CONSTITUTIONAL LAW I - Professor Arrow OUTLINE - FALL 1993 A. The following as follows: 1. Article 2. Article 3. Article 1. 2. C. D.

Articles of the U.S. Constitution define and grant powers I: the legislative branch (Congress) II: the executive branch (the President) III: the judiciary (the Courts)

B.

Article I, sec. 9: rights a person has against the federal government. Article I, sec. 10: rights a person has against state government.

Only individuals have rights; governments have powers. Name of the Game in Constitutional Law: 1. Figure out what the Constitutional issue is. 2. Figure out what standard of review applies. 3. Apply the standard of review to the facts and argue it. 4. Move on to the next issue. Standards of Review: There are two types 1. Issue-specific standards of review: will only apply to one issue (specific to one issue only). 2. Generic standards of review: applicable to many issues depending on when the court says they are applicable. a. Rational Basis Test (aka "Standard One", or "Minimal Scrutiny" or "Lower-Tier Scrutiny") [most lenient - easiest for government to pass]: in order to pass constitutional muster, the statute must be rationally related to a legitimate governmental goal (RB = R + L) b. Intermediate Standard (aka "Standard 1-1/2"): in order to pass constitutional muster, the statute must be substantially related to an important or significant governmental goal (IS = S + I/S) c. Strict Scrutiny (aka "Standard Two" or "Higher-Tier Scrutiny" or "The Compelling State Interest Test") [most difficult for government to meet]: in order to pass constitutional muster, the statute must be substantially related to a compelling governmental goal (or state interest) and there must be no less restrictive (or burdensome) alternative (SS = S + C & no LRA) GOVERNMENTAL POWERS FEDERAL JUDICIARY POWER (ARTICLE III):

E.

JUDICIAL REVIEW (the power of the Supreme Court to declare a law unconstitutional): A. Marbury v. Madison: There are 2 aspects to Marbury: 1. procedural: judicial review exists. 2. substantive: "that Congress, acting under its Article I powers, cannot expand the original jurisdiction of the U.S. Supreme Court beyond limits established by Article III of the Constitution." "Questions in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this Court." Judicial review and democracy: Judicial review is countermajoritarian. The legislature acts for the people presumably. Assuming that to be the case, to hold an act of legislature unconstitutional has to be countermajoritarian (must be to fulfill its function).

B.

C.

Footnote 4 of the Carolene Products case (p. 18): deals with the concept of democracy and distrust: If judicial review is too frequently and oppressively countermajoritarian, we have degenerated into a society of platonic guardians (U.S. Supreme Court under Marbury). Sometimes majoritarianism is good too - sometimes we want the democratic processes to prevail. The system cannot be too overbearing. We need a balance = democracy and distrust. Sometimes we trust the outcome of the democratic process; sometimes we do not. We must figure out when. The Court has done that through the adoption of a more and less rigorous (respectively) standards of review. The stuff we trust - more lenient standard of review. With a more rigorous standard of review may come a presumption of unconstitutionality that the state must overcome. Martin v. Hunter's Lessee: held that the state supreme court is the final interpreter of state law. 1. The U.S. Supreme Court may decide that the state law is in violation of the U.S. Constitution, but it is not the final interpreter of state law. 2. Judicial review extends not only to acts of Congress, but also to the highest courts of the states. (Constitutionality and supremecy can be reviewed). Deals with enforcing supremecy clause re: federal questions only. Cohens v. Virginia: USSC can review state criminal cases.

E.

F. G.

Article III of the Constitution: (p. [18]) 1. sec. 1: was important political decision. Supreme Court itself is created by the Constitution. a. How many justices are on the Supreme Court is under the control of Congress b. All lower federal courts exist at the sufferance of Congress. c. To get rid of a justice, you must impeach him/her. 2. sec. 2: Judicial power extends to all cases, in law and equity, arising under . . . a. gives rise to "cases & controversy" requirement. b. Court has original jurisidiction over . . . and appellate jurisdiction over . . . . Original jurisidiction is defined in the Constitution; appellate is not. See Exceptions and Regulations Clause. 1. We could say that appellate jurisdiction is created by the Constitution, which also creates congressional power to diminish it, or 2. we would speak of Congress as creating the appellate jurisdiction (by the Judiciary Act of 1789). But what Congress is really doing is exercising its "exceptions and regulations" power. 3. Congress does have the power to deprive the U.S. Supreme Court of appellate jurisdiction over certain subjects. Limitations on Judicial Review. The two biggest structural limitations on federal judicial powers are: 1. the text of Article III: only certain things are subject to federal jurisdiction at all: a. specific limitations in Article III, sec. 2. b. more broadly, the "case & controversy" concept itself (because proceeding everything under 1(a) is "case or controversy") 2. constitutional structure: separation of powers - justiciability.

H.

A justiciable controversy is something in which judiciary has some input. a. political question doctrine: Holds that certain types of decisions ought to be able to be taken as a final matter by the political branches (President and Congress) and not by the judicial branch. Judiciary has no say in political questions - they are to be resolved by political branches and are nonjusticiable. Separation of powers produces concept of nonjusticiability. II. CONCEPT OF "CASES OR CONTROVERSIES": These doctrines are often used in an outcome-oriented fashion, for the court to duck things it doesn't like. ADVISORY OPINIONS: No real dispute - but an interesting question; generalized analysis. 1. Muskrat v. U.S. (p. 1575): Court can only decide the constitutionality of an act of the legislature when it is the subject of a case of controversy. "Judicial power is limited to `cases' or `controversies'." MOOTNESS: a moot case is one that has been resolved antecedent (prior) to judicial decision. 1. Exception to mootness: cases capable of repetition yet evading review (i.e., Roe v. Wade, takes 4 years to get to court, but no one will ever be pregnant for 4 years) MEMORIZE THIS. 2. De Funis v. Odegaard: Held to be moot. (case where law student was not let in because he was white). 3. Bahke (1978): same case as De Funis, but held that there was no mootness. COLLUSIVENESS: a friendly case between 2 parties; kind of a test case where there is no real controversy between the parties. Rule: The Court will not hear collusive cases. Applied principally in constitutional cases on the notion that "it was never the thought that by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of a legislative act." STANDING: who may assert certain contentions. This is antecedent [prior] to any question on the merits. The sine qua non (indispensible condition) of all standing is that there be some injury in fact (ultimate constitutional requirement per Article III - case or controversy) 1. There are subordinate types of standing: a. taxpayer standing b. citizen standing c. associational standing d. general statutory standing e. specific standing f. legislative standing g. 3rd party standing (which can be any of the above-described types) 2. Standing derives from either a. Article III case or controversy requirements or b. prudential rules of self restraint We care from which source standing derives because there is no discretion in applying the Constitution - courts are bound to it and it cannot be changed by statute. If, on the other hand, it is a prudential rule of self-restraint (imposed by the Courts), Congress can pass a statute to widen standing. 3. example of prudential rule of self-restraint: Sieler Doctrine

A.

B.

C.

D.

(Sieler v. Louisville National RR) a. First principle: we don't reach out to decide Constitutional questions if we don't have to. If we can decide a case on the basis of a federal statute, we won't reach out to decide a constitutional question we don't really have to decide. b. Second principle: If we can decide a case based upon state law, we won't reach out to decide an unnecessary federal question, even on under federal statute. 4. Federal Taxpayer Standing: standing that an individual can assert based solely on the fact that he's a taxpayer. a. Frothingham v. Mellon (p. 1582): federal taxpayer standing does not exist where grievance is shared in an undifferentiated manner from the public at large. Taxpayer must suffer a particularized (direct) injury. If your injury is the same as everyone else, your remedy is political (you should go to Congress). (prudential selfrestraint). *****b. Flast v. Cohen (p. 1583): Both prongs of the logical nexus test must be satisfied (1st issue-specific standard of review): 1. Nexus between taxpayer status and type of legis. enactment attacked (must challenge the exercise of congressional power under the taxing and spending clause), and 2. Nexus between that status and the precise nature of the constitutional infringment alleged (must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of taxing and spending power). This test will only be satisfied if the taxpayer attacks the Art.I, 8 taxing & spending powers of Congress with the Establishment Clause (which is a specific constitutional limitation upon Congress' taxing and spending powers). This case distinguishes Frothingham because Frothingham failed to allege that it was also a limitation on taxing and spending power (Mrs. Frothingham failed to satisfy 2nd prong of the test). 5. Congressional Power to Create Standing. a. Valley Forge Christian College (p. 1597): No standing where prong 1 of the Flast test not met: no challenge of exercise of taxing and spending power; challeged property transfer): 1. All you have to do to make sure no one gets standing as a federal taxpayer under challenge to taxing and spending power is to take the money and buy property or gold and tranfer that instead. b. Warth v. Seldin (p. 1600): (Citizen's standing) No standing where (1) some of the claims were speculative and (2) they plead evidentiary facts and conclusions of law (rather an alleging facts from which it c/b concluded that there's a substantial probability that they would have been able to do that which they claim they have been prevented from doing). 1. Court didn't know what to do with Warth in 1975, so it booted them out for lack of standing. The next year, Washington held that impact discrimination only gets the rational basis test. In Arlington Heights (p. 1247), everyone gets standing, but they are hosed out and it still gets the rational basis test. 2. The prudential rule of self-restraint involved in this case is "Congress may grant an express right of action to persons who would otherwise be barred by the prudential standing rules." p. 1601. c. Schlesinger v. Reservists Comm. to Stop the War (p. 1594):

6.

7.

deals with the Incompatibility Clause, which says that members of Congress can't serve in two government positions simultaneously. No standing because this is a generalized grievance shared with all members of the public. What it amounted to was that the Supreme Court didn't want to get in the middle of the Viet Nam War. Citizen Standing. Basic requirement is injury in fact. Generalized grievance limitation applies to both federal taxpayer and citizen standing. It is not an Article 3 requirement, but is a prudentially self-imposed limitation. a. Allen v. Wright, (p. 1608). Imposed a causation requirement on standing, although the causation requirement is speculative as a matter of law. The test for citizen standing is: 1. injury in-fact 2. injury-in-fact must be traceable to the alleged constitutional wrong (there must be a nexus between relief requested and the conduct). Statutory Standing. There are two types. a. Specific statutory standing: congress passes a statute which statute itself contains a provision for standing. 1.

