Constitutional Law 2

Terms in this set (179)

these limits are not found in the text of the constitution, but have been self-imposed by the court.
1. Third party standing
2. Generalized Grievances
3. Zone of Interest

1. Third Party Standing - Plaintiff must assert his own legal right and not the right of a third party. [Warth v. Seldin]
1. Exceptions to the 3rd Party Rule - Third parties may be allowed to step into the role of the injured when:
1. The injured party cannot stand up for himself
For example, parents standing in for children, doctors standing in for patients, schools for children
2. The 3rd party has a close relationship to the injured party
3. The 3rd party has an interest in the injured party's interest

2. Generalized Grievances - when an injury is shared in substantially equal measure by all or a large class of citizens, that harm alone does not warrant exercise of jurisdiction. [Warth v. Seldin]
1. Taxpayers that sue under the taxing clause are frequently barred because their grievance is to generalized.

3. Zone of Interest - The plaintiff's complaint must fall with the zone of interest that is to be protected or regulated by the statute of constitutional guarantee in question.
1. Zone of Interest - A party must raise a claim with the zone of interests protected by the statute.
1. This requirement applies when a person is challenging a regulation that does not control that person's actions. To have standing the P must be part of the group intended to benefit from the law.
2. Zone of interests is purely prudential, and prudential standing obstacles may always be negated by express action of Congress.
Facts: Defenders of Wildlife used the "citizen suit" provision in the Endangered Species Act to challenge the Secretary of the Interior (Lujan) for actions in foreign countries involving endangered animals.
Issue: Does group have standing or proper stake in controversy?
Holding: Plaintiffs lacked standing because they could not show a sufficient likelihood that they would be injured in the future by a destruction of the endangered species abroad or that injunction would create any redress.
Impact: Scalia Majority w/ Thomas and Rehnquist
1. Congress can't create a "procedural right of injury" (does not uphold 'citizen-suits')
2. General Grievance - a plaintiff raising only a generally available grievance claiming only harm to his and every citizen's interest in proper application of the Constitution and laws does not state an Art 3 case or controversy.
3. Continue the modern trend to rely primarily on constitutional rather than prudential themes.
4. The province of the court is solely to decide on the rights of individuals.
5. Vindicating the public interest is the function of Congress and the President - would violate separation of powers.
6. Kennedy concurrence w/ Souter - "As government programs and policies become more complex and far-reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition."
1. **Kennedy and Souter would uphold broader 'citizen suit' provisions that are sufficiently specific about the nature of the injury

7. Stevens - disagreed w/ majority that injury was not 'imminent'

8. O'Connor dissent - facts were enough to survive injury and redressability; also would allow Congress to use the 'procedural injury' (citizen suit)
Robert's Court
1. Facts: Massachusetts and ten other states sued the EPA, arguing that the agency was required under a congressional statute to issue regulations that would limit automobile emissions of carbon dioxide and thus reduce global warming. The agency, which did not want to issue the regulations, argued that the states did not have standing to bring the suit, in part because they had not met the injury-in-fact or causation requirements.

2. Stevens w/ Ginsburg, Souter, Breyer, Kennedy
1. of 'great relevance' Massachusetts' status as a sovereign representing the interests of its citizens justified some relaxation of the usual standing requirements imposed on private plaintiffs.
2. injury in fact was met both through quasi-sovereign capacity in representing citizens, but also as landowner (coastline was swallowed by rising seas)
3. causation was big issue
1. EPA argued that US auto emissions were small percentage of global warming, even if EPA regulated it would only reduce by a tiny fraction, and emissions from outside US would swamp any EPA reduced emissions
2. court rejected EPA argument, US contributes 6% to worldwide emissions, and regulation would at least be a small step towards reducing emissions ("legislatures do not generally resolve massive problems in one fell regulatory swoop"), and it at least slow the pace of global emission increases, no matter what happens elsewhere.

3. Roberts w/ Scalia, Thomas, Alito
1. injury - no evidence of actual land loss, and prospect of future loss ("century long time horizon') was not 'imminent' as required
2. causation - US emissions did not play major role in global warming, was not shown that regulations were 'likely' to redress the injury

7. Raines v. Byrd (1997) - court held that legislators have no standing to bring suit over deprivations of legislative prerogatives
Facts: Four Senators and two congressmen challenged the constitutionality of the Line Item Veto Act of 1996 (they had voted against it). The Act specifically provided that 'any member of Congress may bring an action alleging the unconstitutionality of any provision of the Act.
1. Rehnquist majority - injury is 'wholly abstract' and widely dispersed (appellees claimed that their votes on future appropriations bills will be less 'effective' than before)
1. left open to a challenge by someone who suffers an injury as a result of the Act - New York and potato growers successfully brought suit in Clinton v. New York

2. Souter concurs - debatable on the injury, but the court should refrain from 'politically sensitive' question

3. Stevens dissent - denial of vote 'essential to the legislator's office' is sufficient injury

4. Breyer dissent - should not be a difference in 'personal' harm and 'official' harm
The Equal Protection Clause makes cases of legislative districting justiciable. This is the lead case in the Political Question Doctrine area. The Court has rarely found cases nonjusticiable because of the political question doctrine since Baker. (Equal Protection)
Facts: Voters of Tennessee claimed that the legislative districts had not been redrawn for around 50 years; and in the interim there had been demographic shifts. This in effect debases urban voters votes since they were underrepresented. Redress of grievances was therefore hindered. This court distinguished this case from Guarantee Clause cases like Luther by basing its decision on equal protection grounds.
Test of Justiciability:
"Prominent on the surface of any case held to involve a political question is found (1) a textually demonstrable constitutional commitment to the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; (3) or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion (4) or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; (6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Holding: Equal protection clause unlike Guarantee Clause has justiably manageable standards; no separation of powers issues here, no risk of embarrassment abroad, or chaos at home; therefore case is justiciable on equal protection grounds.
1. "In Guaranty Clause cases and other 'political question' cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the states, which gives rise to the 'political question.'"
Federal/state interaction, necessary and proper clause; reaffirmation of judicial review

1. Facts: Congress chartered the second Bank of the United States in 1816. The Bank was designed to regulate the currency and help solve national economic problems. However, it soon encountered substantial political opposition, mostly as the result of the Panic of 1818 and corruption within the various branches of the Bank. As a result, a number of states enacted anti-Bank measures.
One of these anti-Bank measures, enacted by Maryland, was at the center of the dispute. Maryland imposed a tax upon all banks operating in the state that were not chartered by the state. The measure was intended to discriminate against the national Bank, and its Maryland branch. The state then brought suit against the Bank and its cashier (McCulloch) to collect the tax. The Supreme Court held the tax unconstitutional.

Issue/Holding: 1. Whether Congress had power to make national bank? YES
2. Whether state can interfere with national instrumentality? NO

2. Marshall majority opinion
1. Constitutionality of the Bank: Rejected arguments made by Maryland's counsel in favor of a state-centered view of the Constitution; "the constitution is not the act of the state governments, but of the people of the states;" he noted that the people of the states had acted in their highest sovereign capacities to ratify the Constitution at their state conventions; a strong nationalist position

2. Grant need not be explicit: Is a power required to be made explicitly in the Constitution? NO. A particular power could be implied from the explicit grant of other powers. "It is a constitution we are expounding."

1. Imply a structural argument - "the constitution does not profess to enumerate the means by which the powers if confers may be executed."

2. Marshall relied on a broad interpretation of the necessary and proper clause as a justification for Congress' right to create a bank or corporation even though no such power is specifically granted in the Constitution. **(Most significant part of opinion) "The clause is placed among the powers of Congress, not among the limitations on those powers. Its terms purport to enlarge, not diminish, the powers vested in the government."

1. Rejected contention that "necessary" meant "absolutely necessary" or "indispensable."

2. As long as the means is rationally related to a constitutionally specified end, the means is also constitutional (assuming it does not violate a specific prohibition).
1. "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

3. The first holding deals with the Supremacy Clause (Article 6 §2) and is a textual argument. The second holding is a structural argument dealing with representation reinforcement, and is an inference from the structures and relationships created by the Constitution.
1. For instance, if Maryland taxes the bank, in effect it is taxing the other states as well, which it cannot do.
2. It is the Court's job to police this 'vertical boundary' between the states and federal government.
1. Facts: The voters of Arkansas modified Arkansas State Constitution to limit the number of terms of office any of its congressional representatives may serve. (3 terms in the house, and 2 terms in the Senate)


2. Issue/Holding: Whether a state may add non-incumbency to the age, citizenship, and residence criteria for congressional eligibility set forth in Qualifications Clause (Art. 1 §2, Art 1 §3)? NO
1. *Key question: Do these clauses state the exclusive requirements for membership in Congress, or are they merely "minimum requirements" that states may supplement?


