served three terms in the House of Representatives or two in the Senate. The Arkansas Supreme Court held that the amendment was unconstitutional. The case was appealed to the United States Supreme Court (Supreme Court). Issue. Can individual states add additional requirements for election to Congress other than those found in the Constitution? Held. No. Judgment affirmed. Arkansas claimed the Tenth Amendment and the principle of reserved powers allow the States to add qualifications that Congressional candidates elected within the State must meet. The Supreme Court found that the power to add such qualifications was not within the original powers of the States because no such right existed before the enactment of the Constitution. Therefore, the Tenth Amendment did not reserve this right for the States. Additionally, the Supreme Court found that the Framers intended the Constitution to be the sole source of qualifications for members of Congress, thereby divesting the States of any power to add qualifications. Arkansas also argued that the amendment is not a qualification, but rather an acceptable use of the States power to regulate the Times, Places, and Manner of Holding Elections under Article I. The Supreme Court found this Article only allowed the States to create procedural regulations, not to exclude classes of candidates. Dissent. The States can exercise all powers that the Constitution does not withhold from them. The Constitution is silent on the issue of prescribing eligibility requirements for elected federal officials. Therefore, the States retain the power to add election requirements for federal officials within the state. Concurrence. A relationship between the people of the Nation and the National Government exists. The States may not interfere with this relationship. The Arkansas amendment attempts to do just that and is therefore unconstitutional. Gibbons v. Ogden 2-3 sentences: This case was the first major case to analyze the powers of Congress under the Commerce Clause. In so doing, the Court interpreted the powers to be very broad, reaching any activity that affected commerce between or among the states. Rule of Law. Commerce that is connected to more than one state is within the reach of Congresss commerce power. Congress power to regulate interstate commerce does not stop at the external boundary line of a State. Congress power to regulate within its sphere is exclusive. Facts. The New York legislature enacted a statute granting Fulton and Livingston an exclusive right to operate a steamboat in New York waters. Thereupon, Fulton and Livingston licensed Ogden (Defendant) to operate a ferry between New York and New Jersey with an exclusive license granted by the state. Later, Gibbons (Plaintiff) began operating a ferry, licensed under a statute enacted by Congress that entailed Gibbons entering into New York waters, thereby violating Ogdens monopoly. The Ogden (Defendant) received an injunction, from a New York court, to stop Gibbons (Plaintiffs) steamboat service. The Plaintiff appealed.

Issue. May a state adopt legislation regarding interstate commerce that conflicts with the Commerce Clause? Held. No. Judgment reversed. Under the Commerce Clause, Art I, 8 of the U.S. Constitution, Congress can legislate with regard to all commerce between states. Contrary to Ogdens assertion, commerce means more than traffic: buying & selling, interchange of goods, but not navigation. It also encompasses navigation. Commerce includes commercial intercourse, not just buying and selling. The phrase among the several states means intermingled with them. Therefore, Congress power to regulate among the several states must not stop at the external boundary line of each State. Congress power must also extend to each States interior. Ogden argued that the 10th Amendment of the Constitution was an independent limit on Congressional power under the Commerce Clause, and this argument was rejected. *N+o area of interstate commerce is reserved for state control. Congressional regulation of interstate commerce includes the ability to regulate matters occurring within one state, as long as the activity has some sort of connection with another state. Here, the steamboat started in New York and ended in New Jersey, so it was within reach of the commerce power. States have no independent control over interstate commerce. When a state law conflicts with a valid federal statute, the state law will violate the Supremacy Clause and be deemed invalid. Note: The Commerce Clause allows Congress to regulate all commerce that affects more than one state. Also, the Commerce Clause limits a states ability to regulate interstate commerce, which is known as the dormant commerce clause. Note: J. Marshall in his holding is not saying that commerce that is completely internal and that does not affect other States is subject to regulation by Congress under the Commerce Clause.

NLRB v. Jones & Laughlin Steel Corp 2-3 sentences: in this case, the courts abandons the direct and indirect approach used in earlier cases. Rule of Law. Congress has the power to regulate intrastate activities that potentially could have a significant impact on interstate commerce. Acts, whether direct or indirect, that burden or obstruct interstate commerce are within the reach of Congress power under the Commerce Clause. Facts. This case challenged the constitutionality of the Act. The Act sets forth a comprehensive scheme for regulating management/labor relations. Among the Acts provisions are the rights of laborers to organize and collective bargain. The National Labor Relations Board (NLRB) found that Jones & Laughlin Steel Corp. (Jones & Laughlin) engaged in unfair labor practices by firing employees involved in union activity. Jones & Laughlin failed to comply with an order to end the discriminatory practices. The NLRB sought enforcement of its order in the Court of Appeals. The Court of Appeals found the order was outside of the range of federal power. The matter was appealed to the Supreme Court of the United States (Supreme Court).

Issue. Does the federal government have the power to regulate local employment practices in companies whose business effects interstate commerce? Held. Yes. Judgment reversed. The Supreme Court found that Jones & Laughlin does significant business outside of the state of Pennsylvania. The majority of its products were sold outside of the state. Acts having an effect on interstate commerce cannot be immune from federal regulation just because they derive from labor disputes. It is the effect on interstate commerce, not the source of the effect that determines Congress power to legislate. Whether or not a particular act affects commerce in a way sufficient to come under federal control must be determined on a case-by-case basis. Moreover, the statute is relatively unobtrusive. It does nothing more than safeguard a fundamental right. Employees have a clear right to organize and select their representatives for lawful purposes. Congress retains the power to control and regulate interstate commerce. Although the employee discharges may be an intrastate activity, the repercussions from such discharges have the potential to significantly affect interstate commerce. Therefore, Congress has the power of legislation over such activities. Dissent. The employee discharges are too remote from interstate commerce to justify Congressional regulation. Note: Congress passed the Act under its commerce power. The commerce power is a broad ranging power, which is the basis for a significant amount of Congressional legislation. Wickard v. Filburn 2-3 sentences: To me, this is in some ways the greates excerise of the Commerce power by the Supreme Court. The Supreme Court seems to say Congress can compel an individual to purchase wheat when the individual could grow wheat for personal consumption. Rule of Law. Activities local in character that have an economic effect on interstate commerce can be regulated by Congress under the Commerce Clause. Facts. Appellee was an owner/operator of a small farm in Ohio. He sold milk, poultry, and eggs. He also grew a small crop of winter wheat every year. Appellee sold a portion of the wheat, used some as feed for poultry and livestock, used some to make flour for home consumption, and the kept the rest for the following seeding. Pursuant to the Agricultural Adjustment Act (the Act), the Secretary of Agriculture set a quota of wheat production to bring the supply of wheat into balance with the demand for it. Under the quota, every farmer was given an annual allotment of wheat he could produce. Filburns allotment was 11.1 acres and a normal yield of 20.1 bushels per acre. Filburn, exceeded his allotment by 239 bushels and was fined $117/ .49c a bushel. Thereupon, Filburn sued the government to enjoin the enforcement of the penalty. Issue. Was the quota subjecting Filburn to wheat production restrictions unconstitutional inasmuch as Congress has no power to regulate activities local in nature? Held. No. The lower court issuing the injunction is reversed. The Commerce Clause undoubtedly gives Congress the power to regulate the price of wheat. This can be done by increasing the demand or decreasing the supply for it in the market. The effect of the quota is to control the supply of wheat and sustain the demand for it. To the extent that farmers could produce

wheat to meet their own home needs, the demand for wheat is affected. When viewed in the aggregate (if everyone overgrew wheat for personal consumption), this decrease in demand would have a significant effect on interstate commerce. Although Filburns production alone may be trivial, the combination of the many farms trivial production would have a substantial effect on the market. Even if Filburns activity is local and although it may not be regarded as commerce, it may still be reached by Congress if it exerts a substantial economic effect on commerce, without regard for whether the effect is direct or indirect. Note: This is another case involving the aggregation doctrine. One question to be considered is whether this opinion is limited to cases in which Congress is dealing with a genuine economic problem. United States v. Lopez 2-3 sentences: when an activity is not directly connected to commerce, the Congressional regulation will usually not be upheld, especially when the activity is traditionally regulated by the states, i.e. gun laws are criminal in nature. In this case, the Court is attempting to define the outer limits of what Congress has the power to regulate under the Commerce Clause. Rule of Law. The power of Congress to regulate activities extends only to those activities that substantially affect interstate commerce. The Act neither regulates commercial activity, nor contains a requirement that the possession be connected in any way to interstate commerce. An activity regulated by Congress under the Commerce Clause must relate to either (i) the channels of interstate commerce; (ii) the instrumentalities of interstate commerce and (iii) or activities having a substantial relationship to interstate commerce. Facts. Congress passed the Act making it a federal crime for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. Lopez (D), a 12th grader, was convicted for carrying a concealed handgun into his high school. The Court of Appeals reversed the lower court on the grounds that the law was outside the scope of the commerce power. Issue. Does the commerce power of Congress extend to activities that have no apparent connection to interstate commerce? Held. No. The Court of Appeals is affirmed. The activity being regulated must substantially affect interstate commerce. Congress must at least rationally conclude that a regulated activity substantially affects interstate commerce. There are three broad categories of activity Congress may regulate under the commerce power. First, the channels of interstate commerce. Second, the instrumentalities of interstate commerce. Third, activities having a substantial effect upon interstate commerce. In the instant case, only the third category applies. In order for the statute to be deemed valid, the activity must substantially affect interstate commerce. The Act is a criminal statute, which does not regulate economic activity. In passing the Act, Congress banned possession of a gun that has never traveled in, or affected, interstate commerce. Congress provided no findings in the statute showing possession of guns in schools affected commerce. The federal government argues possessing a firearm could affect the national economy in two ways. First, by imposing high financial costs upon society through insurance. Second, by preventing individuals

from traveling into areas where violent crime occurs. Thus, the government concludes, the Act substantially affects interstate commerce. The majority rejected these arguments because under the governments theories, there would be no limits on federal power. The commerce power would extend to any activity that leads to violent crime and any activity related to the economic productivity of individuals. Congress does not have plenary police power. Possession of a gun in a school zone is not an economic activity that affects interstate commerce. Dissent. (Breyer, J) Congress had a rational basis for finding a substantial connection between gunrelated school violence and interstate commerce. Evidence exists that gun-related violence interferes with the quality of education in schools and education is related to economic viability. To hold this statute constitutional would not expand the scope of the Clause. Rather, it would recognize that in todays world gun-related violence near the classroom affects our economic as well as social well-being. (Souter, J) Congress had a rational basis for its conclusions. Further, gun-related violence around schools is a commercial problem. The majority wrongly believes it can justify its holding by distinguishing between commercial and non-commercial transactions. Justice John Paul Stevens (J. Stevens) stated that Congress has the power to regulate commerce in firearms. This power must carry with it the power to prohibit possession at any location. Concurrence. (Kennedy, J) While the majoritys holding is viable, it should be limited. If not, the holdings of prior Supreme Court of the United States (Supreme Court) cases interpreting the Commerce Clause will be infringed upon. Congress should have the power to regulate all commercial transactions. The Supreme Court should not disturb the essential principles of the commerce power. Further, education has traditionally been an activity regulated by the states. It should not be regulated under the federal commerce power. The Act insofar as it fails to show sufficient connection to commercial matters, threatens to disrupt the balance between the spheres of federal and state authority that our Constitution entails. (Thomas, J) The Supreme Court has departed from the traditional understanding of the Commerce Clause. The Constitution does not support the idea Congress has authority over all activities that substantially affect interstate commerce. The substantial affects test is a departure from the original understanding of the commerce clause. It incorrectly grants Congress a police power. United States v. Morrison Rule of Law. The language and purpose of the Fourteenth Amendment of the United States Constitution (Constitution) place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment of the Constitution from obliterating the Framers carefully crafted balance of power between the states and the National Government. Facts. This case arose from a rape claim brought by Petitioner, Christy Brzonkala (Petitioner), a student at Virginia Polytechnic Institute (Virginia Tech) against two football players enrolled at the university. Petitioner filed a complaint under the Virginia Tech disciplinary system, but one of the accused was not punished and the others punishment was eventually suspended. She dropped out of school and sued both men and Virginia Tech in federal district court under 42 U.S.C. Section:13981. Issue. Whether Congress has authority to enact 42 U.S.C Section:13981 based on Section:5 of the Fourteenth Amendment of the Constitution?

Whether the sections civil remedy should be upheld as an exercise of Congress remedial power under Section:5 of the Fourteenth Amendment of the Constitution? Held. No. Every law enacted by Congress must be based on one or more of its enumerated powers in the Constitution. In section II of the opinion, the Chief Justice found no authority for the provision in the Commerce Clause of Article I, section 8, clause 3. Therefore, Congress does not have authority to enact 42 U.S.C Section:13981 based on Section:5 of the Fourteenth Amendment. No. Section 13981 is not aimed at proscribing discrimination by officials, which the Fourteenth Amendment of the Constitution might not itself proscribe. Section 13981 is not directed at any state or state actor, but at individuals who have committed criminal acts motivated by gender bias. Section 13981 visits no consequence on any Virginia public official involved in investigating Petitioners assault. Therefore, it is unlike any of the Section:5 remedies that the Court has previously upheld. It is also different from previously upheld remedies in that it applies uniformly throughout the Nation. Therefore, Congress does not have authority to enact 42 U.S.C Section:13981 based on Section:5 of the Fourteenth Amendment of the Constitution. Dissent. The remedy is not disproportionate and there is no lack of congruence between the remedy and the violation. Discussion. This holding has been criticized for improperly constraining Congress power to combat systematic discrimination, by holding that Congress does not have authority to enact 42 U.S.C Section:13981 based on Section:5 of the Fourteenth Amendment of the Constitu Gonzales v. Raich Not on case brief.com National Federation of Independent Business v. Sebelius, 2-3 sentences: the court held that congress could not use the commerce clause to regulate interstate commerce so as to mandate the purchase of a particular product, i.e regulating inactivity into activity; it summons or creates commerce. Facts Congress passed The Patient Protection and Affordable Care Act (PPACA) known as Obamacare. The law requires individual citizens not covered by a corporate plan, Medicare, Medicaid, or a government sponsored plan to buy into a federally approved plan or face a penalty imposed by the federal government. The law creates a health insurance exchange at each state level, where individual consumers and corporations offering healthcare can compare their rates with other plans and potentially purchase such plans, with a government subsidy in certain cases. Low income individuals and families at a particular rate of poverty may purchase within these exchanges and receive such a subsidy if they purchase within the exchange. The law also establishes minimum standards for health insurance policies. Issue Issue in Second Case: (1) Whether Congressional law that requires states to choose between complying with the Patient Protection and Affordable Care Act or loss of federal funding for Medicaid is constitutionally valid; and

Issue in First Case: (2) Whether, Congressional law requiring all citizens to obtain health insurance or pay a penalty is unconstitutional Holding/Analysis (1) Yes, this provision violates the 10th amendment through the provision that withdraws all Medicaid funding unless the state adheres to the parameters of the Acts Medicaid expansion program. The court stated that while such a mechanism is unconstitutional, the correct solution for the court is to redact such a penalty, thereby giving states a choice as to whether they want to create the exchange without the threat of Medicaid funding being lost. The court held that the grant withholding provision was unconstitutionally coercive. He wrote that the threat of withdraw of 10% of funds which make up a states budget represents a gun to head scenario for states. (2) No. The Act is not justified under the commerce clause. The court has never permitted congress to use its power to regulate interstate commerce so as to mandate the purchase of a particular product. He noted that in order for Congress to regulate interstate commerce, there must be something to regulate. The Act creates commerce, essentially, by regulating inactivity into activity; it summons or creates commerce. The court looks at the tax and used the substance and application test to determine whether it met the parameters necessary to fall under the taxing and spending clause. Finding that it did meet such a definition, recognizing that the fine is imposed by the IRS and levied on individual taxpayers through their income taxes. Moreover, the fine is collected by the Treasury and produces revenue for the government. The individual mandate is much more a tax than a penalty, according to the court. The court interpreted a penalty to mean a fine imposed on unlawful conduct. Because the individual mandate leaves consumers with a rational choice between fine or payment, it can hardly be seen as a penalty. As an aside, the court also held that it was not a direct tax imposed equally on all individuals and therefore neednt be struck down due to lack of apportionment among the states. The court held that the notion of taxing inactivity is a legitimate power of Congress. This did not create a limitless taxing power, according to the court, because the court would not support such a tax that was so severe as to be putative. The attendant law was not putative, as it gave citizens a reasonable and rational choice between activity or inactivity. The court did not clarify at what point a tax on inactivity becomes putative as opposed to remaining a rational choice. Child Labor Tax Case [Bailey v. Drexel Furniture Co.] 2-3 sentences: Not all revenue-generating measures passed by Congress are valid taxes. A regulation under the guise of a tax is an improper use of the taxing power and will be held invalid. When a taxs primary motive falls outside the means of obtaining revenue and becomes more of a regulation, then this so-called tax falls outside Congress power of taxation. Rule of Law. Congress cannot use their power to tax in order to regulate. Facts. Congress passed the Child Labor Tax Law of 1919 (the Law). The Law imposed a federal excise tax of 10% on annual net profits, of those employers who used child labor in certain businesses. The statute created a standard, limiting the employment of children in certain industries. If an employer knowingly failed to comply with the standard, then the tax would be imposed. A company that paid $6000 under this statute brought suit challenging its constitutionality.

Issue. May Congress impose a tax as a penalty for failure to comply with regulatory standards? Held. No. Congress is not validly exercising its taxing power when it imposes a tax with a prohibitory and regulatory effect and purpose. It is irrelevant that the taxes are also generating revenue. Attempting to regulate local behavior, such as the employment of children under certain conditions, through a tax is an impermissible use of power. Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive. But, there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment. Such is the case here. (Taft, C.J.) Congress may not use its taxing power to regulate areas within a states regulatory power. United States v. Kahriger, 343 U.S. 22, (1953) Facts: The Revenue Act of 1951 required bookmakers to pay an occupational tax and register with the Internal Revenue Service. D was charged with violation of the Act. Issue: May Congress, pursuant to its taxing power, enact laws to regulate conduct which falls within the regulatory responsibility of the states? Rule: (Reed, J.) Although a federal excise tax has regulatory effects, it is still revenue-producing and thus a valid exercise of federal power. OVERVIEW: The federal government challenged a decision that found that the wagering excise tax of 26 U.S.C.S. 3285 was unconstitutional. On appeal, the court reversed the decision and held that all the provisions of the excise tax were adapted to the collection of a valid tax. The court found that the excise tax had a regulatory effect, produced revenue, and clearly defined the activities covered and excluded. The court also found that the registration requirements of the excise tax on wagering were not offensive.The court further found that the required data was directly and intimately related to the collection of the tax and were obviously supportable as in aid of a revenue purpose. The court also rejected the taxpayers argument that the excise tax was a denial of the privilege against selfincrimination. The court determined that under the registration provisions of the excise tax, the taxpayer was not compelled to confess to acts already committed, he was merely informed by the statute that in order to engage in the business of wagering in the future he must fulfill certain conditions. Holding: The Court reversed the lower courts judgment. Dissent: (Frankfurter, J.) The Act is an inadmissible intrusion into a domain of legislation reserved to the states. Further, the enforcement provision of the Act is designed for the systematic confession of crimes with a view to prosecution. Note: Marchetti v. United States (1968) overruled Kahriger. National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012). Further Down

United States v. Butler (S.Ct. 1936) Facts: Congress sought to raise farm prices by curtailing agricultural production. The Agricultural Adjustment Act of 1933 authorized the Secretary of Agriculture to make contracts with farmers to reduce production acreage in exchange for benefit payments. A processing tax was imposed upon producing farmers to raise funds for payments made to farmers curtailing production. Issue: May Congress, pursuant to its taxing power, regulate agricultural production among the states, under the guise of providing for the general welfare? Rule: (Roberts, J.) Congress may not use the guise of providing for the general welfare to regulate areas that are traditionally within local control. Dissent: (Stone, J.) The Constitution requires that public funds shall be spent for the promotion of the general welfare. Thus, it is a contradiction in terms to say that there is power to spend for the national welfare, while rejecting any power to impose conditions reasonably suited to achieve that end. South Dakota v. Dole FACTS: In 1984, Congress enacted 20 U.S.C. 158, which directs the Secretary of Transportation to withhold 5% of the federal highway funds otherwise payable to states from any State that permits purchase or public possession of any alcoholic beverage by a person less than 21 years of age. South Dakota permitted persons 19 years of age or older to purchase 3.2% beer. ISSUE: Does 158 violate constitutional limits on congressional spending power as well as violate the 21st Amendment? HOLDING: No, judgment affirmed. REASONING: Even if, for arguments sake, direct congressional setting of the drinking age for the entire country would be unconstitutional, Congress indirect use of its conditional spending power to achieve the same results is permissible. Only if, by use of its conditional spending power, Congress induced the states to pass laws that would themselves violate the constitutional rights of individuals would that congressional action be unconstitutional. By enacting 158, Congress conditioned the receipt of federal funds in a way reasonably calculated to address alcohol-related accidents and fatalities on the Nations highways to a purpose for which the funds are expected safe interstate travel. Here, Congress is not coercive by any means, for Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. DISSENT (OConnor):A condition that a State will raise its drinking age to 21 cannot fairly be said to be reasonably related to the expenditure of funds for highway construction. The only possible connection, highway safety, has nothing to do with how the funds Congress has appropriated are expended. Rather, it is a regulation determining who shall be able to drink liquor. As such, it is not justified by the spending power. Missouri v. Holland (S.Ct. 1920) Facts: Congress attempted to regulate the killing of migratory birds within the U.S., but this statute was struck down as not being within any enumerated congressional authority. In 1916, the U.S. and Great Britain entered into the Migratory Bird Treaty to protect species of birds that annually migrated to certain areas of the U.S. and Canada. the act prohibits the killing or capture of certain birds within the

U.S. because they were of great value as a source of food and in destroying insects injurious to vegetation. These birds were in danger of extermination through lack of adequate protection. Issue: May Congress, pursuant to its treaty power, enact federal statutes to regulate a subject area otherwise regulated by the states? Rule: (Holmes, J.) Federal statutes enacted within the scope of the Treaty Power are necessary and proper means of executing an enumerated power of the national government. Therefore, such action does not violate the Tenth Amendment. HOLDING: No, judgment of the district court affirmed. REASONING: The treaty power is explicitly given to Congress, and thus furnished authority for this particular treaty. Furthermore, migration of wild birds is a national problem, best dealt with by a national solution. Therefore, no 10th Amendment rights of individual states will be allowed to stand in the way of such a solution. But for the treaty and the statute there soon might be no birds for any powers to deal with. In this case, it is not sufficient to rely upon the States Woods v. Cloyd W. Miller Co. (S.Ct. 1948) Facts: Congress enacted the Housing and Rent Act of 1947 as a means of addressing the housing shortage that persisted after World War II. The following day, the landlord demanded of its tenants increases of 40 percent and 60 percent for rental accommodations in a city defense-rental area. That was an admitted violation of the Act and regulations adopted pursuant thereto. The housing expediter thereupon instituted the proceeding under 206(b) of the Act to enjoin the violations, and a preliminary injunction was issued. The Act was challenged on the grounds that federal authority to regulate rent under the War Powers Act had ended with the Presidential Proclamation, which terminated wartime hostilities. Issue: May Congress, pursuant to its War Powers, promulgate a regulation to address a deficit caused by the war, even after hostilities have ceased? Rule: (Douglas, J.) Congress may, pursuant to its War Powers, impose regulations aimed at remedying conditions that are the direct result of war, even if the war has ended. HOLDING: Yes, judgment of the district court reversed. REASONING: The Court held that even though actual combat had terminated, a state of war still technically existed (Hamilton v. Kentucky Distilleries). Furthermore, the shortage was a direct and immediate cause from the war, and therefore, Congress could act to combat the shortage, under its power to take all necessary and proper steps to enforce an enumerated power (the war power). Philadelphia v. New Jersey (Art. I, 8, 3: Interstate Commerce Clause) 2-3 sentence: If a law is facially discriminatory, it is presumed to be invalid. But just because a state law is facially discriminatory, it is not automatically invalid; it is subject to strict scrutiny/virtually per se invalid, a rebuttable presumption. If a facially discriminatory measure serves a legitimate local purpose that could not be served by any other nondiscriminatory measures, it may survive judicial review. Rule of Law. A state may not attempt to isolate itself from a problem common to many other states by erecting a barrier against the movement of interstate trade. A protectionist state law is invalid if it facially discriminates against outsiders.

Facts. A New Jersey law prohibited the importation of solid or liquid waste that originated or was collected from outside of the State. The stated purpose of the statute was to protect the quality of the environment of New Jersey. Operators of private landfills in New Jersey and other states challenged a New Jersey ban which prohibited importation of waste from outside the state. The state court held the ban unconstitutional because it discriminated against interstate commerce. The highest state court reversed holding that the law advanced health and environmental objectives without economic discrimination against interstate commerce. Issue. Whether the New Jersey ban on importation of out-of-state waste violates the Commerce Clause. Held. Yes. Judgment of the highest state court reversed. Whatever New Jerseys ultimate purpose is, it may not be accomplished by discriminating against articles of out-of-state commerce (waste) coming from outside the state unless there is some reason, apart from their origin, to treat them differently. On its face, the statute imposes on out-of -state commerce the full burden of conserving the states landfill space. A state may not isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade. The limits on such regulation are: Where simple economic protectionism is effected by state legislation, a virtual per se rule of invalidity has been erected. Dissent. Justice William Rehnquist (J. Rehnquist) stated that the Constitution does not require New Jersey to receive and dispose of solid waste from other States when doing so will inexorably increase the health problems of its citizens. Quarantine laws that the Court has upheld allow a state to prevent diseased cattle from being imported from another state so that the legislature may protect its own state. New Jerseys attempt to protect its state from solid waste is no different. There is no reason that New Jersey should accept diseased cattle or the solid waste from other states and exacerbate its problems. There is no basis for distinguishing the laws under challenge here from past cases upholding state laws that prohibit the importation of items that could endanger the population of the State. New Jersey passed the statute to preserve the health of New Jersey residents by keeping their exposure to solid waste and landfill areas to a minimum. There is no evidence that would contradict the stated motive. Discussion. This law was held to be protectionist in nature rather than enacted to further legitimate local concerns with incidental effects on interstate commerce. The New Jersey law, on its face, imposes on out-of-state interests the full burden of preserving the states landfill space. New Jersey has overtly moved to slow or freeze the flow of commerce for protectionist reasons. Thus, the law is unconstitutional. State actions that are protectionist in nature (i.e., favoring in-state interests at the expense of out-ofstate interests) are generally unconstitutional. In this case, the Supreme Court explains that state statutes need not be proven purposefully protectionist in order to be held unconstitutional. A state statute may also be regarded as unconstitutional protectionist legislation if it is only discriminatory on its face. Southern Pacific Co. v. Arizona Rule of Law. If a state laws burden of commerce outweighs the regulatory advantage to the state, the law violates the commerce clause, and is therefore invalid. A state may not regulate phases of national commerce (e.g. interstate train travel) that need national uniformity.

Facts. The Arizona Train Limit Law of 1912 prohibited railroad trains of more than 14 passenger or 70 freight cars and authorized the state to recover a money penalty for each violation. In 1940, Plaintiff, State of Arizona, sued Defendant, Southern Pacific Company, for violating that law. The trial court found in favor of Defendant, holding that the law violated the commerce clause. The Supreme Court of Arizona reversed, finding that a state law enacted under the states police power and that is bore a reasonable relation to health, safety, and well-being of the states people and could not be overturned despite its adverse affect on interstate commerce. Issue. Whether the health and safety effects of Arizonas 1912 law outweighed the national interest in keeping interstate commerce free from interferences. Held. No. The judgment of the highest state court reversed. The Supreme Court of the United States found that the practical effect of this law was to control train operations outside the boundaries of Arizona because the law required reassembling long trains at the nearest terminal points outside the state, thus, creating a serious impediment of the free flow of interstate commerce. The S. Crt stated that, a state law that puts a significant burden on interstate commerce, yet provides no real improvement in safety, will be found to violate the Constitutions Commerce Clause. The Supreme Court determined that the usage of trains with greater than 14 passenger cars and more than 70 freight cars is standard practice on many United States railroads. If train length was to be regulation, national uniformity in regulation, such as only Congress can impose, is practically indispensable to the operation off an efficient and economic national railway system. The Supreme Court also determined that the Law imposed a serious burden on interstate commerce. Also, the Law does not provide any actual safety benefits and in actuality makes train operation more dangerous. Dissent. The Court is acting as a super legislature and this matter should be left to Congress. The Court should only intervene where the state legislation discriminated against interstate commerce or was out of harmony with Congressional laws. The state law here is entitled to a presumption of validity. Discussion. After Defendant, a private party, showed that the state law had economic effects outside Arizona, the burden of proof was on the Plaintiff-State to show that the advantages of the restrictive law outweighed the burden on commerce. The plurality implemented such a balancing test and found interstate commerce too adversely effected. Kassel v. Consolidated Freightways Corporation 2-3 sentences: the Court weighed the benefits against the burdens -- Pike balancingand found the law to be unconstitutional. Rule of Law. If a statute appears to be non-discriminatory but the purpose or effect of the regulation is to discriminate against commerce, the statute will be invalid. A State may not protect its own local economic interests by discriminating against both out-of-state and in-state trucks. Facts. Iowa enacted a highway safety law limiting the size of trucks to 60 feet. The Plaintiff used 65-foot trucks. Iowa was the only state in the western or midwestern United States to outlaw the use of 65-foot doubles. Consolidated Freightways Corporation was a carrier whose trucks traveled through Iowa for east-west and north-south routes. Iowas law did not allow companies to use 65 foot double trailers.