Lujan v. Defenders of Wildlife, (supp. p. 223) Held that Congress cannot amend Article III by statute Congress cannot remove the injury-in-fact requirement by not requiring it in statute. By removing the injury-in-fact requirement, Congress was trying to give everyone standing. 2. Warth: says that generalized grievance is not Art. III - it is prudentially self-imposed. Therefore, Congress can change it by statute unless to do so would effect the separation of powers and change the balance. Nothing impedes Congress from lowering prudential self-restraint except separation of powers. b. General statutory standing: Administrative Procedure Act. (Congress can create a legal right to standing by statute). 1. Sierra Club v. Morton, p. 1589. (associational statutory standing). The Sierra Club failed to meet the associational statutory standing requirement because it did not allege that the association or its members were injured-in-fact. The trend is towards a. recognizing that injuries other than economic harm are sufficient and b. discarding the notion that generalized grievance is not a sufficient basis for judicial review (that an injury is widely shared does not necessarily make it insufficient). 2. Trafficante v. Metropolitan Life Ins. Co., p. 1590. Congress gave white tenants in an apartment complex standing to sue owner when blacks in the complex are discriminated against. Defined standing broadly. 3. U.S. v. SCRAP, p. 1590. attenuated line of causation. Allowed standing where probable future injury was alleged. 4. Simon v. Eastern Ky. Welfare Rights Org., p. 1606. "The federal court can only act to redress injury that can be fairly traced to the challenged action of the defendant, and not injury that results from some independent action of some 3rd party." 8. Legislators' Standing. *****a. Coleman v. Miller (p. 1596): ***Issue-specific standard of review: Where the effectiveness of the legislator's vote

has been threatened, they have a plain, direct, and adequate interest in maintaining the effectiveness of their votes, and therefore, have standing. 9. Assertion of Third Party Rights. *a. Barrows v. Jackson (p. 1611) one of the exceptions to the basic third-party standing rule (which is that even though a party will suffer direct substantial injury from application of a statute, he cannot challenge its constitutionality unless he can show that he is within the class whose constitutional rights are allegedly infringed). White seller could assert the rights of the black purchaser. Under the special circumstances of this case (that the action of state court might result in denial of constitutional rights), if respondent could not raise the black persons rights, it would be difficult for the black persons to raise them. The previous rule was outweighed by the need to protect the fundamental rights which would be denied by permitting the action to be maintained. b. Pierce v. Society of Sisters: held that private and parochial school had standing to enjoin enforcement of an act requiring all parents to send their children to public schools; schools were permitted to assert the constitutional rights of parents in defense of their property rights. *c. Griswold v. Connecticut: Very important case - predecessor to Roe v. Wade. Held that birth control clinic officials convicted of abetting married persons in violating the same statute barring use of contraceptives, had standing to assert the constitutional rights of the married persons. (D had standing because he had a confidential relationship and was the only effective representatives of these rights) d. McGowan v. Maryland: store employees prosecuted for violating a Sunday closing law held not to have standing to assert that the statute prohibited the free exercise of religion since they did not allege any infringement of their own religious freedom due to Sunday closing. *****e. Singleton v. Wulff: held that doctors - who alleged that they provided, and anticipate providing abortions to welfare patients who are eligible for Medicaid - had standing to challege a statute denying Medicaid benefits for abortions. (Issue-specific standard of review) Two part test to determine whether the general rule against assertion of 3rd party rights should apply in a particular case: The Court must consider 1. the relationship of the litigant to the person whose right he seeks to assert; 2. and the ability of the 3rd party to assert his own right. 10. Standing is a threshold question. All of the federal judicial power stuff on the syllabus are threshold questions. E. TIMING OF ADJUDICATION (RIPENESS): Something is not ripe where we can only speculate as to what the plaintiff's not charged wanted to do. United Public Workers v. Mitchell: (p. 1616) Deals with standing to challenge on grounds of vagueness. Issue-specific standard of review. All there really is to ripeness is this test - KNOW IT! a. Conduct contingiency: Must plead exactly what you want to do that is being chilled by the existence of the statute. (If the injury is unconstitutional, the statute will be struck and must be rewritten by the legislature. P must provide hypothetical examples (to establish the existence of the chill) arguably proscribed by the statute.) b. Prosecution contingiency: must plead the likelihood that

*****1.

you will be prosecuted if you do what you want to do. 2. Laird v. Tatum: (p. 1619) Found a problem with the 2nd prong of the Mitchell test. Found that plaintiffs who claimed to be chilled in violation of the first amendment by allegedly illegal surveillance by the U.S. Army lacked sufficient standing to maintain the action. Fear that the gov. is engaged in certain action or may take certain action in the future (allegations of subjective chill) is insufficient. The test is that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action. O'Shea v. Littleton: (p. 1623) held there was no standing for plaintiffs who brought a civil rights action against the States Attorney, etc., who allegedly engaged, under color of law, in a continuing violation of Constitutional rights in the administration of the criminal justice system by setting illegal bonds, imposing higher sentences on nonwhites, and requiring members of plaintiffs class to pay for trial by jury. Failed both prongs of the Mitchell test: a. insufficient allegations of actual continuing injury (threat of injury was too remote); b. and that respondents failed to establish the basic requisites of equitable relief - likelihood of substantial and immediate irreparable harm, and the inadequacy of remedies at law. Doe v. Bolton: (p. 1623) held that physcians with pregnant patients had standing to seek federal declaratory judgment that a state criminal abortion statute was unconstitutional because the physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. (they assert a sufficiently direct threat of personal detriment). Poe v. Ullman: (p. 1624) action by married couples and their doctor challenging the constitutionality of state statutes which prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices. The state court upheld the constitutionality of the statute. Failed prong 2 of the Mitchell test: a. Held that the fear of enforcement of provisions that have gone unenforced for several years could not be the basis of constitutional adjudication. b. There are two limitations on the Courts exercise of appellate power: 1. cases and controversy requirement 2. prudential rules of self-restraint c. Standing, ripeness and mootness are but several manifestations of the primary concept that federal judicial power is to be exercised to strike down legislation only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action.

3.

4.

5.

III.

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

(Baker v. Carr). The underpinning constitutional questions that give rise to political question are separation of powers. Only separation of powers cases can ever be political questions (but all separation of powers cases are not political questions). Whenever we see a separation of powers question, at the threshhold, we always have a political question issue. Always run it through the Baker v. Carr analysis. Baker v. Carr (p. 32). Issue specific standard of review for political questions (big 2, little 4): *****1. Is there a TDCC (textually demonstrable constitutional commitment of the issue to a coordinate political department)? (Where there is a clear TDCC, the court will dismiss the case. If it is less than crystal clear the court will decide the case on the merits justiciable). *****2. Is there a lack of judicially discoverable and manageable standards for resolving it? 3. or impossibility of deciding w/o an initial policy determination of a kind clearly for nonjudicial discretion; 4. or imposibility of a court's undertaking independent resolution w/o expressing lack of respect due coordinate branches of government; 5. or 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. B. Powell v. McCormack, p. 41. Where the Constitution does not give Congress the authority to do something, it is not a political question and is, therefore, justiciable. Coleman v. Miller, p. 43. The question of a reasonable time before amending a state constitution is not within the purview of the courts (question involved is political and not justiciable). Goldwater v. Carter, p. 43. The power of the President to unilaterally terminate a treaty is a political question, and is, therefore, nonjusticiable. ELEVENTH AMENDMENT ISSUES. States can be a party P, but not a party D. A.

C.

D.

IV. A.

Article III, 2, para. 1: "Judicial power shall extend to . . . controversies between two or more states . . . between a state and citizens of another state." The original understanding of Art. III was that there was no jurisdiction over an unconsenting state. Chisolm v. Georgia (1793): Supreme Court held that Chisolm could sue Georgia in federal court without Georgia's consent. Georgia House of Rep. passed a statute that said that anyone who attempted to execute this judgment would be executed without benefit of clergy. U.S. Supreme Court handed down a decision on 2/23/1794. In April both Houses of Congress passed the 11th Amendment, and it took the states 4 months to ratify it. George Washington refused to proclaim it adopted, so it was not adopted until his term ended, when Adams proclaimed it adopted in 1798. Hans v. Louisiana (1890): Hans sued his own state. The 11th Amendment just says you can't sue another state w/out its consent. But Ct held that the 11th Amend. reversed Chisolm, and restored the original understanding of Art. III. Therefore, the real source of the inability

B.

C.

D.

to sue the state without its consent is the original understanding of Art. III. Therefore, the prohibition against unconsented suits is broader than the 11th Amend. because its really a prohibition derivative of the original understanding of Art. III. Therefore, Hans loses. E. Ex Parte Young (1908), p. 1630. RR's sued in federal court to enjoin the Atty General of Minnesota (Young) from enforcing a state law reducing RR rates. Relief was granted over Young's objection that this was really an action against the state to which the state had not consented, and was, therefore, barred by the 11th Amendment. 1. Held that the injunction against Young was proper. It was not really a suit against the state, but was a suit against a state official as an individual. The state can't give him any official authority to violate the Constitution. The Stripping Doctrine: an official is stripped of representative power when he acts illegally, and is subject personally to the consequences of his individual conduct. 2. This case is vitally important legal fiction, and is still good law. It is necessary because if it did not exist there would be no jurisdiction in the federal court (no way for citizens to bring these actions), because the state would simply plead the 11st Amendment (which states that an individual cannot sue a state without its consent). The effect of Young is to bring w/in the scope of judicial review matters which otherwise might escape such review. Parden v. Terminal Railway (1967): (This case cut back on the scope of the 11th Amendment) State of Alabama was operating a railway. Congress had passed a statute which had subjected the rr generally to federal regulation. Parden was injured and sued Alabama in federal court, alleging that Alabama had impliedly waived its 11th Amend. immunity by continuing to operate the railway where it knew that it was subject to federal regulation. This is the Implied Waiver Doctrine. Parden won, but the decision was expresssly reversed 15 years later, and the Implied Waiver Doctrine is now dead. (Brennan wrote this. He hates the 11st Amendment because he hates the states.) Edelman v Jordan (1974), p. 1632. Rehnquist. Draws a bright line between purely prospective relief (injunctions), and retrospective relief (money damages). The theory is that money is going to come from the state treasury. Court said that Young is limited to prospective (injunctive) relief (still good law - no retroactive damages permitted). Rule: A suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the 11th Amend.. Reason: the state is really a real party in interest where payment is sought from the state treasury (rather than from the D personally), even where the state is not a named party of record. Fitzpatric v. Bitzer (1976), p. 1632. This caes goes only to the question of Congressional abrogation of immunity. The intent behind passing 5 of the 14th Amend. was to give Congress the power to abrogate 11. 1. This case creates a constitutional (14th Amendment) exception to the Edelman rule (says that individual rights under sec. 5 of the 14th Amend. trump the 11th Amend. rights of the states). 2. Held that the 11th Amend. did not prevent a fed. court from awarding retroactive money damages against the state treasury for violation of Title VII Civil Rights Act. 11th Amend. is necessarily limited by enforcement of sec. 5 of 14th Amend., which embodies limitations on state authority. The Court said 2 things: a. to the extent that 5 creates additional power, it allows

F.