3. Majority: Stevens (w/ Ginsburg, Souter, Breyer):

1. Congress can't add additional qualifications: reaffirmed holding in Powell v. McCormack which established that Congress couldn't add qualifications for membership in the House or Senate to those in Qualifications Clause

2. States can't add qualifications either: States may not add qualifications anymore than Congress. Stevens rejected Arkansas' two part argument.
1. Not an "original power": 10th amendment only lets states retain powers they already had before enactment of the Constitution. The power to add qualifications was not an "original power" that states had before enactment, because there was no federal government at all.

2. Constitution intended as exclusive source of qualifications: Even if there had been such an original power, the Framers intended the Constitution be the sole source of qualifications for membership in Congress. Enactment of the Constitution divested the states of whatever power to add qualifications they might have had.

3. Democratic principles: Nationalist view - Federal government directly responsible to the people, chosen directly by the people, NOT the states; "The Congress of the United States is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people. Members of Congress are chosen by separate constituencies, but they become, when elected, servants of the people of the United States;"

4. Kennedy concurrence - he agreed with the majority's core reasoning: "There exists a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the States may not interfere."
1. However, he will 'police' the boundaries between state and federal governments.
2. "Federalism was our Nation's own discovery. The Framers split the atom of sovereignty."

5. Thomas dissent w/ Rehnquist, O'Connor, Scalia: 'state's rights' view
1. View on federalism is diametrically opposed to majority: "The ultimate source of the Constitution's authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole."

1. "Where the constitution is simply silent, it raises no bar to action by the state or the people."
The modern trend. Some limits still exist (U.S. v. Lopez): landmark 1995 decision, which Court for the first time in 60 years invalidated a federal statute on grounds that it was beyond Congress' Commerce power.
Facts: Gun-Free School Zone Act of 1990 made 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, a 12th grade student, was convicted for knowingly possessing a concealed handgun and bullets at his San Antonio high school.
Majority (REHNQUIST): Court held that the Act exceeded authority of Congress under the commerce power, and the statute was struck down.
Reasoning:
1. First, there was little connection to interstate commerce, no findings that the activity being regulated (possession of guns in school zones) affected interstate commerce.
2. The statute didn't include a "jurisdictional nexus;" Instead of banning guns that had moved in or affected interstate commerce, Congress banned possession of guns even if it hadn't traveled in, or even affected, interstate commerce.
3. Not a regulation of use of channels of commerce, also not an instrumentality or thing used to carry out commerce. Therefore, must be activity substantially affecting interstate commerce. Majority resolved a prior uncertainty, by holding that the activity can't just "affect" but must "substantially affect" interstate commerce.
4. Requisite effect not present: majority concluded that possession of guns in schools had not demonstrated to "substantially affect" commerce.
1. Not commercial - distinguished Wickard from the activity at issue here, saying Wickard involved economic activity in way which this does not. Also, the regulation here was not part of a "larger regulation of economic activity" unlike Wickard.
2. Government argued that gun possession does have substantial effect on commerce (possession=violent crime, violent crime affects national economy in several ways (1) costs of crime insured=interstate nature of insurance market (2) violent crime reduces individuals willingness to travel (3) violent crime reduces schools' ability to educate students=less economic productivity).
However, this argument was rejected because it proved too much. In other words, this would lead Congress to regulate family law including marriage, divorce, and child custody which is traditionally state function. This would lead to "parade of horribles."
5. Concurrences: KENNEDY, O'CONNOR - less eager than Rehnquist to cut back the Court's prior Commerce clause interpretations. Wants to leave untouched Congress' full power to regulate truly commercial transactions, even if a very local one (says the national market has changed). Also, stresses those activities traditionally left to the states (education). THOMAS - wants to read as originally understood when written.
6. Dissents: BREYER (main one) - Court should only look to "whether Congress could have had a rational basis for finding a significant connection between gun-related school violence and interstate commerce." By this reasoning, he easily accepted the government's argument and their fact findings. Also, didn't like the distinction between "commercial" and "non-commercial" activity. Thought this was a well settled area, and court was "unwise" deviate (stare decisis).
important 2005 decision, which stated that even after Lopez and Morrison, when Congress is engaged in a broad regulation of a commercial activity, it may regulate purely non-commercial and intrastate instances of that activity, if it reasonably believes that failure to regulate these instances would jeopardize the success of the overall regulatory scheme.
Facts: In the Controlled Substances Act (CSA), Congress had since the 1970s classified marijuana as a Schedule I drug (high potential for abuse and lack of accepted medical use). California, by a voter-approved Proposition, established an exception from criminal prosecution for physicians who recommended marijuana for medical purposes, as well as for patients and primary caregivers who possessed or cultivated marijuana for medicinal purposes with recommendation or approval of physician. Two plaintiffs who brought suit were California residents who suffered from very serious medical ailments that they sought to treat with marijuana. One of them grew here own marijuana, which was confiscated by DEA agents. The plaintiffs sued for an injunction barring the enforcement of the CSA against them, saying Congress did not have power under the Commerce Clause to regulate interstate, noncommercial cultivation and possession of marijuana for personal medical purposes. The Ninth Circuit agreed with the plaintiffs, based on Lopez and Morrison.
Majority (STEVENS): Court reversed the ninth circuit 6-3, concluding that Congress' commerce power gives it the right to regulate even the purely intrastate and noncommercial cultivation of marijuana.
Reasoning:
1. Reliance on Wickard - Stevens asserted that Wickard establishes that Congress can regulate purely intrastate activity that is not itself 'commercial,' in that it is not produced for sale, it if concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.
2. Application to facts: "Like the farmer in Wickard, plaintiffs are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market." Also, "when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions." So here, Congress had a "rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions."
3. Lopez and Morrison distinguished: Said the Court asserted that particular statute fell outside Congress' commerce power in its entirety in Lopez and Morrison. In contrast, Congress' regulation of marijuana grown for home use was one of many "essential parts of a larger regulation of economic activity."
4. "Economic activity" - Activities regulated by the CSA, unlike those in Lopez (gun possession in school zone) and Morrison (violence against women), were "quintessentially economic."
5. SCALIA Concurrence: relied on necessary and proper clause; he believed that Congress could regulate even noneconomic local activity that did not "substantially affect" interstate commerce, if "that regulation is a necessary part of a more general regulation of interstate commerce."
6. O'CONNOR dissent: She objected to the view that "allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential...to the interstate regulatory scheme." Says this reduces Lopez to "nothing more than a drafting guide: should have treated gun possession and homegrown marijuana as separate class of activity that had not been shown to have impact on national illicit drug market.
. Overruling of National League of Cities
In the 8 year period following National League, the Court had a hard time distinguishing between "traditional governmental functions" and those that are not. Also, the National League approach led to judicial subjectivity by "inviting an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes."
**Facts: Fair Labor Standards Act (same statute at issue as National League) imposed min-wage and overtime provisions to employees of municipally owned and operated mass transit system.
Holding: National League approach is "unsound in principle and unworkable in practice, and we reject a rule of state immunity that turns o n whether a particular government function is 'integral' or 'traditional,' therefore overruled. 5-4 vote.
Reasoning: State sovereign interests are protected by "procedural safeguards inherent in the structure of the federal system," not by "judicially created limitations on federal power."
Dissent (Powell): National League did provide workable standard. He especially did not like federal political officials as the sole judges of the limits of their own power; said this was inconsistent with rule of Marbury for federal judiciary to "say what the law is" with respect to constitutionality of congressional actions.
***Significance of Garcia - Once Congress, acting with Commerce power, regulates the states, if the regulation would be valid if applied to a private party, it is also valid as to the state. This was a very broad scope, and several post-Garcia cases have cut it back.
one aspect of state sovereignty is a state's ability to make and apply law, through legislative, judicial, and administrative functions. The Court has held that the federal government may not compel a state to enact or enforce a particular law or type of law. New York v. United States (1992)
Facts: Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985. The Act attempted to force each state to make its own arrangements for disposing of the low-level radioactive waste generated in that state. Any state that did not arrange for disposal of its waste would be required to "take title" to the waste, and would be liable for damages in connection with disposal of the waste. New York faced fierce opposition from local residents of communities where they tried to put disposal sites, so NY sued saying the "take title" provision violated 10th amendment, by forcing the state to regulate in a particular area.
Holding: "Take title" provision violated the 10th amendment: Congress may not simply "commandeer the legislative process of the States by directly compelling them to enact or enforce a federal regulatory program.
Reasoning: NY was put to the choice of two unconstitutionally coercive regulatory techniques" either regulate on its own by disposing waste inside the state, or take liability from waste generators for damages. Both methods alone are unconstitutional, therefore, Congress can't make the state choose between the two.
Dissent (White): This was a request by the states to address the waste-disposal problem. National government should be able to "referee" among the states to prohibit one from bullying another. ***There are alternative methods that Congress could use: (1) spending power (see how this ties in later) (2) directly regulate - commerce power would allow Congress to say "no state may ship waste outside its own border."
Congress may not compel a state or local government's executive branch to perform functions, even if functions are fairly ministerial and easy to perform, and even if only temporary. Printz v. U.S. (1997)
Facts: Congress enacted the "Brady Bill" in 1993 to control flow of guns. As a temporary 5 year measure, the law ordered local law enforcement officials to conduct background checks on gun purchasers until national system was put in. A county sheriff, Printz, in Montana objected to background check requirement and sued. He argued that under New York v. U.S., Congress could not force him to conduct background checks on federal government's behalf. Court agreed 5-4.
Majority (SCALIA): He rejected the dissent's distinction between compelling a state to make policy (as in New York), and compelling state executive branch officials to perform ministerial tasks (such as background checks). "It is an essential attribute of the States' retained sovereignty that they remain independent and autonomous within their proper sphere of authority."
Dissent (STEVENS): Pointed out that federal commerce power gave Congress authority to regulate handguns, and that necessary and proper clause gave Congress right to require local officers to help. (Especially since Congress could have required private citizens to help with such ID). "The 10th amendment provides no support for a rule that immunizes local officials from obligations that might be imposed on ordinary citizens." Alternative method - use spending power.