Consolidated therefore had to either use smaller trucks, detach its trailers when driving though Iowa, or divert its trucks around Iowa. The Iowa District Court found the statute unconstitutional, concluding there is no valid safety reason for barring 65-foot doubles from Iowas highways. Issue. Does an Iowa statute that prohibits the use of certain large trucks unconstitutionally discriminate against interstate commerce? Held. Justice Powells opinion: Yes. District Court judgment affirmed. Iowa claimed its motive in enacting the statute was highway safety. The Court found no evidence that the statute in question actually served this purpose. The court found that a truck with two trailers is just as safe as a truck with one trailer. Consolidated went on to prove that a 55 foot single and 60 foot double (which Iowa allows) are no safer than a 65 foot double. They all have the same ability to maneuver, brake, and turn. Iowas contentions that a single trailer takes less time to pass, takes less time to clear an intersection, is less likely to jackknife, and can back up for longer distances do not prove that single trailers are overwhelmingly safer than larger trailers. Iowas law causes a substantial burden on interstate commerce because it is out of step with the laws of other Midwestern and Western states. Iowas law cost Consolidated $2 million per year and added about $12.6 million to trucking costs for other companies. The local benefits of this law are insubstantial because the number of goods that must be transported does not decrease with truck size. Companies must either send two trucks through Iowa or divert its larger trucks long distances around Iowa. The laws safety goal is therefore dubious because it will ultimately cause trucks to drive greater distances, which will cause more accidents than the lack of double trucks in Iowa will prevent. The legislators real motive was to protect Iowa highways from increased traffic. The laws exemptions secured to Iowans many of the benefits of large trucks while shunting to neighboring States many of the costs associated with these trucks. Dissent. Justice Rehnquist and Justice Stewart dissenting. Iowas safety argument was rational because most states regulate the length of trucks that may use their highways. The limit of 60 feet chosen by Iowa was rational since most trucks are between 55 and 65 feet. There is not a substantial burden on interstate commerce because every State has laws regulating truck size and 17 other states prohibit 65-foot double trailers. All of New England and most of the Southeastern states prohibit these large trucks. Consolidated travels through two other states along its principal east-west route that prohibit 65-foot double trailers (NJ and PA). The Court incorrectly second-guessed a legislative decision about what size truck is safe on Iowa roads. The Court should have asked if they acted rationally in regulating the truck size, and not whether a 65foot double trailer is as safe as other trucks. The Court cannot require Iowa to follow the policy choices of neighbor states. Only Congress can preempt the rational policy determination of the Iowa Legislature because Congress has the power to regulate interstate commerce. The Court did not consider the purpose advanced by the lawyers but instead the actual purpose, which was to protect the state. It is too difficult to judge what the actual purpose of legislators is when they pass legislation. Legislators could have more than one reason to vote for legislation. This law was not passed to achieve protectionism goals. It was passed in 1963 when very few States permitted 65foot doubles. Protectionist motives could not have been present in 1963. Whenever a State enacts more stringent safety measures than its neighbors in an area that affects commerce, its safety and protectionist motives cannot be separated. The whole purpose of these safety

regulations is to protect the State from unsafe vehicles. If other states chose not to protect their citizens that is their business. The enacting state should not be penalized for trying to protect its citizens. Concurrence. Justice Brennan and Justice Marshall concurring in the judgment. J. Brennan differs from J. Powell in weighing safety regulations against the burden on interstate commerce. J. Brennan says that first the court must find the safety benefit to be illusory. J. Powell says that first one should compare the burden to the safety interests and if the safety interests are trivial then the burden should be compared to the motives behind the act. J. Brennan found a different initial motivation for the Act than the dissenting opinion. Instead of it being a safety regulation, the entire purpose of the Act was to achieve and promote uniformity with other states in limiting the size, weight and speed of motor vehicles. The act was amended numerous times, increase the maximum allowable length from 45 feet in 1947 to 60 feet in 1971. A bill that would have increased the size even further to conform with neighbors was vetoed by the Governor, who claimed protectionist reasons for the veto. Any protectionist purpose is impermissible under the Commerce Clause. Discussion. How does one find a unlawful purpose in non-discriminatory legislation? As in New Energy, Kassel requires a very high justification standard. So the Court tried to find out if the legislation produced the intended safety results. It concluded both that a 60 foot double truck was as safe as a 65 foot, and that the more a truck has to travel the higher the chance that there will be an accident. Unlike New Energy, this statute was evenhanded so the majority went further and decided whether it was really non-discriminatory by looking at the legislative motives. They said the actual motives were protectionist because the Governor who vetoed an amendment to allow 65 foot double trailers stated protectionist motives in his speech Kassel also used a second test because this was a facially non-discriminative statute. The second test was to weigh the safety benefits to the burdens on interstate commerce. The majority compared the actual cost of the benefits to the actual cost of the burdens. The dissent instead argued that the balancing test is the method the Court should use when trying to find out if evenhanded legislation is a pretext for discrimination against interstate commerce. If the benefits of legislation are trivial and the costs are great, then it is safe to assume that the motives were economic protectionism. The dissent concluded that the burden was not high at all since other states had similar statutes. Dean Milk Co. v. Madison 2-3 sentences: Originally, Dormant Commerce Clause decisions only struck down laws that were blatantly discriminatory against out-of-state economic interests. This case, which dealt with a facially neutral statute, placed a greater emphasis on the requirement that a state use the least restrictive means available when creating laws that favor local businesses. This case established the rule that one state in its dealings w/ another, may not place itself in a position of economic isolation. Rule of Law. A city ordinance that places a discriminatory burden on interstate commerce that is not essential for the protection of local health interests violates the commerce clause. Even if a statute is facially non-discriminatory, the court can find that it discriminates in practice by imposing a burden on interstate commerce which outweighs local benefits. Even if the state is acting in self-protection of health and safety within its borders it may not regulate interstate commerce unless

such regulation is absolutely necessary to protect such health and safety. The court will often inquire into alternative means that are less restrictive on interstate commerce but allow the state to achieve the same goal. Facts. The city of Madison, Wisconsin enacted an ordinance that barred the sale of pasteurized milk unless it had been pasteurized and bottled at an approved pasteurization plant within five miles of Madisons central square. The purpose of the ordinance was to promote convenient, economical and efficient plant inspection. Of the five processing plants within the allowed distance, only three of them did business in Madison. The plants in the five-mile radius and farms in the twenty-five mile radius were inspected once a month. Dean Milk collected milk from 900 farms outside the twenty-five mile radius, and processed the milk about sixty-five miles away from Madison. They were denied a license to sell their products within Madison because their pasteurization plants were more than five miles away. Plaintiff, Dean Milk, a processing plant in Illinois, challenged the ordinance, claiming that it violated the commerce clause. The highest state court rejected the commerce clause attack. Issue. Whether the discrimination inherent in the Madison, Wisconsin ordinance can be justified in view of the character of the local interest and the available methods of protecting them. Held. No. Judgment of the highest state court reversed. The statute is facially non-discriminatory, so the question is whether the burdens on interstate commerce outweigh the local benefits. The local benefits are sanitary regulation of milk and milk products originating in remote areas. The Court agrees that this is an important purpose for the statute. However, the practical effect is to exclude milk produced and pasteurized in Illinois, and thus erecting an economic barrier that would protect local industry against competition. The Supreme Court of the United States found that there were reasonable and adequate alternatives available to pasteurize milk other than limiting pasteurization to the local market. The City of Madison could charge companies who wish to import milk the cost of inspecting plants and farms outside the five and twenty five mile radius. Madison may also require milk produced outside the state to conform to the same standards as those enforced in the state. The consequences of allowing Madison to prohibit milk that is not produced locally would invite other localities to do the same and create multiple trade barriers, thus stifling competition. The Court found that the effect of the ordinance was to block the free flow of commerce. The Court further found that the ordinance was protectionist in nature and thus, a violation of the commerce clause. Dissent. There was no finding in the state courts that Plaintiff, Dean Milk, is unable to have its milk pasteurized within the five-mile radius of the city square. The ordinance is not discriminatory, but rather an attempt to safeguard public health. The Madison statute was not protectionist legislation but a good faith attempt to safeguard public health by making adequate sanitation inspection possible. A small burden on trade does not automatically run afoul of the Commerce Clause. Such a health regulation should not be invalidated merely because the Court believes that alternative milk-inspection methods might insure cleanliness and healthiness of Plaintiffs milk. Federal courts have traditionally left decisions about bona fide health regulations to the states and the states are subject only to the paramount authority of Congress if it decides to assume control. There is no precedent for striking down a bona fide health law because there are alternatives to safeguard health that would be as good or better than the one chosen. There is evidence in the record that the substitute health measures suggested by the Court would not insure milk safety as effectively as the Madison ordinance. Discussion. The majority looked to the purpose of the ordinance, the laws effect and whether there was

a less restrictive alternative available to the city. The Court found that intrastate milk from outside the Madison area was subject to the same prohibition as that moving in interstate commerce. Hunt v. Washington State Apple Advertising Commission Rule of Law. In the absence of conflicting legislation by Congress, where a state law governing a matter of local concern comes into conflict with the Commerce Clauses overriding requirement of a national common market, the Court is confronted with the task of bringing about an accommodation of the competing national and local interests. Facts. North Carolina adopted a statute requiring all containers of apples shipped into the state display no grade other than the applicable U.S. grade or standard, which is set by the United states Department of Agriculture. The statute applied to apples shipped from all States, even those whose standards surpassed the USDAs, such as Washington States. The State of Washington (a huge appleproducing state) had a different grading system, which was superior to the quality set by the USDA. Washington state apple growers, who could only comply with the North Carolina statute by drastically altering their packaging methods, challenged the statute as an unreasonable burden on interstate commerce. North Carolina defended the statute, arguing that it constituted a valid exercise of its police powers to protect its citizenry from fraud and deception. (Apple Fraud) Issue. Did the North Carolina statute violate the Commerce Clause by unreasonably burdening interstate commerce? Can a facially neutral state law be unconstitutional and in violation of the Commerce Clause if it has a discriminatory effect on interstate commerce? Held. Yes. Although facially neutral, the statute had the effect of not only burdening interstate sales of Washington apples, but also discriminating against them. For example, the statute raised the costs of doing business in North Carolina for Washington growers, while leaving the costs for North Carolina growers unaffected. In addition, by prohibiting Washington growers from marketing their apples under their states more stringent grading system label, the statute has a leveling effect which operated to benefit local growers. Moreover, non-discriminatory alternatives to the statute could have been used to accomplish the States local objectives. North Carolina could have permitted out-of-state growers to display their state labels only if they also used the USDA label. Discussion. This case presents an example of a statute, neutral on its face, that the Supreme Court invalidated, because the Supreme Court was able to infer discriminatory intent from the statutes discriminatory effect. As such, this case also draws into question how far courts should go in inferring discriminatory intent from neutral laws that have the effect of distinguishing between in-state and outof-state interests. Exxon Corporation v. Governor of Maryland Rule of Law. A state law that causes some business to shift from one interstate supplier to another does not impermissibly burden interstate commerce.

Facts. The Plaintiffs, Exxon Corporation and other oil refiners (Plaintiffs), sell petroleum to independent retailers in Maryland and also owns company-operated gas stations in the State.. The state of Maryland passed a law prohibiting producers and refiners of petroleum products from operating retail gas stations within the state to correct inequities in the pricing. There were no virtually no petroleum producers and refiners in Maryland. The effect of this law was to force various companies to divest themselves of their Maryland gas stations. Moreover, the producers and refiners could not directly sell their product in Maryland. Those effected by the law were predominantly out-of-state producers. The Plaintiffs challenged the law, arguing it had a discriminatory effect and that violated the Commerce Clause because it impermissibly burdened interstate commerce. At trial, the Plaintiffs prevailed on due process grounds. However, the Maryland Court of Appeals reversed, upholding the law against the Plaintiffs. Issue. Did Marylands law impermissibly burden interstate commerce so as to violate the Commerce Clause? Held. No, the state law prohibiting oil companies from operating gas stations was upheld even though those affected were mostly out of state oil companies. The statute creates no barrier against interstate independent dealers, nor does it prohibit the flow of interstate goods, place added costs upon them, or distinguish between in-state and out-of-state companies in the retail market. Interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business to shift from one interstate supplier to another. The Commerce Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations. Although the consuming public may be injured by the loss of the high volume, low-priced stations operated by the independent refiners, that argument relates to the wisdom of the statute, not to its burden on commerce. [Meaning, its up to Marylands (D) legislature to draft a better law.+ Thus, we hold that a state law that causes some business to shift from one interstate supplier to another does not impermissibly burden interstate commerce. Dissent. Justice Harry Blackmun (J. Blackmun) dissented because he felt the majority failed to condemn impermissible discrimination against interstate commerce in retail gasoline marketing. He felt the laws effect was to protect in state retail gas station dealers over the out-of-state retailers. It is not justified by a legitimate state interest and can be vindicated by a more even-handed regulation. He felt the law violated the Commerce Clause. Discussion. All gasoline in Maryland originates from out of state. Therefore, it does not discriminate against out of state retailers because there are no in state retailers. The Commerce Clause protects the interstate market, no particular interstate firms, from prohibitive or burdensome regulations. Although the consuming public may be the independent refiner, that argument relates to the wisdom of the statute, not to its burden on commerce. Thus, the Supreme Court of the United States (Supreme Court) held that a state law that causes some business to shift from one interstate supplier to another does not impermissibly burden interstate commerce. Analysis: Why did the Court find no discrimination in this case when it did find discrimination in Hunt, Governor of the State of North Carolina v. Washington State Apple Advertising Commission? The Court distinguished the two cases by noting that Marylands (D) law does not create any barriers against interstate independent dealers; it does not prohibit the flow of interstate goods, place added

costs upon them, or distinguish between in-state and out-of-state companies in the retail market. In Hunt, however, the state statute raised the cost of doing business for out-of-state apple producers and favored in various ways the in-state market. Justice Blackmun was of the opinion that Marylands (D) statute did have a discriminatory effecteven though it was neutral on its facebecause it excluded mostly out-of-state gasoline retailers while providing protection from competition to the locals. It is often difficult for courts to determine whether a law has a discriminatory effect or a legitimate, nondiscriminatory objective. West Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts Department of Food and Agriculture Rule of Law. A state pricing order, which imposes a tax on the sale of local products, regardless of whether it was produced in-state or out-of-state, the proceeds of which are distributed as a subsidy to in-state producers of the product, discriminates against interstate commerce and thus is unconstitutional under the Constitutions Commerce Clause. Facts. Massachusetts enacted a pricing order, which taxed all milk sales in the state, regardless of whether it was produced in or out of state. The proceeds from the tax were then disbursed to Massachusetts dairy farmers only. West Lynn Creamery, Inc. (P), a milk dealer who buys 97% of its raw milk from out-of-state milk producers, challenged the law on the ground that it violated the Commerce Clause.The Defendants, Healy, Commissioner of Massachusetts Department of Food and Agriculture (Defendant), rationale for this order was to protect local dairy producers. The state courts rejected the challenge. Issue. Does the Massachusetts statute violate the Constitutions Commerce Clause? Held. (Stevens, J.) Yes. We hold that Massachusetts (D) pricing order discriminates against interstate commerce and thus is unconstitutional under the Commerce Clause. Massachusetts (D) argues that the milk order is constitutional because it is a product of two independently lawful regulations: 1) the subsidies to the Massachusetts (D) dairy farmers are valid exercises of state power, and 2) the tax that provides the money for the subsidy is nondiscriminatory. We disagree. The pricing order is funded principally from taxes on the sale of milk produced in other States. By so funding the subsidy, Massachusetts (D) not only assists local farmers, but burdens interstate commerce. This violates the cardinal principle that a State may not benefit in-state economic interests by burdening out-of-state competitors. By conjoining a tax and a subsidy, Massachusetts (D) has created a program more dangerous to interstate commerce than either part alone. When a nondiscriminatory tax is coupled with a subsidy to one of the groups hurt by the tax, a States political processes can no longer be relied upon to prevent legislative abuse, because one of the in-state interests which would otherwise lobby against the tax has been mollified [in other words, reap the benefits from the tax in a big way] by the subsidy. Instead of opposing the tax that raises the price for milk, the powerful group of local dairy farmers supported the tax. The purpose and effect of the pricing orderdiversion of the market share to local dairy farmersnecessarily injures out-of-state farmers. Preservation of local industry by protecting it from the rigors of interstate competition is the hallmark of the economic protectionism that the Commerce Clause prohibits. Discussion. The pricing order is funded principally from taxes on the sale of milk produced in other states. Massachusetts pricing order does not assist local farmers, but instead burdens interstate commerce. This violates the cardinal principle that a State may not benefit in state economic interests

by burdening out-of-state competitors. When a nondiscriminatory tax is coupled with a subsidy to one of the groups hurt by the tax, a States political processes can no longer be relied upon to prevent legislative abuse. This is because one of the in-state interests, which would otherwise lobby against the tax, has been mollified by the subsidy. Prevention of local industry by protecting it from the rigors of interstate competition is the hallmark of the economic protectionism that the Constitutions Commerce Clause prohibits. Youngstown Sheet & Tube Co. v. Sawyer Rule of Law. A President may not use executive authority as a source of power without Congressional approval, to solve problems regarding work stoppages resulting from labor disputes. The Presidents power, if any, to issue an order must stem from an act of Congress or the United States Constitution (Constitution).

Facts. During the Korean War, a dispute arose between the United Sates Steel companies and their employees causing the President to believe that the proposed work stoppage would result in a vulnerable national defense. In 1952, the employees union gave notice of a nationwide strike. As a result, the President issued Executive Order 10340 directing the Secretary of Commerce to take control of the mills and insure that they keep running. The Plaintiffs, companies affected by the Order, brought suit against the Secretary. The District Court issued a preliminary injunction preventing the Secretary from continuing seizure and possession of the plants. Later that day, the Court of Appeals stayed the District Courts injunction deeming that the issues needed to be addressed by the Supreme Court of the United States. Issue. Whether the President, as Commander in Chief and without Congressional approval, has the ultimate power to take possession of private property in order to keep labor disputes from stopping production. Held. No. Judgment of the Court of Appeals affirmed. The use of a seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment, but prior to this controversy, Congress had refused to adopt that method of settling labor disputes. Although Article II Section: 1 grants executive power to the President to execute the laws. His general executive power is inapplicable since there was no relevant law here to execute. Under Section 2, the Commander in Chief power does not warrant the seizure here either, since it was lawmaking and too far removed from the theater of war. That power did not include the President being able to take possession of private property in order to keep labor disputes from stopping production. That is the job for the Nations lawmakers and not for its military authorities. The Constitution limits the Presidents functions in the law-making process to the recommending of laws that he thinks are wise and the vetoing of laws he thinks are bad. The founders of this nation entrusted the lawmaking power to the Congress in both good times and bad. Dissent. The seizure was temporary in nature. There was no basis for claims of arbitrary action, unlimited powers or dictatorial usurpation of congressional power here. The President acted in full conformity with his duties under the Constitution. Work stoppage would have resulted in a serious curtailment of production of essential weapons and munitions of all kinds. The President was acting to save the legislative programs and in that sense he was there to take care that the laws were faithfully

executed. He had to execute a defense program which Congress had enacted and strike would have had a disastrous effect on those programs. The President acted to preserve those programs by seizing the steel mills. It was temporary and subject to congressional direction. Presidents in the past have acted in the same way. Concurrence. The issue before us can be met, and therefore should be, without attempting to define the Presidents powers comprehensively. The President would have had power to issue this Order had Congress not explicitly negated such authority. Congress had expressed its will to withhold such power from the President. A president may act three ways. First, he may act pursuant to congressional authority in which case he has the most power. Second, the President may act contrary to Congress. In such instances he has the least amount of power. Third, the President may act on his own and has no authority to act as here. Justice Burton stated that the controlling fact was that Congress had prescribed specific procedures and they did include seizure for this emergency. Justice Douglas emphasized the Fifth Amendments requirement for compensation for takings of property. Justice Jackson said that the President had inherent legislative powers to act in preserving the nation, but only when there was an absence of any provision passed by Congress purporting to deal with the situation. Justice Clark stated that the President must follow the procedures laid down by Congress in the Act. If Congress had not acted, then in the absence of Congressional action, the Presidents independent power to act depends on the gravity of the situation confronting the nation. Discussion. The majority looked to the framework of the constitution to formulate its holding that a President may not use executive power to seize private property in order to prevent work stoppage resulting from a labor dispute. This case calls into question the extent and the source(s) of the emergency powers of the President, if any, under the Constitution. The majority described this as inherent power, while the dissent argued this was implied power. If there had been an emergency and Congress had declined or neglected to act, then the President would have had the narrow sliver of authority to seize the steel mills. This is an inherent power. The dissent argued that the President exercised his implied powers to take care that the laws were faithfully executed. Since the list in the United States Constitution of the Presidents powers is not exclusive, then as long as the Presidents act seems reasonably related to carrying out the laws made by Congress, the Court will not strike the act merely because it does not fall within any narrow enumerated presidential power. Morrison v. Olson Rule of Law. An independent counsel is an inferior officer; therefore, Congress may by law vest the Appointment of such inferior officers, as they think proper: in the President, in the courts of Law, or in the Heads of Departments. Facts. Appellant, Morrison, an independent counsel, challenged the Ethics in Government Act of 1978 that created a special court and empowered the Attorney General to recommend to that court the appointment of an independent counsel to investigate, and, if necessary, prosecute government

officials for certain violations of federal criminal laws. The Act provides that the independent counsel can be removed from office only by impeachment or by personal action of the Attorney General for good cause. A court decided the jurisdiction of the appointed counsel and the Attorney General had the right to remove the counsel for good cause. The District Court upheld the Act, but the Court of Appeals reversed the lower courts holding. Issue. (1) Second Case: Whether the Ethics in Government Act of 1978 violates the Appointments Clause of Article III by empowering the Attorney General to remove the independent counsel only where the Attorney General can show good cause and thereby interferes with the Presidents appointed functions. (2) First Case: Whether the Ethics in Government Act of 1978 violates the doctrine of separation of powers. Held. (1) Second Case: No. The Court of Appeals judgment reversed. The Court found the independent counsel to be an inferior officer based on its tenure, duration and duties. Thus, under the constitution, independent counsel was not a principal officer who, under the Appointments Clause, could only be named by the President. Further, the Court found that appointment of independent counsel by the Court was permissible under the Constitution. Because the independent counsel may be terminated for good cause, the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act. Therefore, this limitation does not deprive the President control over the independent counsel to interfere impermissibly with the constitutional obligation to ensure the faithful execution of the laws. The Court does not take the view it once did in Humphreys Executor and Myers that distinguish officials based on whether they are purely executive, or quasi-legislative or quasijudicial. The question is really whether or not Congress is interfering with the Presidents exercise of executive power and his duty to take care that laws are executed. If it is not essential for the Presidents proper execution of his Article II powers that these agency officials be removed at will, then Congress can impose some limits. The good cause removal provision in isolation does not interfere with executive authority. The independent counsel is an inferior officer under the Appointments Clause with limited jurisdiction and tenure, lacking policymaking or significant administrative authority. He has discretion and judgment in carrying out his duties under the Act but there is no need for the President to have the power to terminate the independent counsel at will in order to perform executive Branch duties. The executive retains authority to remove the counsel through the Attorney General for good cause. The Act as a whole does not violate the separation of powers by reducing the Presidents ability to control the prosecutorial powers wielded by the independent counsel. Congress is not attempting to increase its own powers at the expense of the Executive Branch. Congress role under the Act is limited to receiving reports or other information and oversight of the counsels activities, which are functions incidental to the legislative function of Congress. The Executive Branch powers are not undermined or disrupted. The Act does give the Attorney General several means of supervising or controlling the prosecutorial powers of the counsel enough to ensure that the President is able to perform his duties. (2) First Case: No. The Court of Appeals judgment reversed. Congress is not trying to increase its own power at the expense of the executive authority. The role of the Congress under the Act is limited so the Act does not pose a danger of congressional usurpation of Executive Branch functions. Furthermore, the Act gives several means of supervision of the counsel to the Executive by means of the Attorney General. The relevant constitutional provision, the Appointments Clause, reads the Congress may by Law vest the Appointment of such inferior Officers, as they think proper . . . in the courts of Law . . . . Art II. This

language seems to clearly give Congress the power to vest the appointment of an executive official in the courts of Law. Thus, Congress is authorized to make interbranch appointments. Because the miscellaneous powers granted to the Special Division are mostly either passive of ministerial, the Act poses no Art III difficulty concerning judicial intrusion into matters that are more properly within the Executives authority. Theres no separation of powers problem with regard to the Act because the statute (1) appropriately puts the removal power in the hands of the Executive Branch: an independent counsel may only be removed by the Attorney General for good cause and (2) does not impermissibly interfere with the functions of the Executive Branch. Dissent. The Presidents power over the executive functions of the government is complete and exclusive. The majority concludes that the act is valid because it only takes away some executive power from the President, but the framers intended that the executive power clearly and fully be vested within the President of the United States. Justice Antonin Scalia (J. Scalia) states that Article Two of the Constitution provides that the executive power shall be vested in a President of the United States. This does not mean some of the executive power, but all of the executive power. Since the statute vests some purely executive power in a person who is not the President of the United States, it is void. Moreover, the Independent Counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch. She is not removable at will by anyone in the Executive Branch. Discussion. The Court reconciled its decision barring the President from removing an independent counsel by emphasizing that the Attorney General could remove an independent counsel for good cause. Therefore, the Executive, through the Attorney General, retains power to ensure the independent counsel is competently performing its duties. United States v. Curtiss-Wright Export Corp Rule of Law. The non-delegation doctrine does not bar Congress from delegating great authority and discretion to the President of the United States (the President) in the conduct of foreign affairs. Facts. Congress passed a Joint Resolution authorizing the President to ban the sales of arms to countries involved in the border dispute between Bolivia and Paraguay. The President immediately made an Executive Order banning such sales. The Defendant was indicted for conspiracy to sell fifteen machine guns to Bolivia in violation of the Joint Resolution and the Executive Order. Issue. May Congress delegate law-making authority to the President in matters of foreign affairs? Held. Yes, the President has broad authority to conduct foreign affairs. The origin and nature of the Presidents power to address foreign affairs is very different from his other powers. The Presidents domestic powers are much more limited. The Presidents authority relating to foreign affairs are not dependent solely upon the affirmative grants of the Constitution. The President is in a better position to handle foreign affairs than Congress. The system is set up so that the Executive receives classified information that the legislature does not, negotiates treaties where the Congress does not, and is the primary representative of the United States in foreign affairs relations. The Court argued there is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect upon the reestablishment of peace in the

affected countries. The Executives authority in foreign affairs is not limitless, however. There are still provisions of his power which must be shared with Congress. REASONING:

Internal affairs: Broad statement that the fed govt can exercise no powers except those specifically enumerated in the Const. and such implied powers as are necessary and proper to carry into effect the enumerated powers is categorically true only in respect to internal affairs
o

Primary purpose of the Const. was to carve from the general mass to legislative powers then possessed by the States such portions as it was thought desirable to vest in the fed govt, leaving the rest to the States

External sovereignty powers: Since the States severally never possessed international powers, such powers could not have been carved from the mass of State powers but obviously were transmitted to the U.S. from some other source: the British Crown
o

When the external sov. of Great Britain in respect to the colonies ceased, it immediately passed to the Union Investment of the fed. govt w/ powers of external sov. did not depend on an affirmative grant from the Const. if they had never been mentioned in the Const. they would have been vested in the fed. govt as a necessary concomitant to nationality

(E.g., power to acquire territory by discovery and occupation, power to expel undesirable aliens, powers to make such intl agreements as do not constitute treaties dont come from Const. but nonetheless are powers of the fed govt as a result of nationality)

Pres. power: President alone has the power to speak or listen as a rep. of the nation he makes treaties with the advice and the consent of the Senate, but he alone negotiates them
o o

Pres. is the constitutional rep. of the U.S. w/ regard to foreign nations Power here not only came from the authority vested in the Pres. from the legislative act, but also from the Pres.s authority in the field of international relations

Discussion. There is a fundamental difference in the role of government in foreign affairs and domestic affairs. The federal government has both constitutional and inherent authority to conduct foreign affairs as it sees fit. The President is the United States sole representative to foreign nations. In order to achieve the United States foreign policy aims, the President is better able than Congress to judge conditions that exist in foreign nations and is afforded substantial discretion and wide latititude in those decisions. The President has confidential information as well as consular, diplomatic and foreign affairs officers to help in his decision Dames & Moore v. Regan Rule of Law. Where Congress has a history of acquiescence, as with claims settlement, it thereby implicitly approves of the Presidents actions regarding that specific subject matter about which Congress was silent.

Facts. In 1979 American embassy personnel were seized and held hostage in Iran. In response to the seizure of American personnel as hostages at the American Embassy in Iran, President Jimmy Carter issued various Executive Orders and regulations by which the President Regan nullified attachments and liens on Iranian assets in the United States, directed that theses assets be transferred to Iran, and suspended claims against Iran that may be presented to an International Claims Tribunal. On December 19, 1979, Petitioner, Dames & Moore, filed suit in the United Sates District Court against Defendants, the government of Iran, the Atomic Energy Organization of Iran, and many Iranian banks, alleging that its subsidiary was a party to a contract with the Atomic Energy Organization and that the subsidiarys interest had been assigned to Petitioner. Petitioner alleged it was owed over 3 million dollars. The District Court issued orders of attachment directed against the Defendants property and the property of certain Iranian banks. In a January 20, 1981 Executive Agreement, the President agreed to nullify attachments and ordered the transfer of frozen Iranian assets. On February 24, 1981, the President ratified an earlier Order wherein he suspended all claims which may be presented to the Tribunal and provided that such claims shall have no legal effect in any action now pending in U.S. courts. Issue. Whether the Presidents acts of nullifying the attachments and ordering the transfer of all frozen assets are specifically authorized by Congress. Whether the President has authority to suspend claims pending in American courts. Held. Yes. Because the Presidents actions in nullifying the attachments and ordering the transfer of assets were taken pursuant to congressional authorization (Section 1702 (a)(1) of IEEPA), it is supported by the strongest of presumptions and widest latitude of judicial interpretation and the burden of persuasion rests heavily on any who might attack it. Although the IEEPA itself did not authorize the presidential suspension of legal claims, Congress implicitly approved the practice of claim settlement by executive agreement. For example, Congress enacted the International Claims Settlement Agreement Act of 1949. Moreover, Congress has frequently amended the same act to provide for problems arising out of settlement agreements. Thus, Congress has demonstrated its acceptance of the Presidents claim settlement authority. Congress has implicitly approved the practice of claim settlement by executive agreement. Yes. Based on the legislation (IEEPA and the Hostage Act) which Congress has enacted in the area of the Presidents authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement, the President was authorized to suspend claims pursuant to the Executive Order Discussion. The majority resorts to drawing inferences from Congress legislation to conclude that the President has authority to suspend claims in American Courts. Mistretta v. United States Facts Congress passed the Sentencing Reform Act of 1984, which set out to provide federal guidelines in the sentencing of federal crimes. The Act established a Sentencing Commission which provided federal judges with guidelines for sentencing particular crimes. Defendant was convicted of cocaine dealing and argued that the Commission was unconstitutionally given legislative powers proscribed only to Congress; and therefore, their sentencing guidelines were invalid.