G.

H.

I.

Congress to abrogate parts of the 11th Amend. (14th passed after the 11th). b. 14th Amend. itself limits state sovereignty, so 5 in itself is enough to essentially allow Congress to abrogate the 11th Amendment immunities of the states. (After Young, all that's left of immunity is immunity from money damages. But now, Congress can even abrogate that.) - Fitzpatric is the beginning of the abrogation doctrine (what a higher sovereign does to the immunity of a lower one). Congress does this to states without the consent of the state. This differs from waiver, which is something states do voluntarily. - After Fitzpatric, there's a line of cases which hold that . . . where Congress wants to abrogate the 11th Amend. immunities of the states, it must do so in a spectacularly clear fashion. 1. Pennhurst 2. Atascadero 3. Welch (expressly overrules Parden, so implied waiver is gone). Pennsylviania v. Union Gas Co.: (1989 - Brennan) p. 1633. (****NOTE: PER PROF. ARROW, THIS CASE HAS UNWITTINGLY OVERRULED MARBURY V. MADISON (which held that (1) judicial review exists and that (2) Congress, acting under its Article I powers, cannot expand the jurisdiction of the U.S. Supreme Court beyond limits established by Article III.) 1. This case creates a commerce clause exception to the Edelman rule by holding that "Congress possesses the same power under the commerce clause (Art I, sec. 8, para. 18) as it has under sec. 5 of the 14th Amend. to abrogate state immunity from federal court suits for money damages, but it must make its intent to do so unmistakeably clear." 2. Held that in approving the commerce power, the States consented to suits against them based on congressionally created causes of action (argued that the commerce clause gives full, unqualified power to Congress, and that the 11th Amend. refers only to judicial power, not congressional power, and only forbids construing the judicial power to the enumerated suits, "language plainly intended to rein in the judiciary, not Congress.") 3. Summary: Congress can abrogate pursuant to Art.I as long as it satisfies rules of Penhurst, Atascadero & Welsh. Clear evidence of intent to abrogate must be in the text. Abrogation Analysis: All of this applies only in a situation in which Congress has abrogated: 1. Have they abrogated (annulled/revoked) with sufficient specificity? 2. If yes, pursuant to what power have they abrogated? 3. If 5 of the 14th Amend., Fitzpatric controls and they can do it. 4. If pursuant to Art. I commerce clause, Union Gas controls and they can do it. 5. If someone wants to sue a state in federal court and Congress has not abrogated, we are left with Ex Parte Young. a. You can strip the AG when the AG (or whoever is in authority) is enforcing an arguably unconstitutional statute. Queen v. Jordan: extended Young to situation in which the AG is enforcing a statute which is arguably in violation of federal statutes. The Commerce Clause and the 14th Amendment took power away from the states and gave it to the federal government. Rule re Damages Against State Officials: The 11th Amend. does not bar federal courts from awarding damages against individual defendants in some circumstances notwithstanding the fact that they hold public office.

J.

K. L. M.

10

N. O.

Alabama v. Pugh: Pugh named state as a D. Court said no - can't name a state as a party D. Must go through the Ex Parte Young fiction. Corey v. White (fn. 20, p. 1631): the 11th Amendment does bar federal suits against state officers who are not alleged either to be acting contrary to federal law or against the authority of state law. Limits of Principle in Law: Courts will deny that which they are afraid of. 1. Article III is a real limit on federal judicial power. (But Union Gas kills this because Congress can expand by statute). 2. Art. III gives you the "case and controversy" requirement (generalized grievance is a prudentially self-imposed limitation). Congress can give people COA's by creating rights by statute. 3. Art. III is the source of 11th Amend. immunities of the States (Hans v. Louisiana). As to specific grants of power in Art. I, if Congress can expand judicial power, then Art. III is just a statute which has been killed. Art. III, 2, therefore, sets the uppoer limits of jurisdiction rather than the lower. ABSTENTION: PULLMAN. Abstention doctrine: Under some circumstances, a federal court may decline to exercise jurisdiction where a constitutional issue rests on an unsettled interpretation of state law. In such cases the Court should abstain from exercising jurisdiction otherwise conferred. There are 4 kinds of abstention, but we will only talk about 2: Pullman and Younger. Railroad Com'n v. Pullman Co.: (1941) p. 1633 A ruling on the Constitutional question would involve a sensitive issue of state policy that should be avoided so long as there is another basis for adjudication (the issue is triable before the State Supreme Court).A decision by the federal court on the state law issue would merely be a prediction of the law because the Supreme Court of Texas, the final authority on the matter, had not interpreted the scope of the statute. The Pullman Doctrine: federal courts will abstain when there are unclear questions of state law. The England Procedure (England v. Louisiana State, p. 1635): Federal Courts kept these cases on the docket and sent P back to state court to have the state law questions resolved. 1. But if P voluntarily submitted the whole case to the state court, he could not go back to the federal court. He waived the right to do so. 2. If P didn't submit the federal questions to the state court voluntarily, then he could go back to the federal court. Neo-Brandeisian Fallacy: The Seiler Doctrine: The Court does not go out looking for constitutional issues to resolve. It would rather resolve federal questions on statutory grounds than on constitutional grounds. If it can decide a case based upon state law, it will not reach out to decide an unnecessary federal question, even one under federal statutes. (This is an example of a procedural rule of prudential self-restraint.) Younger v. Harris: 2nd type of abstention - "Our Federalism." This case involved a pending state criminal proceeding. D was in the middle of being prosecuted. The Court held that you can't enjoin a pending state court criminal proceeding. There were 2 parallel themes in this case: 1. Equitable remedy side: no irreparable injury here because D will

P.

V.

A.

B.

C.

D.

11

2.

be able to raise a federal claim as a defense to state prosecution. There's an adequate remedy at law (it doesn't have to be the best remedy at law). "Our Federalism": a sensitivity to the legitimate interests of both State and National governments. - This case is specific to pending state criminal prosecutions. Threatened state prosecutions aren't good enough because you can get a federal injunction against that. - Note: a specific chilling effect will not get you by Younger v. Harris. Younger is an absolute principle.

E.

Exceptions to Younger v. Harris: 1. Dombrowski v. Pfister: Talks about bad faith prosecution. Once an action is filed in state Court, that triggers Younger absent bad faith prosecution. The bad faith must be real bad faith . . . must be something spectacularly extraordinarily. Must have real malice by the DA. 2. Hicks v. Miranda (1975), P. 1640. Race to the Courthouse Rule: If you have a threatened prosecution, the person who's about to be prosecuted runs to the federal court and seeks to enjoin the state prosecution. Younger doesn't apply. As soon as the DA find out that a federal action has been filed, he races to the state courthouse and files a state court prosectution before the federal court reaches the action on the merits. Then, Younger applies. If the DA can file the state action before the federal court reaches the merits of the case, the federa court will abstain.

F.

How far does Younger extend into the sphere of civil actions? 1. In a criminal case, the state has an interest in judicial proceedings because the executive branch brought action (the state brought the action). However, the state does not have an interest in a civil proceeding. Therefore, the intrusion, from a federalism standpoint, is more radical. 2. Huffman v. Pursue, Ltd., p. 1642. Younger applies to a civil action that is closely akin to a criminal action: a. when the state is a party to the proceedings, and b. the proceeding is both in aid of, and closely related to, criminal statutes (i.e., obscenity, public nuisance). Juidice v. Vail: extends Huffman a little further to actions not brought by the state. Trainor v. Hernandez: action by state when a state has a vitally important enforcement interest (but this does not mean that Younger applies to all civil actions). Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc.: Younger may even apply to state administrative proceedings if they're proceedings in which the state has a vitally important enforcement interest akin to a criminal proceedings.

3. 4.

5.

VI.

CONGRESSIONAL REGULATION OF JUDICIAL POWER.

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

12

28 U.S.C.A. 1254: governs appellate juris. of federal courts of appeals. Methods of review: (1) writ of certiorari, or (2) certification. 28 U.S.C.A. 1257: governs appellate juris. of state courts. Method of reviewing decisions of highest state courts: writ of certiorari. A. Article III, 2, cl. 2: Exceptions and Regulations Clause: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions and under such Regulations as Congress shall make." Ex Parte v. McCardle: (1869 - post-civil war case), p. 51. Congress exercised its "Exceptions and Regulations" power to deprive the federal court of jurisdiction. 1. Because Congress was afraid that if the Court heard the merits of the case it would find the Acts unconstitutional, it took the power to hear the case away from the Court. The Court complied with the withdrawal and dismissed the case for lack of jurisdiction. 2. Reason: while the appellate jurisdiction of the Supreme Court is strictly conferred by the Constitution, it is conferred subject to exceptions and regulations that Congress shall make. Art. III, sec. 2, clause 2. 3. This is still good law! DISCRETIONARY REVIEW. To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved. Maryland v. Bartimore Radio Show, Inc.: (1950), p. 58. It is impractical for the Court to indicate its reasons for denial of a writ of certiorari: 1. time that would be required is prohibitive. 2. different reasons not infrequently move different members of the Court. One cannot deduce any decision on the merits or other precedential value from denials of certiorari. B. Denial of certiorari simply means that fewer than 4 members of the Court deemed it desirable to review a decision of the lower court as a matter of sound judicial discretion. Dismissal of the writ: When the Court feels an oral argument, or upon further study, or due to the occurrence of intervening factors, that the basis upon which certiorari was granted no longer exists, the Court may "dismiss the writ as improvidently granted." PREREQUISITES TO FEDERAL JURISDICTION AND JUDICIAL REVIEW Michigan v. Long (1983), p. 64. The State is the final arbiter of state constitutional and statutory law." 1. State constitutions cannot subtract from federal rights but can be more protective of them than the federal constitution (see Hunters Lessee). 2. The U.S. Supreme Court said that if the states are going to do this, they's better be real clear that the decision is based on state law and not federal constitutional law. Otherwise, the U.S.

B.

VII.

A.

C.