6. **RULE - taken together New York v. U.S. and Printz mean that Congress may not (1) force a state to legislate or regulate in a certain way; or (2) require state executive branch people to perform even ministerial functions.

7. ***See how this work with Garcia - While Garcia applies to generally applicable federal lawmaking which is acceptable (state is not exempt from regulation along with other private entities), the federal government cannot force a state or local government to enact legislation or regulation, or force state or local officials to perform certain government functions.
Facts: Arose under Indian Gaming Regulatory Act passed under Indian Commerce Clause. The Act provided that the Indian tribe may conduct certain gaming activities in conformance with a valid compact between tribe and state. The Act:
- imposed upon states a duty to negotiate in good faith with the tribe in formation of compact
- authorized the tribe to sue the state in federal court to compel performance of that duty

Holding: Act unconstitutional; Congress, when acting under Art. 1 §8 powers, may not abrogate a state's sovereign immunity without the state's consent.


Majority: (REHNQUIST) - overruled Penn v. Union, upheld and distinguished Fitzpatrick v. Bitzer
1. Reconfirmed background principle of state sovereign immunity in 11th amendment; "not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government."
2. The 11th amendment restricts judicial power under Art. 3, and Art. 1 cannot be used to circumvent constitutional limitations placed on federal jurisdiction.

Dissent: STEVENS - said majority's opinion prevents Congress from providing a federal forum for a broad range of actions against states (copyright and patent law, bankruptcy, environmental, national economy regulation)

Dissent: SOUTER, GINSBURG, BREYER - Judicial intervention unwarranted b/c the requirement that Congress make a plain statement of its intent to abrogate state sovereign immunity is "an adequate check on congressional overreaching."
Facts: Suit filed in Maine state court by state probation officers seeking damages for the state's failure to pay them overtime compensation required by federal Fair Labor Standards Act.

Holding: The state sovereign immunity bar from lawsuits announced in Seminole Tribe also applies to state court.

Majority: KENNEDY
1. A limitation on congressional power is not derived from 11th amendment, but instead it is found in "Constitution's structure and its history" - compared to English law.
2. Further, "federalism requires that Congress treat States in manner consistent with their status as residuary sovereigns and joint participants in governance of the Nation." Otherwise, it is Commandeering!!

3. However, he did insist that federal laws (such as FLSA) remained binding on states, even if not enforceable through lawsuits

4. Noted alternative routes by which federal law may be enforced on states

o suits brought by federal government itself
o Fitz. v. Bitzer - state sovereign immunity does not bar suits brought under federal statues authorized by §5 of 14th amendment
o Ex parte Young - state sovereign immunity does not bar "certain actions against state officers for injunctive or declaratory relief."

Dissent: SOUTER, STEVENS, GINSBURG, BREYER
1. All 4 had dissented in Seminole Tribe
2. Said American colonies did not enjoy sovereign immunity under English law, and not state declared that sovereign immunity.
3. Says this has already been decided in Garcia (involving state employees).
4. "dignity" not a quality easily translated
Facts: The Agricultural Adjustment Act of 1933 was a New Deal measure that tried to stabilize farm prices by controlling agricultural production. The Act authorized the Secretary of Agriculture to make contracts w/ farmers to reduce their productive acreage in exchange for benefit payments. The payments to the farmers came from a fund generated by a "processing tax" paid by the processor of the commodity (Hoosac Mills Corporation).

Issue/Holding: Was this tax an integral part of program that unconstitutionally tried to control ag production, which should be controlled by States? YES, the Court held the Act was not valid exercise of power to spend under Art. 1 § 8.

Majority: ROBERTS
1. Established that powers to spend and tax stand separate and distinct from other powers enumerated in Art. 1 §8 (Hamilton view); so by this standard the AAA was OK
2. HOWEVER, Congress does not have independent power to "provide for general welfare" apart from taxing and spending powers, so Congress may not regulate in an area on the ground that it is thereby "providing for general welfare."; only taxing and spending may be done for general welfare.
1. State's rights infringed; Congress had no right to regulate areas of local control.
2. Could not coercively purchase compliance with a regulatory scheme.
3. **This was distinguished from a conditional appropriation of money, which would be valid under the court's view. It was impermissible that the farmer contractually binds himself to obey; can't use contracts in this way. (**this distinction was later abandoned in Steward Machine Co. v. Davis).

Dissent: STONE, BRANDEIS, CARDOZO
1. Rejected majority's distinction between conditional appropriations and spending premised upon contracts.
2. Says that the power of congress to spend is inseparable from persuasion to action over which Congress has no control.
1. It is a "contradiction in terms to say there is power to spend for the national welfare, while rejecting any power to impose conditions adapted to the attainment of the end which alone justifies the expenditure."

Impact Today: (1) Congress has no power to regulate for the purpose of providing for the "general welfare." Congress may spend for the general welfare, it may tax for the general welfare, but it may not regulate for the general welfare.
(2) 10th amendment limits abandoned - Court will not prevent Congress from using spending power in areas of primarily local interest. ***10th amendment is effectively dead as a limitation upon federal spending power.
**current statement on federalism-based limits.

Facts: National Minimum Drinking Age Act conditioned highway funds to states on states' agreement to raise drinking age to 21.

Issue/Holding: Did this spending condition exceed spending power and infringe state autonomy? NO

Majority: REHNQUIST - takes the opportunity to set limitations on spending power.
1. Must be for the "general welfare"- courts should defer judgment of Congress. **At present, this requirement has no "real bite."
2. Receipt of funds must be "unambiguous" among the states.
3. Must be related to a federal interest, in particular national projects or programs
4. Must not be independently barred by other constitutional provisions.

1. The question in this case is the 4th limitation; Does 21st amendment provide an independent bar to conditional grant of federal funds? Rehnquist says no, the 21st amendment is not a prohibition on indirect achievement of objectives which Congress is not empowered to achieve directly.
2. The spending power may not be used to induce States to engage in unconstitutional activities (discriminatory actions, cruel and unusual punishment, etc.), but that is not found here.
3. He rejects the "degree of success" argument which petitioner says shows the coercive nature of program.


Dissent: O'CONNOR - she says this falls outside of Congress' power of commerce because of §2 of 21st amendment (opposite from Rehnquist's view) 1. She rejects the reasonableness of a relationship between "safe interstate travel" and drinking age condition.
2. She questions, Is this regulation?
1. Congress has no power under spending clause to impose requirements that go beyond specifying how money should be spent. If it does, then it is a regulation, and it is therefore only valid if it falls under a delegated regulatory power
2. She refers to Butler, says its limitations on spending remain, and spending power must be accompanied by another delegated power.
court struck down basically 'protectionist measures'
1. Facts: A New Jersey law prohibited the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State." The ban was challenged by operators of private landfills in New Jersey and by several cities in other states that had agreements with these out-of-state operators for waste disposal. State trial court declared law unconstitutional, New Jersey Supreme Court reversed, and U.S. Supreme Court reversed N.J. Supreme Court and held statute invalid.

2. Issue/Holding: Was the law basically a protectionist measure, or could it be viewed as law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental? Yes it is protectionist.