Rule of Law. The intelligible principle test applies to congressional delegations. As long as the act by Congress includes an intelligible principle to which the delegee is directed to conform, the legislative action is not a forbidden delegation of legislative power. The Supreme Court of the United States has ruled it constitutionally sufficient if Congress clearly delineates the general policy, the public agency which it to apply it, and the boundaries of this delegated authority. Issue By delegating the power to promulgate sentencing guidelines for every federal criminal offense to the Sentencing Commission, did Congress grant excessive legislative discretion in violation of the nondelegation doctrine? Holding/Analysis No, Congress constitutionally delegated its authority. In passing the law, Congress had the policy goal of sentencing fairness. The Act included sufficient guidelines for the Commission to follow. Congress directed the Commission to consider a list of seven factors in its formation of offense categories: the grade of the offense; aggravating and mitigating circumstances of the crime; the nature and degree of the harm caused by the crime; the community view of the gravity of the offense; the public concern generated by the crime; the deterrent effect that a sentence might have; and the current incidence of the offense. The court held that Congressional delegation of its authority it more practical in a modern day setting because laws and society are so complex that Congress cannot by reasonably expected to legislate every matter and therefore must delegate its authority when necessary. When delegating its authority, Congress need only articulate an intelligible principle for doing so. In this case, the intelligible principle was to provide a more equal and fair sentencing guideline. Moreover, Congress sought a deterrence policy and rehabilitation policy, both of which are sufficient to satisfy the intelligible principle doctrine. Dissent. While called guidelines, they had the full force and effect of laws, prescribing criminal sentences. Because the scope of the delegation is largely uncontrollable by the courts, we should be particularly rigorous in preserving the Constitutions restrictions that deter excessive delegation. Scalia noted that the guidelines were 'heavily laden (or ought to be) with value judgments and policy assessments' rather than merely technical, Scalia also disputed the assertion by majority that the sentencing commission was in the judicial branch rather than the legislative saying the commission "is not a court, does not exercise judicial power, and is not controlled by or accountable to members of the Judicial Branch,". Concurrence. None. Discussion. The Act set forth more than an intelligible principle or minimal standards, and was a constitutional delegation of authority by Congress. Congress has the power to fix the sentences for crimes, and the scope of judicial sentencing discretion is subject to congressional control. The Defendants first argument is that in delegation to the Commission of the power to fix the sentences for crimes, Congress had granted the Commission excess discretion in violation of the non-delegation doctrine. The Supreme Court of the United States (Supreme Court) stated that Congress may obtain assistance from other branches of government. In determining whether Congress has impermissibly delegated its power to another branch of government, the Court applies the intelligible principle test.

Even a broad delegation of power will be constitutionally sufficient if Congress clearly delineates three items: (1) the general policy; (2) the agency which is to apply it and (3) the boundaries of this delegated authority. The Supreme Court held that the test had been met in this case. Congress charged the Commission with several specific goals and purposes. Congress prescribed the specific tool (the guidelines system) for the Commission to apply and instructed the Commission how to structure the guidelines. The Defendants second argument is that the Act violates the separation of powers principles, but it does not because sentencing has never been the exclusive role of only once branch of government. INS v. Chadha Rule of Law. The one-house veto is unconstitutional because a law must be approved by a majority of both the Senate and the House of Representatives, pursuant to the principles of bicameralism. Then the law must be introduced to the President who will then approve or veto the law pursuant to the Presentment Clause. Where the House takes actions that have the purpose and effect of altering legal rights, duties, or relations of persons outside of the legislative branch, bicameralism and presentment are required. Facts. Chadha overstayed his student visa and was asked to show cause why he should not be deported. After a hearing, the immigration judge ordered that Chadhas deportation be suspended on the grounds that he would suffer extreme hardship if deported. Plaintiff, Mr. Chadha, challenged a provision of the Immigration and Nationality Act (Act) that allowed one house of Congress, by resolution, to invalidate and thus, veto the decision of the Executive branch to allow a particular deportable alien to remain in the United States. The Act authorized the Attorney General to suspend deportation if the alien met certain conditions, deportation would result in extreme hardship, and the Attorney General reported to Congress. The Attorney General suspended Plaintiffs deportation pursuant to the Act and notified Congress. A year and a half later, the House of Representatives passed a resolution stating that Plaintiffs deportation should not be suspended. The House resolution was not submitted to the Senate or presented to the President. The Court of Appeals held that the House action was unconstitutional as a violation of the separation of powers. Issue. Whether a provision authorizing one house of Congress to veto a decision of the Executive branch, pursuant to authority delegated by Congress to the Attorney General, to suspend the deportation of a deportable alien where certain conditions are met and deportation would result in extreme hardship is unconstitutional. Held. Yes. Judgment of the Court of Appeals affirmed. Since explicit and unambiguous provisions of the Constitutions Article I prescribe and define the respective functions of Congress and the Executive branch in the legislative process, those provisions must be applied to resolve the issue here. The decision to provide the Presentment Clause wherein the President has a limited power to veto proposed legislation was based on the framers conviction that the powers of Congress must be constrained. Therefore, lawmaking was a power to be shared by both houses and the President. The House took action that had the purpose and effect of altering the legal rights, duties and regulations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside of the legislative branch. When the House takes such actions it must comply with the requirements of Article I regarding bicameralism and presentment. The bicameral requirement of Article I, by requiring a laws approval by a majority in both houses of Congress, represents the framers decision that the legislative power of the federal government be exercised in accordance with a systematic procedure. Here, Congress made a

deliberate choice to delegate to the Executive branch the authority to suspend the deportation of deportable aliens. Congress must abide by its delegation of authority until delegation is legislatively altered or revoked. Even if this law or procedure were efficient, convenient and useful in facilitating functions of government, that alone would not save it if it is contrary to the United States Constitution. The very structure of Articles I, II, and III exemplify the concept of separation of powers. The Framers ranked other values higher than efficiency. They sought to define and limit the exercise of the newly created federal powers affecting the states and the people. The one-house veto violated Article I, Section: 7, the Presentment Clause, because a bill must be presented to the President to sign or veto. The Presentment Clause is an effort to check whatever propensity a particular Congress might have to enact oppressive, improvident or ill-considered measures. The one-house veto was unconstitutional because it violated Article I, Section:Section: 1 and 7, Bicameralism. The Framers were trying to balance the legislative process. The Presidents participation was to protect the Executive branch from Congress and to protect the whole people from improvident laws. The Attorney General is part of the executive branch. When Congress is vetoing his decision, they are encroaching upon territory reserved for the Executive branch. Both Houses had to vote on the bill because splitting the legislative power means it will be exercised only after opportunity for full study and debate in separate settings. This action was legislative in character and effect because it was to establish a uniform rule of naturalization, it altered the legal rights, duties and relations of persons, including the Attorney General, executive Branch officials and Chadha. Dissent. Justice Byron White (J. White) stated that this decision sounds the death knell for nearly 200 other statutory provisions for which Congress retains a legislative veto. The legislative veto is very important and has not been used by Congress to usurp power, but rather as a defense mechanism. The Courts analysis appears to invalidate all legislative vetoes. Further, bicameralism and the Presentment Clause do not answer the issue at hand. The legislative veto is a necessary check on agencies as they exercise power delegated from Congress. This holding will make it more difficult to insure that the fundamental policy decisions will be made by a body immediately responsible to the people rather than an agency. Concurrence. Justice Lewis Powell (J. Powell) stated that the Houses action raises the very danger the Framers sought to avoid the exercise of unchecked power. In deciding whether Chadha should be deported, Congress is not subject to any internal constraints that prevent it from acting arbitrarily to deprive him of his right to remain in this country. This case should be decided on narrower grounds. The Houses actions were adjudicatory because it made its own decisions about six specific people. Therefore, the House exceeded its scope of power. Discussion. The majority looks to Article I of the Constitution to address the issue in this case. The nature of the veto is legislative in purpose and effect, and therefore subject to Article I standards. The student must be cognizant of the nature of Congress actions. If they are legislative in nature than Congress must comply with the constitutional requirements of bicameralism and presentment. J. Burger presents the same argument that J. Black did in Youngstown, just because something is useful, does not mean it is constitutional. The Court in Mistretta v. United States held that the Court would uphold statutory provisions that to some degree commingle the functions of the branches, but that pose no danger of either

aggrandizement or encroachment. The dissent by Justice Scalia in Mistretta stated that the Commissions guidelines are laws, since any judge that disregards them will be reversed. Congress cannot create an agency that has no governmental power other than to make laws, because only Congress can make laws under the Constitution. The court upholding a pure delegation of legislative power has encouraged Congress to delegate its lawmaking powers frequently in the future, particularly over no-win political issues. Congress could have said that they are giving the Attorney General a discretionary power and because discretionary powers are really Congresss responsibility, they are putting strings on that power. If Congress does not like what the Attorney General does in a given case then they can override it. So, the case can either be that Congress is giving the executive power, creating a power which would have a life of its own, but the nature of the power is limited. Therefore they are not really taking anything away from the Attorney General and it is not aggrandizement. If Congress could not use a legislative veto, then they might not pass on the power at all. Clinton v. City of New York ISSUE: Is it an unconstitutional departure from the procedures of Art. I for the Pres. to be able to unilaterally cancel parts of congressional acts pursuant to authority vested in him by an Act of Congress? HOLDING: Yes. FACTS:

Sec. 4722(c) of the Balanced Budget Act of 1997 deemed certain taxes by the City of New York to be healthcare-related and in compliance w/ the reqts of the relevant provisions of the 1991 statute
o

NYC thus didnt have to pay back the approx. $2.6B that the Dept. of Health and Human Services said it had to On 8/11/97, the Pres. sent notices to each House saying that he was canceling that section of the Act b/c the cancellation would reduce the Federal budget deficit and would prevent NY from being treated differently than others

Sec. 968 of the Taxpayer Relief Act of 1997 permitted owners of certain food refiners and processors to defer the recognition of gain if they sell their stock to eligible farmers coops
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Pres. canceled this limited tax benefit b/c it lacked safeguards and failed to target its benefits to small- and medium-sized coops

REASONING:

Pres. doing legis. work: In both legal and practical effect, the Pres. has amended 2 Acts of Congress by repealing a portion of each
o

No provision in the Const. that authorizes the Pres. to enact, amend, or to repeal statutes He may only initiate land influence legislative proposals and veto them

Diff. from a veto: There are important differences between the Pres.s veto of a bill under Art. I, Sec. 7 and the exercise of the Pres.s cancellation auth. pursuant to the Line Item Veto Act
o o o

Veto occurs before a bill becomes a law, whereas the cancellation occurs after Veto affects the entire bill, whereas the cancellation only affects par First Pres. understood the text of the Presentment Clause as requiring that he either approve all the parts of a Bill or reject it in toto

Diff. than suspending in Field: Exercise of suspension power was contingent upon a condition that did not exist at the time the Tariff Act passed, but here the cancellation worked on the same conditions that Congress evaluated when it passed the statutes
o

Under the Tariff Act, the Pres. had a duty to suspend the tariffs, but here its up to the Pres.s discretion When the Pres. suspended a tariff, he was executing the policy of Congress, but here the Pres. is rejected Congresss policy determinations

Diff. than declining to spend: Not persuaded by the Govts contention that the Pres.s authority to cancel new direct spending and tax benefit items is no greater than his traditional auth. to decline to suspend appropriated funds
o

Act gives the Pres. the unilateral power to change the text of duly enacted statutes, and none of the Acts predecessors could even arguably have been construed to auth. such a change

CONCURRENCE Kennedy:

Liberty demands limits on the ability of any one branch to influence basic political decisions That a congressional cession of power is voluntary does not make it innocuous Const. is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow

CONCURRENCE/DISSENT Scalia, OConnor, Breyer:

Do not believe that the Exec. cancellation of Sec. 4722(c) of the BBA of 1998 violates the Presentment Clause
o o

No question that the enactment of the BBA complied w/ reqts of Presentment Clause It was only after the reqts of the Presentment Clause had been satisfied that the Pres. exercised his auth. to cancel the spending item

Art. I, Sec. 7 obviously prevents the Pres. from canceling a law that Congress has not authorized him to cancel, but thats not the case here

Doctrine of unconst. delegation of legislative authority: when authorized Exec. reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates sep. of powers There is not a dimes worth of difference between Congresss authorizing the Pres. to cancel a spending item, and Congresss authorizing money to be spent on a particular item at the Pres.s discretion

DISSENT Breyer, OConnor, Scalia:

Line Item Veto Act does not violate any specific textual constitutional command, nor does it violate any implicit separation of powers principle Pres. didnt repeal any law, nor did he amend any law; he simply followed the law Pres. has simply executed a power conferred upon him by Congress, which power is contained in laws that were enacted in compliance w/ the exclusive method set forth in the Const. Power is executive b/c the Pres. executes the LIVA One cannot say that the Act encroaches upon Congresss power when Congress could have simply put a provision in the BBA that said the Pres.s cancellation power doesnt apply Pres.s power to prevent spending items from taking effect does not violate the nondelegation doctrine b/c that Act is limited

Richard Nixon v Ernest Fitzgerald (1982) 5-4 decision. Held that presidents unique status under Constitution and singular importance of the duties of the office justify absolute immunity Absolute immunity- complete protection from civil suit for Pres for all official actions while in office (Nixon v. Fitzgerald) o Fitzgerald= analyst in Air force, alleged that his job was eliminated in retaliation for his exposing cost overruns in Defense Dept in testimony to Congress. Gov said that the letgo of his job was taken to promote economy/ efficiency in Armed Forces. Seeking civil damages from Nixon, himself, for firing him unlawfully, and for temporarily admitting responsibility Pres has absolute immunity for official acts while in office. Otherwise pres would be distracted from duties, would make him second-guess his decisions, would diminish his efficiency, make him an easy target. a former pres is entitled to absolute immunity from damages liability predicated on his official acts Also, Article II, section 1- says exec power is vested in pres, so this would be limited if he could be sued for his decisions. Other remedies exist: impeachment, vigilant oversight by Congress, desire to earn reelection, need to main prestige for presidential influence, concern for his historical stature, so he wont be above the law.

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Dissent: Marbury v Madison- question, whether the legality of an act of the head of a dept be examinable in a court of justice or not, must always depend on the nature of that act. Says Pres IS above the law with this immunity like a king. Says that whatever the pres does and however contrary to law he knows his conduct to be, he may, without fear of liability, injure federal employees or any other person within or w/o the government. (423)

o o

Nixon v. A. Ernest Fitzgerald Rule of Law. The President of the United States (President) is shielded by absolute immunity from civil damages for acts done in his official capacity as President. Facts. The Plaintiff, Ernest Fitzgerald (Plaintiff), was fired from his job with the Air Force as costmanagement analyst because he embarrassed his superiors by testifying about certain cost-overruns. The Air Force said he was fired because of reorganization and a reduction in force. An internal memo was passed through White House staff saying the Plaintiff was a top notch cost expert but with very low marks of loyalty and recommended that they let him bleed. At a press conference, the Defendant said he personally made the decision to fire the Plaintiff. The White House later retracted the statement saying that the Defendant had confused the Plaintiff with another employee. The Plaintiff brought suit and the Defendant moved for summary judgment on the ground of absolute immunity from suit. Issue. Does the President have absolute immunity from suit for actions taken in his official capacity? Held. Yes, the President is immune from suit from his official acts as a matter of public policy rooted in the structure of government mandated by the separation of power principle. This immunity stems from the Presidents unique position in the constitution scheme and the immense importance of his duties. The Supreme Court of the United States (Supreme Court) is worried about diverting the Presidents energies to the concerns related to private lawsuits. Dissent. Justice Byron White (J. White) felt that this decision places the President above the law. Discussion. The President must be empowered with the maximum ability to deal fearlessly and impartially with the duties of his office. If not, his visibility would subject him to numerous suits for civil damages. To keep the public safe, there is the constitutional remedy of impeachment, vigilant oversight by Congress and the press. Clinton v Jones (1997) Jones sued for sexual harassment that occurred while Clinton was governor of Arkansas. Jones was state employee at registration desk at a conference where governor Clinton was in Arkansas. Made sexual advances in his hotel suite that she rejected, and her superiors punished her as result. o Nixon only applies to official-capacity acts while president. Nixon doesnt govern, so Clinton doesnt ask for absolute immunity- just to have the case stayed (temporary immunity- to wait until hes done being president). Wants ct to wait so hes not distracted from duties, and so judiciary doesnt interfere with exec (sep of powers). Court rejects this.

o o o

Unanimously ruled against Clinton- held that suit against Pres shouldnt be stayed OR dismissed if based on conduct allegedly occurring prior to taking office. No immunity for unofficial conduct. In the more than 200 yr history, only three sitting presidents have been subjected to suits for private actions. If the past is any indicator, seems unlikely that a deluge of such litigation will ever engulf the presidency. Also says these cases often get dismissed, handled quickly/efficiently. Jones has right to have matter adjudicated. Says pres has other recourse- can petition Congress, etc. No one is above the law. the sphere of protected action must be related closely to the immunitys justifying purposes

o Clinton v. Jones

Supreme Court of the United States, 1997. 520 U.S. 681. Rule of Law. The United States Constitution (Constitution) does not automatically grant the President of the United States immunity from civil lawsuits based upon his private conduct unrelated to his official duties as President. Facts: In 1991, the petitioner, William Jefferson Clinton, then governor of Arkansas, gave a speech at an official conference taking place at the hotel. The respondent, Paula Corbin Jones, an employee of the Arkansas industrial Commission at the time, was working at the conference. Clinton sent an Arkansas state police officer to ask her to his hotel room. While she was there, Clinton made unwelcome sexual advances to Jones. Her rejection of these advances allegedly led to penalization in her government job. From 1992 to 2001, the petitioner was president. In 1994, the respondent sued Clinton for the federal law charges of acting under the color of state law to deprive her of Constitutional rights and conspiracy to deprive her of her federal rights, and the state law charges of intentional infliction of emotional distress and defamation. The petitioner filed a motion to dismiss the case on the grounds of presidential immunity until he was no longer president, arguing that unless immunity is available, the threat of judicial interference with the Executive branch would violate separation of powers principles. The respondent countered that there was no precedent for the presidents position, and that the case did not pose any threat to the presidential office. The U.S. District Court for the Eastern District of Arkansas denied the motion to dismiss on immunity grounds, ruling that discovery could go forward, but staying the trial until the end of the petitioners presidency. Both parties appealed. The U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal denial, but reversed the order postponing the trial because it was the functional equivalent of an unconstitutional grant of temporary immunity. The president appealed. Issue: Whether the President can be involved in a lawsuit during his presidency for actions that occurred before the tenure of his presidency and that were not related to official duties of the presidency? Decision: Affirmed. Separation of powers does not require that federal courts afford the President temporary immunity from all private civil lawsuits until he leaves office. The Supreme Court affirmed the decisions of the lower courts to deny the dismissal motion. The court also affirmed the decision of the Court of Appeals reversing District Courts order to delay the trial.

Reason:Presidential immunity applies only to official acts. It is intended to ensure that the functions of the office are performed without fear of personal liability. Thus, unofficial acts are not protected. SOP Separation of powers does not require temporary immunity. Separation of powers is intended to keep each of the three equal branches of government from gaining authority at the expense of another. The courts would not be gaining any new power. They would be exercising the powers granted them in Article III of the Constitution. The judiciarys exercise of this power in neither this case nor any resulting cases would unduly burden the President or prevent him from carrying out his official duties. There have been scant lawsuits against presidents historically, such lawsuits are usually resolved quickly, and the issues in this case are relatively unique. Moreover, the judiciary may severely burden the President when it reviews the legality of his official conduct. The district court abused its discretion when it stayed the case because the court lacked the information to determine whether a stay would even be necessary after discovery and did not consider the respondents interest in a quick trial and the loss of evidence a delay might bring. However, the stay was not the functional equivalent of a grant of temporary immunity because the district court has discretion to stay proceedings as part of its power to control its own docket, because they ordered discovery proceed, and because possible burdens placed on the president must be considered. Any problems the President may have with any resulting frivolous lawsuits or difficulty pursuing the case may be handled by either federal courts or Congress, should the problem arise. Discussion. A sitting President of The United States does not have immunity from civil lawsuits based on the Presidents private actions unrelated to his public actions as President. The doctrine of separation of powers does not require federal courts to stay all private actions against the President until he leaves office. The doctrine of separation of powers is concerned with the allocation of official power among the three co-equal branches of governmet. United States v. Richard M. Nixon, President of the United States (1974) President asserted his right to safeguard certain documents as an inherent power under his exec priv following a subpoena directing him to produce evidence. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. Ct said that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes. o 1. Role of courts is to determine whether pres has exec priv, and if so, what its scope is. Press counsel reads Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this court, however, have unequivocally reaffirmed holding of Marbury v Madison that it is emphatically the province and duty of judicial dept to say what the law is.

2. Recognized existence of exec priv

is an inherent presidential power. Is not granted in Article II, but is a need for candid advice. Whatever the nature of the privilege of confidentiality of pres communications in the exercise of Art. II powers, priv can be said to derive from supremacy of each branch within its own assigned area of constitutional duties. (331)

3. Said exec priv is NOT absolute and must yield when there important countervailing interests The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the judicial branch to do justice in criminal prosecutions would plainly conflict with the function of courts under article III. (331) Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Pres communications is significantly diminished. (331) Is limited to criminal matters only.

United States v. Nixon

Rule of Law. Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege of immunity from the judicial process. Facts. A Senate committee was set up to investigate a break-in of the Democratic National Committee headquarters at the Watergate Hotel. Under public pressure, President Nixon appointed a special prosecutor to investigate whether the White House was involved in the break-in. Upon motion by the Special Prosecutor, a subpoena was issued to President Nixon by the District Court requiring the production of certain tapes and writings between the President and his aids and advisors. President Nixon brought this action to quash the subpoena, arguing that the court lacked jurisdiction to issue it because the matter involved an interbranch dispute between a subordinate (the Independent Counsel) and a superior officer (the President). Alternatively, he argued that the subpoena should be quashed because it demanded confidential conversations between a President and his close advisors that would be against public interest to produce. Issue. Does the separation of powers doctrine preclude judicial review of a Presidents claim of executive privilege? Should the subpoena be quashed because it demands confidential conversations between a President and his aids that would be inconsistent with the public interest to produce? Held. No and No. The District Courts decision is affirmed. The president must produce the tapes. It is the Supreme Court of the United States (Supreme Court) responsibility to say what the law is. The basic concept of separation of powers requires, on occasion, for the federal courts to interpret the United States Constitution (Constitution) in a manner at variance with the construction given to it by another branch. Therefore, it is the duty of the Supreme Court to say what the law is with respect to a claim of executive privilege.

The evidence sought is for a pending criminal investigation. It is a judicial proceeding in a federal court alleging violation of federal laws. The Special Prosecutor here has the unique authority to conduct the investigation. The regulation that defines the Special Prosecutors authority can be enforced against the Executive Branch. Although the Presidents counsel reads the United States Constitution as providing an absolute privilege of confidentiality for all presidential communications, it is the province and duty of the Court to define the law. The courts have the power of judicial review and are the final arbiters of a claim of executive privilege. However, absent a claim of need to protect military, diplomatic or sensitive national security secrets the need for confidentiality is diminished. No case of the Court has extended a high degree of deference to a Presidents generalized interest in confidentiality. To the extent the interest relates to the effective discharge of a Presidents powers, it is constitutionally based. Advisors would not be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of criminal prosecution. The legitimate need of the judicial process may outweigh Presidential privilege. The President has a claim, which rests upon general public interest in confidentiality, not involving any military or diplomatic discussions. The absolute unqualified privilege would disturb the function of the courts under Article III. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts within the framework of the rules of evidence. The Presidents need for complete candor and objectivity from advisors calls for great deference from the courts. But when an asserted privilege depends solely on a broad, undifferentiated, claim of public interest in the confidentiality of such conversations, concerns for the fair administration of justice must win out. The allowance of the privilege to withhold evidence that is clearly relevant in a criminal trial would vitiate the guarantee of due process and seriously impair the basic function of the courts. Discussion. The student should note that the Court essentially employs a balancing test here and weighs the importance of the general privilege of confidentiality of Presidential communications against the inroads of such a privilege against fair administration of criminal justice. NOTES CASE Pg. 476 Board of Regents of State Colleges v. Roth 2-3 sentences: this case sets out the framework for procedural due process which only applies to the denial of life, liberty, and property. The burden of showing the existence of one of these rights is left to the individual asserting the right. Once the individual meets this burden, DP is triggered and rights are guaranteed by the State under the 14th. Rule of Law. The requirements of procedural due process, guaranteeing the right to adequate notice and a hearing concerning the denial of a constitutional right before the it can be denied, only applies to the denial of life, liberty and property. The burden for showing the existence of one of these rights, thus guaranteeing notice and a hearing, is left to the individual asserting the right, and once the individual meets this burden the Due Process Clause is triggered and rights are guaranteed by the State under the Fourteenth Amendment. Facts. In 1968 David Roth (Respondent) was hired as an assistant professor of political science at Wisconsin State University Oshkosh. Respondent was hired for a fixed term of one academic year. Upon completing this term Respondent was informed that he would not be rehired for the next academic year. Respondent had no tenure rights to continued employment. Only after four years of year-to-year employment did one become a tenured faculty member. The decision to rehire is left to the discretion of University officials. While the non-tenured faculty member has no guarantees following

their one-year, they are afforded similar protections as tenured faculty in the course of their year. A non-tenured faculty member does not need to be given a reason for not being retained the following year. There is also no review or appeal of University decisions. The Respondent then brought this action in federal district court alleging that the decision not to rehire him for the next year infringed h is Fourteenth Amendment due process rights. He further alleged that not being retained was to punish him for statements critical of the University. Further, he alleged that the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process. The District Court ordered the University officials to provide Respondent with a hearing and reasons why he was not being retained. Issue. Does the respondent have a constitutional right to a statement of reasons and a hearing on the Universitys decision not to rehire him for another year? Held. No. The requirements of procedural due process apply only to the deprivation of interest encompassed within the Fourteenth Amendments protection of liberty and property. When protected interests are implicated the right to some kind of hearing is paramount. The Respondent stretches the protection of liberty concept too far to suggest that an individual is deprived of liberty when he simply is not rehired in one job but remains free to seek another. Property interests, are not created by the Constitution, but created by existing rules or understandings between the parties. The Respondent did have a property interest in employment for the term of his one-year contract. As there was no provision guaranteeing renewal in Respondents contract, Respondent has not sufficiently met his burden showing the existence of a right to another year at the University. As Respondent cannot show that he had a property interest in the job, the University was not required, under the Due Process Clause of the Fourteenth Amendment, to give Respondent a hearing upon non-renewal. Dissent. Disagrees with the conclusion of the Court, and instead takes the view that every citizen who applies for a government job is entitled to the job unless the government can establish some reason for denying the employment to that individual. This is the property right as protected by the United States Constitution. A liberty right is the liberty to work and is secured by the Fourteenth Amendment. It is not burdensome to provide reasons to give reasons when reasons exist. Whenever an employment decision is made there should be reason for this decision. It is only where the government acts improperly that procedural due process is truly burdensome, and is precisely when it is most necessary. Discussion. This case explains quite clearly the framework for procedural due process. It provides a clear and concise definition of a liberty and property right. It further explains the depth at which a claim must be made in order to rise to guarantee procedural due process. The dissent makes an argument that all government should be open, and therefore reasons for adverse actions should be provided at all time. NOTES CASE Pg. 476 Perry v. Sindermann Rule of Law. A persons interest in a benefit is a property interest for due process purposes if there are rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. Facts. The State of Texas did not have a formal tenure system in place, but did have an official Faculty Guide that Respondent claimed established a de facto tenure system. Respondent claimed legitimate reliance on the school informing its faculty that a person has permanent tenure so long as his teaching services are satisfactory and so long as he displays a cooperative attitude. This form of tenure was no

less a property interest than a formal tenure system at another university. The District Court granted summary judgment against Respondent. Issue. Did Respondents lack of tenure or contractual right to re-employment, taken alone, defeat his claim that nonrenewal violated his First and Fourteenth Amendment rights? Did Respondent have de facto tenure, sufficient to afford him procedural due process? Held. No. The grant of summary judgment against the Respondent was improper. A teacher, like the Respondent, who has held his position for many years, might be able to show from the circumstances of his service and other relevant facts that he has a legitimate claim of entitlement to job tenure. Proof of such a property interest would obligate college officials to grant him a hearing at his request, where he could be informed of the grounds for nonretention and challenge their sufficiency. Dissent. The District Court should be directed to enter summary judgment for respondent entitling him to a statement of the reasons why his contract was not renewed and a hearing on the disputed issues of fact.