VIII. A.

13

Supreme Court will review it and reverse it. ***a. Per Prof., all the state court judges have to do is add a magic sentence that "this decision is based on state constitution", and it will not be reviewable by the U.S. Supreme Court (because of the Seiler Doctrine). Thus, the Supreme Court takes review of cases where state courts have created constitutional rights purportedly (and ambiguously) relying on federal Constitution (rather than on state constitution). FEDERAL LEGISLATIVE POWER (ARTICLE I) I. A. SOURCES & NATURE OF NATIONAL LEGISLATIVE POWER. Introduction. - Source: specified or enumerated broadly-stated legislative powers in Art. I, sec. 8 of the Constitution. - Art. I, sec. 8 "necessary and proper clause", gave Congress power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the U.S. or any Department or Officer thereof." - Today, the necessary and proper clause is irrelevant because the Commerce Clause swallows everything else.

McCulloch v. Maryland (1819), p. 68. The necessary and proper clause is an affirmative power - not a limitation on Congressional power. It doesn't really mean necessary - only proper. If its nice, and not expressly prohibited, its permitted. *****1. Issue-Specific Standard of Review: Classic Test for the Existence of Federal Power: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adaped to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional." 2. Congress has the power, under the necessary and proper clause, to incorporate a national bank. 3. C.J. Marshall: Necessary and proper clause authorized the federal government to select any reasonable means to achieve its ends. II. A. NATIONAL COMMERCE POWER. Origins of the Commerce Power. The commerce clause is called the affirmative commerce clause becaue it is phrased as an affirmative grant of power to Congress. Development of Basic Commerce Clause Concepts. 1. Gibbons v. Ogden (1824), p. 79. Congress has the power to regulate commerce in a state if it affects activities outside the state. If commerce in a state doesn't affect other states - the state regulates the activity. Commerce power is not to be limited by the judiciary. a. Congress can pass a statute about anything that affects commerce. Such statutes then become the supreme law of the land - leads to federal preemption. 2. 10th Amendment: Powers not delegated to Congress are reserved to the states and the people of the states. Framers intent was to expand congressional power over that given in the Constitution. Paul v. Virginia: upheld state regulation of interstate insurance business on the ground that issuing a policy of insurance is not a

B.

B.

3.

14

transaction of commerce, and insurance contracts are not articles of commerce. 4. Kidd v. Pearson: upheld an Iowa statute prohibiting the manufacture of intoxicating beverages within the state. This activity could be regulated by the state because it was manufacturing and not commerce. The Daniel Ball: So far as a ship is carrying goods destined for another state or that came from another state to be delivered in Michigan, she is engaged in interstate commerce (even though navigating only Michigan waters).

5.

C.

Foundations for Extending the Reach of Congressional Powers. 1. The Lottery Case (Champion v. Ames) (1903), p. 85. Congress has the power to prohibit as well as regulate interstate movement or transportation. Expansion of congressional power. a. Congress can regulate the lottery if there is interstate movement. Congress' motivation is irrelevant - had nothing to do with commerce - Congress was motivated to regulate because it felt the lottery was evil. 2. Houston, East & West Texas Ry. v. U.S. (Shreveport Case) (1914), p. 88. Congress had the power to regulate activities which had an economic effect on commerce among the states - although this theory did not apply beyond railroad regulation cases. (Required a close & substantial relation to interstate traffic.) a. Where the power of Congress to regulate commerce exists, it dominates.

D.

Regulation of National Economic Problems Through the Commerce Power. Limitations on the Commerce Power Through 1936. *1. Hammer v. Dagenhart (1918), p. 90. First of the doctrines that rise and fall together. The Court invalidated a federal statute which prohibited the interstate shipment of goods coming from a mining or manufacturing establishment that employed children under certain ages. The act exceeded the commerce power because it regulated the conditions of production (which was reserved for state regulation by the 10th Amend.). 2. Per Prof: If you want to get the gov. off your back, you must remove the power under the Commerce Clause. To do so, a. either resurrect Paul v. Virginia and Kidd v. Pearson, repeal Gibson, or require that the affect be direct (because nothing has a direct affect on commerce) - strict interpretation of the commerce clause. b. government taxing power: Create a new constitutional doctrine that says you can't tax with regulatory intent (this shuts down the taxing power). (see Bailey v. Drexel, p. 128.) c. spending power: the government attempts to get rid of evil through it (see U.S. v. Butler, p. 132 - which says that this is a part of the State police power and the federal gov. can't do it because it violates federalism [the 10th Amend.]). d. administrative agencies: shut them down also by coming up with the "nondelegation doctrine" (which prevents Congress from delegating to administrative agencies - violates separation of powers). By doing all of this, you strip power away from the federal government to help you. Then we must figure out how to shut the states down (under the 14th Amendment).

15

Expansion of Commerce Power After 1936. 3. NLRB v. Jones & Laughlin Steel Corp. (1937), p. 100. "Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. a. What is determinative is the effect upon interstate commerce of the labor practice involved. b. Dissent (The 4 Horsemen: McReynolds, Van Devanter, Sutherland & Butler [war, pestilence, famine and death]): Any effect on interstate commerce by the discharge of employees shown here would be indirect and remote in the highest degree. 4. United States v. Darby (1941), C.J. Stone, p. 105. Congress has the constitutional power, under the commerce clause, to regulate commerce in any manner not unconstitutional, and once Congress has adopted such a policy, it can use the means to enforce it, even it the means involve the control of intrastate activities. a. The Court unanimously recognized Congress' plenary power to set the terms for interstate transportation; b. overruled Hammer v. Dagenhart; and c. upheld the direct regulation of the hours and wages of employees engaged in the production of goods for interstate commerce. Wickard v. Filburn (1942), p. 110. Issue-specific standard of review for affirmative commerce clause question: Does it affect interstate commerce? (Does it exert a substantial economic effect on interstate commerce, whether direct or indirect?) (If so, it is subject to commerce clause power.) a. Congress' power over interstate commerce is infinite. (necessary and proper clause is no longer needed.) b. Holding: Congress' power to regulate commerce extends even to regulation of marketing of products not intended for interstate commerce if such activity exerts a substantial economic effect on interstate commerce, whether direct or indirect. (Here, Congress wanted to curb the overproduction of wheat in order to stimulate commerce.) c. The power to regulate commerce includes the power to regulate prices at which commodities in that commerce are dealt in and practices affecting such prices. Perez v. U.S. (1971), Douglas, p. 117. This takes Wickard beyond infinite . . . a class of activities affect interstate commerce. Under modern commerce clause standards, congress has the power to create police statutes to prohibit criminal activity that affects interstate commerce (even if that activity is limited to one individual). a. Loansharking, though purely intrastate, may in the judgment of Congress, affect interstate commerce. "Loan sharking, in its national setting, is one way organized interstate crime holds its guns to the heads of the poor and the rich alike and syphons funds from numerous localities to finance its national operations." Heart of Atlanta Motel v. U.S. (1964) (Warren Court, Justice Clark), p. 120. Congress can use the commerce clause to protect civil rights (the lottery case already told us we don't care what its motive is). a. Congress' commerce power extends to racial discrimination by

*****5.

6.

7.

16

b.

motels serving travelers because such discrimination effects interstate commerce by discouraging travel by Blacks. Congress' motive does not have to be commercial because the interstate commerce power was plenary (interstate transactions and transportation fall under the commerce power regardless of whether they are commercial in character).

8.

Katzenbach v. McClung (Ollie's Barbeque Case) (1964) (Warren Court, Justice Clark), p. 122. Again, Congress has the power to regulate interstate commerce, not just to facilitate it. a. Congress has the power to prevent discrimination under the commerce clause on the ground that a discriminating restaurant receives a substantial portion of its food from out of state in interstate commerce. b. These type of discriminatory practices place a burden on interstate commerce by 1. prohibiting the Negro dollar from entering the stream of commerce; 2. imposing an artificial restriction on the market and interfering with the flow of merchandise; 3. causing unrest and having a depressant effect on general business conditions; 4. restricting interstate travel by Negroes; 5. causing reluctance of industry to establish in places where such practices occurred because the practices deterred professional and skilled persons from moving there.

III.

THE NON-DELEGATION DOCTRINE (Second doctrine that rose and fell together)

There are 2 distinct conceptual aspects to non-delegation: A. Congress can't delegate power to an administrative agency because it violates separation of powers to do that (Schecter came from this, but it is now dead after Yakus) 1. THE SCHECHTER CASE, p. 95 Schechter opposed legislation because he was involved only in intrastate wholesale poultry market, and did not feel that federal legislation designed to resolve a national problem should affect him. a. The Court invalidated the act because it was an unlawful delegation of power. We want the legislature to legislate, not to pass the buck to an administrative agency. It would be different if the legislature gave the agency standards for administration and just left it to the agency to fill the gaps. Legislature provided no means for achieving the end. b. The employment practices of Schechter's poultry business did not have a sufficiently "direct" connection to interstate commerce. The wages the employees were to be paid and the hours they were to work were subjects reserved to the states. Yakus v. United States, (1944), p. 181. The Court held that this Act was unlike the NIRA in Schechter because this Act proscribes a method for attaining the end. a. Rule: If you can find any standards provided by the legislature, no matter how broad, that's close enough for government work. AND, the standards doen't even have to be in the statute that grants authority to the agency, as long as the agency can find anything in the USC. This aspect of

2.