3. Majority: STEWART
1. States may not discriminate against commerce from out-of-state unless there is a reason, apart from their origin, to treat them differently.
1. "the attempt by the state to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade"
2. Distinguished from "quarantine laws" which Court repeatedly upheld, in that those laws prevented traffic in harmful articles (diseased livestock), as opposed to waste where there had been no claim that this waste endangered health.

4. Rehnquist dissent:
1. said this waste could pose health and safety problems to citizens, and there is no way to distinguish "solid waste" from "germ-infected rags, diseased meat, and other harmful items."
1. "New Jersey must out of sheer necessity treat and dispose of its solid waste in some fashion, but it does not follow that New Jersey must, under the Commerce Clause, accept solid waste or diseased cattle from outside its borders, and thereby exacerbate its problems."
1. Facts: Involved a challenge to a Camden, New Jersey ordinance requiring that at least 40% of the employees of contractors working on city construction projects be Camden residents. The United Building and Construction Trades Council of Camden challenged the ordinance as a violation of Privileges and Immunities Clause of Art. IV and Dormant Commerce Clause. Supreme Court rejected the DCC argument and focused on P&I.
2. Issue/Holding: Supreme Court upheld the P&I challenge and rejected a 'market participant' claim.

3. Majority: Rehnquist
1. Does the Clause apply only to laws passed by State? No, what would be unconstitutional if done directly by the State is also unconstitutional when done by a city deriving its power from the State.
2. Does the Clause only apply to laws that discriminate on the basis of state citizenship? No, cannot be read so literally as to apply only to distinctions based on state citizenship. "it is now established that the terms 'citizen' and 'resident' are 'essentially interchangeable' for purposes of analysis of most cases under the P&I clause."
1. New Jersey residents not residing in Camden are disadvantaged the same as out-of-state residents, however they can remedy at the polls through the political process

3. Uses a "two-step" inquiry to check for discrimination against out-of-state residents:
1. ***Does the ordinance burden one of those privileges and immunities protected by the Clause? A 'fundamental right'? "Only with respect to those 'privileges' and 'immunities' bearing upon the vitality of the nation as a single entity must the state treat all citizens, resident and nonresident, alike."

1. therefore, some distinctions between residents and nonresidents are allowable

2. Threshold matter - Is an out-of-state resident's interest in employment on public works contracts in another state sufficiently "fundamental" to the promotion of interstate harmony so as to fall within limits of the Clause?

1. ***private employment is sufficiently 'fundamental' to constitute an Article 4 privilege; did not reach the question of whether public employment counts similarly

4. A violated privilege may still be OK if there a substantial reason is shown for the difference in treatment of residents and non-residents.
1. Camden argued that the ordinance was necessary to counteract grave economic and social ills (spiraling unemployment, decline in population, reduction in number of businesses, eroded property values and depleted tax base). They also argued that non-Camden residents were a 'source of evil' in that they 'lived off' but not 'in' Camden. Also, 60% of jobs were still available to non-residents, so the ordinance was not unreasonable.

2. Rehnquist said no findings have been made and no justification has been shown that this is the best way to do this (no alternatives), therefore, remanded for factual findings.

5. No market participant exception as with Dormant Commerce Clause

6. the dissent disagreed with the holding that P&I applies to laws that discriminate among state residents on basis of municipal residence
upheld President Carter's power to take certain actions for the purpose of obtaining the release of American hostages from Iran
1. Facts: As part of the settlement of the hostage situation, President Carter took a number of actions affecting the claims of American creditors against Iran. The action which posed the most difficult constitutional issue was his suspension of all contractual claims against Iran then pending in American courts; such claims were to be later arbitrated by an international tribunal.

2. Rehnquist majority - falls into "high power" - Congress OK'd under IEEPA; Congress (although never giving explicit authority) implicitly authorized this practice by long history of condoning similar presidential conduct; but president does not have authority to settle all claims.

3. In negotiating with Iran, Rehnquist said this power falls between Jackson's 3 areas; so Rehnquist makes his own spectrum (vaguer than Jackson's twilight zones).

Justice Rehnquist's Analysis
Highest power - explicit congressional authorization
Rehnquist's twilight zone
Lowest power - Congressional prohibition


4. In Rehnquist's twilight zone, what do you let president do? Probably will look to 'spirit of legislation,' history, authorized powers in constitution, action or lack of action by Congress, emergency situations??

5. Does the President have authority to suspend claims in American Courts?
1. Hostage Act - doesn't give specific authorization, so it moves into Jackson's "twilight zone"

4. **So put it all together
1. legislation
2. history - executive power; therefore president should be OK
1. Congress passed the 'Joint Resolution for the Authorization for use of Military Force ("AUMF") in response to the 9/11 terrorist attacks. It gave the President authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

2. Pursuant to the Joint Resolution, the President directed the armed forces to wage war against the Taliban government in Afghanistan, which supported and harbored al Qaeda terrorists. In the course of the campaign, many foreign individuals thought to be fighters aligned against the U.S. were captured and held in captivity as 'enemy combatants' at the U.S. naval base at Guantanamo Bay ("GITMO"), Cuba, a territory leased to and controlled by the U.S. military since 1903, even though "ultimate sovereignty" has continued to reside with Cuba. Several of the detainees sought writs of habeas corpus in federal district court of D.C., arguing for access to court, release from custody, access to counsel, freedom from interrogation, and knowledge of the charges against them. The government argued that the federal courts had no jurisdiction over enemy aliens held outside U.S.

3. The district court agreed with government citing Johnson v. Eisentrager (1950) - a WWII case in which German civilians captured in the Pacific theater of war and accused of being 'enemy aliens' were tried and convicted by a military commission in Germany. Because they 'at no relevant time were within any territory over which the U.S. is sovereign, and the scenes of their offense, their capture, trial, and punishment all were beyond the territorial jurisdiction of any court of the U.S., they could not have the privileges of litigation in U.S. courts. Supreme Court reversed the district court decision.
Facts: Hamdi was a Louisiana born Saudi-American who was captured in Afghanistan while fighting against American forces. He was detained by U.S. military as an 'enemy combatant' in Virginia and South Carolina. The government argued that Hamdi's status as an 'enemy combatant' justified holding him in the U.S. indefinitely without formal charges or proceedings. Hamdi argued that the Non-Detention Act, passed by Congress in 1948, barred his indefinite detention. The court of appeals doubted the Act applied in these circumstances, but held that in any event the detention was congressionally authorized by the AUMF (joint resolution authorizing use of military force). Supreme Court vacated and remanded 8-1.
1. O'Connor majority w/ Rehnquist, Breyer
1. she does find Congress' approval under AUMF to detain enemy combatants, but she holds executive to due process (limit on executive)
1. Mathews v. Eldridge DP balancing test: weighing the private interest affected against the government's asserted interest, and burdens the government would face in providing greater process.

2. Scalia dissent w/ Stevens - AUMF did not suspend writ, so Hamdi should be entitled to writ, but not due process under Constitution; (in other words, if you're not going to charge him, then let him go)

3. Thomas dissent - president's power + AUMF gives him power, so he is at highest power; (but president can do a lot on his own); due process is up to the president @ the height of his power.

4. Souter concur in judgment w/ Ginsburg - AUMF does not authorize president (does not have Congress' consent); president acted against Non-Detention Act so he is working at his lowest power.
1. Facts: Salim Hamdan was a citizen of Yemen who was capture in Afghanistan shortly after 9/11 by U.S. military forces who were fighting the Taliban. The government asserted that Hamdan had served as Osama bin Laden's 'bodyguard and personal driver' and that through this and other means Hamdan had assisted al Qaeda in planning terrorist attacks including the 9/11 attacks. The issue is whether Hamdan could be tried by the use of pro-government procedures before a 'military commission' for the war crime of conspiracy to commit terrorist acts.
2. Military commissions: Shortly after 9/11 President Bush issued an executive order saying that if any non-citizen was to be tried for war crimes, that person should be tried by a 'military commission.' The order gave procedures to be followed by such military commissions that were much less protection than they would get than if they were tried by a court martial conducted under rules set out in a federal statute called the Uniform Code of Military Justice (UCMJ). For example, the accused and his counsel could be excluded from the proceeding or even barred from learning what evidence was presented. Any evidence could be admitted even if it was hearsay or was obtained through coercion. These procedures were in sharp contrast to the pro-defendant procedures in the UCMJ.
3. Holding: Court found against the president. Hamdan could not be tried by a military commission operating under the pro-government procedures announced in the president's order.
1. Stevens majority w/ Souter, Ginsburg, Breyer- what Hamden is charged with does not fall into allowable charges under the court ("conspiracy charge")
1. said the AUMF was not intended by Congress to overrule procedures in the UCMJ
2. thought the use of military commission violated the Geneva Convention (Kennedy did not join this part)

2. Breyer - no 'blank check' for president, but if president wants authority then he should go to Congress.

3. Kennedy concur - president in lowest power according to Steel Seizure because UCMJ sets out details for setting up tribunals, and the president did not follow them. **suggests the president go back to congress and request a change in the UCMJ.
4. Thomas w/ Scalia, Alito - president was given congressional authority to try in military tribunals (so highest executive power according to Jackson in Steel Seizure)
1. **should respect the Executive's judgment in matters of military operations and foreign affairs

5. Alito - military tribunal is close enough

6. Roberts - he sat out b/c he wrote the court of appeals decision that was being appealed. Since that lower court decision found for the president, he would have been with the dissent.