Concurrence. None. Discussion. Although the Texas college system had no formal tenure program, its guidelines and standard practices, coupled with the length of Respondents employment, were sufficient that an entitlement could be found to procedural due process. Cleveland Board of Education v. Loudermill Rule of Law. An essential principle of due process is that a deprivation of life, liberty or property be preceded by notice and opportunity for hearing appropriate to the nature of the case. The pretermination hearing, though necessary, need not be elaborate. The formality and procedural requisites for hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. Facts. Respondent was dismissed because of his dishonesty in filling out his application. He was classified as a civil servant, pursuant to Ohio Rev. Code Ann. Section:124.11, and could only be dismissed for cause and could obtain administrative review if discharged, under Section:124.34. Respondent filed an appeal with the Cleveland Civil Service Commission (Commission), and argued that he thought his 1968 larceny conviction was a misdemeanor, not a felony. Reinstatement was recommended by the referee, but the full Commission upheld the dismissal. In District Court, Respondent alleged that Section:123.34 was unconstitutional on its face because it did not provide an employee with notice and an opportunity to respond prior to removal; and also unconstitutional as applied because discharged employees werent given prompt post-removal hearings. The District Court dismissed for failure to state a claim for which relief could be granted because the statutes procedures were followed; held the posttermination hearing adequately protected Respondents liberty interests; and the delay in the administrative appeal was acceptable in light of the Commissions crowded docket. The Court of Appeals, however, found that Respondent had been denied due process. Issue. What pretermination process must be afforded a public employee who can be discharged only for cause? Held. All the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures as provided by the Ohio statute. Respondents federal constitutional claim depended on having had a property interest in continued employment, which the Ohio statute clearly created. Some opportunity for the employee to present his side is of obvious value in reaching an accurate decision. Respondent had a plausible argument that may have presented his discharge. The government interest in immediate termination did not outweigh the other interests. However, since the statute afforded a full administrative hearing and judicial review after termination, all that was required before was the essential elements of due process: notice and an opportunity to respond. Nine months was not an unconstitutional delay for the post-termination hearing. Dissent. Justice Rehnquist did not believe the conclusion that Ohios effort to confer a limited form of tenure upon its employees resulted in the creation of a property right in their employment. Dissenting in part. Justice Brennan felt the record was insufficient to permit an informed judgment on the issue of the overlong delay. Concurrence in part and concurrence in judgment. Justice Marshall would place a greater emphasis on the importance of an employees right to be heard before wages are cut off. Discussion. The Court found the procedures set forth by the Ohio statute as insufficient, given the full

administrative hearing it guaranteed after termination and the governments interest in quickly removing an unsatisfactory employee. Mathews v. Eldridge Rule of Law. Due Process does not require a hearing prior to termination of SSD benefits. Facts. Eldridge received SSD benefits for nearly four years when he received a questionnaire from the state agency charged with monitoring his medical condition. Eldridge filled it out, indicating that his condition had not improved. The agency then obtained reports from Eldridges doctors, and made a tentative determination that his disability had ceased. Eldridge was notified of the proposed termination, and advised that he could request additional time to submit additional information regarding his condition. Eldridges written response disputed one characterization of his condition, and indicated that the agency already had enough information to prove his disability. The made its final determination to terminate benefits and notified Eldridge that he could seek reconsideration within six months. Eldridge relied on Goldberg v. Kelly (welfare benefits case) to support his contention that it was unconstitutional to terminate his SSD benefits without a pretermination hearing. The District Court held that Eldridge had to be afforded a pretermination hearing, and the Court of Appeals affirmed. Issue. Does due process require a pretermination hearing prior to discontinuing SSD benefits? Held. No. Reversed. The Court distinguished Goldberg, saying the crucial factor there was that welfare recipients are in dire need, and assistance is only given to persons on the very margin of subsistence; whereas eligibility for SSD is not based on financial need. An additional factor is the fairness and reliability of existing pretermination procedures, and the probable value of additional procedural safeguards. The decision whether to discontinue SSD benefits will turn, in most cases, on routine, unbiased medical reports. Finally, Goldberg was in part based on the Courts conclusion that written submissions were an inadequate substitute for oral presentation by welfare recipients; whereas the detailed SSD questionnaires were sufficient. Dissent. To say that the discontinuance of disability benefits may cause the recipient to suffer only a limited deprivation is speculative and no argument. The very legislative determination to provide SSD benefits, without any predetermination of need, presumes a need which is not this Courts function to denigrate. Concurrence. None. Discussion. The factors giving rise to due process are: 1] the private interest that will be affected by the official action; 2] the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3] the Governments interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. NOTES CASE Pg. 486 WILKINSON v. AUSTIN Facts of the Case When Ohio's highest security prison first opened, no official policy governed placement there, resulting in haphazard and erroneous placements. Ohio ultimately issued the "New Policy," which required formal procedures for evaluating whether prisoners classified for placement into the facility. The New Policy also required a three-tier review process after a recommendation for Supermax placement was made. For instance, the state had to explain a placement recommendation to an inmate and that inmate had to have an opportunity for rebuttal at a hearing. Prisoners in the facility sued in federal district court,

alleging the prison placement policy violated the 14th Amendment's due process clause. The court agreed that the New Policy violated due process and ordered elaborate and far-reaching modifications to the policy. The Sixth Circuit affirmed but set aside the substantive modifications on the ground they exceeded the court's authority. Question Did the placement policies for Ohio's highest security prison violate the 14th Amendment's due process clause? No. In a unanimous opinion delivered by Justice Anthony Kennedy, the Court held that the procedures by which the New Policy classified prisoners for placement at the facility provided sufficient protection to comply with the due process clause. The Court reasoned that procedural protections afforded to prisoners were necessarily limited, and that the New Policy sufficiently minimized risk of erroneous placement. The Court also cited Ohio's interests in prison security against gangs and in preserving scarce resources. Slaughter-House Cases Rule of Law. The Thirteenth and Fourteenth Amendments of the United States Constitution (Constitution) apply only to former slaves. The Fourteenth Amendment protects the privileges and immunities of national, not state citizenship. Facts. In 1869, Louisiana passed a law giving a monopoly over the New Orleans slaughterhouse business to the Crescent City Livestock Landing and Slaughterhouse Company. The Butchers Benevolent Association of New Orleans argued that the law violated the Thirteenth and Fourteenth Amendments of the Constitution because it denied them due process, denied them equal protection and abridged their privileges and immunities. Issue. Do the Thirteenth and Fourteenth Amendments of the Constitution make the Bill of Rights applicable to the states? Held. No. The Supreme Court of the United States (Supreme Court) observed that the Fourteenth Amendment of the Constitution protects the privileges and immunities of national, not state, citizenship, and neither the Equal Protection, Due Process, or Privilege and Immunities Clauses of that Amendment may be used to interfere with state control of the privileges and immunities of state citizenship. The underlying purpose of the three post-Civil War amendments to the Fourteenth Amendment of the Constitution was to eliminate the remnants of African Slavery, not to effect fundamental changes in the relation of government. The Amendments were promulgated to ensure that former salves were protected from laws passed by the federal government. Dissent. Justice Stephen Field (J. Field) dissents because the citizens of a State are also citizens of the United States and are protected. Discussion. The Thirteenth Amendment of the Constitution applied only to slavery. The Fourteenth Amendment of the Constitution was designed to protect newly freed slaves from discrimination. However, together (with the Fifteenth Amendment of the Constitution giving slaves the right to vote) these amendments were designed to remedy the grievances of blacks. However, the amendments also forbid enslaving other races. The language is No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. If this clause was meant to

protect a citizen of a state against his own States legislation, then the drafter would have used that language, as they did in the previous sentence. This clause protects the privileges and immunities of the citizens of the United States, not the citizens of the states. The fourth article of the Constitution also has a Privileges and Immunities Clause which states, The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several states. This clause protects fundamental rights. The rights claimed by the Plaintiffs are not privileges and immunities of citizens of the United States within the meaning of the Fourteenth Amendment of the Constitution. Also, when analyzing the Due Process Clause of the Fourteenth Amendment of the Constitution, the restraint imposed by Louisiana upon the Plaintiffs trade cannot be considered a deprivation of property. Lochner v. New York Rule of Law. An act which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor must have a direct relation, as a means to an end, and the end itself must by appropriate and legitimate before such an act can be upheld to be valid. Facts. A New York law prohibited the employment of bakery employees for more than ten hours a day (sixty hours a week). Appellant, Mr. Lochner, was convicted and fined for permitting an employee to work in his bakery for more than sixty hours a week. Appellant successfully appealed claiming that the law is invalid because it is not a fair, reasonable nor appropriate exercise of the police power, but rather an unreasonable, unnecessary and arbitrary interference with the right of the individual to enter into contracts in relation to labor. Issue. Whether the New York act which limits the amount of hours per week a bakery employee may work is an unreasonable, unnecessary and arbitrary interference with the right of the individual to enter into contracts in relation to labor. Held. Yes. Judgment reversed. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment. No state can deprive any person of life, liberty or property without due process of law. The right to purchase or sell labor is part of that liberty protected. The only way a state may counter this right is to show they are exercising a valid police power with their regulation. Those powers relate to the safety, health, morals and general welfare of the public. The Court rejected the labor law justification of the statute on police power grounds because this was not a valid exercise of police power. First, that power is extended to the protection of public welfare and not the readjustment of bargaining power between employees and employers. The effect of this legislation was to regulate labor conditions and not to protect workers. The effect of such statutes, not just the stated or proclaimed purpose, is determinative in whether this statute is repugnant to the United States Constitution. Second, there is no valid health of safety rationale in this case. Bakers were not endangered like miners were in the Holden v. Hardy case. Mining is a profession that needed regulation, but this is not. The state could accomplish its goals with means that did not interfere with the freedom to contract. Because the police power exercised here is not strong, the Court suspected that there were legislative motives behind the enactment of this law. New York was using its power to upset the free market. A law such as the one presented in this case involves neither the safety, nor the morals nor the welfare of the public. The interest of the public is not in the slightest degree affected by this act.

Dissent. The liberty to contract is subject to reasonable police regulations. This act must be taken as expressing the belief of the people of New York that a sixty hour work week was a necessary health requirement. Thus, the protection of the physical well-being of those working in the bakery industry is grounds as a valid police power. J. Holmes: This case is decided upon an economic theory. The Constitution is not intended to embody a particular economic theory, whether paternalism or laissez faire. A Constitution is not intended to embody a particular economic theory. Finding certain opinions natural and familiar or novel ought not to determine whether the statutes conflict with the Constitution. The word liberty in the Fourteenth Amendment is improperly construed when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental traditions, which have been understood by the traditions of our people and law. J. Harlan: If a state is to interfere with the right to contract, it may do so only if the regulation involves a states police power to protect the health of its citizens. The Court should not be concerned with the policy of legislation. The only question is whether the means devised by the state are germane to a valid end. J. Holmes: States may regulate life in many ways which might seem injudicious or tyrannical and which may interfere with the liberty to contract. Sunday laws and usury laws are examples. Liberty of a citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, has been interfered with by school laws, the Post Office, every state or city which takes his money in taxes for purposes thought desirable which he may or may not like. The states have interfered with the liberty to contract with the prohibition of sales of stock on margins for future delivery and the eight-hour law for miners. Discussion. The Court applies strict scrutiny to hold that a law that interferes with liberty to contract will be found to violate the Due Process Clause. The majority characterizes the statute as an interference with a persons right to contract and earn a living. The idea that a baker is an occupation that puts the public at risk is dismissed as a simple notion. The position is compared to those who work in a steel foundry and coal mine. Clearly, those workers are put in and put others in danger when extremely fatigued. Griswold v. Connecticut Rule of Law. The right of marital privacy lies within the shadowy areas of the Bill of Rights. Therefore, it is a fundamental right and strict scrutiny is the standard of judicial review. Here, the persons interest in using birth control is fundamental and the state cannot impair that interest without satisfying strict scrutiny. Strict scrutiny says that if a state or federal regulation is impairing a fundamental right, the court strictly scrutinizes the regulation. The objective pursued by the state must be compelling, and the means chosen must be necessary (nothing that would be less restrictive is available). A law which seeks to achieve its goals by means having a destructive impact on a relationship lying within the zone of privacy may not be achieved by means that sweep unnecessarily broadly and thereby invade that area of freedom. Facts. Appellant, Ms. Griswold, was the Executive Director of the Planned Parenthood League of Connecticut (League). Appellant and the Medical Director for the League gave information and

instruction and medical advice to married couples about birth control. Appellant and her colleague were convicted under a Connecticut Statute Section: 53-32 which stated that any person who uses any drug or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned. Section: 54-196 stated that any person who assists, abets, counsels, causes, hires or commands another to commit any offense outlined in Section:53-32 may be prosecuted and punished as if he was the principal offender. Appellants were found guilty as accessories and fined $100 each. The state appellate courts affirmed. Issue. Whether the Constitution protects the right of marital privacy against state restrictions on a couples ability to be counseled in the use of contraceptives? Held. Yes. Judgment of the state appellate court affirmed. Pierce v. Society of Sisters, Meyer v. State of Nebraska, and other cases have consistently held that the Bill of rights includes not only the freedom of speech and press, but the right to distribute, to receive and to read. There is a freedom of inquiry, freedom of thought, and freedom to teach. Without these peripheral rights, the specific rights would be less secure. The rights governed by the Due Process clause are those related to privacy. It is really the right people have to make decisions about highly personal matters. These rights derive indirectly from several Bill of Rights guarantees, which collectively create a penumbra or zone of privacy. The present case concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. Here, the persons interest in using birth control is fundamental and the state cannot impair that interest without satisfying strict scrutiny. Strict scrutiny says that if a state or federal regulation is impairing a fundamental right, the court strictly scrutinizes the regulation. The objective pursued by the state must be compelling, and the means chosen must be necessary (nothing that would be less restrictive is available). Various guarantees create a right to privacy. They include: the First Amendment (with the implied right of association); the Third Amendment (prohibition against quartering of troops in peacetime without consent of the homeowner); the Fourth Amendment (with the implied rights associated with the express rights to be free in our persons, houses and effects from unreasonable searches and seizures); The Fifth Amendment (right against self-incrimination), and the Ninth Amendment which provides The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Among the rights to privacy is the right to intimacy in a marital relationship. It also concerns a law that, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. The law at issue here interferes with an intimate relation among a husband a wife and a physician in her role as to one aspect of a marital relationship. The State does not provide sufficient justification for doing so. Such a law cannot stand in light of the familiar principle that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Strict scrutiny says that if a state or federal regulation is impairing a fundamental right, the court strictly scrutinizes the regulation. The objective pursued by the state must be compelling, and the means chosen must be necessary (nothing that would be less restrictive is available). Thus, the Connecticut statute conflict with the exercise of this right and is therefore null and void.

Dissent. J. Black: The government has a right to invade ones privacy unless there is a specific constitutional provision prohibiting such invasion. Justice Black wholly disagrees with the wisdom of the Connecticut law but finds it cannot be said to be unconstitutional just because of the evil qualities in it. Instead, he takes the strict constructionist view that the right of privacy is not mentioned anywhere in the Constitution. The Constitution is not so much a living document that it must change with the times. The Framers knew about the need for change and provided it by the process of Amendments. He would not rely on the Due Process clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason to strike down the state law. J. Stewart: The law in this case is a silly one. However, the Court is not asked if it is silly. Rather, the Court is asked whether the law violates the constitution. There is no such general right of privacy in the Bill of Rights. Therefore, this law does not violate the Constitution. Concurrence. J. Harlan: The unenumerated right of privacy in the marital relation is a personal right retained by the people within the meaning of the Ninth Amendment. Therefore, it is among the fundamental liberties that are protected by the Fourteenth Amendment from infringement by the states. The proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the 14th Amendment because the enactment violates basic values implicit in the concept of ordered liberty. The liberty of the Due Process Clause is a rational continuum which includes a freedom from all substantial arbitrary impositions and purposeless restraints. J. White: A ban on the use of contraceptives by married couples does not reinforce the states ban on illicit sexual relationships. The Connecticut law as applied to married couples deprives them of liberty without due process of law, as that concept is used in the Fourteenth Amendment. J. Goldberg: The concept of liberty protects those personal rights that are fundamental and it is not confined to the specific terms of the Bill of Rights. It embraces the right of marital privacy. The Ninth Amendment would protect the privacy in a marriage because even though the right is not guaranteed in so many words by the first eight amendments to the Constitution, the Ninth is there to say there are fundamental personal rights such as marriage privacy, which are protected from abridgement by the Government though not specifically mentioned in the Constitution. The right of privacy in marriage is fundamental and basic which is retained by the people within the meaning of the Ninth Amendment. Discussion. The plurality holding in this case introduced the concept of penumbras in order to expand the liberties of the Bill of Rights to include the right of privacy within the marital relation. The right to privacy is not explicitly mentioned in the United States Constitution. This case reveals that such a right extends to activities relating to marriage. Later cases will further flesh out the right to privacy. In the past chapters the Court determined that the word liberty in the Due Process clause gave special protection to the liberty of contract (labor law restrictions). More recently the Court has derived from the word liberty a special constitutional protection for privacy, personal autonomy and some family relationships requiring special justifications for state infringements of those interests. In this way general constitutional phrases become limitations on the power of legislatures. Privacy matters that are explicitly in the constitution are from the Fourth Amendment incorporated by the Fourteenth Amendment against the states, which protects persons, places, and possessions against indiscriminate searches and seizures. The Fifth Amendment protects against self-incrimination. There is no language in the constitution that talks about privacy, family life or personal autonomy. There are three cases that laid the groundwork for Griswold, which talked about the special constitutional protection for interests relating to personal autonomy and family relationships.

(1) Meyer v. Nebraska (1923): A schoolteacher taught German and English but the law said she could only teach English from first to eighth grade. The Court found that the liberty protected by the Due Process clause denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness of free men. (2) Pierce v. Society of Sisters (1925): The Court upheld an injunction against a Oregon statute which required parents to send children between 8 and 16 to public school. This statute effectively shut down private schools and injured enrollment in military academies. The Court reinforced the doctrine of Meyer where the liberty of parents and guardians to direct the upbringing and education of children under their control was fundamental to liberty. (3) Skinner v. Oklahoma (1942): A statute providing for compulsory sterilization of criminals convicted two or more times of crimes of moral turpitude was held invalid under Equal Protection law because it made grand larceny a felony of moral turpitude while embezzlement was not. Justice Douglas said this law involved the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle far-reaching and devastating effects. It would cause irreparable injury and the person affected is forever deprived of a basic liberty. The Court used a strict scrutiny test. Roe v. Wade Facts

Historical background of abortion laws

o

Ancient attitudes

Abortion was practiced during the Greek and Roman eras; their laws offered little protection to the unborn.

The Hippocratic Oath

"I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion." The Oath originated in a group representing only a small segment of Greek opinion and was not adopted by all physicians.

The common law

An abortion performed before "quickening" (the first recognizable movement of the fetus in utero - 16 to 18 weeks) was an indictable offense.

The American law

Early statutes in the 1800's dealt severely with abortion after quickening but were lenient with it before quickening. In the late 1800's, the quickening distinction disappeared, and the degree of the offense increased.

In the past several years, a trend toward liberalization of abortion statutes has resulted in less stringent laws.

However, a woman had broader rights to abortion at the adoption of the Con and throughout the early 1800's than she does today.

A TX statute outlaws abortion unless necessary to save the life of the mother. A Texas law criminalized the procurement of an abortion except by medical advice for the purpose of saving the life of the mother. The challengers are a single pregnant woman, Ms. Roe, a childless couple, the wife not pregnant, Mr. and Mrs. Doe, and a licensed physician, Dr. Hallford. Suits by Ms. Roe and the Does were class actions. The three-judge district court ruled the Does complaint non-justiciable, but granted declaratory relief to Appellants Ms. Roe and Dr. Hallford, holding the law unconstitutional.

Procedural History

SCOTUS held law unconstitutional.

Issues

Is a woman's right to an abortion a fundamental right? What constraints are placed upon a state wishing to enact an anti-abortion law? Whether a fetus is a person within the language and meaning of the Fourteenth Amendment?

No. The use of the word person in the Constitution has only postnatal applications. The word person, as used in the Fourteenth Amendment, does not include the unborn

Holding/Rule

A woman's right to an abortion is a fundamental right. The right of privacy protects a married or unmarried womans liberty to choose an abortion, but this right must be considered against important state interests in regulation such as the stage of the pregnancy. A state that wishes to enact an anti-abortion law must make distinctions based upon trimester of pregnancy
o

For the state prior to the first trimester, the abortion decision must be left to the medical judgment of the pregnant woman's attending physician. For the stage subsequent to approximately the end of the first trimester, the state, in promoting its interest in the health of the mother, may, regulate the abortion procedure in ways that are reasonably related to maternal health.

For the stage subsequent to viability, the state in promoting its interest in the potentiality of human life man regulate and even proscribe abortion except where it is necessary for the preservation of the life or health of the mother.

Reasoning

Three state interests have been given to explain anti-abortion laws

(1) The laws were a product of a social concern to discourage illicit sexual conduct.

No court or commentator has taken this argument seriously.

(2) The laws were intended to protect the safety and life of the mother.

In the past, the procedure was a hazardous one for the woman. Now, while not without risk, the procedure is relatively safe.

Mortality rates for women undergoing early abortions appear to be as low or lower than the rates for normal childbirth. The risk increases as the pregnancy continues. Thus, the state retains a definite interest in protecting the woman's health when the danger of the abortion is equal to the danger of childbirth.

(3) The laws were intended to protect pre-natal life.

This reason rests on the theory that a new human life begins at the moment of conception.

The Constitution does not explicitly mention any right to privacy. However, the Court has recognized a right to privacy or a guarantee of certain zones of privacy under the Constitution.
o

This right to privacy, whether from the 14th or 9th amendment is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent. She could suffer from medical harm, a distressful life and future, psychological harm, thereby making the unwanted child suffer as well. However, this right is not absolute; any attempt to limit this right must meet strict scrutiny.

The word person, as used by the 14th amendment, does not include the unborn.

The amendment does not say so, and legal abortion practices were far freer than they are today.

The pregnant woman is not isolated in her privacy right.

The health and life of the other being is an interest at some point. The Court will not decide when life begins; no one else has been able to do it.

However, most physicians seem to point to the point at which the fetus becomes viable (potentially able to live outside the mother's womb) - 24 to 28 weeks.

Thus, the state has an important and legitimate interest in preserving and protecting the health of the pregnant woman and that it has still another important and legitimate interest in protecting the potentiality of human life.
o

The compelling point for the health of the mother comes at the end of the first trimester since the dangers of abortion equal the dangers of childbirth at this point. The compelling point for the potential life comes at the point of viability since the being has the capability of meaningful life outside the mother's womb at this point.

Dissent

Rehnquist
o

The right of privacy is not involved in this case.

A transaction resulting in an operation such as this is not private in the ordinary usage of that word. Since the right at issue here is just the right not to be interfered with by the gov't, the laws in question must only meet the rational basis test.

The fact that a majority of states have had restrictions on abortions for at least a century is a strong indication that the asserted right to an abortion is not so rooted in tradition as to be ranked as fundamental.

The statute in question here was enacted before the adoption of the 14th amendment and has persisted to this day. There apparently was no question regarding the validity of this provision or of any other state statutes when the 14th amendment was adopted. The drafters did not intend to have the 14th amendment withdraw from the states the power to legislate with respect to this matter.

Discussion. This monumental case roots the right of privacy it protects in the liberty clause of the Fourteenth Amendment. The womans right of privacy can only be defeated by a compelling state interest such as protecting the womans health and protecting the potentiality of life. Planned Parenthood of Southeastern Pa. v. Casey Facts

The Pennsylvania Abortion Control Act of 1982 contained certain provisions that were challenged as being unconstitutional. First, the Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure and specifies that she be provided with certain information at least 24 hours before the abortion is performed. Second, the Act requires a minor obtain parental consent, but provides for a judicial bypass. Third, the Act requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion. Finally, the Act imposes reporting requirements on facilities that provide abortion services. The Act exempts these conditions in the event of a medical emergency. Before these provisions took effect, Petitioner, Planned Parenthood of Southeastern Pennsylvania, brought this suit seeking declaratory and injunctive relief. Each provision was challenged as being unconstitutional on its face. The District Court held all the provisions at issue unconstitutional. The Court of Appeals upheld all of the regulations except for the husband notification requirement.

Five provisions of the PA Abortion Control Act of 1982 are at issue here.
o o o o

Requires a 24 hour waiting period. Requires parental consent for a minor (with allowance for judicial bypass). Requires a signed statement indicating spousal consent. Exemptions from these requirements can be obtained in the event of a medical emergency. Imposes certain reporting requirements on facilities that provide abortion services.

Procedural History

SCOTUS held for Casey, upheld.

Issues

What rights does a woman have regarding obtaining an abortion? Does the spousal notification requirement create an undue burden/substantial obstacle for women who want to have an abortion?

Holding/Rule

The essential holding of Roe should be retained and reaffirmed.

o

First, a woman has the right to choose to have an abortion before viability without undue interference by the state.

Before viability, the state's interests are not strong enough to support prohibition of abortion or the imposition of substantial obstacles to this right.

Second, a state has the power to restrict abortions after fetal viability as long as the law contains exceptions for pregnancies that endanger the woman's life or health. Third, a State has a legitimate interest in protecting the health of a woman and the life of a fetus that may become a child.

However, the trimester distinctions used in Roe are overruled, as well as the use of strict scrutiny for evaluating government regulations of abortion. The spousal notification requirement creates an undue burden/substantial obstacle for women who want to have an abortion.

Reasoning

Holding that the constitution only protects those rights that were protected against government interference by other rules of law when the 14th Amendment was ratified would be inconsistent with our law, as would holding that only those rights enumerated by the Bill of Rights were protected. It is a promise of the Constitution that there is a realm of personal liberty which the gov't may not enter.
o

Adjudication of substantive DP claims may call upon the Court to exercise reasonable judgment in interpreting the Constitution. Cannot impose a moral code; underlying question is whether a woman should lack all choice in the matter of pregnancy.

Stare decisis is one reason that the holding of Roe must be affirmed.
o

In this case we must inquire whether Roe's central rule has been found unworkable: whether the limitation it placed on state power could be removed without serious inequity or whether the law's growth has left Roe's rule a doctrinal anachronism. The ability of women to participate equally in economic and social life has been facilitated by their ability to control their reproductive lives. Roe is not a survivor of obsolete constitutional thinking. However, time has overtaken some of Roe's factual assumptions.

Advances in maternal health care allow for abortions safe to the mother later in pregnancy. Advances in neonatal care have advanced viability to a point somewhat earlier. However, these developments only go to the scheme of time limits on the realization of competing interests, but have no bearing on the validity of Roe's central holding.

The woman's liberty to terminate a pregnancy is not so unlimited that the State cannot show its concern for the life of the unborn and, at a later point in fetal development the State's interest has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.
o

We conclude that the line should be drawn at viability; before this time a woman has a right to choose to terminate her pregnancy. Viability is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in

reason and all fairness be the object of state protection that now overrides the rights of the woman.

Can be said that a woman who fails to act before viability has consented to the State's interference on behalf of the developing child.

Trimester approach, however, is not necessary to accomplish the objective of ensuring that a woman's right to choose does not become subordinate to the State's interest.

State is not prohibited from taking steps to ensure that the choice to terminate is thoughtful and informed. State can express a preference for carrying the child to term.

Only where state regulation imposes an undue burden on a woman's ability to procure an abortion does the power of the State reach into the heart of the liberty protected by the DPC.

Undue burden= substantial obstacle. Means chosen by the state to further its interest in the potential life of the fetus must be calculated to inform the woman's free choice, not hinder it.

Regulations that do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted if they are not a substantial obstacle to the choice.

The vast majority of women notify their male partners before they get an abortion.
o

Of those who do not, the pregnancy is usually the result of a extramarital affair or they are experiencing marital difficulties, often accompanied by incidents of violence.

Nearly 1 in 8 women are abused every year, and that number is probably an underestimate. Indeed, in well-functioning marriages, spouses discuss important intimate decisions like this.
o

But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have good reasons for not wishing to inform their husbands of their decision to obtain an abortion.

Victims of spousal sexual assault are extremely reluctant to report the abuse to the gov't; therefore, a great many spousal rape victims will not be exempt from the notification requirement after they have been sexually assaulted.
o

The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle.

Even though the law will only affect 1% of women who want an abortion, this is enough to make the law unconstitutional.
o

The focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.

While the husband has an interest in the unborn child, this interest does not outweigh the wife's liberty.
o

Otherwise, pregnant women would have to notify their husbands before they engaged in conduct dangerous to the fetus.

Smoking and drinking, etc.

A state may not give to a man the kind of dominion over his wife that parents exercise over their children.

Dissent

Blackmun (concurring in part, concurring in judgment in part, dissenting in part)

o

Four justices are basically awaiting the arrival of a fifth vote to extinguish Roe altogether. The right to reproductive choice is entitled to the full protection afforded by this Court before Webster. State restrictions on abortion violate a woman's right of privacy in two ways:

First, they infringe on a woman's right to bodily integrity by imposing risk of physical harm. Second, they deprive a woman of the right to make her own decisions about reproduction and family planning.

This has a big impact on educational and employment opportunities.

Strict scrutiny of state limitations on reproductive choices in the most secure protection of the woman's right to make her own reproductive decision. It should not be disturbed.

Rehnquist and Scalia (concurring in the judgment in part, dissenting in part)

o o

Roe was wrongly decided and should be overturned. Abortion involves the purposeful termination of a potential life, and therefore must be analyzed completely differently from other family privacy and autonomy rights.

Rehnquist
o

The state has a legitimate interest in protecting the interests of the father and in protecting the potential life of the fetus.

The spousal notification requirement is reasonably related to advancing those state interests.

The participation might, in some cases, result in a decision to proceed with the pregnancy. The spousal notice requirement is a rational attempt by the state to improve truthful communication between spouses and encourage collaborative decision making, and thereby foster marital integrity. It is unrealistic to assume that every husband-wife relationship is either

So perfect that this type of truthful communication will take place as a matter of course, or So imperfect that, upon notice, the husband will react selfishly, violently, or contrary to the best interests of his wife.

The existence of particular cases in which a feature of a statute performs no function (or is even counterproductive) ordinarily does not render the statute unconstitutional or even constitutionally suspect.

Gonzales v. Carhart SCOTUS- 2007 Facts

The Act proscribes a particular manner of abortion.

o

Between 85 and 90 percent of abortions are performed during the first trimester by vacuum aspiration or medication. The act does not address these. Another method used, usually during the second trimester, is regular dilation and evacuation (standard D&E), whereby a physician dilates a woman's cervix and reaches in with forceps to pull out the fetus, usually in parts. This act addresses intact D&E, whereby the whole fetus is pulled out at once and then the skull is crushed.

After Stenberg, the federal ban was passed. It responded to Stenberg by:
o

Making factual findings that there was a moral, medical and ethical consensus that partial-birth abortion is never medically necessary and should be prohibited.

Procedural History

SCOTUS held that the ban was constitutional.

Issues

Is a ban against partial-birth abortions unconstitutional?

Holding/Rule

A federal ban on partial-birth abortions is not unconstitutional for purposes of the due process clause.

Reasoning

Court reemphasizes the Casey holding. It is unclear whether the act encompasses only intact D&E or all types of D&E, so Respondents claim void for vagueness and claim that if this outlaws all D&Es then it is essentially outlawing all second term abortions.
o

Court disagrees and says that this does not place an undue burden because:

Act does not restrict an abortion procedure involving the delivery of an expired fetus and is inapplicable to abortions that do not involve vaginal delivery. Act does apply pre- and post-viability since a fetus is deemed "living" while in utero even if it is not viable outside of the womb. In addition, a doctor must perform an overt act to kill the fetus after it is delivered. Delivery itself is not an overt act for purposes of the statute. There is also a dual intent necessary:

Physician must intend to deliver the fetus past an anatomical boundary, AND Physician must have delivered the fetus with the intent to commit the overt act to terminate the fetus. If either of these is missing, there is no crime.