17

the non-delegation doctrine is virtually dead. B. Carter v. Carter Coal, p. 96. This 2nd aspect of non-delegation has survived. The Court expanded on Schechter's "direct effect" requisite in ruling that the commerce clause did not give Congress power to require Bituminous Coal Code members to observe hours and wages agreed upon between . . . . (It was an unconstitutional delegation of legislative power to private persons. Act allowed competitors to set regulations for other members of the industry). a. Reason: The effect of labor provisions of the act falls primarily upon production and not upon commerce. Production is purely a local activity, and there is no direct effect on interstate commerce (only an indirect effect). The evils are all local evils over which the federal government has no legislative control. (10th Amend. analysis) b. Rule: The federal regulatory power ceases when interstate commercial intercourse ends, and correlatively, the power does not attach until interstate commercial intercourse begins. THE NATIONAL TAXING AND SPENDING POWERS REGULATION THROUGH TAXING. Pre-1937. 1. Bailey v. Drexel Furniture Co. (Child Labor Case), (1922), p. 128. Child Labor Tax Law invalid - tax was not a true tax, but only a penalty for violation of a commercial regulation. So the Act was invalid under Dagenhart because it exceeded the power of Congress and invaded the areas reserved for control by the states. a. Test: Whether there is a congressional motive outside Congress's regulatory power which appears on the face of the statute. b. Rule: The gov. can't tax with a regulatory motive. (what is the purpose of the tax) Post-1937. 2. Sonzinsky v. United States, (1937), p. 131. Upheld a tax on concealable firearms. a. We don't care about regulatory purpose (motive) anymore. All taxes are regulatory in some sense. (End of restrictive interpretation of taxing power). It is beyond the competence of the courts to inquire into the hidden motives of Congress. b. Test: As long as the tax really raises some revenue it is okay. (The tax is productive of some revenue, and since it operates as a tax, it is within the taxing power.) 3. United States v. Kahriger, (1953), p. 132. A federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Reason: regardless of its regulatory effect, it produces revenue. Further, the Court ordinarily deferred to Congressional power where federal legislation rests upon this power. U.S. v. Minor (not in text) - Cocaine Tax law. a. Tax on kids who sell drugs is valid even though it does not produce revenue. (Here, the tax can't raise revenue because you couldn't get a form from the fed. gov. to pay it.) b. Rule: Congress can do whatever it wants to under the Taxing Power (as long as it does not amount to a taking under the 5th Amendment). c. A Fortiori Fallacy: Congress has the power to regulate

IV. A.

4.

18

drug trafficking under the Commerce Clause, a fortiori, Congress has the power to tax it. The Court uses one power (commerce) to sustain the exercise of a theoretical power (taxing). B. REGULATION THROUGH SPENDING. Pre-1937. 1. United States v. Butler (1936), p. 132. a. Agricultural Adjustment Act of 1933 invalid on the ground that the tax and benefits payments were beyond the power of Congress. (invaded the rights reserved unto the states under the 10th Amendment - agricultural production is a state concern) b. Basically, this Court refused to allow Congress to utilize its regulatory powers as a form of economic coercion. Post-1937. 2. Chas. C. Steward Machine Co. v. Davis, (1937), p. 136. Upheld Title IX of the Social Security Act by drawing a distinction between motive and coercion. a. This law was neither the regulation of activities beyond the federal powers, nor an unconstitutional coercion of state government to enact such systems. b. The national tax and spending powers were properly used to prevent the national economic consequences of unemployment and to eliminate the obstructions to state systems caused by the advantage of businesses in states without unemployment compensation taxes. (unemployment is a common evil) 3. South Dakota v. Dole, (1987), p. 140. Upheld the validity of a federal statute that conditioned each states receipt of its portion of federal highway funds on the adoption of a minimum drinking age of 21 years. a. Rule: encouragement to state action is a valid use of the spending power. (Congress can regulate indirectly through the Spending Power.) b. Reason: the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended - safe interstate travel, and is not coercive (states don't have to engage in the recommended behavior and they will only lose 5% of state highway budget - not very punitive). Helvering v. Davis (1937). (Spending for the General Welfare). Spending must be for a common benefit, not purely a local purpose. (Upheld SSA old-age pension because it's a national problem.)

4.

V. A.

FOREIGN RELATIONS POWERS - TREATIES. Article VI, 2: Supremecy Clause: laws made in pursuance of the Constitution are supreme. A treaty is supreme over state law if it is under the authority of the U.S. (valid treaty trumps state law pursuant to the Supremecy Clause). 1. While laws must be constitutional, treaties must just be made under the authority of the U.S., which authority would exist anyway be virtue of sovereignty. If Congress has no power to regulate directly, it has no power to enter into a treaty to do it (Congress can't accomplish by treaty what it

B.

19

cannot accomplish by statute). C. D. E. Treaty power is an independent power, so it is not limited to the goals in Article I, 8. Treaty authority is delegated by Article II, 2, [2]. In the heirarchy of Article VI, which is the highest - Constitution or treaty? 1. fed constitution v. law = constitution (Marbury v. Madison). 2. fed constitution v. treaty = constitution. The treaty power is limited by express provisions of the Bill of Rights (specific provisions of the Bill of Rights prevail. (Reid v. Covert, p. 145: Ct wanted to see specific constitutional prohibitions. Here, treaty was not inconsistent with any specific provisions of the Constitution.) 3. treaty v. fed. statute: last in time is first in right. The latest expression of Congressional will controls. a. Indian tribes are quasi-sovereign nations and sometimes enter into agreements with the U.S. (see Cherokee Tobacco, Chie Chin Ping v. U.S.) b. But we shouldn't be able to breach our obligation under treaty by statute. Under international law, we would still be in breach of treaty and if we went into an international law tribunal we will lose. 1. Monist system: theoretically impossible for the government to ever be in violation of the law. 2. Dualist system: (U.S.) in American court, international law will not help. Last in time is first in right, even if it puts un into delict with international law. Missouri v. Holland (1920), p. 144. Upheld Migratory Bird Treaty Act, which implemented a treaty with Canada to protect migratory birds. 1. "what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do." 2. No 10th Amendment limitation on the federal treaty power because the power to make treaties is expressly delegated by Art. II, sec. 2, and by Article VI, treaties made under the authority of the U.S. (along with the Constitution and laws of the U.S.), are the supreme law of the land. 3. The treaty is valid, so the statute is valid under the necessary and proper clause. 4. This could all be done by the Commerce Clause now, because flying birds affect interstate commerce. We don't care anymore because we can accomplish everything by statute now, via the Commerce Clause. SEPARATION OF POWERS EXAM: 1. Remember Baker v. Carr says that separation of powers cases involve political questions. 2. Distinguish between formalism v. pragmatism: a. Formalism: abide by letter of document b. Pragmatism: more concerned w/outcome - how it works in practice. Which is the better approach? Is it self-aggrandized power? I. A. EXECUTIVE ABRIDGEMENTS OF CONGRESSIONAL POWERS (Presidential Action Affecting Congressional Powers). Presidential Powers: 1. Art. II, 1: executive power

F.

20

2.

Art. II, 2: enumerated powers. a. Commander-in-Chief b. Treaty Power

B.

Youngstown Sheet & Tube v. Saywer (The Steel Seizure Case) (1952), p. 169. Presidential order to the secretary of commerce to seize and run U.S. Steel Mills (in order to avoid a nation-wide strike during the Korean War) was unconstitutional. 1. Congress had already rejected the idea of seizure. Only Congress can make laws; the President can execute them. 2. What made this action by Truman legislation was that he made policy, and to make policy is to make the law. Test: Whoever makes the policy makes the laws. 3. Classic Levels of Generality Problem (Inherent Ambiguity in defining "policy") a. If you define "policy" at a high level of generality (i.e., to fight the Korean War), Truman wins. b. If you define "policy" at a low level of generality (i.e., Truman is making the policy to seize steel plants to procure weapons), Congress wins. 4. Note: If Harry had the power to do this, which he didn't, Congress couldn't stop him because Congress can't limit constitutional powers by statute. Jackson's concurring opinion is more persuasive (more pragmatic): (First zen-finger pointing: the idea that you can't know the thing. Zen-fingers give you guidance but you will never see the thing.) President must get his authority either from a statute or the Constitution. 3 types of situations: a. When President acts pursuant to the express or implied authorization of Congress, his power is at its highest ebb. He has all of his own powers + everthing Congress can give him under Article I. b. Twilight Zone: President acts under his own authority without Congressional authorization. President must act with caution. He can only rely on his own independent powers. (But there is a zone where he and Congress may have concurrent authority or in which distribution is uncertain.) Per Arrow, whoever acts first probably has the power. c. President acts against the express or implied will of Congress. His power is at its lowest ebb. Frankfurter's Concurring Opinion, (more formalistic): (2nd zenfinger pointing: "a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned [may] be treated as a gloss on Executive Power vested in the President by 1 of Art. II." a. Congress has expressly chosen not to delegate this authority to the Pres. b. Truman tried to self-aggrandize his power, but failed. He claimed inherent authority to seize the plants.

*****5.

*****6.

C.

Dames & Moore v. Regan: (p. 175) President has broad power to settle foreign claims by the use of Executive Agreements which are binding on the nation. 1. Reason: The source of Presidential power was implicit congressional authorization under the International Emergency Economic Powers Act (IEEPA). Even though the statute did not specifically authorize the President's action suspending claims, it indicates congressional acceptance of a broad scope for executive action in circumstances such as these. 2. Disclaimer/limitation: "We do not decide that the President possesses plenary power to settle claims . . . [But] where, as here, the settlement of claims has been determined to be a

21

necessary incident to the resolution of a major foreign policy dispute between our country and another, and where as, here we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims." D. If the Courts recognize the legitimacy of an executive agreement, it is a way for the President to circumvent senatorial approval (Belmont and the Lifinov agreement.) U.S. v. Guy W. Capps Co. (not in text). Answers the question "exactly when should the President have the power to enter into an executive agreement, when it will become de facto law, without congressional approval?" Pres. had by executive order indicated that there would be a quota on imports of seed potatos from Canada. Capps said it couldn't be done. 1. Question was whether this was the supreme law of the land. We know that Congress could pass a statute doing it and if it was a treaty it would be fine under Missouri v. Holland (and would be supreme under the Supremecy Clause). But 4th Circuit said that it couldn't be done under executive agreement when: a. President acts pursuant to an already passed Congressional statute. b. President does it on his own but Congress later ratifies it by statute. c. President does it on his own (Pres. must be able to point to some specific Art. II power. If he can't he's got a Youngstown problem.) Yakus v. U.S. (1944) p. 181: Price Control Act was itself an exercise of legislative power by Congress. In the act, Congress laid down the standards to guide implementation of the Act by the President. The Act was upheld as constitutional because these standards were laid down by Congress and there was no abdiction of Congressional powers. CONGRESSIONAL ABRIDGEMENTS OF EXECUTIVE POWERS. Legislative Vetoes. 1. Immigration & Naturalization Service v. Chada: (p. 182). Under the Immigration and Nationality Act, the AG suspended the deportation of Chada for extreme hardship. The HR passed a resolution to deport Chada pursuant to a veto clause. This congressional veto provision was held to be unconstitutional. a. A fortiori fallacy: If Congress can delegate the whole, can they delegate part? No, it violates separation of powers. (power to impose a greater burden does not necessarily carry with it the power to impose a lesser one) b. Congress could've accomplished this a different way: 1. private bill: something passed by Congress that affects one person instead of the public at large. Could've passed a bill making Chada a citizen. 2. Congress could've kept all of this power to itself. c. Deportation of the alien involves determination of policy that Congress can implement only one way - bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked. d. Legislative vetoes are unconstitutional, whether one or two house vetoes: 1. violates Presentment Clause, which requires a bill to be presented to the President for signature after passed by both houses;

E.