9. So, Congress acts and passes the Military Commission Act (MCA), which shuts down habeas courts and sets up military tribunals specifically giving the president much of the power he claimed he had in Hamdan.
'one house veto' was found unconstitutional b/c it violates president's veto power and the bicameral structure of Congress
1. Facts: Case arose from a challenge to the constitutionality of the Immigration and Naturalization Act. In the Act, Congress delegated to the Attorney General the authority to suspend deportation of aliens in certain situations. However, Congress reserved for itself the power to, by resolution, invalidate the decision of the Executive Branch to suspend deportation of a deportable alien if the alien met specified conditions and would suffer extreme hardship if deported. The veto could be exercised by either house.

2. 'One house' or 'legislative veto' is a device which enables Congress to monitor the actions by the executive branch. Typically, the one house veto provision is included as part of a congressional statute delegating certain powers to federal agencies. If, after an agency takes a certain action, Congress disagrees, the veto provision in the original bill allows one or both houses to cancel that administrative action by means of a resolution. The resolution is not presented to the president (as a statute would be), and he does not receive the opportunity to veto it.

3. **Violates Presentment Clause - Art. 1 §7 cl. 2, requires that every bill be presented to the president for his signature, so that he may have the opportunity to veto it.

4. **Violates bicameral structure - Since the veto could be exercised by a single house, it violated the bicameral requirement of Art. 1 §§1 and 7, by which both houses must pass a bill before it can become law.
1. "framers intent that legislative power be exercised in accord with a single, finely wrought procedure" - Burger's textualist approach

5. The real issue was whether the House's issuance of the legislative veto constituted the exercise of legislative power. **Only acts that fall into this category require presentment and bicameral approval.
1. They decided it was legislative power since it had the 'purpose and effect of altering the legal rights, duties and relations of persons...outside the legislative branch.' Therefore, Congress could only reverse the AG decision by passing a law.

6. Powell concurred, but thought Congress had assumed a 'judicial function' in violation of SOP ('right job test')


7. White, w/ Rehnquist - White had his own SOP test.
1. Doesn't offend 'finely wrought procedures' b/c it was originally passed in accordance with presentation and bicameral requirements.
2. a function ('flexible') approach is required; efficiency of government operations requires some 'innovations'
3. Is anyone taking on or giving away too much power? No
court held 'line item veto' unconstitutional
1. Facts: President Clinton exercised his authority under the Line Item Veto Act of 1996 by canceling a provision of the Balanced Budget Act of 1997 allowing New York to keep certain funds it would otherwise have had to repay to the federal government under the Medicaid program, and a provision of the Taxpayer Relief Act of 1997 giving a tax benefit to food processors acquired by farmers cooperatives. New York City and several private organizations challenged the constitutionality of the Medicaid cancellations. The Snake River Potato Growers, a farmer's cooperative, challenged constitutionality of the food processors' provision.
2. Stevens majority - act violates the 'presentment clause' method of enacting or repealing statutes; results not the products of the 'finely wrought procedures' that Framers designed, instead lets president create a different law

3. Kennedy concurrence - focused on SOP problems the act might pose; gave president too much power

4. Breyer dissent - uses his own SOP test
1. Has Congress given the President the wrong kind of power? No, he has power to decide to spend or not to spend
2. Has Congress given the President the power to "encroach" upon Congress' own constitutionally reserved territory? No, congress still has power to reinstate vetoed items
3. Has Congress given the President too much power, violating the doctrine of "nondelegation?" no, b/c only twice has the court found a violation of this

5. Scalia dissent - to spend or not to spend has been at president's discretion for a long time; Act did not truly give the president a line item veto, the title had succeeded in 'faking out the court'
1. Facts: A statute required the Attorney General to investigate any allegations of wrongdoing against certain high level members of the executive branch (including cabinet members), and to apply to a special federal court for the appointment of a special prosecutor (an inferior officer) if he found 'reasonable grounds to believe that further investigation or prosecution is needed.' Once the special prosecutor was appointed, she could only be removed by the Attorney General under certain specific conditions.

2. Holding: The Court found that neither the removal provisions nor the Act taken as a whole so restricted the president's powers as to violate SOP principles.

3. Rehnquist majority: Separation of Power Test
1. Does the Act violate separation of powers by interfering with the role of the Executive Branch?
1. No. True, the president cannot select the prosecutor, determine her jurisdiction, or remove her except for cause, but the Act still reserved him the right to decide to apply for prosecutor (through AG), imposed on the prosecutor the obligation to follow Justice Dept. policy, and allowed AG to remove her for just cause.
2. Therefore, president still had 'sufficient control over investigation and prosecution of violations of law.

4. Scalia dissent - SOP requires president retain complete control over investigation and prosecution of laws; it is an executive function to prosecute crime.

5. **Keep in mind Morrison only deals with inferior officers, and probably wouldn't hold up if it involved principal officers.
EXECUTIVE PRIVILEGE
1. Facts: A special prosecutor was authorized by President Nixon when a Senate Select Committee disclosed White House involvement in the planning and cover up of the botched burglary at Democratic National Headquarters. The President was named as an unindicted co-conspirator by federal grand jury for conspiracy to obstruct justice and other offenses. The district court issued a subpoena requiring the President to produce certain tapes and documents. He released edited transcripts of some conversations but moved to quash the subpoena claiming 'executive privilege.'

2. **Rule of Law: The court does acknowledge Executive privilege (for example, in military, diplomatic, or sensitive national security secrets), but not absolute.
1. executive privilege claim can be overridden in certain circumstances
1. criminal trial - "without access to specific facts a criminal prosecution may be totally frustrated."
2. only a general interest in confidentiality
3. if it is demanded by due process - "A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to fair adjudication of a particular criminal case."

2. Congress could impeach in counterpoint to executive privilege.
3. political process should control president and keep him from using executive privilege too much, because it look bad politically to use it too much
almost killed 14th amendment 'privileges and immunities'
1. Facts: A Louisiana law of 1869 chartered a corporation - the Crescent City Livestock Land and Slaughter-House Company - and granted to it a 25-year right 'to maintain slaughterhouses, landings for cattle and stockyards' in an area that included the city of New Orleans. All competing facilities were required to close, but the corporation was required to permit independent butchers to slaughter cattle in its slaughterhouses at charges fixed by statute. Butchers not included in the monopoly claimed that the law deprived them of their right 'to exercise their trade; and challenged it under the 14th amendment.

2. P&I under 14th amendment apply to citizens within a state. Article 4 §2 P&I applies to citizens of the united States. "Article 4's sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction."


4. The court has selectively incorporated the Bill of Rights by testing for "fundamental rights"
1. Bill of Rights
1st amendment - incorporated entirely (applied to states) (Thomas - does not think establishment clause should apply to states, but instead, free exercise will take care of religion)
2nd amendment - not incorporated - we don't have a ruling yet since Heller (gun ban case) came out of D.C. circuit which is not a state
3rd amendment - not incorporated
4th - incorporated
5th - Grand Jury clause - not incorporated - due process in 14th, but everything else incorporated (takings clause, etc.)
6th - entirely incorporated - but allows leeway for the exact procedures to be followed
7th - not incorporated - civil trial not as important as criminal and left to states
8th - "excessive fines" - not incorporated, but everything else is
9th - could it be inc.? not a lot of case law
10th - it is about the states

**Roberts - he made a comment on the You-tube video that the Bill of Rights should be applied evenly at all times
1. Facts: Involved a challenge to a state law that distinguished between new and old state residents in the distribution of welfare benefits. In 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The law limited the amount payable to a family that has resided in the state for less than 12 months to the amount payable by the state of the family's prior residence. In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which among other things expressly authorized a state receiving welfare funds to "apply to a family the rules (including benefit amounts) of the welfare program...of another state if the family has moved to the state from the other state and has resided in the state for less than 12 months.

2. Stevens majority
1. 'right to travel' includes 3 components: it protects
1. the right of a citizen of one state to enter and leave another state
2. the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state, and
3. for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state ***at issue in Saenz

2. a state law affecting P&I will be subject to 'strict scrutiny' - "Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the state for less than a year."
1. government must provide a legitimate purpose for using such discriminatory means.