Act is not void for vagueness because it sets relatively clear guidelines regarding what is prohibited. It does not say "a substantial portion" of the fetus like the Stenberg statute, which would be too vague.

Does this act impose a substantial obstacle to late-term, but pre-viability, abortions?
o o

Court concludes that it does not. Act's purpose is to preserve the humanity of newborns and other innocent human life. Congress was also concerned with the effects on the medical community and on its reputation. This ban furthers the gov't's objectives because this procedure is laden with the power to devalue human life. State also has an interest in ensuring that a mother's choice is well-informed and that she won't find out after having an abortion that it was performed through such a procedure.

There is documented medical disagreement about whether the Act's prohibition would ever impose significant health risks on women.

This uncertainty is sufficient basis to conclude that the act does not impose an undue burden. If the procedure is necessary, an injection to terminate the fetus before extraction would suffice to avoid liability under the act.

Is the lack of a health exception enough to impose substantial burden?

o

When standard medical options are available, mere convenience does not suffice to displace them. The act is not invalid on its face when there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives.

Thomas and Scalia (concurring)

o

Good decision, but Roe should be overturned.

Dissent

This case refuses to take Casey and Stenberg seriously.

o o

It blurs the line between previability and postviability abortions. It bans a procedure that the American College of Gynecologists considers necessary and proper in certain cases. Also, Court is upholding a provision with no exception safeguarding a woman's health.

A woman's control over her destiny is at stake here. The Court makes assumptions that women regret their choice to have an abortion and suffer from depression and loss of self esteem. In addition, majority says that doctors will fail to inform women of what the procedure entails in order to protect them.
o

But, instead of just requiring women to be informed, the Court upholds a ban on the whole procedure at the expense of the health and safety of the women.

Court blurs the viability line. Court uses negative language such as "abortion doctor" to describe gynecologists and obstetricians and calls the fetus a "baby" or an "unborn child" to show its moral disgust.
o

Shows that the decision was made on moral, not legal, grounds.

Casey makes it clear that, in determining whether any restriction poses an undue burden on a large fraction of women, the relevant class must be judged by reference to those women for whom it is an actual rather than an irrelevant restriction.

Must look at the women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk. The very purpose of the health exception is to protect women in exceptional cases, not most women in most cases.

Moore v. City of East Cleveland SCOTUS - 1977 Facts

East Cleveland's housing ordinance limits occupancy of a dwelling to members of a single family.
o

Family is defined very narrowly and covers only a few categories of related individuals.

D lives with her two grandchildren; the boys are not brothers but cousins. This is not allowed by statute.

The City of East Cleveland adopted a housing ordinance, which limited the occupancy of a dwelling unit to a single family. The ordinance had an unusual definition of what constituted a family, which recognized only a few categories of related individuals and had the effect of making it illegal for Moore (Appellant) to live with her grandsons where she lived with her son, his son, and another grandson. In 1973, Moore received a notice of violation from the City, stating that the grandson who was not her sons son was an illegal occupant and directed Appellant to comply with the ordinance. The City then filed a criminal charge when Appellant refused to remove the grandson. Appellant was convicted and sentenced to five days in jail and a $25.00 fine. The Court of Appeals of Ohio affirmed after considering Appellants claims that the ordinance violated the Due Process Clause of the Fourteenth Amendment. The Supreme Court of Ohio denied review. The Supreme Court of the United States noted probable jurisdiction and reviewed the case.. Procedural History

SCOTUS found law unconstitutional.

Issues

Does a law that keeps related family members from living with one another violate the DPC of the 14th A.?

Holding/Rule

A law that keeps related family members form living with one another violates the DPC. The right to live as a family unit is protected under the Due Process Clause of the Fourteenth Amendment. When the government intrudes on choices concerning family living arrangements, the court will examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.

Reasoning

Our precedent (Village of Belle Terre v. Boraas) disallowed letting people unrelated by blood live together. It expressly allowed those who were related by blood, marriage, or adoption to live together. The freedom of personal choice in matters of marriage and family life is one of the liberties protected by the DPC of the 14th Amendment.
o

Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this nation's history and tradition. The tradition at issue here is not limited to respect for the bonds uniting the members of a nuclear family.

It is clear that the statute infringes upon this right. The city seeks to justify the statute as a means to prevent overcrowding, minimizing traffic, and avoiding an undue financial burden on the city's school system.
o

These are all legitimate goals, but the law serves them only marginally at best.

A valid family under the statute might have 12 children while there are only 2 in question in the case here.

The city also seeks to distinguish this case from other precedent that has provided for constitutional protection of family rights by suggesting that such rights extend only to the nuclear family.
o

The force & rationale of these precedents are applicable in the present case.

Caution, rather than abandonment, is the proper way to move forward when the judicial branch gives enhanced protection to substantive liberties without the guidance of more specific provisions of the Bill of Rights. Clear lines cannot place the limits on substantive due process, rather an examination of the teachings of history and recognition of the basic values that underlie society should serve as guidance.

Dissent

Stewart
o

the line of cases restricting definitions of single families focuses not so much on blood relation, but rather the ability to have children and to raise them in the manner one deems proper. The ordinance here did not impede D's choice to have children and it did not dictate to her how her children were to be reared. The city could have easily hit upon a different definition of family; any definition would produce hardships in some cases without materially advancing the legislative purpose.

o o

It is not the job for the courts to substitute their judgment for that of the legislature. Appellant contends that she has a constitutional right to share her residence with whomever she pleases, but precedent in Belle Terre says otherwise.

Although appellants desire to share her dwelling with her extended family involves private family life, the desire cannot be equated with interests previously found to be constitutionally protected.

Appellant also cannot claim constitutional rights on equal protection grounds because the citys definition does not offend the Constitution.

The pluralities decision extends the limited substantive contours of the Due Process Clause beyond recognition.

White The Supreme Court erred by concluding that the Appellants liberty interests where violated as a result of the ordinance. *T+he equal protection claim must fail, since it is not to be judged by the strict scrutiny standard employed when a fundamental interest or suspect classification is involved . . . . Concurrence: Brennan & Marshall This concurrence is separately written to underscore the fact that such family units are important to immigrant, minority, and disenfranchised families as a means of survival. The conclusion cannot be made that the purpose of the Cleveland ordinance is to discriminate against black families. The ordinance, however, does interfere with the historical notion of the extended family, which has provided generations of early Americans with social services and economic and emotional support in times of hardship, and was the benchhead for successive waves of immigrants who populated our cities. Stevens The critical questions presented by this case is whether East Clevelands housing ordinance is a permissible restrictions on appellants right to use her own property as she sees fit. Notes

Right to keep the family together at issue here. This case holds that related people have a fundamental right to live together. This case demonstrates different opinions between the plurality and the dissent on how far to extend the rights protected by substantive due process.

The majority holds it to be family associations broadly.

The dissent argues that the family associations are merely emanations from more basic rights, reproductive autonomy and child-rearing.

Lawrence v. Texas Facts

TX statute makes a crime "deviate sexual intercourse, namely anal sex, with a member of the same sex." D was having homosexual sex with his partner when the police found him and arrested him.

Procedural History

SCOTUS held law unconstitutional.

Issues

Does the DPC of the 14th Amendment protect the private, consensual conduct of homosexuals.

Holding/Rule

The private, consensual conduct of homosexuals is protected by the DPC of the 14th Amendment.

Reasoning

In Bowers v. Hardwick, the Court held an anti-sodomy law constitutional.

o

Said that the rational basis for the law was the upholding of morals and that the law was reasonably related to this end.

However, our obligation is to define the liberty of all, not to mandate our own moral code.

Two decisions post-Bowers case it into more doubt.

Planned Parenthood v. Casey

"These matters, involving the most intimate and personal choices a person may make in a lifetime are central to the liberty protected by the 14th Amendment.

Romer v. Evans

Court struck down legislation aimed at homosexuals under the Equal Protection Clause.

We overrule Bowers now.

The Constitution protects the liberty of homosexuals to make this intimate choice.

There is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. (So, if no laws against the conduct, can find it as a tradition to protect, give fundamental right status?)
o

The old anti-sodomy laws outlawed conduct of both man-man couples and woman-man couples. These early laws were meant to prohibit non-procreative sexual activity and were not directly pointed at homosexuals. Prosecutions are almost unheard of against homosexuals. Instead the laws were used against men who raped young girls and boys, men who assaulted women, and men who committed bestiality. The infrequency of prosecutions makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. It was not until the last third of the 20th century that states singled out same-sex relations for criminal prosecutions. Most of these laws have been repealed by this point.

Thus, these references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.

Dissent

O'Connor (concurring)
o

Bowers should not be overruled; this case should be decided on Equal Protection grounds.

We have held that some objectives such as a bare desire to harm a politically unpopular group are not legitimate state interests. When a law exhibits such a desire, we have applied a more searching form of rational basis review to strike down such laws.

Texas seeks to justify its law on the basis that it furthers the legitimate gov't interest of the promotion of morality.

However, moral disapproval by itself has never been held sufficient to survive rational basis review for a law that discriminates among groups of persons.

A law branding one class of persons as criminal solely based on that state's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the EPC under any standard of review.

Scalia
o

Nowhere does the Court's opinion declare that homosexual sodomy is a fundamental right under the DPC; nor does it subject the TX law to strict scrutiny.

Instead, it describes the conduct as "an exercise of their liberty" and proceeds to apply an unheard-of form of rational-basis review.

The Court's approach to stare decisis invites us to overrule precedent if

Its foundations have been eroded by subsequent decisions, It has been subject to substantial and continuing criticism, and It has not induced individual or societal reliance that counsels against overturning.

Roe satisfies all of these factors and was not overruled in Casey.

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices.

The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the DPC, the courts will be very busy.

The TX law puts constraints on liberty, but so do laws against prostitution, heroin use, or working more than 60 hours/week in a bakery.

The conduct in question has not been labeled a fundamental right.

Homosexual sodomy is not a right deeply rooted in our Nation's history and tradition.

Emerging awareness is not acceptable to confer fundamental right status on conduct.

This law should pass rational basis review since the promotion of majoritarian sexual morality is a legitimate state interest. Under EPC, this is the same type of distinction used in marriage laws that the Court has upheld.

So if this law is bad under the EPC, so are anti-gay marriage laws.

What TX has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new constitutional right by a Court that is impatient of democratic change.

Thomas
o

This law is "uncommonly silly" and seems like a waste of police resources. It should be repealed by the legislature. However, I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy.

McDonald v. Chicago Concurrence: Justice Scalia concurred, agreeing with the majority while simultaneously noting his hesitance regarding substantive due process as a general matter. For the rest of his opinion, Justice Scalia argued that the dissenters view was fundamentally misplaced, opting for more subject standards regarding selection of protected liberties while arguing against historical tradition as an interpretive aide. Justice Thomas concurred in the judgment and joined the majority opinion in all but the final section. In his opinion, Justice Thomas argued that the Court should have addressed the Privileges and Immunities question, regarding the right to bear arms as a fundamental right protected by that clause and rendering the more complicated due process question unnecessary. Furthermore, Justice Thomas reiterated his view that the Due Process Clause protects process and not substance, rejecting the general principles of incorporation under which the Court extended the right to bear arms as a limit on State authority. Dissent: Justice Stevens dissented, agreeing with the majority regarding the privileges and immunities question, disagreeing with their treatment of the Second Amendment and their explanation of incorporation. At the outset of his lengthy opinion Justice Stevens made clear he regarded this as a substantive due process case. While he agreed with the long-standing interpretation of Due Process as having procedural and substantive components, and gave both the history of self-defense and the nature of liberties protected by the Constitution lengthy treatment, he objected to the inherently subjective nature of any standard regarding which rights are covered and suggested that uniformity between state and federal protections was never the goal- nor desirable. Justice Breyer also dissented, and was joined in his opinion by Justices Ginsburg and Sotomayor. Justice Breyer agreed with Justice Stevens regarding the substantive due process portion of the majority opinion, arguing that the essence of due process protections did not extend so far to as to cover the right to possess firearms in the home for self-defense. Justice Breyer went further, however, to clarify his view that the majority was misplaced regarding incorporation, as nothing in the text and history of the Second Amendment suggested it was so fundamental as to be worthy of protections binding on the States through the Due Process Clause of the Fourth amendment. The dissenters also pointed out their disagreement with other, recent Second Amendment cases, reiterating the view that the Constitution did not protect a general right of the people to bear arms, rather only the more traditional view that the Second Amendment protected collective rights necessary to formation and preservation of organized militias. Hawaii Housing Authority v. Midkiff Rule of Law. Exercise of the eminent domain power for public use will be constitutional so long as it is rationally related to a conceivable public purpose. The Government itself does not have to use the property. Only the purpose, not the mechanics will be relevant to the takings constitutionality. Rule from this Case: Congress has the power to determine whether an instance of redevelopment of lands is proper under eminent domain. As long as the project is serving the public interest, the project is deemed satisfactory. The Government itself does not have to use the property. The public use requirement is coterminous (coextensive in scope and duration) with the scope of the sovereigns police powers. Rational basis theory: ends must justify the means of the Act (here public use). This case represents the shift from the public use doctrin to a public purpose doctrine which is much broader. Facts. The land ownership of the Hawaiian Islands is concentrated in a small group of descendants of

Polynesian chieftains. They subsequently lease their land to a multitude of homeowners by parcel. In 1967, the Hawaii legislature enacted the Land Reform Act of 1967 (Act), which created a mechanism for condemning residential tracts and for transferring ownership of the condemned fee simples to the existing lessees. If 25 eligible tenants of at least half the tenants on a five acre or more residential tract request that their homes be condemned, then the Hawaii Housing Authority (HHA) is authorized to hold a public hearing to determine if the proposed condemnation will effectuate the public purposes of the Act, and if the HHA find the public purposes will be served, then HHA is authorized to designate some of the tracts for acquisition. The prices are set by condemnation trial or by negotiation between lessors and lessees. HHA then acquires the land of the former fee owners full right, title and interest in the land. Then the land is sold to the lessees by HHA. In 1977, HHA held a public hearing to begin condemnation proceedings of some of Appellees lands. In 1978, HHA ordered Appellees to negotiate with certain lessees to determine a price for the land. HHA then ordered Appellees to submit to compulsory arbitration. Instead of submiting, the Appellees filed suit in the district court, asking that the Act be declared unconstitutional and that its enforcement be restrained. The district court held the compulsory arbitration portion of the Act unconstitutional, but ultimately upheld the rest of the Act. The district court found that the Act was within the states police power and that the means the legislature chose to serve those goals were not arbitrary, capricious or selected in bad faith. The United States Court of Appeals for the Ninth Circuit reversed the district court and held that the transfers under the Act were not like those previously held to be public uses within the meaning of the Fifth Amendment. On an application of HHA and other private appellants the case was submitted to be reviewed by the Supreme Court of the United States. Issue. Whether the act was a constitutional taking for public use or did the act violate the United States Constitution (Constitution) because it was not for public use? Held. The Court began by defining the permissible scope of the use of eminent domain power by legislative bodies to redevelop slum areas as defined in the case of Berman v. Parker, 348 U.S. 26 (1954), in which the Court upheld the use of the power based on the legislatures determination of the best means to accomplish the goal of the public interest. Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to an end. Berman v. Parker, supra. The public use requirement is thus coterminous with the scope of a sovereigns police powers. The Court noted that its prior decisions require the Court to abstain from substituting its judgment for that of legislative bodies as to what constitutes a public use unless the use is without reasonable foundation. The Hawaii Act is constitutional because it was rationally related to a conceivable public purpose and was a compensated taking. Regulating oligopoly and the evils associated with it is a classic exercise of a states police powers. The legislature defines what constitutes a taking for the public use, and their determination is subject only to specific constitutional limitations. The Supreme Court of the United States (Supreme Court) would give deference to the states determination of what was a public use. Hawaii had a comprehensive and rational approach to correcting a market failure, which resulted in an evil land oligopoly (concentrated property ownership) traceable to past monarchs. Where there is a rational, legitimate purpose the Supreme Court would not examine its overall effectiveness. When the legislatures purpose is legitimate and its means are not irrational, cases make clear that empirical debates over the wisdom of takings are not to be carried out in the courts. Redistribution of fee simple

to correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly is a rationale exercise of the eminent domain power. So, the statute passes the scrutiny of the Public Use Clause.
Holding/Rule The Takings Clause does not prohibit a state from taking, with just compensation, title in real property from lessors and transferring it to lessees in order to reduce the concentration of ownership of fees simple in the state. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court will not hold a compensated taking to be proscribed by the Public Use Clause.

Reasoning In Berman v. Parker, the Court held constitutional the DC Redevelopment Act. o o This provided for the comprehensive use of eminent domain power to redevelop slum areas and for the possible sale or lease of the condemned lands to private interests. Court said that the power of eminent domain is merely the means to an end. As long as the object is a public purpose, eminent domain can be used.

It is for Congress to determine what the public use is and what qualifies as a public use. o o o Court has some review power, but the courts' role is extremely narrow here. Deference to the legislature's "public use" determination is required "until it is shown to involve an impossibility." Court will not substitute its judgment for the legislatures as to what constitutes a public use "unless the use be palpably without reasonable foundation."

Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court will not hold a compensated taking to be proscribed by the Public Use Clause. o o Under this framework, the Act in this case is constitutional. The land oligopoly has created artificial deterrents to the normal functioning of the State's residential land market and forced thousands of individual homeowners to lease, rather than buy, the land underneath their homes. Regulating oligopolies is a classic exercise of a State's police powers.

The Act's approach to correcting the problem is not irrational. o o o There is obviously an economic malfunction here that Hawaii is trying to fix. The fact that the property is transferred to private beneficiaries doesn't mean it has a purely private purpose. The HI legislature enacted the Act not to benefit a particular class of individuals but to attract certain perceived evils of concentrated property ownership in HI. This is a legitimate public purpose. The use of eminent domain power to do this is not irrational.

Discussion. Public use in this case is a benefit rather than actual literal use. It focuses on the ends rather than the means. The court was deferential to the states legislative determination. Mere fact that the land was transferred in the first instance to private citizen (the lessees) did not render it a private use. Court did not think that the entire community had to benefit from a particular legislative act. The social evil is the concentration of landownership in only a small group of people. The result of this was a monopolized real estate market that improperly inflated rates. So, the Supreme Court of the United States (Supreme Court) determined that the exercise of eminent domain was an appropriate action by the state to rectify this public harm. Kelo v. City of New London SCOTUS- 2005 Facts

New London, CT declared a "distressed municipality" due to decades of economic decline. State and local officials targeted New London for economic revitalization. State authorized bonds to support planning activities including a state park and private development. Pfizer announced that it planned to build on the Fort Trumbull area. Fort Trumbull comprises 115 privately-owned properties. Development plan encompasses seven parcels: 1. Waterfront conference hotel at the center of a small urban village. 2. 80 new residences organized into an urban neighborhood linked by a public walkway. 3. Office space. 4. A- support site for state park or marina; B- marina/riverwalk. 5. 6, 7- Land for office and retail space.

Plan designed to revitalize the downtown area and make the city more attractive and create leisure and recreational opportunities. City Council authorized NLDC to purchase property or acquire it through eminent domain.
o

Negotiations with Ps failed, and so condemnation proceeding was initiated.

Procedural History

Superior Court granted a permanent restraining order prohibiting the takings of properties in 4A, but not in parcel 3. Supreme Ct of CT held that the takings were valid.

Issues

Can a city condemn private land under the Takings Clause with the intent of giving that land directly to private developers to encourage economic development? Does the city's plan have a public purpose?

Holding/Rule

A city can condemn private lands with the intent of giving that land to private developers to encourage economic development because economic development is a public purpose. A taking by eminent domain will be upheld as long as it is rationally related to a conceivable public purpose and just compensation is paid to the owner. A valid public purpose can be found in a plan for economic rejuvenation of an overall condemned community, even though some individual properties within that community may not be blighted. The court had previously held in the Midkiff case that such economic development qualified as a valid public use under both the Federal and State Constitutions. The court has to meet two burdens for eminent domain- (1) that the takings of the particular properties at issue were reasonably necessary to achieve the Citys intended public use and (2) that the takings were for reasonably foreseeable needs.

Reasoning

It has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even with just compensation.
o

Also can't take it for the pretext of a public purpose when real purpose is private.

However, a State may transfer the property if future use by the public is the purpose of the taking.
o

City is not required to open the property for use by the general public, but must have a public purpose for the land.

Here, the City's development plan was not adopted to benefit a particular class of identifiable individuals.
o

However, the land is not going to be completely opened up to the public. This literal reading has been rejected long ago. Proved impractical given the diverse and evolving needs of society.

The court pointed out that states have broad latitude in determining what constitutes a public purpose, particularly where community redevelopment must be planned as a whole to be successful.
o

In Berman, the Court upheld a redevelopment plan in DC where land was sold or leased to private parties for redevelopment and low-cost housing. In Midkiff, the Court unanimously upheld HI statute that gave land to lessees.

The Court, in the present case, gave deference to the Defendants determination that the Fort Trumbull area was sufficiently distressed to justify a program of economic rejuvenation. The City's determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference.
o

Promoting economic development is a traditional and long-accepted function of government. The gov't's pursuit of a public purpose will often benefit individual private parties.

We also don't second guess the city's determination as to what lands it needs to acquire in order to effectuate the project. Accordingly, the Court determined that the plan unquestionably served a public purpose and that the takings were valid.

Dissent

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner. This effectively deletes the words "for public use" from the Takings Clause. An external, judicial check on how the public use requirement is interpreted is necessary if this constraint on government power is to retain any meaning. Three categories of takings comply with public use requirement: 1. Private property transferred to public ownership. 2. Private property transferred to private parties who make the property available for the public's use (stadium, railroad, etc.). 3. Under certain circumstances, private property can be taken when it is destined for subsequent private use.

However, economic development is not a constitutional reason for a taking.

o

Berman can be distinguished because the neighborhood was injurious to public health, safety, and morals. Midkiff can be distinguished because the state was attempting to rectify an imbalance in ownership and an oligopoly. But, both these cases recognized that a purely private taking could not withstand scrutiny of the public use requirement because it would serve no legitimate purpose of government. Also, in both these cases, the extraordinary pre-condemnation use of the targeted property inflicted affirmative harm on society. This harm had to be eliminated.

Here, the city does not claim that Ps' homes are harmful.

Basically, the Court is saying that the sovereign can take private property currently put to ordinary private use and give it over for new, ordinary private use so long as there might be some secondary benefit for the public.
o

But, nearly any lawful use of real private property can be said to generate some incidental benefit to the public. The specter of condemnation hangs over all property. The founders cannot have intended this perverse purpose.

o o

Discussion. Kelo invites legislatures to become involved in defining public use and takings. Accordingly, Kelo received significant adverse publicity in the general public and many politicians used it to garner public support against governmental takings for eventual private redevelopment. The public outcry against government taking private property to be turned over to developers stems from the feeling that citizens should have the right to decline to sell their homes to another private party. Discussion. States are allowed to restrict the public use doctrine and some states do have more protections for its citizens then is allowed under the Federal Constitution. The issue here is to be decided by the legislature of the city of New London not this court. Discussion. This jurisprudence has long recognized the needs of society vary greatly between different parts of the Nation. Earlier cases embodied a strong theme of federalism, emphasizing the great respect owed to state legislatures and state courts in discerning local public needs. Public needs used to be according to rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justified the use of the takings power. The court must look to the entire Plans importance and the Citys overall interest in the economic benefits derived from the development. Pennsylvania Coal Co. v Mahon Rule of Law. Limitations on the use of land through the police power have limits and will be considered a taking under the eminent domain power when the diminution in value of the property reaches a certain magnitude, which depends upon the particular facts. The general rule is that while property may be regulated to a certain extent, if the regulation goes too far it will be considered a taking. Facts. The Pennsylvania Kohler Act (the Act) forbade the mining of coal in such a way as to cause land used for human habitation to sink. Prior to the enactment of the Act, the Pennsylvania Coal Company (Defendant) was mining underneath Plaintiffs house thereby causing his house and the surface underneath it to subside. Defendant was mining pursuant to a contract entered into by the parties, conveying the surface of the land to Plaintiff but the right to remove all of the coal underneath the same to the Defendant. Plaintiff alleged that the Act applied to contracts executed before the Acts enactment and thus barred Defendant from exercising its mining rights under its contract. The Plaintiff sued the Coal Co. to prevent the mining of coal under the Plaintiffs house in such a way as to remove the supports and cause the house to subsist. The Plaintiff contends that whatever the Defendants rights were with respect to the coal underneath the surface, the Kohler Act has taken Defendants rights away. The lower state court found that the Kohler Act was not constitutional as applied to this Defendant even though the potential injury claimed by Plaintiff is the type of injury the Kohler Act seeks to prevent. The

Pennsylvania Supreme Court found that the Defendant did have contract and property rights which were protected by the Constitution of the United States, but held that the Kohler Act was constitutional as a legitimate exercise of the police power by the state and directed a decree for Plaintiff. Defendant appealed. Issue. Whether the statute was permissible under the police power or instead constituted an exercise of eminent domain that required just compensation. Held. The protection of private property in the Fifth Amendment presupposes that there are circumstances where the property is needed for public use, but it also provides that such property shall not be taken without compensation. The fact that this protection of property can be qualified in the name of a state exercising its Police Powers encourages the states to attempt to expand their Police Powers more and more until all private property is gone. But, the United States Constitution will not permit this. A strong public desire to improve public conditions is not enough to justify achieving that desire by a taking an end run around the Constitution by not paying for the improvement. Private owner had only acquired surface rights and not the right to supporting property underneath the land. The Kohler Act went beyond a regulation and became a taking. The Court considered the magnitude of diminution of the value of property and found that when a diminution reaches a certain point the government must compensate for it. So far as private persons have seen fit to take the risk of acquiring only surface rights, the Court cannot see that the fact that Plaintiffs risk has become a danger warrants the giving to Plaintiff of greater rights than Plaintiff bought. The Pennsylvania Coal Co. could not exercise the only valuable right it possessed which was to mine the property for profit. The Court acknowledged that the public may have use for the support, and an interest in their safety, however, the subsurface rights to a property could not be taken for the public without just compensation. Dissent. Justice Louis Brandeis (J. Brandeis) thought the legislature should have the power to prohibit use of land that seriously threatens public welfare without any just compensation. According to J. Brandeis, restriction upon a particular use does not become inappropriate whenever it is not compensated, even though it could alternatively be prevented through such compensation. The restriction here is merely the prohibition of noxious use and the property remains in the possession of its rightful owner. The purpose of a restriction does not cease to be public because incidentally some private persons may gratuitously receive special benefits. Furthermore, this restriction is an appropriate means to a public end. Discussion. Diminution in value would destroy the Pennsylvania Coal Companys existing rights of property and contract. Court thought notice would afford the private owner adequate safety. Discussion. The majority acknowledges that property may be regulated by the state, but if the state goes too far with the regulation (as here), such regulation becomes a taking and unconstitutional. This case makes clear that there are no bright lines between government regulation of private property that rises to the level of a taking and that which does not. The Supreme Court of the United States in this case decided that a taking occurred based on the extent of the regulation (as opposed to the nature). The Supreme Court does not seem to take into account the importance of the governmental interest here in deciding whether there has been a taking. Miller v. Schoene

Rule of Law. A State does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public. Reduction in value of property does not equate to a taking. The public interest outweighs the property interest of the individual, and the state may use its police power to preserve the public interest, even if that means property must be destroyed. Facts. Acting pursuant to the Virginia Cedar Rust Act (the Act), a state official ordered Plaintiffs to cut down a large number of red cedar trees growing on their property. The purpose of the order was to prevent the spread of a plant disease, with which the cedar trees were infected, to apple orchids that lay in the vicinity of the cedar trees. The plant disease was destructive of apple trees but not cedar trees. The only practicable means for protecting the apple trees was the destruction of all of the cedar trees. The Plaintiffs were not compensated for their loss of the cedar trees. Issue. May a State constitutionally order the destruction of one class of private property in order to save another class of property when the property to be saved is considered of higher value to the public? Held. Yes. The lower court is reversed. Red cedar trees have occasional use and value as lumber. Its value throughout the state is shown to be small as compared with that of the apple orchards of the state. Apple growing is one of the principal agricultural pursuits in Virginia. Millions of dollars are invested in the orchards, which furnish employment for a large portion of the population, and have induced the development of attendant railroad and cold storage facilities. A State does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public. The State had to choose between preserving one class of property or another. If the State had done nothing, it still would have been making a choice: it would have been choosing to permit the apple trees to perish. When faced with this type of dilemma, the State does not exceed its constitutional powers by sacrificing one class of property for the sake of another whose value is greater to the public. It was obvious that the apple trees here where of greater public concern than the cedar trees. There is a strong public concern in the preservation of one interest over the other. When the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of police power, which affects property. Thus, the States action here cannot be said to constitute a denial of due process. Discussion. This case only concerns the States police powers. As a predicate for any interference with private property, the State must have a public purpose. The Supreme Court of the United States found one here. The issue of whether Plaintiffs should have been compensated for a government taking was not discussed. The state can take and destroy private property if doing so would be in the best interests of the public, including the public economic interest. Their authority derives from the police power given to states. There are 3 factors to consider when determining if a taking exists: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation interferes with expectations and (3) the character of the governmental action. Here, the Supreme Court of the United States (Supreme

Court) weighs each of these factors to reach its conclusion. This construct helps explain the differing result found in Pennsylvania Coal. Keystone Bituminous Coal Assoc. v. DeBenedictis DESCRIPTION OF EVENTS "In order to control subsidence damage caused by mining operations, a Pennsylvania statute and implementing regulations required coal mine operators (1) to leave a certain amount of coal in the ground for support under certain surface structures, including publicly used buildings, cemeteries, and perennial streams, and (2) to repair or pay for the repair of subsidence damage to such structures, on pain of losing their mining permits, even if the surface owners or their predecessors had waived any claim to such damages. Individual coal companies and an industry association filed an action in the United States District Court for the Western District of Pennsylvania in which they claimed that the statute was invalid on its face and sought to enjoin its enforcement.... "The District Court granted summary judgment in favor of the defendant state officials. "The United States Court of Appeals for the Third Circuit" affirmed the judgment.