F.

II. A.

22

e. f. g. h. i. j.

2. violates separation of powers. Black's formalistic opinion in Youngstown: Presidential power must extend from powers of CEO or Commander in Chief. Jackson's opinion in Youngstown is pragmatic; and Vinson's is extreme pragmatic. White's dissent in Chada is very pragmatic. This is political theory. We are forcing Congress to delegate power without maintaining control. majority opinion in Chada: bicameralism and presentment clause (very formalistic). severability: The Court severed the veto clause even though the statute did not contain a severability clause. Rest of statute ok. pragmatic argument that Chada is a good thing: AG is in a better position to make these decisions, from an administrative efficiency viewpoint. As a matter of politics, the statute delegates some things to the administration, and setting it up so President can't do anything without legislative veto.

2.

The overarching theme over all of these separation of power cases will be the tension between formalism and functionalism [pragmatism]. It doesn't get any clearer than it is in Chada. We can characterize cases as formalistic or functionalistic (pragmatic): a. Youngstown: is the leading case; it's got a little bit of everything. b. Dames: very pragmatic. c. Chada: very formalistic. The continuum between formalism and pragmatism is used to characterize the outcome of a particular case, but will also help us see what is happening. Process Gas Consumers Group v. FERC, p. 187: Court affirmed the invalidation of a one-house legislative veto of regulatory rulemaking by the Federal Engergy REgulatory Commission, and a two-house veto of such rulemaking by the FTC (neither included presentment to the President). Four categories of legislative vetoes: a. Those that allowed the President and Congress to resolve directly constitutional and policy differences on issues of high political and small legal moment. b. Those legislative vetoes that accommodate a necessarily continuing dialogue between Congress and the President on matters internal to government. c. Those in which Congress sheds the historic legislative burden of private bills on "highly individual matters" by delegating the decision-making to the executive, subject to legislative veto in individual cases. (Chada) d. Those in which the legislative veto is used for "oversight of agency conduct such as public rulemaking directly affecting obligations of the public."

3.

4.

B.

CONTROL OVER APPOINTMENT AND REMOVAL OF OFFICERS. (Art. II, Sec. 2, cl. 2 - Appointments clause) 1. Buckley v. Valeo, p. 190: Congress establishes the offices, and the President appoints the officers. Congress may not appoint officers whose functions are executive in nature. Officers of the U.S. must be appointed pursuant to Art. II, 2, [2]. a. The power to appoint officers is reserved to the President, subject to the advice and consent of the Senate, even when the officers are members of administrative agencies.

23

b.

Even though the members of administrative agencies are not executive in day-to-day operations, the executive was not excluded from selecting them.

2.

Myers v. United States, p. 191: President's Art. II power includes the power to remove executive officers of the U.S. (at will) without the advice and consent of the Senate, even though their appointment had been subject to the advice and consent of the Senate. Humphrey's Executor v. U.S., p. 191: The removal power of the President, without the advice and consent of Congress, is limited to the executive branch. a. The President can only remove executive officers performing executive functions. b. Congress can remove quasi-legislative and quasi-judicial officials. Reason: Congress has the authority to create quasi-legislative or quasi-judicial agencies and that authority includes the power to fix the period during which they shall continue, and to forbid their removal, except for cause, in the meantime.

3.

4.

Bowsher v. Snyar, p. 192: Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws, except by impeachment. a. To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. The question is whether the Comptroller General is controlled by Congress. Congressional removal powers over the Comptroller General's office dictate that he will be subservient to Congress. b. The act gives the CG executive powers, which he may not be entrusted with since Congress has retained removal authority over him. c. The act contained a fallback provision, which amounts to presentment. d. This is a formalistic decision: Limiting the functions of officials at the expense of efficiency. *****e. Zen finger pointing: the danger here is the ursurption of Executive branch functions. *****5. self-aggrandizement (the act of making oneself greater) of power by Congress: zen-finger pointing: congressional usurpation (wrongful seizure) of Executive branch functions. The Court allows Congress to aggrandize the Court's power. The Court is more likely to permit separation of powers when one branch is not aggrandizing (increasing) its power at the expense of another. Morrison v. Olson, p. 196: Independent Counsel Act did not violate the principle of separation of powers. a.Congress had given itself no role in the removal process, as it had tried to do in Bowsher. Language of non-aggrandizement: The court said there was no real attempted aggrandizement of power: "this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction." (No attempt by Congress to increase its own powers, and no judicial ursurption.) b. The Acts provisions limiting the powers of the AG (or the President through the AG) to remove the Independent Counsel are constitutional because they are not of such a nature that they impede the President's ability to perform his constitutional duty.

6.

24

c.

*****d. e.

The Act did not completely strip the Pres. of the power to remove the Independent Counsel. There could be removal if there was cause. Therefore, the removal restrictions did not prevent the Pres. from engaging in the faithful execution of the laws. mega zin-finger: Does the act impermissibly undermine the powers of the executive branch? (This is the backstop if aggrandizement doesn't work.) No independent counsel may be appointed without a specific request by the AG, and the AG's decision not to request appointment if he finds "no reasonable grounds to believe that further investigation is warranted" is committed to his unreviewable discretion. (Okay for Congress to create independent counsel as long as it gives the check to the AG.)

C.

THE WAR POWERS. (Per Prof., this is a joke because if the Pres. doesn't have to do it under the constitution, he doesn't have to do it.) 1. The "Yale Paper" - Indochina: The Constitutional Crisis. Part One: Theories upon which Presidents have relied for the use of military force abroad w/out congressional approval may be divided into 3 general categories: a. The Sudden Attack Theory: respond to an armed attack on the territory of the U.S. w/out requesting congressional approval. b. The Neutrality Theory (aka "interposition"): dispatching troops to act as security guards for American citizens abroad and their property. c. The Collective Security Theory: may be justified as necessary for the protection of American security even though the conflict may arise thousands of miles from American shores. Part Two: a. When a decision in foreign or military affairs demands speed and decisiveness, there is a presumption that it is within the exclusive power of the President. b. All other decisions are within the power of Congress. Some of that congressional power is in the twilight zone and held concurrently with the President. But when the decision entails a significant commitment of the nation's human, physican, and moral resources, there is a presumption of congressional exclusivity. The presumption can be rebutted: The President can unilaterally commit a significant amount of the nation's human, physical, and moral resources; but he can do so only if there is a clear need for speed and decisiveness. There is a point at which decisions become so momentous - in human, physical, and moral terms - that power passes from the twilight zone in to the exclusively legislative zone. c. "Within the twilight zone of shared power, if members of Congress have views on the conduct of foreign and military affairs which differ from those of the President, there is no reason - in the Constitution, in theory, or in precedent - why they should hesitate to write their policy preferences into law."

III. A.

CONGRESSIONAL ABRIDGEMENTS OF JUDICIAL POWERS. Minstretta v. U.S., (1989) p. 206: Ct adopted Madison's version of separation of powers, finding that "our constitutional system imposes upon the Branches a degree of overlapping responsibility, a duty of

25

interdependence as well as independence the absence of which would preclude the establishment of a Nation capable of governing itself effectively. 1. The Act placed the sentencing commission in the judicial branch (which commission was composed of 7 members appointed by the President. Here, Congress knows it doesn't have the courage to come up with its own determinate sentencing guidelines, so it pushed it off on the judiciary by sticking the commission in that branch. 2. No violation of the non-delegation doctrine: a. sufficiently specific and detailed. b. allows for minimal standards as long as congress sets policy. c. complies with Yakus. 3. No separation of power's problem here. Congress got away with pushing evil/bad job off on judicial branch and not having to risk not being relected. a. Pragmatic, flexible approach. b. Sentencing has always been a shared responsibility. c. Commission located in judicial branch is exercising administrative authority (Arrow says: quasi-legislative) d. Judicial branch didn't assign tasks more appropriately accomplished by other branches. e. Law does not impermissibly threaten the institutional integrity of the judicial branch. 1. Not prohibited by Constitution. 2. Complies with the Appointment Clause. IV. A. EXECUTIVE PRIVILEGE.

United States v. Nixon (The Watergate Tapes Case) , p. 210. The prosecutor subpoened the Watergate tapes, and Nixon claimed absolute priv. under Art. II. 1. Rule: President has no absolute privilege of confidentiality with respect to general matters. The President has a prima facie privilege to maintain the confidentiality of internal executive communications, but that privilege does not extend this far. President is presumptively privileged. 2. Source of privilege: implicit in the enumerated powers. *****3. Issue-Specific Standard of Review (Straight Balancing Test): (This is a battle between Constitutional rights: 5th & 6th Amend. rights of criminal defendants v. Pres. constitutionally based privilege.) Must balance the policy interest behind the executive privilege against policy interest behind crossexamination (President's interests v. D's interests). a. The issue that triggers this standard of review is a conflict of constitutional rights (not powers). 1. What Nixon is asserting is a right, even though it comes from Art. II. 2. Remember, when we have rights on one side and powers on the other, rights win. 4. Executive privilege is not unqualified. It must yield to the higher claims of judicial process in any criminal case where a need for the evidence subpoenad has been demonstrated. B. Nebraska Press. Assoc. v. Stewart (not in the book, but another classic Supreme Court case where there was a conflict between constitutional rights) This involved a criminal trial for a D who committed a heinous crime. Tried to ensure D a fair trial, but the crime was so infamous that the Court had to close the trial to the public. NPA asserted its 1st Amendment right to cover the trial. D waived his right to a speedy and public trial because he didn't want the trial open to the public.

26

1. 2.

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

Nixon v. Administrator of General Services, p. 214. Congress has the power to mandate custody and screening of Presidential papers (The Act does not violate Presidential privilege). 1. No violation of separation of powers. On its face, the Act does not create undue disruption of the executive branch. 2. There are adequate safeguards to protect executive privilege. The intrusion is minimal because it is limited to personnel already in the executive branch who are sensitive to executive concerns. 3. Pres. privilege must yield to the important congressional purposes of preserving the materials and maintaining access to them for lawful government and historical purposes. 4. self-aggrandizement of power: Congress passed this statute. Did it self-aggrandize (ursurp executive branch powers)? *****5. Frankfurter's zen-finger pointing: "a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned [may] be treated as a gloss on Executive Power vested in the President by 1 of Art. II." V. A. CONGRESSIONAL IMMUNITY: SPEECH OR DEBATE CLAUSE. (Art. I, 6).