3. "portability argument" - difference between something consumed within state (welfare) vs. those things you can take with you when you leave (education - out of state tuition)
1. so there is no danger that this will encourage citizens of other states to establish residency just long enough to acquire readily 'portable benefits'

4. Congress' authorization does not get you past P&I; "court has consistently held that Congress may not authorize the states to violate the 14th amendment"

5. Rehnquist dissent - court has allowed state's use of durational residence requirements for college tuition and to obtain a divorce decree in state courts, so they should be allowed to do so in "revamping their welfare system" "it is permissible exercise of the state's power to 'assure that services provided for its residents are enjoyed only by residents'"
1. Also, Congress gave explicit approval of durational residence requirements, and this shows the reasonableness of the state law.

6. Thomas dissent - 'original understanding' of 14th amendment P&I were fundamental rights, rather than 'every public benefit established by positive law'

7. *** Art. 4 P&I protect citizens of the several states; 14th amendment P&I protects citizens of the same state.
protected individual rights
1. Facts: A New York labor law prohibited employment of bakery employees for more than 10 hours a day or 60 hours a week. Lochner was convicted and fined for permitting an employee to work in his NY bakery for more than 60 hours in one week. The state argued that it was a valid labor law, and that it protected the health and safety of workers.
2. Holding: The Court found the statute unconstitutional.
3. Reasoning: Majority - Justice PECKHAM
1. states' police power only extends to protection of the public welfare (as opposed to readjustment of bargaining power in a private matter). Especially true when interfering with a liberty = "right to contract"; high level of judicial review (strict scrutiny).
2. health and safety not a concern in this case; bakers are not endangered group (as opposed to miners who were found to be)

4. HARLAN dissent - "courts not concerned with wisdom or policy of legislation.
5. HOLMES (famous dissent) - "14th amendment does not enact Mr. Herbert Spencer's Social Statics (talking about social Darwinism theories).
6. The justices are arguing over reading things into due process - "substantive due process".

7. Lochner test - (1) required a very close fit between the statute and its objectives, must be able to match the means to the ends; ("real and substantial relationship"); (2) only certain legislative objectives were acceptable, i.e., health and safety are permissible, but readjustment of economic power or resources was not.
1. Meyer v. Nebraska (1923) - The court reversed a conviction of a teacher for teaching German and thus violating a state law prohibiting the teaching of foreign languages to young children.
1. The court held that liberty 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, to 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 by free men.

2. Pierce v. Society of Sisters (1925) - The court struck down an Oregon law requiring children to attend public schools.
1. Under the Meyer view of fundamental rights, the law interfered with "the liberty of parents and guardians to direct the upbringing and education of children under their control."

3. Skinner v. Oklahoma (1942) - decided on equal protection grounds, but was motivated by SDP-like concerns. The court struck down an Oklahoma law requiring sterilization after a third conviction for a felony involving "moral turpitude," but which did not apply to white collar crimes such as embezzlement.
1. the Court strictly scrutinized the discrimination between embezzlement and grand larceny, because "marriage and procreation are fundamental to the very existence and survival of the race."

4. This line of older cases including Meyer, Pierce, and Skinner are important b/c there is a lot of litigation left with these.
famous contraceptives case striking down a statute forbidding the use of contraceptives; recognizes a "right of privacy"
Facts: A Connecticut statute forbade the use of contraceptives (and made this use a criminal offense); the statute also forbade the aiding or counseling of others in their use. A director of the local Planned Parenthood was convicted of counseling married persons in the use of contraceptives. No users, married or single, were charged.
1. DOUGLAS - declines to use Lochner as guide; instead "penumbras (zones of privacy) and emanations" in specific guarantees of the Bill of Rights shown by Meyer and Pierce cases.
2. GOLDBERG - believed that the 14th amendment protected all "fundamental rights" whether or not they were explicitly listed in the Bill of Rights (found support for this in the 9th amendment); "marital privacy" is among fundamental rights.
3. HARLAN - due process of 14th amendment stands on its own - law violates basic values "implicit in concept of ordered liberty" therefore statue violated interest in marital privacy, however, he did not find a general right to privacy for sexual relations (rejected idea that adultery, homosexuality, fornication, and incest were protected by same right to privacy (right of privacy not absolute)).
1. distinguished his dissent in a suit where doctor did not have standing b/c it was a 3rd party suit - so no injury; Poe v. Ullman - a married couple did not have standing b/c there was no real injury b/c that had not been arrested under the challenged law; never reached the merits.

4. BLACK (dissent) - majority is reading things into the constitution; no right to privacy in any specific guarantee.
famous abortion case that found a woman's right to privacy includes the right to an abortion
1. BLACKMUN majority - gave a very specific holding and set out a trimester system.
1. First trimester: A state may not ban, or even closely regulate, abortions. The decision to have an abortion, and the manner in which it is to be carried out, are to be left to the pregnant woman and her physician. (mortality rates for mothers having abortion during the 1st trimester were much lower than the rate for full-term pregnancies).
2. Second trimester: The state may protect its interest in the mother's health by regulating the abortion procedures in ways that are "reasonably related" to her health. But the state may protect only the mother's health, not the fetus' life, during this period.
3. Third trimester: As the beginning of the third trimester, the fetus becomes viable, and thus has a capability of meaningful life outside the mother's womb. Therefore, after viability, the state has a compelling interest in protecting the fetus, and it may regulate or even proscribe abortion. However, abortion must be permitted where necessary to preserve the life or health of the mother.

2. The Roe decision was based on the right of privacy. The court pointed to Griswold (marriage), Skinner (procreation), Eisenstadt (contraception), and Pierce and Skinner (freedom in child-rearing and education). This right of privacy was found to be party of "liberty" protected by the 14th amendment, and was "broad enough to encompass a woman's decision whether or not to terminate a pregnancy."
3. Standard of Review: The court held a woman's interest in deciding was a "fundamental" one, and could only be outweighed if: (1) there was a compelling state interest in barring or restricting abortion; and (2) the state statute was "narrowly drawn" so that if fulfilled only that legitimate state purpose.
1. The state could have two compelling interests: (1) protecting the health of the mother and (2) protecting the viability of the fetus (1st is only compelling after 1st trimester when abortion related dangers outweigh live-birth related ones, 2nd only applied during third trimester.)
2. Court rejected state's argument that they had a compelling interest before viability, in protecting the fetus as a "person" as used in 14th amendment. (reached conclusion on historical grounds).
1. If a fetus is a person under 14th amendment, Roe has no case.

2. REHNQUIST dissent: "Liberty" is not guaranteed absolutely against deprivation, only against deprivation without due process of law. Should look to see whether a law has a rational relation to a valid state objective [Lee Optical] as used in economic and social legislation challenges (as opposed to stricter scrutiny used by majority).
3. WHITE dissent: should be a states issue b/c it's not in the Constitution.
4. Criticism of Roe: too much guidance from BLACKMUN w/ his trimester system.

4. ***Current Justices on Roe:
1. SCALIA and THOMAS believe it was wrongly decided
2. O'CONNOR - expressed doubt about elaborations of the decision, but never questioned the central premise (seen later in Casey)
court struck down Missouri's requirement of a husband's written consent for an abortion during first 12 weeks of pregnancy. Also, court struck down provision requiring an unmarried woman under 18 to obtain parental consent before having an abortion.
1. state cannot delegate authority to prevent abortion during first trimester, since the woman is more directly and immediately affected by the pregnancy. State cannot give "absolute veto" over abortion decision, but this did not mean every minor may give effective consent for abortion.

2. Elaborated on in Bellotti v. Baird (Bellotti I) (1976) - blanket "parental veto" is different from one permitting a mature minor to obtain an order permitting the abortion w/o parental consultation.

3. the court clarified the extent to which parents could be involved in a minor's abortion decision in Bellotti II (1979). State could only involve a parent in the decision if it also provided an alternative judicial bypass procedure so the parental involvement was not an "absolute and arbitrary veto."

4. the court did uphold parental notice (as opposed to consent) requirements, sustaining a Utah law requiring physicians to notify parents of any abortion on a minor.

5. In Hodgson v. Minnesota (1990), the court struck down a requirement that both parents be notified 48 hours before an abortion was performed on a minor, but found this notification requirement allowable if a proper judicial bypass procedure was available. In Akron II (1990), the court upheld a one-parent notification requirement accompanied by a judicial bypass procedure.
only abortion regulations upheld between Roe and Casey
1. Maher v. Roe (1977) - upheld a Connecticut regulation granting Medicaid benefits for childbirth but not for medically unnecessary abortions.
2. Hyde v. McRae (1980) - upheld federal funding limitations in Hyde Amendment, which barred payments even for most medically necessary abortion (except for victims of rape or incest or where mother's life was threatened), thus went beyond refusal of funds for medically "unnecessary" abortions.
1. From Maher: "although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation."
2. *STEVENS dissent* - a member of the Maher majority, he says this is different because the funding denial reached medically necessary abortions.