REMEDY SOUGHT

Void the PA statute

ARGUMENT FOR PLAINTIFF "these provisions (1) constituted an impairment of contract obligations, in violation of the contract clause of the Federal Constitution (Art I, 10, cl 1), by not allowing mine operators to enforce the damage waivers, and (2) constituted a "taking" of property without just compensation, in violation of the Fifth Amendment, because they deprived the mine operators of the "support estate" which state law recognized as a property interest separate from surface and mineral rights." ARGUMENT FOR DEFENDANT "The statute (1) did not violate the contract clause, though it did impair contractual relations, because it was reasonably related to a legitimate public purpose, and (2) did not effect a "taking" within the meaning of the takings clause because it did not destroy the entire bundle of rights in the "support estate" and, unlike the similar statute invalidated in Pennsylvania Coal Co. v Mahon (1922) 260 US 393, 67 L Ed 322, 43 S Ct 158, 28 ALR 1321, had the expressed purpose of protecting public health and safety (581 F Supp 511). On appeal: "the Third Circuit (1) agreed that the Pennsylvania Coal case was not controlling, and (2) ruled that the "support estate" was only part of a broader bundle of rights which invariably included either surface or mineral rights and which had not been entirely taken (771 F2d 707)." COURT OPINION "The record in this case, unlike that in Pennsylvania Coal Co. v Mahon, supra, (a) showed that the state had acted to arrest what it perceived to be a significant threat to the common welfare, similar to a public nuisance, and not merely to balance the private economic interests of coal companies against the private interests of the surface owners, and (b) did not support a finding that the statute makes it impossible for the mine operators to profitably engage in their business or unduly interferes with their investment-backed expectations; (2) that neither the "support estate" nor the small percentage of the

available coal which the statute requires to be kept in the ground constitutes a separate segment of property for purposes of takings clause analysis; and (3) that the statute does not violate the contracts clause, despite its impairment of the waiver contracts, because (a) the state has a strong public interest in preventing subsidence damage, and (b) the court will not second-guess the state's determination that imposing liability on mine operators is the most appropriate way of dealing with the problem." The opinion was divided: "Rehnquist, Ch. J., joined by Powell, O'Connor, and Scalia, JJ., dissented, expressing the view that the statute effects a taking of the mine operators' property without just compensation, since (1) the public purposes supporting this statute do not distinguish it from the statute in Pennsylvania Coal Co. v Mahon, supra, which also served public interests; (2) the statute is not within the proper scope of a nuisance exception to takings analysis, as it prevents a legal and essential use of the property, reflects primarily economic rather than safety concerns, and completely extinguishes the value of discrete parcels of property; and (3) both the coal which the statute requires to be left in place and the "support estate" recognized by state law constitute identifiable and separable property interests which are "taken" as a result of the statute." This differs from Pennsylvania Coal v. Mahon, since: "unlike another previously invalidated under the takings clause, (a) does not contain an exception for land where the surface is owned by the owner of the coal, and (b) is designed to serve a number of widely varying interests for which no alternative methods of protection have been suggested, rather than just a safety interest which could be adequately served through a notice requirement to landowners; (2) the record, which indicates that the statute requires mine operators to leave less than 2% of their underground coal in place and that only about 75% of the coal can be profitably mined in any event, does not support any finding that the statute makes it impossible for mine operators to profitably engage in their business or that there has been undue interference with their investment-backed expectations" DISPOSITION OF CASE Affirmed. "Pennsylvania statute restricting mining operations in order to prevent subsidence damage held neither to constitute "taking" of property under Fifth Amendment nor to violate contracts clause." ECONOMIC ANALYSIS The court has clearly shifted here, to allow regulatory takings without compensation. This is the flipside of the regulation dilemma--it risks excessive regulation but encourages firms to consider risks of investments. Lucas v. South Carolina Coastal Council SCOTUS - 1992 Facts In 1986, Petitioner, David Lucas bought two residential lots on the Isle of Palms, Charleston County, South Carolina. He intended to build single-family homes on the lots. At the time Petitioner purchased the lots they were zoned for single-family residential construction and with no restrictions imposed upon this use. In 1988, the South Carolina legislature enacted the Beachfront Management Act (the Act), which barred Lucas from erecting any permanent habitable structures on his two parcels of land. Petitioner filed suit against the South Carolina Coastal Council who had deemed, with legislative authority, Petitioners land as protected under the Act, claiming that his land had been taken without just compensation, but Petitioner did not challenge the facial validity of the Act. Petitioner claimed that the Acts complete extinguishment of his propertys value entitled him to compensation regardless of

whether the legislature had acted in furtherance of legitimate police pow er objectives. The trial court found for Petitioner, and determined that, at the time of Petitioners purchase of the land, the lots were both zoned for single-family residential construction and there were no use restrictions placed on the property by the State of South Carolina, the County of Charleston, or the Town of Isle of Palms. The trial court also found that the Beachfront Management Act decreed a permanent ban on construction on Petitioners lots and that the prohibition deprived Petitioner of any reasonable economic use of the lots, eliminated the unrestricted right of use, and rendered them valueless. The trial court found that the property had been taken by operation of the Act and that Respondent was ordered to pay just compensation in the amount of $1,232,387.50. The Supreme Court of South Carolina reversed the trial court and found that, because Petitioner did not challenge the facial validity of the Act as a reasonable use of the police power, no compensation could be owed. Petitioner Lucas petitioned the United States Supreme Court for review. Procedural History

Trial court found for Lucas. SC Supreme Court reversed, no taking. SCOTUS reversed and remanded.

Issues

When does a regulatory action constitute a taking?

Holding/Rule

There are two discrete categories of regulatory action which constitute a taking
o

Regulations that compel the property owner to suffer a physical invasion of his property, no matter how minute the intrusion, and no matter how weighty the public purpose behind it. Regulations that deny all economically beneficial or productive use of the land.

While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking requiring just compensation under the Fifth Amendment to the United States Constitution.

Reasoning

The 5th amendment is violated when land-use regulations do not substantially advance legitimate state interests or deny an owner economically viable use of his land.
o o

The total deprivation of beneficial use is the equivalent of a physical appropriation. Indeed, regulations that leave the owner of land without economically beneficial options for its use carry with then a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm.

SC's purpose in this statute was to stop the erosion of beaches. SC believes that the regulation keeps Lucas from using his land for a noxious purpose.
o

Many previous decisions have suggested that harmful or noxious uses of property may be proscribed by gov't regulation without the requirement of compensation. However, this use of taking may only be used in situations where a private actor could use nuisance law to keep the landowner from committing the noxious act. Where the state seeks to sustain regulation that deprives land of all economically beneficial use, it may resist compensation only if the proscribed use was not part of his title to begin with.

The government does not need to compensate when acting under the governments police powers where the government could reasonably conclude that the health, safety, morals or general welfare would be promoted by prohibiting particular contemplated uses of land. In the past the cases held that if the use prohibited was harmful or noxious then such standard was the touchstone to distinguish regulatory takings from regulatory deprivations. However, the standard of harmful and noxiouscannot be the basis of departing from the categorical rule that total regulatory takings must be compensated. There are limits to the non-compensable exercise of police power. The cases should be understood to mean that when a state uses their police power, then the test of whether or not there has been a taking depends on if the restrictions were reasonably related to the implementation of the policy expected to produce a widespread public benefit and applicable to all similarly situated property. Other landowners, similarly situated, built single-family homes. Those landowners were permitted to continue the use denied to Lucas. Whether or not this is a harm-preventing legislation is not enough to justify the taking. Here the legitimate state interest is to stop construction too close to the beach-dune area. The regulation may advance this interest because construction had contributed to the erosion and destruction of this public resource. The lower courts found that Lucass land lost all economic value as a result of the new law. This would be a categorical formulation because here the law deprives the land of all economically beneficial use. There are problems with determining whether the land has decreased in value so much that there is no economically feasible use. First problem is there is more to property than just the development and economics. Even if those are deprived, the landowner could still enjoy the land. However, the Court here does not ignore the possibility of non-economic uses. The Court stated that if those non-economic uses were impaired, that possible taking would invite exceedingly close scrutiny under the Takings Clause as they did in Loretto. Therefore if there are still non-economic uses that the owner would enjoy and would increase the value to him in a non-investment or development way, the Court would closely scrutinize the legislation to determine whether there was harm to the non-economic value of the land. The second problem is that one does not know if the owner was deprived of all economically beneficial use of the burdened portion of the tract or as one in which the owner has suffered a mere diminution in value of the tract as a whole. Therefore the Court would advocate looking to see whether the owners investment-backed expectations are harmed by the legislation. The third problem is that in a categorical formulation where deprivation of all economically beneficial use is taken away, an owner whose land has diminished in value by 90% could not recover. However, the owner might still recover because the economic impact of the regulation on the claimant and the extent to which the regulation has interfered with distinct investment-backed expectations are keenly relevant to the takings analysis generally. So, in cases where the land has only diminished in value, the

test of whether a taking has occurred is if the owners investment-backed expectations were diminished substantially. Then the state must show that its actions are in furtherance of stopping a noxious harm (traditional nuisance analysis- the taking of a nuisance does not require just compensation). The State is attempting to justify their regulation because the uses Lucas desires are inconsistent with the public interest or that they violate a common-law maxim. If the State wishes to restrain Lucas in a common-law action for public nuisance, then they must identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found. The Court finds that there are good reasons for the belief that when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking. The South Carolina Supreme Court based its opinion denying that there was a taking on the line of cases which state that the government can proscribe harmful or noxious uses without paying compensation. The Court here states that the more contemporary standard is that land use regulation does not affect a taking if it substantially advances legitimate state interests. However, where the state seeks to sustain regulation that deprives a land owner from all economic use, the state may resist compensation only if the logically antecedent inquiry into the nature of the owners estate shows that the proscribed use interests were not part of his title to begin with. Thus, the burden is on the State of South Carolina on remand to identify background principles of nuisance and property law that prohibit the uses intended by Petitioner in the circumstances the property is now found. Dissent. Justice Blackmun: The Supreme Court of the United States has created a rationale for disregarding a component of basic Fifth Amendment Takings Clause jurisprudence: that a case specific inquiry be launched into the public interest advanced by the State to justify its regulation. At issue here was a nuisance. The State has not taken anything when it asserts its power to enjoin a nuisance. Nothing in the record undermines the South Carolina General Assemblys assessment that prohibitions on building in front of the setback line are necessary to protect people and property from storms, high tides, and beach erosion. That legislative determination cannot be disregarded in the absence of such evidence. The determination of harm to life and property from building is sufficient to prohibit that use. The government may in certain circumstances regulate property without compensation no matter how adverse the financial effect on the owner. The Court has upheld the right of States to prohibit uses of property injurious to public health, safety or welfare without paying compensation. This is because the State has full power to prohibit an owners use of property if it is harmful to the public. Since no individual has a right to use his property so as to create a nuisance or otherwise harm others, the state has not taken anything when it asserts its power to enjoin the nuisance-like activity. There is nothing, however, to show that the Fifth Amendments takings clause was limited by the common law nuisance doctrine. The legislatures regularly determine which uses are prohibited, independent of the common law and independent of whether the uses were lawful when the owner purchased the property. Justice Stevens: The Supreme Courts new rule is wholly arbitrary: A landowner whose property is diminished by 95% would recover nothing, but one whose property is diminished 100% recovers everything. Moreover, the Supreme Court is denying the State legislatures much of their traditional powers to revise the law governing the rights and uses of property. The categorical rule is unsound, unwise, and the Courts formulation of the exception to the rule is too rigid and narrow. A law that renders property valueless may not constitute a taking. In response to the

rule, courts may define property broadly and only rarely find regulations to affect total takings. For example, Lucas may have put his land to other uses fishing, camping or may sell his land to his neighbors as a buffer. His land is far from valueless. The Courts analysis fails to explain why only the impairment of economically beneficial and productive use of property is relevant in takings analysis. Under Mugler the state does not have to compensate if they prohibit or regulate certain uses of property that were previously lawful. One must wonder if Government will be able to go on effectively if it must risk compensation for every such change in the general law. This ruling freezes the States common law, denying the legislature much of its traditional power to revise the law governing the rights and uses of property. The just compensation clause was designed to bar government from forcing some people alone to bear public burdens, which in all fairness and justice should be borne by the public as a whole. Therefore when a law is part of general and comprehensive land use plan, it is far less likely to constitute a taking. Conversely, spot zoning is far more likely to constitute a taking. The generality of the Beachfront Act is significant. The Act does not target particular landowners, but rather regulates the use of the coastline of the entire State. The Act did not single out owners of undeveloped land. It also prohibited owners of developed land from rebuilding if their structures were destroyed. Concurrence. Justice Kennedy: The Takings Clause protects private expectations to ensure private investment. The means as well as the ends of regulation must jibe with a landowners reasonable expectations. A beachfront lot does not lose all value because of a development restriction. The finding of no value must be considered under the takings clause by reference to the owners reasonable investment-backed expectations. The expectations protected are those based on objective rules and customs that can be understood as reasonable by all parties involved. States should not be prevented from enacting new regulatory initiatives in response to changing conditions. The takings clause protects private expectations to ensure private investment. Common law of nuisance is not the test because there may be an interest that the state would need to protect by going further than the law of nuisance might otherwise protect. Discussion. This case provides an example of a government taking resulting from a regulation of property. As such, this case is distinguishable from Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) in which the Supreme Court of the United States found that the regulation of certain property did not amount to a taking. The Supreme Court also considered it significant that the property was not being regulated when the property owner bought it. Therefore, the property owner could not be said to have expected the loss from regulation before he bought the property. The determination whether a state law unlawfully infringes a landowners property in violation of the takings clause requires an examination of whether the restriction on private property forces some people alone to bear the public burdens which should be borne by the public as a whole. There is an explicit taking/eminent domain where there is an actual appropriation or destruction of a persons property or a permanent physical invasion by the government or by the authorization of law. The right to exclude others from ones property is one of the most essential sticks in the bundle of rights that are commonly characterized as property See: Loretto v. Manhattan CATV (1982), a case where cable installation was found to be an intrusion as a minor but permanent encroachment. The Court said

this was enough to warrant damages. See also, Kaiser Atena v. US, a case where people made a waterway connected to a lagoon. Although the government may regulate the waterway, it does not follow that the pond is also subject to a public right of access. See also, Nolan v. CA Coastal Commission, where the government wanted an easement across the property to allow the public access to the beach. Even though the right against physical invasion is paramount, the State may show they have a compelling interest that outweighs the private interest. See: PruneYard Shopping Center v. Robins, a case where the Court said that the owners of a shopping center could not exclude the general public from exercising their free speech and petition rights, but they could restrict the expression by imposing reasonable time, place and manner restrictions. See also, State v. Shack, where the Court concluded that the title to real property cannot include dominion over the destiny of the migrant workers the owner permits to come upon the premises. Necessity justifies the government officials in entering to give them information because an owner cannot use property to injure others rights Implicit Taking/Regulatory Taking arises when the government has restricted the use of privately owned land for the public benefit to such an extent that compensation is required. A taking will occur when the owner is effectively denied all economic viable use of his land without the state advancing a legitimate state interest. The question in this case was how to know when the value of the land has been simply diminished or eliminated. If the idea of property is defined broadly as it was in Penn Central v. NYC, then it is harder to prove the regulation has eliminated all economic uses of the land. The bundle of sticks analysis comes in and the Court can find other economic uses of the land that could produce income, which are not uses the owner might have thought to use it for such as selling air rights of a building if not allowed to develop up. It is harder under such analysis for the owner to win. The dissent in this case said that this was a narrow law, which made one owner, or a few owners bear the burden of a public interest. If the idea of property is defined narrowly as only encompassing the owners specific investment backed expectations then it is easier to show a taking as it was in Lucas. Lucas wanted to build a singlefamily house and could not. The majority did not tell him to sell his property to his neighbors as a buffer or that the non-economic benefits still made the property valuable. The dissent said this was a general law applicable to everyone. The State will defend the regulation against a taking attack three ways. First if the facts allow, they would say they are trying to abate activities that are common law nuisances (Lucas). The regulations would do no more than duplicate the result obtainable by private parties under the state law of private nuisance. Second, the State validly exercised their police power to regulate for the health, safety or welfare purposes. This will require a fairly tight fit between the means chosen and the objective the State is pursing. Third, the use intended was already prohibited by the owners title (Lucas). If the state loses then the state must pay the property owner just compensation for the taking. That includes the fair market value, including any reasonable expectations that a buyer may have had about possible future uses. An owner is not entitled to additional value that is subjective and peculiar to the owner (Lucas). The owner could also obtain an injunction to invalidate the ordinance. The State could terminate the regulation and pay the owner for damages that occurred while the regulation was in effect. Start 11/18 class Railway Express Agency, Inc. v. New York SCOTUS - 1949 Facts

Section 124 of the traffic regulations of NYC says that no one can operate an advertising vehicle that advertises a business other than its own. D operates a delivery business and uses over 1900 trucks in NYC. D leases out advertising on the sides of its trucks. D argued that Section 124 was unconstitutional under the Equal Protection Clause because there was not a reasonable relationship between the law and the ends to be achieved.
o

Specifically, they argued that the law was underinclusive. There were tons of other distractions in NYC, why target advertising on trucks?

Procedural History

Trial court convicted and fined D as violating Section 124. SCOTUS affirmed, Section 12 4 constitutional.

Issues

Is Section 124 unconstitutional discrimination under the Equal Protection Clause?

Holding/Rule

Section 124 is not unconstitutional discrimination under the Equal Protection Clause even though it might be extremely underinclusive.

Reasoning

Douglas opinion
o

The local authorities may have concluded that those who advertised their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use.

No way for the Court to know, would require omniscience.

The fact that NYC sees fit to eliminate this kind of distraction but does not touch greater ones in a different category is immaterial. It is not requirement of equal protection that all evils of the same genus be eradicated or none at all.

Jackson concurrence
o

The Court should use Equal Protection more often and Due Process less often when dealing with situations like this.

Using Due Process means the entire area of conduct ungovernable even though many may find the conduct objectionable.

Using Equal Protection does not do this; it merely means that the prohibition or regulation must have a broader impact to be constitutional.

The burden rests heavily upon anyone who wants the Court to use the due process clause to strike down laws/ordinances. Cities, states, and the Federal Gov't must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. There is more likely to be arbitrariness in the regulation of the few than of the many.

U.S. Railroad Retirement Board v. Fritz SCOTUS- 1980 Facts

Railroad Retirement Act restricted future accruals for windfall benefits by retired railroad workers. Grandfather provision retained benefits for some classes of individuals. This created lots of seemingly unfair issues with who got benefits. Appellee denied full windfall benefits.

Procedural History

SD Indiana held the RRA unconstitutional.

Issues

What standard of review should be applied to the RRA's provisions?

Holding/Rule

Rational basis applied.

Reasoning

Congress could properly conclude that persons who had actually acquired statutory entitlement to windfalls while still employed had a greater equitable claim than the members of appellee's class, who were no longer in railroad employment when they became eligible. The "current connection" test is not a patently arbitrary means for determining which employees are "career railroaders" and the test has been used by Congress elsewhere. Where, as here, there are plausible reasons for Congress's action, our inquiry is at an end.

Dissent (Brennan)

The Court fails to scrutinize the challenged classification in a manner established by our governing precedents.
o

The mode of analysis used basically immunizes social and economic legislative classifications from judicial review.

Rationalization is the product of gov't attorneys, and was not adopted by Congress. The actual purpose should be the basis for analysis. Rational basis is not a conceivable basis.

U.S. Department of Agriculture v. Moreno SCOTUS - 1973 Facts

Section 3(e) of the Food Stamp Act of 1964 (as amended in 1971) excludes from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household. Ps brought suit because they have been excluded from the program because of this amendment as a violation of the Equal Protection Clause.

Procedural History

Lower court held the law unconstitutional. SCOTUS affirmed, law unconstitutional.

Issues

Is Section 3(e) of the Food Stamp Act unconstitutional as a violation of the Equal Protection Clause?

Holding/Rule

Section 3(e) of the Food Stamp Act is unconstitutional as a violation of the Equal Protection Clause because the means used are not rationally related to the ends sought.

Reasoning

The challenged statutory classification is clearly irrelevant to the purposes of the Act. The legislative history shows that the amendment was intended to prevent hippie communes from participating in the food stamp program.
o

A desire to hurt a politically undesirable group cannot constitute a legitimate gov't interest. A purpose to discriminate against hippies cannot, of itself, justify the amendment.

Gov't contends that Congress may have rationally thought

That households with one or more unrelated members are more likely than fully related households to contain individuals who abuse the program by fraudulently failing to report sources of income or by voluntarily remaining poor. That such households are relatively unstable, thereby increasing the difficulty of detecting such abuses.

Even if the Court accepts these rationales, the amendment still fails because is not a rational effort to deal with these concerns.
o

The Act itself contains provisions aimed specifically of the problems of fraud and of the voluntarily poor.

In practical operation, the amendment excludes from participation, not those people who are likely to abuse the program, but only those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility. The classification is wholly without any rational basis.

Dissent

Rehnquist
o o

This is clearly not the rational basis test. Congress attacked this problem with a rather blunt instrument and it is possible that the Act will not achieve its intended effect.

However, questions like this are for Congress, not the courts. Court's role is limited to determining whether there is any rational basis on which Congress could decide that public funds made available under the food stamp program should not go to a household containing an individual who is unrelated to any other member of the household.

This classification could rationally deny food stamps to members of households which have been formed solely for the purpose of taking advantage of the program.

This was a permissible congressional decision consistent with the underlying policy of the Act.

The fact that the limitation will have unfortunate and perhaps unintended consequences beyond this does not make it unconstitutional.

Romer v. Evans SCOTUS- 1996 Facts

Enactment challenged is an amendment to CO Constitution, called Amendment 2.

Various CO municipalities enacted ordinances banning discrimination based on sexual orientation in many transactions and activities. Amendment not only repeals these ordinances, but also prohibits all governmental action designed to protect gays and lesbians.

Procedural History

SCOTUS struck down Amendment 2 as unconstitutional.

Issues

Does Amendment 2, which prohibits gov't action designed to protect gays and lesbians, violate the EPC?

Holding/Rule

A state cannot say a class of persons is unable to seek protection from the law. Amendment 2 violates the EPC because the law does not bear a rational relationship to a legitimate government purpose.

Reasoning

State's argument is that it puts gays and lesbians in the same position as all other persons. This reading of the amendment is implausible. The change effected by this law is sweeping and comprehensive.
o

This amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination and forbids reinstatement of these laws and policies.

Amendment 2 nullifies specific legal protections for this targeted class. Bars homosexuals from securing protection against the injuries that publicaccommodations laws address. Also forbids all laws or policies providing specific protection for gays from discrimination by CO gov't.

Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint, such as specific protection against discrimination. These are protections taken for granted by most people because they already have them or do not need them.

Under the 14th Amendment, no person shall be denied equal protection of the laws. We have tried to balance this with the reality that most legislation results in disadvantages to various groups.

We have said that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.
o

Amendment 2 fails this conventional inquiry because it imposes a broad disability on a single named group, which is an invalid form of legislation. Its breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects. It lacks a rational relationship to legitimate state interest.

By requiring a rational relationship, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.
o

The disqualification of a class to seek protection from the law is unprecedented.

It is central to EP that gov't parts remain open on impartial terms to those who seek assistance.
o

A law declaring hat in general it shall be more difficult for one group than another to seek aid is a denial of EP in the most literal sense. Laws like this raise the inevitable inference that they were created out of animosity toward the class of persons affected.

In addition to this, the law does not bear a rational relationship to a legitimate government purpose.
o

Status-based enactment is divorced from any factual context from which we could discern a relationship to legitimate state interests.

Dissent (Scalia, Thomas, Rehnquist)

The legislation is an attempt to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through the use of laws. That objective has been specifically approved by Congress and by the Court. Court contradicts Bowers v. Hardwick and supports the proposition that homosexuality is as reprehensible as racial or religious bias. The Court has no business imposing on all Americans the fact that animosity towards homosexuals is evil. The principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily obtain preferential treatment has been denied EP.
o

The world has never heard of such a principle that any group is denied equal protection when it must have to recourse to a more difficult level of political decision-making than others. Basically, this happens whenever a disadvantage is imposed. It is ridiculous to consider this a denial of equal protection.

It is obvious that there is a legitimate rational basis for the prohibition of special protection for homosexuals.
o

In Bowers, we held that the Constitution does not prohibit making homosexual conduct a crime. If a state can make homosexual conduct criminal, surely it can enact other laws disfavoring homosexuality or prohibiting homosexuals from preferential treatment.

City of Cleburn, Texas v. Cleburn Living Center Rule of Law. Legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose. Mentally retarded people are not a suspect or quasi-suspect class. Thus, when reviewing a discriminatory classification involving mentally retarded people, the standard of review is minimum rationality. Where, as here, the basis of the discrimination is fear of mentally retarded people, that is enough bite to strike down a law under minimum rationality. Denial of a permit for the operation of homes for the mentally retarded violates the Equal Protection Clause of the Constitution where such denial is not rationally related to a legitimate governmental purpose. The general rule is that legislation is presumed valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Facts. The Respondent bought a property from a private owner with the intention of starting a group home for the mentally retarded. It was expected that 13 persons would reside in the house of 4 bedrooms and 2 baths. A zoning ordinance for the City of Cleburne (the City) permitted a wide variety of uses on a proposed cite of land, including for hospitals, for sanitariums and for homes for the aged, but excluded the operation of homes for the insane or feebleminded. The City, acting pursuant to the ordinance, denied an applicant a special use permit for the operation of a group home for the mentally retarded. Petitioner required Respondent to apply for a special use permit and then denied the application. Issue. Whether the city ordinance requiring permits only for group homes of mentally retarded people violates equal protection Held. The general rule under equal protection is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. When social or economic legislation is at issue, equal protection allows the states wide latitude. The Court of Appeals erred in holding that mental retardation is a quasi-suspect classification. First, it is undeniable that those who are mentally retarded have a reduced ability to function in the everyday world. Their range of disabilities is broad. Second, the federal government has outlawed discrimination against mentally retarded people in federally funded programs while providing such people with the right to receive appropriate treatment, services, and habitation in a setting that is least restrictive of their personal liberty. To withstand equal protection review, legislation that distinguishes between mentally retarded people must be rationally related to a legitimate government purpose. The ordinances permit requirement was

based on 1) the fear of elderly people and their negative attitudes about mentally retarded people; 2) the fear that the students of the school across the street would harass the occupants; 3) fear of other group homes such as fraternity houses being brought into the neighborhoods and 4) the fear of the high number of people occupying the house. However, no other type of group home was required to obtain a permit. These reasons, all of which are based on fear, do not provide a rational basis for believing that the home would pose any special threat to the citys legitimate interests. Therefore, the ordinance is in violation of equal protection. Dissent. The ordinance would clearly be upheld under the traditional rational basis test applicable to economic and commercial regulation. Further, the Court fails to articulate the applicable facts and principles that justify subjecting this zoning ordinance to the searching review that actually leads to its invalidation. Justice Thurgood Marshall (J. Marshall) stated that although he disagreed with the level of scrutiny the Supreme Court of the United States (Supreme Court) applied, he shared in the Supreme Courts judgment that the ordinance is in violation of the Equal Protection Clause of the Constitution. *T+he level of scrutiny employed in an equal protection case should vary with the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. Concurrence. The different standards of review do not adequately explain the decisional process. In every case, rational basis can address the issue at hand. Justice John Paul Stevens (J. Stevens) stated that the record demonstrates that the permit was denied because of the irrational fears of the neighboring property owners, rather than for the protection of the mentally retarded persons who would have lived in the home. *O+ur cases reflect a continuum of judgment responses to differing classifications . . . ranging from strict scrutiny at one extreme to rational basis at the other. *T+hese so called standards adequately explain the decisional process. Cases involving classifications based on . . . . mental retardation, do not fit well into sharply defined classifications. Discussion. The mentally retarded do not qualify as a suspect or quasi-suspect class because the lack of history of discrimination and they are not politically powerless. As a group they have been able to attract the attention of lawmakers on several issues. This case shows that even under minimum rationality, a law may be invalidated under equal protection. The Supreme Court of the United States (Supreme Court) seems hesitant in its desire to add additional categories under the intermediate-level of review. The Supreme Court instead leaves areas such as the aging, the disabled, the mentally ill, and the infirm, to the rational basis level of review. It would seem that the court was trying to avoid calling the mentally retarded a suspect class on the grounds that the delineation between mentally retarded and normal would soon be blurred. The court did not want to embark on an ad hoc determination of what forms of mental retardation would fall into the suspect class and which ones would not. Plyler v. Doe Rule of Law. In order for a state to constitutionally deny a discrete group of individuals the rights it offers to others, this denial must be justified by showing a legitimate state interest.

The denial of the free public education to the children of undocumented aliens within a states borders must be justified by a showing that such denial substantially furthers a substantial state interest. Facts. In May 1975, the Texas legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not legally admitted into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not legally admitted to the country. The stated purpose of the alienage-based classification was to conserve limited governmental resources. Apellees, the children of illegal entrants, challenged the constitutionality of the classification on equal protection grounds. Issue. Whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens? Held. No. Intermediate Level of Scrutiny Although public education is not a right guaranteed by the United States Constitution, it is neither some mere governmental benefit indistinguishable from other forms of social welfare. An education is preservative of rights guaranteed by the Constitution and necessary to participate fully in our free democratic style of government. If the State is to deny a discrete group of children the free public education it offers to others residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. The state does not adequately show such an interest in this case. By denying public education to certain children within its borders, the State will create a subclass of illiterates, thereby causing a drain on State social resources. Moreover, Appellees have not been shown to be less likely to remain in the State than other children. The state must show that its classification of a subject class has been precisely tailored to serve a compelling governmental interest. The Court finds it difficult to understand the states goals in limiting the education of children of illegal immigrants. Whatever these interests may be they are insubstantial when looking at the costs of not educating these children for the State and the Nation. Dissent. Finds sound policy arguments against the Texas legislatures choice, and therefore this law is not unconstitutional. By rendering this decision the Court is compensating for the inaction of Congress, and it is not the duty of the Court to make up for the ineffectiveness of the political branches of government. Concurrence. The facts of this case shows the wisdom of rejecting a rigidified approach to equal protection analysis, and employing an approach that allows for varying levels of scrutiny depending on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. When the State provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with the Equal Protection Clause. Denial of an education is the analogue of denial of the right to vote, placing these children at a permanent disadvantage similar to disenfranchisement. The States denial of education to these children bears no substantial relation to any substantial state interest. It is hard to argue that anyone benefits from the creation of a subclass of illiterate persons, many of whom will remain in the State, adding to the problems and costs of both State and National Governments attendant upon unemployment, welfare, and crime.