C.

Gravel v. U.S. (1972), p. 215. Sen. Gavel convened a meeting of his subcommittee and read extensively from a copy of the top secretsensitive Pentagon Papers. His aide was subpoenaed as part of the investigation. 1. Speech or debate clause immunity extends to congressional aides as long as it essential to speech or debate in either House. *****2. Issue-Specific Standard of Review: The privilege extends to matters beyond pure speech or debate in either House only if they are an integral part of the deliberative and communicative process (essential to legislative deliberations). 3. Congressmen and their aides are protected from suit only insofar as their actions are directly, essentially related to the legislative process. B. Hutchinson v. Proxmire (1979), p. 217. Senator Proxmire made defamatory statements during a press release. 1. The Speech and Debate Clause does not protect defamatory statements because they are not essential to the deliberations of the Senate, and were not a part of the deliberative process. Thus, newsletters and press releases are not within the speech or debate privilege. (Stmts would have been protected if made on the floor.) EXECUTIVE IMMUNITIES - there is no express grant of immunity from the Constitution. Nixon v. Fitzgerald (1982), p. 218. The President is entitled to absolute immunity from damages liability predicated on his official acts. (Pres. is absolutely immune from civil liability for acts within the "outer perimeter" of his official responsibility.) 1. Pragmatic Reasons: a. Pres. must be able to operate fearlessly and impartially with the duties of his office w/o concern for being sued. b. The rule of absolute immunity will not leave the nation unprotected against misconduct on the part of the President - remedy of impeachment is still available.

VI. A.

27

B.

Harlow v. Fitzgerald, p. 219. Other Executive officials are entitled to qualified (good faith) immunity only. 1. Absolute immunity is justified only when the function is so sensitive as to require absolute immunity; i.e., national security and foreign policy). 2. The official claiming absolute immunity has the burden to demonstrate that the responsibilities of his office embrace such a sensitive function that he requires a total shield from liability and that he was performing such a function for which liability is asserted.

STATE POWERS I. STATE IMMUNITIES FROM FEDERAL POWER (Taxation). Art. I, 9 is the only specific constitional limitation on Congressional power. The only sections of the Constitution that deal with the states are: a. 9th Amend.: deals with rights, not powers. b. 10th Amend.: powers not delegated to the feds are reserved to the state or the people. State power = police power: the power to regulate in the interest of the public health, safety and welfare (health, safety, and morality). State powers may overlap federal powers. A. ORIGINS OF IMMUNITIES. 1. McCulloch v. Maryland, p. 148. A state tax on the federal gov. was unconstitutional. The Federal gov. is immune from state taxation under the Supremecy Clause. Reasons: a. The federal goverment controls the Constitution and the laws made in pursuance thereof, and cannot be controlled by the laws of the States. b. The power to tax is the power to destroy. To the extent that states could tax the feds the Supremecy Clause would be rendered a mere formality. Collector v. Day, p. 149: Immunity from taxation was found to be reciprocal in this case: feds couldn't tax states either. a. Doctrine was extended to exempt a state judge from federal income tax. 1. The independent sovereign powers reserved to the states by the 10th Amendment were viewed as the foundation for state immunity from federal taxes, analogous to the role of the supremecy clause as the foundation for federal immunity from state taxes. 2. The Constitution does not prohibit either the federal or the state branch from taxing each other, but the law of self-preservation makes such a prohibition necessary. (If one branch is subject to the control of the other, it can exist only at the mercy of that government.) b. Overruled in 1938. Since that time, the Court has not invoked intergovernmental immunity to protect private taxpayers, even when their tax burden was passed on to the other government, except for discrimination favoring retired state employees over retired resident federal employees.

2.

28

B.

STATE IMMUNITY FROM FEDERAL TAXES. 1. Massachusetts v. U.S., (1978) p. 150. Economic burden on the state is insufficient basis for state immunity from federal taxation for traditional federal revenue purposes. a. Where the subject of tax is a natural and traditional source of federal revenue, and where it is inconceivable that such a revenue measure could ever operate to preclude traditional state activities, the tax is valid. b. As long as the tax is nondiscriminatory, operates to defray the cost of a federal program, and does not unduly burden essential state activities, it is okay! 2. New York v. U.S., (1946) p. 152. Federal immunity still obtains on the McCulloch v. Maryland principle, but states immunity from federal taxation has dissipated. a. So long Congress generally taps a source of revenue by whomsoever earned and not uniquely capable of being earned by a State (nondiscriminatory nature of federal action), the Consititution of the U.S. does not forbid it merely because its incidence falls also on a State.

II. A.

FEDERAL IMMUNITY FROM STATE TAXES. Since McCulloch, the Court has never questioned the absolute federal immunity from state taxation. Nor single state tax laid directly on the U.S., without Congress, despite its wholesale erasure of immunity taxpayers in 1938. propriety of has it upheld a the consent of for private

B.

But the Court has carefully restricted such immunity to state taxes imposed "on the U.S. itself, or an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned." STATE IMMUNITY FROM FEDERAL REGULATION. Maryland v. Wirtz (1968), p. 154. The regulation of the hours, conditions, and wages of laborers in the enterprises affecting interstate commerce falls w/in the power of the commerce clause. 1. 2. The employment practices of state and local governments are not exempt under the Constitution. Rule: the federal government can act to achieve the proper goals of its enumerated powers in a manner that might override important state interests, as long as Congress does not engage in the utter destruction of the state as a sovereign political entity. Reason: Congress has interfered with the state functions here only to the extent of providing that when the State employs people in performing such functions it is subject to the same restrictions as a wide range of employers whose activities affect commerce. (nondiscriminatory and does not completely impair state sovereignty).

III. A.

3.

B.

National League of Cities v. Usery (1976), p. 154. (This case overruled Wirtz, but was itself overruled in 1985 in Garcia, which reinstated Wirtz). Held that the Fair Labor Standards Act could not be applied to employees of the state governments. 1. Reasons: a. The regulation of all wages and hours of employees of

29

2.

enterprises such as these fell within the commerce power of the federal government. The 10th Amendment, however, invalidiated the application of the statute to employees of state and local governments. The commerce power, like all federal powers, was limited by the specific guarantees and limitations of the Bill of Rights. b. Narrow immunity: Congress can't interfere with traditional governmental function. Congress can't directly regulate states as states when such states are performing traditional governmental functions. c. The 10th Amendment guaranteed that Congress would not abrogate a state's plenary authority over matters essential to the state's separate and independent existence. Justice Blackmun: saw the decision as establishing only a balancing test which required the judiciary to determine whether a federal interest in commercial regulation was demonstrably greater than the state's claim for an exemption whenever a state alleged that the application of federal commercial regulations to it constituted an impairment of its sovereignty. Blackmun wrote Garcia opinion, which overruled this case.

C.

Garcia v. SAMTA (1985), p. 155. Overruled National League and reinstated Wirtz. At issue here was the application of federal minimum wage and overtime provisions of the Fair Labor Standards Act to municipally owned and operated mass transit system. Congress wanted to regulate the transit authority. 1. Note: The court could have ruled in this case without overruling National League. A ruling that the operation of mass transit districts - unlike the operation of a railroad - was a traditional governmental function might have led to granting the state's immunity from application of this federal law. A determination that the operation of these buses and trains was not a traditional government function would have allowed the federal governemnt to regulate employment practices of state and local governments in their mass transit districts. 2. Reason for overruling National League: The majority rejected a judicial role in supervision of the scope of the federal commerce power as it was applied to state and local government activities. a. Neither historical nor functional approaches had been able to provide a clear and principled basis for judicial determination of the scope of state powers that were immune from federal regulations. b. The political process established by the Constitution was the primary safeguard for state and local governments against legislation which impaired their ability to act as sovereigns. 1. states have a meaningful role in the creation of federal legislation. 2. states have a significant voice in congressional deliberations and influence upon the executive. 3. voters in a state are not likely to return to office federal legislators whose actions they find to be destroying the ability of their state and local governments to provide them with basic governmental services. c. Article IV and the 10th Amendment limit the scope of congressional power to order states to make certain basic governemntal decisions, such as where each state may locate its capital. d. "With rare exceptions, like the guarantee in Article IV, 3 of state territorial integrity, the Constitution does not carve out express elements of state sovereignty that Congress may not employ its delegated powers to displace."

30

D.

FERC v. Mississippi (1982), p. 165. Congress can force states to implement federal regulations in commercial areas or face the prospect of preemption from state law in that area in favor of federal regulation. 1. Reason: The regulation of public utilites, even those which operated in a single state, was within the scope of congressional power under the commerce clause. 3. No violation of the 10th Amendment because Congress, in this instance, was only setting the conditions for the sharing of federal power with the states rather than interfering with the sovereignty of the states or traditional local government functions. NY v. United States (1992), Supp. p. 4. This case is fundamentally different from Wirtz, Usuary, and Garcia because this is not something that the private sector could have done (in the other cases, the regulations applied to everyone). The Low Level Radioactive Wast Amendment Act of 1985 allowed the 3 existing radioactive waste disposal cites to utilize 3 types of incentives (financial, access, and damages) to induce or coerce each state to develop its own waste site. Congress tried to force the states to legislate because it didn't want to take the political heat. 1. Congress cannot compel states to regulate a matter within both state and federal regulatory powers (violation of 10th Amendment). 2. Rules: a. Congress cannot require the States to govern according to Congress' instructions.) b. There are methods, short of coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests: 1. Under Congress' spending power, Congress may attach conditions on the receipt of federal funds. 2. Where Congress has the authority to regulate private activity under the Commerce Clause, the Court has recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation. FERC v. Mississippi. These methods are permissible because the residents of the state retain the ultimate decision as to whether or not the State will comply.

E.

F.

Gregory v. Ashcroft (1991), p. 11. A federal Age Discrimination Act's exclusion of appointees on a policy making level excluded state judges from ADEA protection, which means that they could be forced to retire under state law at the age of 70. 1. Rule/Test - plain statement rule: "If Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakeably clear in the language of the statute. 2. Because it is not clear from the Act that it covers judges, the court refused to conclude that it did. South Carolina v. Baker (1988), p. 165. Dictum: Where the national political process did not operate in a defective manner, the 10th Amendment is not implicated. 1. No defect in political process. 2. So. Carolina wasn't singled out in a way that left it politically isolated and powerless.

G.

31

IV.