3. Rust v. Sullivan (1991) - State refusing to fund abortion or abortion counseling does not violate DP. Nor does it violate DP for government sponsored family planners to tell pregnant women they "do not consider abortion an appropriate method of family planning."
REHNQUIST majority: DP clause confers no affirmative right to governmental aid, even with respect to a liberty with which government may not otherwise interfere.

4. Webster v. Reproductive Services (1989) - court upheld provisions of a Missouri law barring state employees from performing abortions and the use of public facilities for abortions, even where the patient paid for the abortion herself.
REHNQUIST: in light of abortion funding cases such as Harris, DP clause generally confer no affirmative right to governmental aid.
"undue burden" test; viability is the earliest point at which a state can ban abortion.
1. O'CONNOR (w/ KENNEDY, SOUTER)
1. Essential holding of Roe is upheld - viability marks the earliest point at which the state's interest in fetal life is constitutionally adequate to justify a legislative ban on abortions.
2. The right to an abortion is found in "liberty" of due process - it can be derived from right to bodily integrity, right to control reproduction (Griswold, Eisenstadt, Carey), right to marry (Loving), procreation, contraception, family relationships, child upbringing (Pierce), and education (Meyer). ***Never says abortion is a fundamental right.
3. "At the heart of liberty is the right to define one's own concept of existence, of meaning of the universe, and of the mystery of human life."
4. "Undue Burden" Test - at this point, the court abandoned the trimester framework of Roe, and the principle that any pre-viability abortion regulation must survive strict scrutiny.
1. ** An undue burden exists if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. So broken into two parts this means:
1. Prior to viability, the state may regulate abortion but it may not place an undue burden in the path of the woman seeking the abortion.
1. An undue burden is when a regulation has the purpose or effect of putting a substantial obstacle in the path of the woman.
2. After viability, the state, in promoting its interest in potential human life, may if it chooses, regulate or even proscribe, abortion, except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
1. Viability is the line where the state's interest becomes sufficiently compelling b/c there is now a realistic chance the baby can now survive outside the womb, and the independent existence of a second life is the object of the state's protection, which overrides the woman's right to choose.
3. The states may pass regulations that express the profound respect for life or measures designed to persuade her to choose child birth over abortion, but these regulations cannot have the purpose or effect of placing a substantial obstacle in her path.

5. The "undue burden" test was then applied to the different regulations at issue in the Pennsylvania statute:
1. Informed consent - the statute required (except in cases of medical emergency) that at least 24 hours before performing an abortion, a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the probable gestational age of the unborn child.
1. (Valid) While some women may find this waiting period of 24 hours to make the decision to abort "particularly" burdensome, it is not unreasonable, and does not place a "substantial obstacle" in her path.
2. Overrules Akron I and Thornbrough to the extent that a state may express a preference for childbirth over abortion.

2. Spousal notification - except in cases of medical emergency, no physician is allowed to perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse about the abortion. The woman has the option of providing an alternative signed statement certifying that the man who impregnated her is not her husband, husband could not be located, pregnancy is a result of spousal sexual assault which she has reported, or that the woman believes that notifying her husband will cause him or someone else to hurt her.
1. (Invalid) **only regulation struck down - for a small group of women this will pose an undue burden, so it's enough to strike the regulation. Spousal notification may cause additional domestic violence for some women. Also, the idea that women are dependent on their husbands is outdated thought, they can make their own decisions. "Women do not lose their constitutionally protected liberty when they marry."

3. Parental Notification - except in medical emergency, a woman under 18 may not obtain an abortion unless she and one of her parents (or guardian) provides informed consent. The state has a health exception and a judicial bypass procedure (if neither a parent of guardian provides consent, a court may authorize the abortion if determined that the young woman is mature and capable of giving informed consent, or that the abortion is in her best interests).
1. (Valid) because it provides a health exception and judicial bypass procedure.

4. Reporting Requirements - Every facility which performs abortions is required to file a report stating its name and address. For each abortion performed, a report must be filed identifying" the physician, the facility, the referring physician or agency, the woman's age, the number of prior pregnancies and prior abortions, gestational age, type of abortion procedure, abortion date, any pre-existing medical conditions that would complicate pregnancy, medical complications with abortion, basis for determining if abortion was medically necessary, weight of aborted fetus, whether the woman was married, and if so, whether notice was provided or the basis for failure to provide notice.
1. (Valid except for spousal notice) the collection of such data is vital element in medical research and relates to health and do not impose substantial obstacle on woman's choice, so statute is valid.

2. STEVENS concurrence
1. agrees that state may express preference for normal childbirth
2. agrees state may take steps to ensure the choice is thoughtful and informed.
3. does not like attempts to persuade women to choose childbirth over abortion

3. REHNQUIST (w/ THOMAS, SCALIA) dissent
1. Roe was wrongly decided, should be overruled;
2. right to abortion is not a "fundamental right"
1. different from marriage, procreation, and contraception (found to be "fundamental) because it involved termination of another life
2. not rooted in historical traditions, which Rehnquist believes is the only way a right is fundamental;
3. since not fundamental right, can be regulated by states in ways rationally related to a legitimate state interest.

4. SCALIA (w/ REHNQUIST, THOMAS) dissent
1. Roe was wrongly decided, should be overruled, and would uphold Pennsylvania statute in its entirety.
2. right to abortion not a liberty protected in any way by constitution
3. history actually indicates prohibiting abortion is rooted in traditions and history.

5. ALITO - when he was on the 3rd circuit he said that spousal notification was constitutional; he probably doesn't like the undue burden standard
6. ROBERTS - probably doesn't like undue burden standard
7. KENNEDY - he is the swing vote on this, he probably will always at least pay lip service to the undue burden test, but will probably be slow to find any particular restriction as constituting an undue burden
(partial-birth abortion) the Court struck down a Nebraska law prohibiting late-term "dilation and extraction" (D&X) abortion without providing for exceptions to preserve the mother's health. There was conflicting expert testimony about whether D&X was ever medically necessary for the life of the mother.
1. BREYER majority, w/ Stevens, Ginsburg, O'Connor, Souter
1. They found that the lack of a health exception violated Casey - felt substantial medical testimony supported the proposition that banning D&X could endanger mother's health.
2. The statute was too vague so that doctors in attempting to perform D&E could accidently perform D&X and then be prosecuted, therefore places an obstacle in path of woman. Doctors would think of law rather than well-being of woman.

2. STEVENS concur w/ Ginsburg - 4 of 17 justices have endorsed central holding of Roe since it was decided. The holding that the word 'liberty' includes a woman's right to choose, makes it impossible to find a legitimate state interest to require a doctor to perform any procedure other than the one he believes best protects the woman.
3. GINSBURG concur w/ Stevens - saw this as an attempt to "chip away at the private choice shielded by Roe, even as modified by Casey.

4. O'CONNOR concurrence - if the law had a health exception and was clearer about only banning D&X it would be OK.

5. KENNEDY dissent **note he switches sides, Rehnquist
1. majority ignores the state's interest in preserving life, Casey left room for states.
2. Nebraska has the right to decide that an absolute ban on D&X prevented no woman from getting a safe abortion.