Discussion. This case is very similar to San Antonio Independent School District v. Rodriguez. In this case the Court, like in Rodriguez, uses the rational relationship test to determine the constitutionality of a state law impacting education. Unlike Rodriquez, the Court in this case feels that the cost of allowing this law, i.e. a large illiterate group of children, outweighs the benefits provided to the State through this law. The concurrences in this case argue for a different approach to reach the same conclusion, while the dissent feels that the Court should universally withhold judgment in those cases that are meant for the political branches of govern The Supreme Court seems to find a semi-fundamental right here by employing a line of reasoning similar to that of Justice Marshall in his dissenting opinion in Rodriguez. In that case, Justice Marshall suggested that the Supreme Court apply a range of standards of review, intermediate between rational basis and strict scrutiny, of which the level of scrutiny for a particular case would depend on the governmental interest at stake and the invidiousness of the discrimination at issue. Washington v. Davis SCOTUS - 1976 Facts

Two black men brought suit against District of Columbia alleging that their applications to be police officers had been rejected. They claimed that the department's recruiting procedures discriminated on the basis of race against black applicants by a series of practices including a written personnel test.
o

The test in question, Test 21, was designed to test verbal ability, vocabulary, reading, and comprehension.

The district court held that

o

The number of black police officers while substantial is not proportionate to the population of the city A higher percentage of blacks fail the test than whites The test has not been validated to establish its reliability for measuring subsequent job performance

o o

Procedural History

District Court held for DC, not unconstitutional. SCOTUS affirmed, not unconstitutional.

Issues

When is a law, which is non-discriminatory on its face, a violation of the Equal Protection Clause?

Facts

The District of Columbia Police Department administered a test to applicants for positions as police officers. The test measured verbal ability, vocabulary, and reading comprehension. A higher percentage of the black applicants than the white applicants failed the test. Respondents, unsuccessful black applicants, claimed the test constituted a violation of equal protection, because it had the effect of disproportionately disqualifying blacks for police service. Specifically, they sought to invalidate the examination on the basis that it violated the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment. Specifically, the Petitioners argued that (1) the number of black police officers was not in proportion to the citys population mix, (2) more blacks failed the test than whites, and (3) that the test has not been validated as an adequate measure of job performance.Respondents did not allege discriminatory purpose on the part of the government. The District Court ruled against the Respondents. Holding/Rule

A non-facially discriminatory law is a violation of the Equal Protection Clause when a discriminatory impact and a discriminatory purpose can be proven. Proof of a disproportionate impact is not enough, standing alone, to ground a finding that a law amounts to unconstitutional discrimination. Discriminatory impact cannot be the sole criterion for finding an equal protection violation.

Reasoning

Our cases have not embraced the proposition that a law is unconstitutional solely because it has a racially disproportionate impact. Disproportionate impact is not irrelevant, but it alone does not trigger the rule that racial classifications are subject to the strict scrutiny standard of review.
o

There must be an intent or purpose to discriminate.

A discriminatory purpose may be inferred from the totality of the relevant facts, including the fact that the law bears more heavily on one race than another.
o

However, a law that is neutral on its face is not invalid simply because it may affect a greater proportion of one race than another.

It is untenable that the Constitution prevents the government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, especially when the job requires special ability to communicate. Here, the fact that there is a discriminatory impact is not sufficient evidence of discriminatory purpose.
o

The test is neutral on its face and rationally may be said to serve a purpose the gov't is constitutionally empowered to pursue. The exam is rationally related to the legitimate government purpose of ensuring that police officers have acquired a particular level of verbal skill.

Title VII may adopt an approach which requires the test to correspond to on the job performance, but we are unwilling to adopt such an approach.

Dissent

Brennan Sound policy considerations support the view that the district be required to prove that the tests either measure job-related skills or predicted job performance. Every other court presented with this same issue has found in the opposite. The test needs to be proven that it is an indicator of future job performance.

Concurrence Justice John Paul Stevens (J. Stevens) It is quite difficult to draw a clear line distinguishing the difference between discriminatory purpose and discriminatory impact. In many discrimination cases, the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor . . . Not a bright line between discriminatory purpose and impact o The line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court's opinion may assume. Reasoning o When the disproportion is dramatic, it really does not matter whether the standard is phrase in terms of purpose or effect. o There are two reasons why I am convinced that the disparate impact is not unconstitutional in this case. 1. First, the test serves the neutral and legitimate purpose of requiring all applicants to meet a minimum standard of literacy. 2. Second, the same test is used throughout the federal civil service. Discussion. A statute or a state action can not be held to be unconstitutional for the mere fact that the statute or the state action may result in an unfortunate impact on a particular race. The majority focuses on the use of the test as a means of qualifying candidates for the job. The validity of the test was never determined or discussed as a possibility of a design flaw. Instead, it is treated as requirement that measures initial competence. Brown v. Board of Education SCOTUS - 1954 Facts

5 cases from 5 different states were consolidated into one case.

In each case, black children seek admission to the public schools in their communities on a nonsegregated basis. They contend that the schools are not equal and cannot be made equal; thus, they are deprived of the equal protections of the laws. In most cases the lower courts denied relief relying on the separate but equal doctrine announced in Plessy v. Fergusson.

Procedural History

SCOTUS found for children, separate but equal unconstitutional in education.

Issues

Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities?

Holding/Rule

Segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educational opportunities. Separate but equal educational facilities are inherently unequal. Segregated public schools are not equal and cannot be made equal, therefore, the doctrine of separate but equal in public schools is a violation of the Equal Protection Clause of the Fourteenth Amendment.

Reasoning

The history and circumstances surrounding the adoption of the 14th Amendment provide no help.
o

Congress was split on the issue; some thought that the amendment would prohibit segregation while others thought that it would leave it untouched. Also, public education was very different at the time of the passing of the amendment than it is today. Thus, it is not surprising that there is so little in the history of the amendment relating to its intended effect on public education.

The doctrine of separate but equal did not appear until 1896 in Plessy. The words of the amendment are prohibitory; however, they also contain a necessary implication of a positive immunity--the right to exemption from unfriendly legislation against them distinctively as colored and exemption from legal discrimination. Here, there are findings below that the black and white schools involved had been equalized with respect to buildings, curricula, qualifications, teacher salaries, and other tangible factors.

Therefore, this decision cannot turn on a mere comparison of these tangible factors, but rather the effect of segregation itself on public education.

Today, education is perhaps the most important function of state and local governments.
o

It is doubtful that a child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity is a right which must be made available to all on equal terms.

To separate children from others of similar age and qualifications solely because of their race generated a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
o

In the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Thus, the plaintiffs have been deprived of equal protection.

Dissent

None.

Notes

Unanimous decision; had to be written less strongly to get the unanimous vote? Used social science studies instead of moral judgments.

Discussion. The Supreme Court of the United States (Supreme Court) is relying on the same rationale to invalidate the segregation laws here that it did in Sweatt v. Painter (ordering the admission of a black student to the University of Texas Law School, despite the fact that a parallel black facility was available). The rationale is that its the intangible factors that make segregation laws in the area of public education inherently unequal. Whether stigma or the perception of stigma alone is sufficient injury to invalidate a law supported by a valid, neutral purpose is an open question. Note Case Swann v. Charlotte-Mecklenburg Board of Education Rule of Law. The constitutional mandate to desegregate public schools did not require all schools in a district to reflect the districts racial composition, but the existence of all-black or all-white schools must not be shown to be the result of segregation policies. The court also held that since school buses were a traditional form of public education transportation, they could be used in busing efforts to correct racial imbalances. The scope of District Court authority is broad, but enters only when local school districts have not voluntarily brought themselves into compliance with Brown I/II. Facts. The Respondents school system encompasses roughly 500 square miles. During the 1968-1969 school year the system served more than 84,000 pupils, approximately 71% of the pupils were white and 29% of the pupils were Negro. Approximately two-thirds of the Negro children attended schools which were entirely Negro or more than 99% Negro. Pursuant to an order of a federal district court, the

school board adopted a desegregation plan for elementary schools that included grouping two or three outlying schools with one inner-city black school and transporting black children to the white schools and white children to the black schools. Issue. What are the duties of the school authorities and the scope of powers of the federal courts under the Supreme Courts mandate to eliminate racially separate public schools under and maintained by state action? Held. The authority is broad, but is appropriate only where local districts have failed to bring themselves into compliance with Brown I on their own accord. Remedial authority does not put judges automatically in the shoes of school authorities. Mathematical racial quotas are an allowable exercise of judicial authority, when used as a starting point after a total default of the school boards duty. Single-race schools are not per se a mark of a system that still practices segregation by law. The court should scrutinize such schools, and the burden is on the school district to demonstrate that the schools racial makeup is not the result of past or present de jure segregation. The courts may redefine district lines to desegregate the systems, even though such redistricting may cause initial inconvenience and burdens. Busing is an appropriate remedy, as well, as long as the time involved in the busing does not risk the health of the children or significantly impinge on the educational process. In default by the school authorities of their affirmative obligation to proffer acceptable remedies, the district courts have broad power to fashion remedies that will assure unitary school systems. Policy and practice with regard to faculty, staff, transportation, extracurricular activities and facilities are among the most important indicia of a segregated system and the first remedial responsibility of school authorities is to eliminate invidious racial distinctions in those respects. In devising remedies to eliminate legally imposed segregation, local authorities and district courts must see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish a dual system. Discussion. This case furthers the decision in Brown v. Board of Education of Topeka regarding the unconstitutionality of racial segregation in public schools. In this case, the Supreme Court is evaluating a local school districts plan to achieve racial desegregation. The Supreme Court held that busing and racial quotas were acceptable tools in trying to achieve racial desegregation. The Supreme Court of the United States (Supreme Court) made clear that the federal courts have almost carte blanche in desegregating previously segregated school systems. However, their authority only exists when the local school boards default in their efforts to desegregate. Regents of the University of California v. Bakke Rule of Law. When a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background, as here, it must be regarded as suspect. When a states distribution of benefits or imposition of burdens hinges on the persons color of skin or ancestry, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Merely filling a racial quota is not a substantial state interest and thus, is per se unconstitutional.

Race-based classifications, for purposes of school admissions, are constitutional. The use of racialquotas, however, is unconstitutional. Although race may be a factor in determining admission to public educational institutions, it may not be a sole determining factor. Facts. The Respondent, Alan Bakke (Respondent), a white male, applied to, and was rejected, by the Davis Medical School in 1973 and 1974. The schools admission program allowed for sixteen out of 100 slots to be reserved for the admission of minority students. The Respondent argued that his grade point average and MCAT scores were higher than minorities who where granted admissions, within the sixteen slots, into the school. The California Supreme Court ruled in favor of his equal protection claim declaring that the admissions program was unlawful and enjoined the School from considering the race of an applicant. The judgment was affirmed in part and reversed in part. Issue. (1) Whether strict scrutiny should be the level of judicial scrutiny applied to the special admissions program. (2) Whether the purpose of reducing the historic deficit of traditionally disfavored minorities in medical schools and the medical profession is constitutionally permissible as to satisfy strict scrutiny. (3) Whether the purpose of countering the effects of societal discrimination is constitutionally permissible to satisfy strict scrutiny. (4) Whether the purpose of increasing the number of doctors in underserved communities is constitutionally permissible to satisfy strict scrutiny. (5) Whether the purpose of creating a diverse student population is constitutionally permissible to satisfy strict scrutiny. Held. The Supreme Court of the United States (Supreme Court) should not pay attention to past discrimination in reviewing the policies of the University, as this is tantamount to allowing political trends to dictate constitutional principles. (1) Yes. Judgment of the State of California Supreme Court affirmed. When a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background (as here), it must be regarded as suspect. Since a suspect class is being discriminated against, strict scrutiny must be applied to the special admissions program. (2) No. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake and is forbidden by the United States Constitution. If Petitioners purpose is to ensure a certain percentage of a particular group based on its race or ethnic origin, such a preferential purpose is invalid. Setting aside a specified number of minority slots is not congruent with the purported goal minority students in themselves do not guarantee a diversity of viewpoints in the educational environment. (3) No. The state has a legitimate and substantial interest in ameliorating or eliminating the disabling effects of social discrimination. The government has no greater interest in helping one individual than in refraining from another. Therefore, the purpose in helping certain groups whom the faculty of the Petitioner perceived as victims of societal discrimination does not justify a classification that imposes disadvantages upon persons such as Respondent. (4) No. There is virtually no evidence indicating that the Petitioners special admissions policy is either needed or geared to promote that goal. (5) Yes. Diversity is clearly a constitutionally permissible interest for an institution of higher education, as the interest of diversity is compelling in the context of a universitys admission program. The question remains, however, whether the programs racial classification is necessary to promote this interest.

Here, Petitioners special admissions program focused solely on ethnic diversity, would hinder rather than further attainment of overall diversity. A schools admissions policy should be permitted to take into account an applicants membership in a racial minority. However, the use of racial quotas to achieve a certain amount of minority students is unconstitutional. Instead of using quotas, the school should consider a students minority status as a plus among the overall credentials of the applicant. Therefore, the special admissions program is unconstitutional. Dissent. Since whites are not a minority, only intermediate review should be used. Therefore, the affirmative admissions program is entirely constitutional. Justice John Paul Stevens (J. Stevens). Race cannot be the basis of excluding anyone from participation in a federally funded program. . . . J. Stevens argues that prohibiting white students from participation in the special admissions program is a direct violation of Title VI. Justices William Brennan, Justice Byron White, Justice Thurgood Marshall and Justice Harry Blackmun (J. Brennan, J. White, J. Marshall, and J. Blackmun). The use of racial quotas for purposes of school admissions is not unconstitutional. The intermediate level of scrutiny should have been applied to this case rather than the strict scrutiny standard. The special admissions program to be constitutional. In particular, the Justices argue that the racial classification in the present case is remedial, serves an important government objective and also substantially related to that objective and thus insulated from the Fourteenth Amendments general prohibition of such classifications. Concurrence. The question whether race can ever be used as a factor in an admissions decision is not an issue in this case and discussion of that issue is inappropriate. Justices William Brennan, Justice Byron White, Justice Thurgood Marshall and Justice Harry Blackmun (J. Brennan, J. White, J. Marshall, and J. Blackmun). The Medical Schools admission policy, which reserves slots for disadvantaged minorities, is constitutional. J. Brennan, J. White, J. Marshall, and J. Blackmun concur so much as the Supreme Courts opinion allows race to be considered as a factor in the admissions process. However, the Justices believe that in this particular example, race should be allowed as a single determining factor. Justice Thurgood Marshall (J. Marshall). I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that the *school's+ admission program violates the Constitution. Justice Harry Blackmun (J. Blackmun). In order to resolve racial problems, we must first take account of race. *I+n order to treat some persons equally, we must treat them differently. Discussion. This highly divided case applies strict scrutiny to a higher education admissions policy based on race rendering the policy invalid because the policy was based, in part, on a quota system. In order to mend the harmful effects of race discrimination, racial minorities who have been historically discriminated against need to be treated differently in order to be treated equally under the requirements of the Constitution. J. Powells basic problem with the special admissions program is this: there are 84 places open for white applicants and 100 positions open for minority applicants. This differential treatment solely on racial grounds is unconstitutional, according to J. Powell. It is important to note that in Bakke, the Court did

not technically hold the special admissions program unconstitutional. J. Stevens and the three other Justices joining his opinion do not reach the constitutional issue because of the federal statute. Richmond v. J.A. Croson Co. SCOTUS - 1989 Facts In1983, the Richmond City Council, in the state of Virginia, adopted the minority Business Utilization Plan (the Plan), which required government supported construction contractors to set-aside 30% of its subcontracts to one or more Minority Business Enterprises (MBEs). MBEs were defined as *a+ business at least fifty-one (51) percent of which is owned and controlled . . . by minority group members. Under the Plan, minority group members were defined as *c+itizens of the United States who are Black, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts. The purpose of the Plan was to promot*e+ wider participation by minority business enterprises in the construction of public projects. The Appellant, J.A. Croson Company (Appellant), challenged the Plan on the grounds that it violated the United States Constitution (Constitution) because there had been no specific finding that the Plans purpose was supported by past discriminatory practices in the construction indust ry of Richmond, Virginia. The District Court upheld the Plan, but, the Court of Appeals reversed the decision holding that the set-aside program violat*ed+ both prongs of strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment . . . . The judgment of the Court of Appeals was affirmed. Procedural History

SCOTUS found the plan unconstitutional.

Issues

What level of scrutiny should be used to test the constitutionality of affirmative action laws?

Holding/Rule

Strict scrutiny should be used to test the constitutionality of affirmative action laws. Affirmative action programs can only be maintained by a showing that the programs aim is to eliminate effects of past discrimination.

Reasoning

O'Connor
o

A state has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction.

The city may use its spending powers to remedy private discrimination if it identifies that discrimination with the particularity required by the 14th amendment. If the city could show that it had essentially become a passive participant in a system of racial exclusion in the construction industry, it is clear that the city could take affirmative steps to dismantle such a system.

The purpose of strict scrutiny is to smoke out illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool.

The test also ensures that the means chosen fit this compelling goal so closely that there is little or no possibility that the motive for the classification was racial prejudice. One of the central arguments for using a less exacting standard is that the measures were put in place by the dominant racial group. Here, that does not apply because 5 of 9 of the board members are black.

A generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy.

It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination. The 30% quota cannot be tied to any injury suffered by anyone. None of the allegations proved the city of Richmond with a strong basis in evidence for its conclusion that remedial action was necessary. The mere recitation of a benign and legitimate purpose is entitled to little or no weight; racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice.

None of the evidence presented by the city points to any identifiable discrimination in the Richmond construction industry.

Allowing this would open the door to competing claims for remedial relief by every disadvantaged group. If the 30% set-aside was narrowly tailored to compensated black contractors for past discrimination, why are the forced to share this benefit with Eskimos? This gross over-inclusiveness strongly impugns the city's claim of remedial motivation. It is almost impossible to determine whether the plan is narrowly tailored to remedy prior discrimination since it is not linked to identified discrimination in any way. The city did not consider any race neutral means to achieve the same goal. It invalidly rests on the assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.

Stevens
o

I believe that a governmental decision that rests on racial classification could be permissible both for remedying past wrongs and for some other reason.

Scalia
o

I do not believe that racial discrimination can ever be used to ameliorate the effects of past discrimination. There is only one circumstance in which the states may act by race to undo the effects of past discrimination: where it is necessary to eliminate their own maintenance of a system of unlawful racial classification (underpayment of blacks, e.g.).

Dissent

Marshall
o

Richmonds Plan would be declared constitutional under the intermediate level of scrutiny.

The Supreme Court should have applied the intermediate level rather than the strict scrutiny standard.

Nothing in the Constitution can be construed to prevent Richmond from allocating a portion of its contracting dollars for minority controlled businesses. This case is indistinguishable from the federal set-aside plan in Fullilove v. Klutznick (federal law which required gov'ts to set aside 10% of federal monies for minority businesses). Preventing initiatives, such as the set-aside program, for lack of a showing of past discrimination in the area only perpetuates racial discrimination because it suggests that racial discrimination no longer exists. This decision will discourage states from attempting to rectify the scourge of past discrimination. Affirmative action is much different from discrimination and should be judged in the same way. Strict scrutiny is not appropriate.

Notes

Later overruled in Metro Broadcasting. Metro overruled by Adarand Constructors v. Pena.

Discussion. Regardless of its application to racial minorities or to other racial groups, race-based classifications require the highest level of scrutiny in all cases. Adarand Constructors, Inc. v. Pena Rule of Law. State and federal racial classifications require the application of strict scrutiny in order to determine whether the constitutionality of the classification. Federal racial classifications must serve a compelling governmental interest and must be narrowly tailored to further that interest.

Facts. The United States Department of Transportation awarded a prime contract to Mountain Gravel & Construction Company (Mountain Gravel). Mountain Gravel then solicited bids from subcontractors for the guardrail portion of the prime contract. The Petitioner, Adarand Constructors, Inc. (Petitioner) submitted the low bid. But, Gonzalez Construction Company (Gonzalez) was awarded the subcontract. Mount Gravels prime contract provided that Mount Gravel would receive extra compensation if it hired subcontractors qualified as small socially and economically disadvantaged businesses. Federal law presumed that Blacks, Hispanics, Native Americans and Asian Pacific Americans ran socially and economically disadvantaged businesses. Gonzalez had qualified as a small socially and economically disadvantaged business. The Petitioner had not. Issue. What standard of review applies to the federal program, to the extent that it defined disadvantage by race? Did the presumption defining disadvantage partly by race violate the Fifth Amendment constitutional obligation not to deny anyone the equal protection of the laws? Held. Strict Scrutiny and maybe. The case is remanded to the lower courts for determination of whether the program passes the test of strict scrutiny. Strict scrutiny of all governmental racial classifications is necessary because (1) it may not always be clear whether a so-called benign classification is in fact benign; (2) the courts should take a skeptical view of all racial classifications and (3) there should be consistency of treatment regardless of the race of the person burdened or benefited. If the government action can be supported by narrowly tailored programs that would help to eliminate the lingering effects of racial discrimination, then the action may be upheld under the Constitution. In determining whether the Constitution would support the governments race-based classification, it must be determined whether the government has a compelling interest, whether the government could have applied a race-neutral program that could meet the same objectives of the race-based program and whether the race-based classification will last no longer than necessary in its elimination of the discriminatory effects. Strict in theory does not necessarily imply fatal in fact. When race-based action is necessary to further a compelling interest, such action is constitutional when it satisfies the narrow tailoring requirement. Dissent. Justice John Paul Stevens (J. Stevens) states the Supreme Court of the United States (Supreme Court) assumes there is no difference between a decision by the majority to impose a burden on the minority and a decision by the majority to provide a benefit to the minority notwithstanding the incidental burden certain members of the majority will incur. The Supreme Court would disregard the difference between a No Trespassing sign and a welcome mat. The majority errs in its application of strict scrutiny to all racial classifications, whether benign or invidious. Justice Ruth Bader Ginsburg (J. Ginsburg) stated that given this Countrys racial history and its consequences, Congress should be able to carefully design remedial programs to help us finally realize the equal protection of the laws the Fourteenth Amendment of the United States Constitution (Constitution) has promised since 1868. *T+he strict standard announced *by the Court+ is indeed fatal for classifications burdening groups that have suffered discrimination in ours society. *S+ome members of the historically favored race can be hurt by catch-up mechanisms designed to cope with the lingering

effects of entrenched racial subjugation. Court review can ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups . . . . Judge David Souter (J. Souter). *C+onstitutional authority to remedy past discrimination is not limited to the power to forbid its continuation, but extends to eliminating those effects that would otherwise persist and skew the operation of public systems even in the absence of current intent to practice any discrimination. Concurrence. Justice Antonin Scalia (J. Scalia) stated that the government could never have a compelling interest for discriminating on the basis of race in order to make up for past discrimination. There is no such thing under the Constitution of the United States as a debtor or creditor race. Applying strict scrutiny is irrelevant because race-based classifications can never be constitutional. Justice Clarence Thomas (J. Thomas) stated government programs based on benign racial classifications are just as noxious as those inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple. Discussion. In City of Richmond v. J.A. Croson Co., the Supreme Court held that the Fourteenth Amendment of the Constitution requires strict scrutiny of all race-based programs adopted by state or local governments. In this case, the Supreme Court brings the standard of judicial review for state and local governments into harmony with that for the federal government. The Supreme Court says that there should be no different treatment between claims brought under the Fourteenth Amendment Equal Protection Clause and those brought under the Equal Protection component of the Fifth Amendment due process clause. This case overrules Metro Broadcasting, Inc. V. FCC, 497 U.S. 547 (1990) which applied intermediate scrutiny, instead of strict scrutiny, to determine whether governmental race classifications, favoring minorities, constituted a violation of the Equal Protection Clause. Grutter v. Bollinger SCOTUS- 2003 Facts

Michigan policy included race as one factor in admissions. It was part of an effort to increase diversity. Grutter is a white Michigan resident who was rejected with a 3.8 and 161 LSAT. She filed suit after her rejection. Petitioner, who is white, is challenging the law schools use of race as a factor in the admissions process.

Procedural History

SCOTUS held for Michigan- race can be one factor considered in law school admissions.

Issues

Can a state law school use race as a factor in student admissions? Did the University of Michigans use of racial preferences in the admissions process violate the Equal Protection Clause or Title VI of the Civil Rights Act of 1964?

Holding/Rule

A state law school can use race as a factor in student admissions because student body diversity is a compelling state interest that can justify the use of race in university admissions. Schools may consider race as a part of the admissions process as long as it is only one factor in an individualized process.

Reasoning

All racial classifications must be analyzed under strict scrutiny. Such classifications are constitutional only if they are narrowly tailored to further compelling government interests.
o

Goal is to smoke out illegitimate uses of race by assuring that gov't is pursuing a goal important enough to warrant the use of a highly suspect tool.

We defer to the law school's educational judgment that diversity is essential to its educational mission. The law school does not want to assure that some percentage of its student body is of specific racial or ethnic origin: this would be unconstitutional.
o

Instead, the law school's admission procedure is designed by referring to the educational benefits of diversity and that this weighing process is designed to produce. Promotes cross-racial understanding, which are important and laudable interests. Las schools are also training grounds for the nation's leaders in politics. School wants to cultivate a set of leaders with legitimacy in the eyes of the citizenry. In order to do this, the path to leadership must be open to members of all races and ethnicities.

o o

The means chosen must be specifically and narrowly tailored.

o o

Cannot be a quota system. But, can consider race or ethnicity as a "plus" in a particular applicant's file. This narrowly-tailored plan is what the admissions program here uses. Goal of attaining a critical mass of minorities does not make the program a quota. Some attention to numbers does not transform a flexible admissions system into a quota.

Number of minority students varied from 13 to 20 percent over the last 7 years.

Law school doesn't just emphasize race as a "plus," it also takes into account other types of diversity such as family hardship, extensive travel, language fluency, community service, and other careers. Frequently accepts non-minority applicants with lower scores than some minorities who were rejected. Law school sufficiently considered race-neutral alternatives.
o

Would require a dramatic sacrifice of diversity or institutional integrity.

Narrow tailoring requires that a race-conscious admissions program not unduly harm members of any racial group. We are satisfied that the law school's admissions program does not do this. However, race-conscious admissions programs must have reasonable durational limits and be reassessed to determine whether racial preferences are still necessary to achieve student body diversity.
o

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Ginsburg, Breyer (concurring)

o

Minority students encounter markedly inadequate and unequal educational opportunities.

Dissent

(Scalia)
o

The critical mass justification is shown by admissions statistics to be a sham to cover a scheme of racially proportionate admissions. The educational benefit that Michigan seeks to achieve is a less on of, not a lesson of the law. If it is appropriate for Michigan to use race discrimination to create a critical mass, it is no less appropriate for the civil service system of Michigan to do so.

(Thomas)
o

I believe that blacks can achieve in every avenue of American life without the meddling of university administrators. Court takes an approach inconsistent with strict scrutiny. They also say that racial discrimination will be illegal in 25 years. Therefore, the law school's use of race violates the EPC, because the Constitution will mean the same thing today as it will in 300 months. There are undoubtedly other ways to better the education of law students aside from ensuring a "critical mass." You have to take away a seat from someone else when you add one because of the unique "benefits" of race.

Marginal improvements in legal education do not qualify as a compelling state interest.

In addition, there is no evidence that these marginal improvements even exist. Nowhere is there evidence that the beneficiaries of this discrimination prove themselves by performing at or near the same level as students who receive no preference.

When blacks take positions in the highest places of gov't, industry, or academia, it is an open question whether their skin color played a role in their advancement.

(Rehnquist)
o o

Does not meet strict scrutiny. No race-specific reasons are given for the "disparities" in admissions between races.

(Kennedy)
o o

The court does not apply strict scrutiny. Deference is antithetical to strict scrutiny, not consistent with it, and the Court defers to the law schools' choice of minority admissions programs.

Discussion. Grutters companion case, Gratz v. Bollinger, challenged Michigans undergraduate admissions policies. The Court struck down this policy, however, finding that it gave an overall advantage to minority students. Gratz v. Bollinger Facts

Gratz applied to Michigan as residents of the State of Michigan, but was rejected. Filed lawsuit based on violation of EPC of 14th Amendment. Office of Undergrad Admissions used a certain formula, and a minority applicant was entitled to 20 extra points in their admissions formula. As such, Petitioners would have qualified for admission if they were minorities, but did not because they were white.

Procedural History

District Court upheld the guidelines. SCOTUS reversed.

Issues

Does the University of Michigan's use of racial preferences in undergraduate admissions violate the EPC?

Holding/Rule

The manner in which the University considers the race of applicants in its undergraduate admissions guidelines (adding 20 pts to admissions formula for minority applicants) violates EPC. Admission criteria based on race must be narrowly tailored to achieve a compelling interest. Race may be considered in an individual assessment, but not as a sole or contributing factor for admission.

Reasoning

To withstand strict scrutiny analysis, it must be demonstrated that the University's use of race employs narrowly tailored measures that further compelling gov't interests. The Supreme Court has only upheld racial plans at a school or town where previous racial discrimination was being remedied. In previous cases, one of the Justices of the Supreme Court stated that each applicant should be individually assessed. Each students admission should be based on the students ability to contribute to the unique setting of higher education. An admission system that grants points for certain characteristics such as race is not an individual assessment.
o

When applicants are being chosen for a program and part of the reasoning is based on race, any discrimination made is a violation of the Equal Protection Clause of the 14th Amendment. Since the White students are being discriminated based on race, they are a suspect class which deserves strict scrutiny review. Unless the school can show the system is narrowly tailored to achieve a compelling interest of diversity, the admission system will be considered unconstitutional.

This program is not narrowly tailored because it does not provide individualized consideration.
o o

Makes race a decisive factor. Ignores critical criteria that are not dependent on race but are associated with it.