6. THOMAS dissent w/ Rehnquist, Scalia - there is a difference between a state allowing a medical exception for abortion and a state banning a certain type of abortion without a medical exception. In a medical emergency women could still get an abortion, just not D&X.
federal case - court upheld a federal ban on partial birth abortions that was similar to Carhart I case.
1. Facts: Congress passed Partial Birth Abortion act in response to Carhart I that made it a crime to carry out an abortion by a procedure that was referred to as an "intact D&E." Congress defined the crime very clearly, including exact procedures used. "doctor must perform an 'overt act, other than completion of delivery, that kills the partially delivered living fetus.' 'The physician must have 'deliberately and intentionally' delivered the fetus to one of the Act's anatomical landmarks.' Congress also made factual findings about the procedure and found it is never medically necessary.
2. Kennedy majority w/ Roberts, Scalia, Thomas, Alito - distinguished Carhart I, but did not overrule it.
1. The Act is not vague unlike the Nebraska statute; gave precise anatomical landmarks.
2. statute did not ban standard late-term D&E abortions
3. not an undue burden - endorsed legislative goals and methods for the first time.
1. Congress is free to legislate to "show its profound respect for the life within the woman," and to further government's legitimate interest in regulating the medical profession in order to promote respect for life, including life of the unborn.
1. some women come to regret their choice which may cause severe depression and loss of esteem, the abortion doctor may not fully disclose precise details of operation, they may learn of details post-operatively and be filled with grief, medical profession may find different and less shocking methods of performing abortions.
2. also, statute's failure to provide a mother's health exception did not create an undue burden
2. **He did leave open the possibility of an "as-applied" challenge, which could be brought in any case the mother's health could be placed in jeopardy.
3. Thomas concur w/ Scalia - court's abortion jurisprudence has no basis in the constitution

4. Ginsburg dissent w/ Stevens, Souter, Breyer
1. objected to the lack of a health exception for the mother, with evidence showing the banned abortion method was actually safer
2. statute did not save a single fetus, since other methods were available, therefore the statute did not further any goals the court claimed "preserving and promoting fetal life"
3. "regret" rationale criticized - the court was not allowing women to make informed choice (as allowed by Casey) but was instead taking away the right to make an autonomous choice, even at the expense of their safety. This view also reflects ancient notions about women's place in family (which she hates as shown in her EP gender discrimination opinions)
4. "as applied" challenges forces women to wait for "as applied" challenges which jeopardizes women's health and places doctors in untenable position.
5. statute is "chipping away" at a right declared by the court.
1. Moore v. East Cleveland (1977) - court invalidated a zoning ordinance limiting occupancy of a dwelling to members of a single 'family' (grandmother with two grandsons who were cousins were not allowed to live together under the ordinance)
1. Stevens concurs - applied 'limited standard of review' finding an unjustifiable restriction on right to use own property as seen fit.
2. Belle Terre v. Boraas (1974) - court upheld a zoning restriction which excluded unrelated people from living together.
3. Taken together, Moore and Belle Terre show that it is family relations, not the right of individuals to choose with whom they live, that the court honors with fundamental right status.

4. Troxel v. Granville (2000) - court concluded that state court's decision granting grandparents visiting rights to their grandchildren over the objections of the sole surviving parent, 'fit custodial mother,' had violated mother's SDP rights.
1. O'Connor w/ Rehnquist, Ginsburg, Breyer plurality - due process protects fundamental right of parents to make decisions concerning the care, custody, and control of their children. DP clause doesn't permit a state to infringe on fundamental rights of parents to make childrearing decisions b/c state judge thinks he can make a 'better' decision.
2. Thomas, Souter concurrence - recognized parent's fundamental interest in childrearing, Thomas would apply 'strict scrutiny' to infringements of that interest.
3. Stevens dissent - parent's liberty interest should not be so inflexible - 14th amendment leaves room for states to consider impact on child of possibly arbitrary parental decisions not in child's best interest
4. Scalia dissent - plurality shouldn't read their views into constitution
5. Kennedy dissent - family courts are best suited to deal with this

5. Michael H. v. Gerald (1989) - court upheld a California law establishing a presumption that a child born to the wife is legitimately a child of the marriage, only rebuttable under limited circumstances. Biological father (98% certain) sought visitation and other rights with respect to the child.
Scalia majority - our traditions have protected the 'marital family'
1. Bowers v. Hardwick (1986) - upheld Georgia law that made homosexual sodomy a felony.
1. proscriptions against such acts have ancient roots, and the court did not have to take an expansive view and discover new fundamental rights

2. Lawrence v. Texas (2003) - overrules Bowers
1. Facts: In Houston, Texas, officers of HPD were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where two men were engaged in sexual activity. The two men were arrested, charged, and convicted under a Texas law prohibiting sodomy.

2. Holding: struck down Texas' anti-homosexual sodomy law

3. Kennedy w/ Stevens, Souter, Ginsburg, Breyer
1. reviewed older SDP cases that touched on sexual conduct and emphasized a right of privacy
1. "protected space of the marital bedroom" (Griswold); right of privacy included right of individual to be free from gov intrusion on fundamental matters (Eisenstadt); recognized protection of liberty under DP clause has substantive dimension of fundamental significance in defining rights of the person (Roe)
2. there is an emerging recognition of liberty interest in sex (laws and traditions of past half century most relevant, Europe reference)

2. The D's are entitled to respect for their private lives. The 'right to liberty' under DP clause gives them the right to engage in their conduct without intervention of government and Texas statute furthers not legitimate state interest.
3. decision does not cover minors, persons who might be injured or coerced or where consent might not easily be refused, does not involve public conduct or prostitution. **does not involve whether the government must give formal recognition to any relationship that homosexual person seek to enter (gay marriage)**

4. decision does not classify interest in pursuing homosexual conduct as being a fundamental interest. Instead the opinion applied rational basis review, and strikes down the statute because it "furthers no legitimate state interest."
1. ***therefore, b/c homosexual conduct is not a fundamental right, a statute could be upheld under this alleged form of rational basis review of state shows a legitimate interest.

4. Scalia dissent w/ Rehnquist, Thomas - court has signed onto the homosexual agenda; fearful this will lead to recognized right of gay marriage.
1. Facts: Nancy Cruzan suffered severe brain damage in an automobile accident. Since 1983, she was in a persistent vegetative state, a coma in which she had no awareness but continued to breathe without a respirator. All medical authorities agreed there was virtually no chance she would ever become conscious again or be aware of her surroundings. She was kept alive by a feeding and hydration tube implanted in her stomach. She was cared for in a Missouri state hospital, and the state was paying for her care.
2. Claim: Nancy's family asked the hospital to end the artificial nutrition and hydration, at which point, everyone knew she would die. Nancy's parents claimed that Nancy had a 14th amendment DP right not to be kept alive by unwanted medical procedures, and before the accident she had told friends she would not want to be kept alive in such a comatose condition. But the Missouri Supreme Court concluded even if she had such a right, the right could only be exercised by clear and convincing evidence that these were her wishes. The court found no such clear and convincing evidence and denied her parents' claim.
3. Holding: Supreme Court agreed Missouri's continuation of life-sustaining procedures did not violate Nancy's 14th amendment rights.

4. Rehnquist majority
1. competent person has a protected liberty interest in refusing unwanted medical treatment that outweighs any state interest.
2. but Nancy was not competent, so could Missouri require that such procedures be discontinued only when there is clear and convincing evidence that is what she wanted?
1. Yes, the state's interest in safeguarding human life was strong enough to entitle the state to guard against potential abuses by imposing clear and convincing evidence standards.

3. Nancy's verbal statements to a roommate a year before the accident that she would not want to live as a 'vegetable' were not enough.

4. state is not required to accept 'substitute judgment' from family members, if there is no proof that the views of these members reflected what Nancy's own view were or would have been.

5. O'Connor concurs - agrees there is a protected liberty interest in refusing unwanted medical treatment

6. Scalia concurrence - no constitutional right to refuse unwanted medical procedures, right to refuse unwanted medical procedure is same as 'right to commit suicide' and nation's traditions give states unquestioned power to prohibit suicide.

7. Stevens dissent - where patient has not made a prior expression of intent, the patient's 'best interests,' not the state's interest in preserving life, should control
court upheld Washington's ban on 'promoting a suicide attempt.' The state defined this as 'knowingly causing or aiding another person to attempt suicide' and made it a felony.

1. Rehnquist majority w/ O'Connor, Scalia, Kennedy, Thomas
1. whether there the 'liberty' protected by DP clause includes a right to commit suicide which includes a right to assistance in doing so. No
1. no historical right and definitely not a fundamental right - only rights deeply rooted in history and tradition are fundamental;
2. distinguishes Cruzan - was not deduced from abstract concepts of personal autonomy, but rather interest recognized was from common-law rule that forced medication was a battery and long legal tradition protecting decision to refuse unwanted medical treatment. Interest in committing suicide has never enjoyed similar legal protection.

3. state's interest was rational - interest in preserving life, protecting integrity of medical profession, protecting the vulnerable, state could rationally fear legalizing assisted suicide would send it down 'slippery slope' towards even involuntary euthanasia.

2. O'Connor concurrence - no general 'right to suicide' but she leaves open possibility that a terminally ill patient suffering great pain might have limited right to have medication to alleviate suffering, even where this may hasten death

3. Stevens concurrence in the result - there are situations in which an interest in hastening death is legitimate, and there are times when it is entitled to constitutional protection.

4. Souter concurrence in the result - only look to see if statute sets up an arbitrary imposition or purposeless restraint at odds with DP clause, if so, it would violate DP even if it didn't burden a 'fundamental interest' and even if not wholly irrational

5. Breyer concurrence in the result - claimed liberty interest was more of a right to die with dignity, which would include personal control over death, professional medical assistance, and avoidance of unnecessary and severe physical suffering.
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