Possibility for an application being flagged for individual consideration is little comfort under strict scrutiny analysis. O'Connor (concurring)
o o

Do not provide for an individualized review of applicants. Even the most outstanding national high school leader could never receive more than five points for his or her accomplishments. This is only a quarter of what a URM gets solely based on race. Stands in sharp contrast to the law school's admissions plan which enables more nuanced judgments. This is a mechanized system.

Dissent

(Ginsburg, Souter, Breyer) Strict scrutiny for AA plans would be fitting were our nation free of discrimination, but we are not. Large disparities endure. It is proper to distinguish between exclusion and inclusion.
o

Our jurisprudence ranks race as a "suspect" category not because it is an impermissible classification but because it has always been drawn for the purpose of maintaining inequality. But, where race is considered to achieve equality, no automatic proscription is in order.

If honesty is the best policy, surely Michigan's accurately described, fully disclosed College AA program is preferable to achieving similar numbers through winks, nods, and disguises. The previous school admission policies that were struck down made race sole reasons for denials or admission. Here the point system accounts for many things such residency, grades, essay, athletic ability, social-economic status. Surely the plan design is better fit than other plans to ensure diversity.

Discussion. The School argues that with the volume of applications, a system with individual assessment will be impractical. However, this court states that just because it will be difficult to achieve such standards, it does not render their actions constitutional. Parents Involved v. Seattle School Dist. No. 1 SCOTUS- 2007 Facts

Student assignment plans determine which public schools certain children may attend. Children are classified as white or nonwhite (or black or other). Race classification is used to allocate slots in oversubscribed high schools and used to make certain elementary school assignments and to rule on transfer requests. Goal is to make the racial balance at the school fall within a predetermined range based on the composition of the school district as a whole. Seattle School District No. 1 operates 10 regular public high schools.
o

Student assignment plan allows incoming ninth graders to choose from among any of the district's high schools, ranking them in order of preference. If too many students pick the same school, the officials use a tiebreaker. The first tiebreaker is if the student has a sibling at the school, but the next is based on the race of the student and the overall racial composition of the school.

Jefferson County Public Schools maintained a segregated public school system until 1975, when there was a desegregation decree.
o o o

The school operated under this decree until 2000, when it was dissolved. After this, the school implemented the voluntary student assignment plan. Plan requires that all non-magnet schools to maintain a minimum black enrollment of 15% and a max enrollment of 50%. Upon enrollment, the district allows students to rank the schools. Decisions to assign students to schools within each cluster are based on available space within the schools and the racial guidelines.

o o

Procedural History

Court of appeals upheld the plan. SCOTUS reversed.

Issues

Can a public school that never operated legally segregated schools or that has been determined to be unitary choose to classify students by race and rely upon that classification in making school assignments?

Holding/Rule

A public school cannot classify students by race and then rely upon that classification in making school assignments.

Reasoning

Roberts
o

Strict scrutiny used here: means must be narrowly tailored to achieve a compelling government interest.

One recognized compelling interest is remedying past discrimination.

However, Seattle schools were never segregated. The Jefferson County schools were segregate but the District Court dissolved the desegregation degree in 2000. Once JC reached unitary status, it had remedied the constitutional wrong that allowed race-based assignments. Therefore, their use of race must be justified on some other basis.

Second recognized interest is the interest in diversity in higher education upheld in Grutter v. Bollinger.

This was in the context of higher education. Diversity interest encompassed all factors, not just race, and focused on each as an individual not just as a member of a racial group.

Here, race is not just one factor weighed- it is the factor.

It is also viewed in white/non-white way, which focuses even more on a certain view of race and not on diversity as a whole because it does not even seek a balance between different non-white races.

Grutter expressly articulated key limitations on its holding.

Unique context of higher education.

Seattle says that its goal is to allow non-whites same access to schools despite racial housing patterns. Also argue that a broad socialization benefit comes from a racially diverse learning environment.

It makes sense to rely on race alone, they argue, because racial diversity is the goal.

The schools' methods are not narrowly tailored to the goal of achieving the benefits that come from racial diversity; they are only to achieve racial balance, which the Court has previously condemned as unconstitutional.

No evidence that level of racial diversity necessary to achieve the educational benefits just happens to coincide with the demographics of the school districts. Racial balance is not to be achieved for its own sake. Binary conception of race is an extreme approach. Districts have also failed to show that they considered other methods to achieve their stated goals.

Accepting racial balancing would justify racial proportionality throughout American society, which is contrary to the EPC's focus on individuals, not groups.

Racial balancing does not become a compelling state interest by relabeling it "racial diversity."

Before Brown, schoolchildren were told where they could not go to school based on the color of their skin. Here, the districts have not carried the burden of proving that this should be allowed again, even for very different reasons.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Thomas
o

Resegregation is not happening in these school districts.

They have no interest in remedying past segregation. The programs do not serve any compelling state interest.

Racial imbalance is not segregation.

The statistics in the dissent show more racial imbalance in the classrooms, but this does not amount to segregation.

It is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement. Behind Justice Breyer's veil of judicial modesty hides an inflated role for the Federal Judiciary.

Most of the dissent's criticisms can be traced to its rejection of the color-blind Constitution.

Kennedy
o

To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome. Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.

It is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.

They are free to devise race-conscious measures to address the problem in a general way and without treating each student in a different fashion solely on the basis of a systematic, individual typing by race.

Strategic site selection of new schools, drawing attendance zones with general recognition of the demographics, allocating resources for special programs, recruiting students and faculty in a targeted fashion, tracking statistics.

The dissent has no principled limit and would result in broad acceptance of gov't racial classifications in areas far afield from schooling. Race may only be one component of school diversity, but other demographic factors should also be considered.

Dissent

Breyer
o

The school districts' plans serve compelling interests.

The interest at stake can be labeled either racial diversity, racial balancing, or promoting greater racial integration of public schools.

There is a historical and remedial element, an interest in setting right the consequences of prior conditions of segregation. There is an educational element, an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools.

Studies suggest that children taken from those schools and placed in integrated settings often show positive academic gains.

There is a democratic element, an interest in producing an educational environment that reflects the pluralistic society in which our children will live.

The means are narrowly tailored to achieve this goal.

The race conscious criteria at issue only help set the outer bounds of broad ranges.

To use race in this way is not to set a forbidden quota.

Broad range limits on voluntary school choice plans are less burdensome than other race conscious restrictions that have been approved by this Court.

More so than Grutter, only affects a fraction of students, not all.

The manner in which the school boards developed these plans itself reflects narrow tailoring.

Each plan is the product of a process that has sought to enhance student choice, while diminishing the need for mandatory busing.

Giving some degree of weight to a local school board's knowledge in these particular matters is not inconsistent with rigorous judicial scrutiny.

It simply recognizes that judges are not well suited to act as school admins.

o o o

The school districts could not have achieved these goals through other means. The plurality's views would threaten a surge of race-based litigation. The school districts are merely acting as laboratories, in accordance with the Constitution.

Discussion. The schools argue that these ratios help with test scores and objective yardsticks and socialization benefits. Those are not the primary goals of these plans so it is not enough, even if that is part of the outcome. Harper v. Virginia State Board of Election

Rule of Law. A State violates the Equal Protection Clause of the United States Constitution (Constitution) by making the affluence of the voter or the payment of a fee an electoral standard. Prerequisite payments within the election process are unconstitutional.
Rule o Voter wealth or the payment of any fee cannot be made a precondition for voting. o Poll taxes as a precondition for voting are unconstitutional.

Facts. A Virginia law mandated the payment of a poll tax, not to exceed $1.50, in order for citizens to be eligible to vote. The constitutionality of the law was brought into question. The District Court dismissed the case because it relied on Breedlove v. Suttles, which upheld a *l+evy by the poll as a prerequisite to voting. The judgment is reversed. Issue. May a State, consistent with the Fourteenth Amendment, precondition the right to vote in an election on the payment of a poll tax? Held. No. The judgment of the lower court is reversed. Justice William Douglas (J. Douglas) argued that once the franchise is granted, lines concerning it may not be drawn that are inconsistent with the Equal Protection Clause of the Constitution. The interests a State may pursue (i.e., the legitimate ends) in the context of voting are of setting voter qualifications. *A+ State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. There is no relationship between ones wealth or the payment of a fee and ones ability to vote intelligently (i.e., the means to ends relationship is lacking). Moreover, the right to vote is too fundamental to be so burdened. Justice William Douglas (J. Douglas) notes that the tax divides the eligible voters of the State into two classes: those who can afford the tax and those who cannot. As such, it invidiously discriminates against those who cannot afford the tax. Justice Douglas o A State violates the Equal Protection Clause whenever it makes the affluence of the voter or payment of any fee an electoral standard.

State Arg - Can demand poll tax for voting o It is argued that a State may exact fees from citizens for many different kinds of licenses; that if it can demand from all an equal fee for a driver's license, it can demand from all an equal poll tax for voting.

Court - Power is limited to fix qualification. o But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Court - Wealth, like race, creed, or color, is not germane to voting

o Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. o Lines drawn on the basis of wealth or property, like those of race ( Korematsu v. United States, 323 U.S. 214, 216), are traditionally disfavored. Wealth or polltax is an irrelevant factor o To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. Court - Equal Protection treatments change o Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. Court - Skinner - Classifications might invade or restrain o Where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. Court - Holding o The right to vote is too precious, too fundamental to be so burdened or conditioned. Dissent. Justice Hugo Black (J. Black) said state poll taxes can reasonably and without invidious purposes, be found to rest on a number of legitimate state interests such as the States desire to collect revenue. If there is a rational reason for an electoral prerequisite payment, then it must be upheld. Only the legislature, not the courts, can strike down a poll tax. Broadest kind of leeway o The Equal Protection Clause States are to have the broadest kind of leeway in areas where they have a general constitutional competence to act. o [State] poll tax legislation can "reasonably," "rationally" and without an "invidious" or evil purpose to injure anyone be found to rest on a number of state policies including o (1) the State's desire to collect its revenue, and o (2) its belief that voters who pay a poll tax will be interested in furthering the State's welfare when they vote. History is on the side of "rationality" o '[And] history is on the side of "rationality" of the State's poll tax policy. o Property qualifications existed in the Colonies and were continued by many States after the Constitution was adopted .... o Another reason for my dissent [is that the Court] seems to be using the old "natural-law-due-process formula" to justify striking down state laws as violations of the Equal Protection Clause ....

Justice John Harlan (J. Harlan) stated there is a rational argument for requiring a poll tax, weeding out those who do not care enough about public affairs to pay $1.50 for the right to vote. The Supreme Court of the United States (Supreme Court) has overstepped its bounds by striking down the poll tax.
Believes there is a rational basis for Virginias poll tax o [The Court uses] captivating phrases, but they are wholly inadequate to satisfy the standard governing adjudication of the equal protection issue: Is there a rational basis for Virginia's poll tax as a voting qualification? I think the answer to that question is undoubtedly "yes." Colony Argument o Property qualifications and poll taxes have been a traditional part of our political structure. o In the Colonies the franchise was generally a restricted one. Promotes Civic Responsibility o [It] is certainly a rational argument that payment of some minimal poll tax promotes civic responsibility, weeding out those who do not care enough about public affairs to pay $1.50 or thereabouts a year for the exercise of the franchise. People with means are more responsible o It is also arguable, indeed it was probably accepted as sound political theory by a large percentage of Americans through most of our history, that people with some property have a deeper stake in community affairs, and are consequently more responsible, more educated, more knowledgeable, more worthy of confidence, than those without means, and that the community and Nation would be better managed if the franchise were restricted to such citizens.

Discussion. The Supreme Court of the United States (Supreme Court) primary concern in this case was a distinction made as to which citizens were entitled to a fundamental right the right to vote. One wonders if the Supreme Court was not also concerned about the statute because it involved a wealth distinction. Should ones wealth, as ones race or gender, be regarded as a suspect classification? This case overrules the decision of Breedlove v. Suttles, which upheld an older form of taxation that was used as a prerequisite for voting. Because voting is a fundamental right, classifications involving the right to vote are closely scrutinized. In the present case, a classification based on wealth is clearly inappropriate. Crawford v. Marion County Election Board Rule of Law. Any photo ID is a minimal burden that does not violate the fundamental right to vote. Facts. An Indiana statute, Voter ID law required that any person voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, to present photo ID issued by the government. This did not apply to absentee ballots and the statute contained an exception for persons living and voting in a state licensed facility like a nursing home. If a person is indigent or has a religious objection to being photographed, they may cast a provisional ballot and execute an affidavit before the circuit court clerk within 10 days of the election. No photo ID is required for registration, and the state offers free photo ID to qualified voters able to establish residence. Issue. Is requiring a photo identification when voting in person an unconstitutional burden on the fundamental right to vote?

Held. No, as a photo id is a minimal burden, and the state has a legitimate interest in guarding against voter fraud. Dissent. (Souter) The dissent uses the balancing test set forth in Burdick v Takushi a state may not burden the right to vote merely by invoking abstract interests, be they legitimate, or even compelling, but must make a particular, factual showing that threats to its interest outweigh the particular impediements it has imposed. Since voting is a fundamental right, the judiciary should be especially skeptical of anything threatening that right. He found that the burden on the old and the poor was too large, especially in the absence of any actual voter fraud. Concurrence. (Scalia) The dissent goes further to state that any burden is extremely minimal. Further the law is a generally applicable, non discriminatory voting regulation, and therefore, we should not weigh the burden of each voter as the majority opinion does, but because there is no discriminatory intent, a generally applicable law with disparate impact is not unconstitutional. Discussion. (Justice Stevens) If a restriction on voting, such as a poll tax, is unrelated to voter qualifications, it may be considered invidious discrimination. However, when if a restriction is evenhanded and seeks to protect the integrity and reliability of the electoral process, it is acceptable. The state advances several legitimate interests, which, while the petitioners argue that the legislation is motivated by partisan concerns, are uncontested. First, the states interest is deterring and detecting voter fraud. Modern election statutes have made it harder for states to remove names from the lists of registered voters, and as such, as of 2004 Indiana had inflated voter rolls that listed deceased individuals, and records show the rolls were inflated by as much as 41%. In addition, while the effective method of preventing election fraud may very well be debatable, the fact that preventing voter fraud is a legitimate state interest is not up for debate. Lastly, the state contends that it has an interest in protecting public confidence in the legitimacy and integrity of the electoral process. While the requirement that one must present a photo ID may carry with it some burdens (the court uses examples such as being mugged on the way to the polls, or growing a beard and not looking like your photo ID), the burdens are neither so serious nor so frequent as to raise any question of constitutionality. In addition, the statutes allowance for casting a provisional ballot should rectify any burden that may be imposed. Moreover, while it may be argued that obtaining a photo ID is a burden, since the state offers them for free and imposes no tax on obtaining such a photo ID, the burden of going to the registry, presenting the proper paperwork and posing for a photograph is not a substantial burden. Lastly, even if the burden on some individuals is great (such as obtaining a birth certificate or traveling out of state), the burden does not outweigh the states interest in providing a way to verify voter information.

Reynolds v. Sims Facts

Reynolds involved Alabama, Colorado, Delaware, Maryland, New York, and Virginia. o There had been no reapportionment of seats in the Alabama Legislature in over 60 years. o This resulted in the perpetuated scheme of enabling a minority stranglehold on the State Legislature. o The voting scheme did not change over time to reflect the increase of population in the districts.

Rule
o o A State must structure its elections and its state legislature so that its citizens are equally represented according to population. Equal protection requires "one-person-one-vote" for state legislative elections.

Chief Justice Warren o A determinative factor in analyzing whether Alabama's districting scheme constitutes invidious discrimination in violation of its citizens' equal protection rights is the fact that the right to vote is an individual right and personal in nature. o The right to vote is a fundamental matter in a free and democratic society. Aim of legislative apportionment o The achieving of fair and effective representation for all citizens Court - EPC guarantees opportunity for equal voting o We conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Court - Same number of representatives to unequal numbers of constituents. o Alabama's districting scheme which gives the same number of representatives to unequal numbers of constituents is identical in effect and violates its citizens' right to equal protection. Court - Voter dilution impairs the 14th amendment o Alabama's scheme weighs some votes more than others based upon where the voters live within the State. o It thereby dilutes some of its citizens' votes. o This dilution based on place of residence impairs basic constitutional rights under the 14th Amendment just as much as invidious discrimination based upon factors such as race or economic status. Court - Impossible for representation to be exact, but it must be legitimate o Although it may be a practical impossibility to have representation exactly correspond to population, any divergence from the population standard must be based on legitimate consideration of implementing rational state policy. o The factors of history, area, or economic or other sorts of group interests, are not sufficient reasons for a State to deviate from apportioning its legislature according to its population. Affirmed

Dissent- J. Stewart
o As long as a State's apportionment plan reasonably achieves, in light of the State's own characteristics, effective and balanced representation of all substantial interests, without sacrificing the principle of effective majority rule, that plan cannot be considered irrational.

Equal protection demands two basic attributes of any plan. o First, it demands that, in light of the State's own characteristics and needs, the plan must be a rational one. o Second, it demands that the plan must be such as not to permit the systematic frustration of the will of a majority of the electorate of the State.

Bush v. Gore George W. Bush, et al. v. Albert Gore, Jr., et al. (531 U.S. 98, 121 S. Ct. 525), commonly known as Bush v. Gore, was a controversial U.S. Supreme Court case heard on December 11, 2000. The case decided the outcome of the 2000 presidential election between Texas Governor George W. Bush and Vice President Al Gore. In a 7-2 opinion, the court ordered that a ballot recount then being conducted in certain counties in Florida was to be stopped due to lacking a consistent standard. The court further declared, in a 5-4 vote, that there was insufficient time to establish standards for a new recount that would meet Floridas deadline for certifying electors. The ruling in effect awarded Bush the presidency. Background: The election in question took place on November 7, 2000. Under the Electoral College system, each state votes for the president separately: a victor is then declared in each state, and the victor in the state wins a number of electoral votes equal to the states number of representatives in the House of Representatives and the Senate. At the end of the nationwide ballot count, Gore led Bush 266 246 in the electoral vote. 270 votes were required for victory: Florida, with 25 electoral votes, did not have an official victor because the result was within the margin of error for machine counting; Bush had the lead following the machine count, by a very small margin. Gore sought a manual recount of votes in several Florida counties. This was supported by Florida Attorney General Bob Butterworth, a Democrat and chairman of the Florida Gore campaign, and opposed by Florida Secretary of State Katherine Harris, a Republican and co-chair of the Florida Bush campaign. On November 14, while the Palm Beach County Canvassing Board was recounting its ballots by hand, Harris officially certified the election for Bush. Gore and Palm Beach filed suit against Bush and Harris in the Florida Supreme Court (Palm Beach County Canvassing Board v. Harris), and won a judgment on November 21 stating that Harris had abused her discretion and that the recount should go forward. On November 22, Bush appealed to the United States Supreme Court in Bush v. Palm Beach County Canvassing Board, stating that the decision was in violation of a federal statute requiring electors to be finalized at a given point before the Electoral College met. The two parties delivered oral arguments to the Court on December 1. On December 4, the Court temporarily nullified the decision of the Florida state supreme court pending clarification of the legal basis for their rulings, and remanded the case to Florida. The Gore team subsequently filed four more suits on other legal issues: all four were struck down by lower courts, but the Florida Supreme Court reversed the decision in the last case, Gore v. Harris, on December 9, stating that Harris could not halt the recount of potential undervotes in the targeted counties. The Bush team filed for certiorari to the U.S. Supreme Court on the basis that the Florida courts opinion was contrary to the U.S. Constitution. Oral arguments in Bush v. Gore were brought before the court on December 11 by lawyers representing both sides. Due to the nature of the case, the U.S. Supreme Court gave its opinion just 16 hours after hearing arguments. The Florida Supreme Court provided the requested clarifications on Bush v. Palm Beach County Canvassing Board while the U.S. Supreme Court was deliberatingBush v. Gore, and the two cases were then combined.

The parties claims: Bush, represented by Theodore Olson, charged that the recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Because the votes were being counted unevenly, with standards varying from county to county and recounts in counties where he could have been likely to have gained votes not even being conducted, Bush argued, the decision went against the language in the Constitution stating nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws. Gore, represented by David Boies, responded that the Florida Supreme Court had done everything it could do to ensure equal treatment of both parties, and that requiring all ballots to be treated in the same fashion would require a uniform federal standard for counting votes, something that had never been established. Gore also claimed that ending the recounts was not an equitable way to settle the dispute: instead, the Court needed to establish a standard by which the votes should be counted, and then let the ballots be counted by that standard. The decision: A 7-2 majority ruled that the Florida recount was being conducted unconstitutionally, and the majority opinion noted significant problems in the uneven way the votes were being recounted. Furthermore, a narrower 5-4 majority ruled that no constitutionally-valid recount could be completed by the December 12 deadline set in statute, effectively ending the recounts. The court cited differing vote-counting standards from county to county and the lack of a single judicial officer to oversee the recount, both of which violated the equal protection clause of the United States Constitution. The court also ruled that under the Electoral College system, The individual citizen has no federal constitutional right to vote for electors for the President of the United States. The case was shrouded in controversy as the majority versus minority opinion on the remedy was split along the lines of the more conservative justices voting in favor of Bush and the more liberal justices voting in favor of Gore. Additionally, part of the reason recounts could not be completed was due to various stoppages ordered by the various branches and levels of the judiciary. Opponents argued that it was improper for the court (by the same 5-4 majority) to grant an injunction stopping the recounts pending the outcome of the ruling based on the possibility of irreparable harm to George Bushs reputation as the legitimate winner. Injunctions for irreparable harm cannot usually be granted if doing so would do equal or greater harm to another party in this case Al Gore. The minority dissents noted these issues and others including the principle of fairness, and the conflicting laws which could be interpreted as invalidating the December 12 deadline. It appears the minority would have wished to allow the recount to continue up until the college of electors were mandated to meet on December 18. The dissenting opinion written by Justice Stevens concluded with what many consider to be a scathing indictment: What must underlie petitioners entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by todays decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this years Presidential election, the identity of the loser is perfectly clear. It is the Nations confidence in the judge as an impartial guardian of the rule of law.

I respectfully dissent. Also notable was the dissent of Justice Ginsburg, which after a rather scathing opinion concluded with I dissent rather than the standard I respectfully dissent, a rare breach of convention observers took to highlight the stark and bitter division within the court regarding this case. The decision was widely criticized for a special provision in the majority opinion, stating that the case did not set precedent in any way, and could not be used to justify any future court decision. It was seen by many as a departure from the stare decisis principle. In brief the breakdown of the decisions were;

The remedy of ceasing all recounts was approved by 5 to 4. (Kennedy, OConnor, Rehnquist, Scalia, and Thomas in support Breyer, Ginsburg, Souter and Stevens opposed) The finding that using different standards of counting in different areas without a single overseer violated equal protection was approved by 7 to 2. (Breyer, Kennedy, OConnor, Rehnquist, Scalia, Souter, and Thomas in support Ginsburg and Stevens opposed) The view that the Florida Supreme Court acted contrary to the intent of the Florida legislature was rejected by 6 to 3. (Rehnquist, Scalia and Thomas in support Breyer, Ginsburg, Kennedy, OConnor, Souter, and Stevens opposed)

Davis v. Bandemer Rule of Law. Political gerrymandering cases are properly justiciable under the Equal Protection Clause. However, a threshold showing of discriminatory vote dilution is required for a prima facie case of an equal protection violation. Thus, a groups electoral power is not unconstitutionally diminished by the simple fact that an apportionment scheme makes it harder to win elections, and a failure of proportional representation alone does not constitute impermissible discrimination under equal protection. In order to make out a case for unconstitutional apportionment, a plaintiff must show intentional discrimination on the part of the defendant against an identifiable political group and actual discriminatory effect on the same group. Redistricting plans designed to secure the maximum number of safe party seats does not violate the United States Constitution (Constitution). Facts. The Republican-controlled state legislature adopted Indianas 1981 state apportionment plan which provided for state senate and house districts of substantially equal population. The Democrats claimed that the plan diluted their votes by using a mix of single and multimembered districts and gerrymandering district lines. The District Court held that the political gerrymandering claim is justiciable and that the challengers had proved an equal protection violation. Further, the District Court held that because any apportionment scheme that purposely prevents proportional representation is unconstitutional, Democratic voters need only show that their proportionate voting influence has been adversely affected. Issue. Whether the political gerrymandering claim is justiciable. Whether the District Courts legal and factual basis for its conclusion that the 1981 apportionment was

unconstitutional was the correct standard. Specifically, whether its holding that because any apportionment scheme that purposely prevents proportional representation is unconstitutional, Democratic voters need only show that their proportionate voting influence has been adversely affected is the correct standard. Held. Yes. Justice White held for the Court that the political question doctrine did not bar the Court from reaching its merits. No. Judgment of the District Court reversed. Such a reapportionment law would not violate equal protection merely because the voters in the losing party did not have representation in the legislature in proportion to the statewide vote received by their candidates. To draw district lines to maximize the representation of each major party would require creating as many safe seats for each party as the demographic and predicted political characteristics of the state would permit. This in turn would leave the minority in each safe district without a representative of its choice. This political fairness approach has been previously upheld. An equal protection violation may only be found where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. In this context, such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process. Here, there is no evidence to support either provision. Therefore, the Indianas 1981 apportionment scheme is constitutional. The United States Constitution (Constitution) does not require proportional representation or that legislatures reapportion by allocating seats, as near as possible, to the contending parties in proportion to what their anticipated statewide votes will be. For example, if most of the districts in which the anticipated split between Democrats and Republicans are competitive, e.g., the 45% to 55% range, even a narrow statewide preference for either candidate would produce an overwhelming majority for the winning party. This result cannot be said to violate the Equal Protection Clause of the Constitution. Dissent. Since the essence of a gerrymandering claim is that the members of a political party have been denied their right to fair and effective representation, the claim cannot be tested solely by reference to one person, one vote. Rather, a number of other relevant factors must be considered. Justice Lewis Powell said this opinion rests on the ground that the legislature acted consistently with the one-person, one-vote principle. But since the essence of political gerrymandering claims is that members of a political party, as a group, have been denied their right to fair and effective representation, he believed that this claim could not be resolved solely by resort to the one-person, one vote theory. Concurrence. Political gerrymandering poses a nonjusticiable question. Justice Sandra Day OConnor (J. OConnor) stated that political gerrymandering cases such as this one pose nonjusticiable questions. . . as the Framers of the Constitution unquestionably intended. The Court should have avoid*ed+ the difficulties generated by the pluralitys effort to confine the effects of a generalized group right to equal representation by not recognizing such a right in the first instance. Justice Lewis Powell (J. Powell). *A] partisan political gerrymander violates the Equal Protection Clause only on proof of both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group. Discussion. This case relaxed the Courts unwillingness to consider purely political gerrymandering as constituting a possible equal protection violation.

The Supreme Court seems to apply the same test, but require a lower threshold showing to establish a violation of the Equal Protection Clause in this voter dilution case, involving a charge of discrimination against a political party by an opposing party, than it did in City of Mobile v. Bolden, a voter-dilution case involving a charge of discrimination on the basis of race. In this case, the Supreme Court seems to apply the line of reasoning advanced by Justice John Paul Stevens (J. Stevens) in his concurring opinion in Washington v. Davis where J. Stevens wrote *f+requently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. In this case, the Supreme Court of the United States (Supreme Court) finds that there were judicially discernible and manageable standards by which political gerrymander cases *can+ be decided. Shaw v. Reno Rule of Law. The deliberate segregation of voters into separate districts on the basis of race violates their constitutional right to participate in a color-blind electoral process. Facts. As a result of the 1990 census, North Carolina became entitled to a twelfth seat in the United States House of Representatives. The North Carolina General Assembly (General Assembly) enacted a reapportionment plan that included one majority-black congressional district. After the Attorney General of the United States objected to the plan pursuant to Section:5 of the Voting Rights Act, the General Assembly passed new legislation creating a second majority-black district. The Appellants allege that the revised plan, which contains district boundary lines of dramatically irregular shape, constitutes an unconstitutional gerrymander. Issue. Whether the Appellants have stated an equal protection claim by alleging that the General Assembly adopted a reapportionment plan so irrational on its face that it can only be viewed as an effort to segregate races for the purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification? Held. Yes. Judgment reversed and remanded for further proceedings. Redistricting differs from other kinds of state decision-making in that the legislature always is aware of race when it draws district lines. That sort of race consciousness does not lead inevitably to impermissible race discrimination. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries and who have little in common with one another, but the color of their skin, bears an uncomfortable resemblance of political apartheid. By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial block voting that majority-minority districting is sometimes said to counteract. When a district is created solely to effectuate the perceived common interests of one racial group, the elected officials are more likely to believe that their primary obligation is to represent only the membe rs of that group, rather then their constituency as a whole. Thus, a plaintiff challenging a reapportionment statute under equal protection may state a claim by alleging that legislation, though neutral on its face, rationally cannot be understood as anything other than an effort to separate voters on the basis of race, and that the separation lacks sufficient justification. That racial block voting or minority political cohesion may be found to exist in some cases, is no reason to treat racial gerrymanders differently from other types of racial classifications. Thus, if Appellants allegations of a racial gerrymander are not contradicted on remand, the District Court must determine whether the reapportionment plan satisfies strict scrutiny. Appellants have stated a claim under equal protection by alleging that the General Assembly adopted a reapportionment plan so irrational on its face that it can

only be viewed as an effort to segregate races for the purposes of voting, without reg ard for traditional districting principles and without sufficiently compelling justification. Dissent. Appellants have not presented a cognizable claim because they have not alleged a cognizable injury. Appellants have not presented a cognizable claim because they have not alleged a cognizable injury. The case in which the majority chooses to abandon settled law and recognize for the first time this analytically distinct constitutional claim, is a challenge by white voters to the plan under which North Carolina has sent black representatives to Congress for the first time since Reconstruction. Appellants have not presented a cognizable claim because they have not alleged a cognizable injury. However, the shape of the second district is so bizarre that it must have been drawn for the purpose of advantaging or disadvantaging a cognizable group of voters. Additionally, regardless of that shape, it was drawn for the purposes of facilitating the election of black representatives from North Carolina. Exacting scrutiny of racial gerrymanders under the Fourteenth Amendment is inappropriate because reapportionment nearly always requires some consideration of race for legitimate reasons. The racial gerrymandering here is a benign racial discrimination that should have relaxed judicial review. Discussion. This case involved two of the most complex and sensitive issues the Court has faced in recent years: the meaning of the constitutional right to vote and the propriety of race-based state legislation designed to benefit members of historically disadvantaged minority groups.