FEDERAL STATUTORY PREEMPTION (EFFECT OF FED. REGULATION). The extent to which Congressional legislation may contract [as opposed to expand] state power. - When a Congressional regulation of commerce expressly precludes state regulation of the matter regulated, the supremecy clause controls. - Preemption issues may arise from the exercise of any federal legislative power shared concurrently with the states, but they arise most commonly from exercise of the commerce power. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Com'n (1983), p. 287. Within Constitutional limits, Congress may preempt state authority by 1. so stating in express terms (Congress says states shall not regulate in area X); 2. or intent to supercede state law altogether (implied preemption: struggle to find an inference of presumed congressional intent) may be found from "a scheme of federal regulation that is so pervasive as to make reasonable the inference that Congress left no room to supplement it," because a. the Act of Congress may touch a field in which the federal interest is so dominant that the federal systems will be assumed to preclude enforcement of state laws on the same subject, or b. the object sought to be obtained by federal law and the character of obligations imposed by it may reveal the same purpose. 3. Even where Congress has not entirely displaced state regulation in a specific area, state law is preempted to the extent that it actually conflicts with federal law. Such a conflict arises when a. compliance with both federal and state regulations is a physical impossibility, or b. where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." 4. Where, as here, Congress regulates in a field which the States have traditionally occupied, the States powers are not to be preempted unless it was the clear and manifest purpose of Congress. It was bifurcated here: a. Feds have preempted the issue of safety, and the states are free to regulate in the area of economics. 5. The test of preemption (when the federal government completely occupies a given field or an identifiable portion of it) is whether the matter on which the state asserts the right to act is in any way regulated by the federal government. Maurer v. Hamilton (1940), p. 291. There must be deference to state legislation where public safety and health are involved. Burbank v. Lockheed Air Terminal (1973), p. 291. The state government may not regulate aviation in opposition to the national scheme. Here, the Court found that a local curfew on aircraft traffic was preempted by extensive federal aviation, airspace, and noise-control legislation, despite absence of express preemption. Noise control is within the police power of the States, but it is here preempted by the pervasive control vested in the EPA and FAA under the 1972 act. To uphold the Burbank statute would limit the flexibility of the FAA in controlling air traffic. Hines v. Davidowitz (1941), p. 291. Held that a state alien registration requirement was preempted by the federal Alien Registration Act. 1. Test: Whether the state law stood as an obstacle to the accomplishment and execution of the full purposes and objectives

A.

B. C.

D.

32

of Congress. a. No direct conflict. This is supplemental legislation, but the state legislation was statutorily preempted due to need for uniform federal regulation. (State law stood as an obstancle to the accomplishment of the full purposes and objectives of Congress.) E. Louisiana Public Service Comm'n v. FCC (1986) (not in book). Nice laundry list of big picture of federal preemption. Premption occurs when: 1. Congress, in enacting a federal statute, exresses a clear intent to preempt state law; 2. When there is outright or actual conflict between federal and state law; 3. where compliance with both federal and state law is in effect physically impossible; 4. where there is implicit in federal law a barrier to state regulation; 5. where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law; 6. or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Checklist for Analying Federal Powers on Exam: 1. If separation of powers issues, a. political question? 2. If state statute is involved, a. federalism issues b. rights (because rights trump powers) c. does state have the power to do X 1. intergovernmental immunities 2. is the state statute federally preempted? If so, states can't do it under Art. IV. 3. If the area (incorporate levels of generality here) has not been federally statutorily preempted, is it constitutionally preempted under the dormant commerce clause? If the are is has not been preempted then in that area the federal commerce power lies dormant. V. A. DORMANT COMMERCE CLAUSE. State Regulation When no Federal Regulation. 1. Gibbons v. Ogden (1824), p. 222. Dictum: States have concurrent power to regulate commerce with Congress under its police power. Black Bird Marsh Creek Case. Commerce power is not exclusive to the federal government. States can regulate things which may effect interstate commerce sometimes (or, absent federal statutory preemption, the states can sometimes regulate activities that effect interstate commerce). N.Y. v. Miln (1837), p. 225.: upheld state requirement that ships report details on incoming passengers as "not a regulation of commerce, but of police." Cooley v. Board of Wardens of Philadelphia (1851), p. 225. ***National uniformity standard*** Note: this has never been overruled, although it has been supplanted. The states may regulate with respect to commerce where Congressional intent is for them to do so. States can do it because there is no federal statutory preemption. a. Doctrine of selective exclusiveness:

2.

3.

33

1.

2.

if the item is such that national uniformity is necessitated, then Congressional power is exclusive (even absent federal statutory preemption, states cannot regulate where there is a need for national uniformity or where the item is national in nature). If the item is representative of a peculiarly local concern (even though within the reach of the Congressional commerce clause power, such as the Pa. pilotage laws) warranting diversity of treatment, then concurrent state regulation is authorized in the absence of the congressional preemption.

4.

Welton v. Missori (1876), p. 227. Using the Cooley formula (national uniformity), the Court struck down a state statute that was discriminatory (in that it required only peddlers of out-ofstate merchandise to secure a license and pay a tax). a. Transportation and exchange of commodities requires uniformity of regulation against discriminating State legislation. (State statute would place a significant burden on interstate commercial transactions.) b. Object is uniformity against state legislation. Leisy v. Hardin (1890), p. 228. Original package doctrine was invoked to invalidate state regulation of interstate liquor traffic vis-a-vis an Iowa Statute prohibiting the sale of intoxicating liquor. a. Holding: (broad application of the Cooley national uniformity standard) as "transportation, purchase, sale and exchange of commodities is national in its character and must be governmented by a uniform system, so long as Congress does not pass any law to regulate it, it thereby indicates its will that such commerce shall not be regulated."

5.

Congressional Authorization of State Regulation. 6. Prudential Ins. Co. v. Benjamin (1946), p. 229. Commerce can authorize the states to do something which might otherwise violate the dormant commerce clause. (Congress's authority over commerce is plenary.) a. The Court upheld Congress' power to authorize state taxes that discriminate against interstate commerce (Congress authorized such taxes by the McCarran Act). 1. Under the McCarran Act, Congress gave the states extensive power to regulate insurance, which is not itself subject to interstate commerce. The Role of the Judiciary. 7. The judiciary has repeatedly reviewed state regulation and taxation for possible conflict with commerce clause concerns, and has struck down many state regulations as violating negative implications of the commerce clause in situations where Congress had taken no action. Origins of a More Adequate Standard. 8. Question becomes an attempt to bifurcate direct and indirect burdens on interstate commerce. This concept carried over from the affirmative commerce clause. a. If the states regulated something which directly burdens interstate commerce, it is statutorily preempted. b. If burden is indirect, the states can do it. 9. Justice Stone/Di Santo: suggested that the validity of state

34

regulation of commerce should depend upon whether "the nature of the regulation, its function, the character of the business involved, and the actual effect upon the flow of commerce, lead to the conclusion that the regulation concerns interests peculiarly local and does not infringe the national interest in maintaining the freedom of commerce across state lines. 10. Professor Dowling: (very persuasive) "In the absence of affirmative consent a Congressional negative w/b presumed in the courts against state action which in its effect upon interstate commerce constitutes an unreasonable interference with national interests, the presumption being rebuttable at the pleasure of Congress." This standard will require the Court to balance national and local interests and making a choice as to which should prevail.

Standard of National Uniformity v. Locality. 11. Southern Pacific Co. v. Arizona (1945), p. 233. (Justice Stone) (National uniformity v. locality test). The Court found invalid an Arizona law limiting the length of trains in the state to 70 freight cars. *****a. Issue-specific balancing test: national interest in keeping interstate commerce free from interferences which seriously impeded it (interest in the free-flow of interstate commerce) v. state interest in safety. b. Here, the court found that the burdens on interstate commerce were outweighed the state's evidence of safety. 1. The state's regulation of train lengths passes beyond what is plainly essential for safety since it does not appear that it will lessen rather than incrase the danger of accident. 2. "If the length of trains is to be regulated at all, national uniformity is practically indispensible to the operation of an efficient and economic national railway system." *****c. Scope of Congressional Power: Congress has the power to redefine the distribution of power over interstate commerce. It may either permit the states to regulate the commerce in a manner that would not otherwise be permissible, or exclude state regulation even of matters of peculiarly local concern which nevertheless affect interstate commerce. Special Deference for Highway Safety Regulations? 12. Bibb v. Navajo Freight Lines (1959), p. 237. Held invalid an Illinois law that required contour rear fender mudguards on all trucks and trailers on Illinois highways, in place of straight mudflaps that were legal in at least 45 states. a. "This is one of those cases - few in number - where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce" and must, therefore, bow to federal regulatory measures. So. Pacific standard of review applied. 13. Raymond Motor Trans., Inc. v. Rice (1978), p. 239. Struck down a Wisconsin truck length law when counsel for the state failed to defend the regulation as a safety measure. a. The Court used the Bibb balancing test and ruled the regulations invalid because they place a substantial burden on interstate commerce and cannot be said to make more than a speculative contribution to highway safety. Safety interests have been shown not to exist as a matter of law.

35

There's nothing to put on the side of the balance favoring the state where no safety justifications [no state interest]. 15. Kassel v. Consolidated Freightways Corp. (1981), p. 239. Invalidated Iowa's 65-foot double trailer ban on the ground that it substantially burdens the interstate flow of goods by truck. a. Rule: Regulations to promote the public health and safety may further the purpose so marginally, and interfere with commerce so substantially, as to be invalid under the Commerce Clause. b. Test: If the statute is discriminatory in purpose or effect, strict scrutiny applies. Is this statute discriminatory in purpose or effect?

B.

Standards of Review for Discrimination. 1. Philadelphia v. N.J., p. 259. Statute prohibits bringing out-ofstate garbage into the state. a. Standard of Review: facially discriminatory (virtual per se invalidity, aka strictest of strict scrutiny) (don't even have to look beyond the language of the statute to know that this is discriminatory). 2. Pike v. Bruce Church, Inc., p. 241. Watershed case. *****a. Issue-specific standard of review: applies only where the statute regulates evenhandedly (where the statute is nondiscriminatory). b. If statute is nondiscriminatory, standard of review is strict scrutiny. (substantial relation to compelling governmental goal, and no less restrictive alternative. The existence of a LRA is individually dispositive (if there is a LRA, the state loses.) Pike test: putative local interest v. free flowing commerce, considering less restrictive alternative. The trigger is that this only applies where the state statute does not discriminate against interstate commerce.

c.

3.

Hughes v. Oklahoma, p. 262. "When discrimination against commerce is demonstrated (other than facial), the burden falls on the State to justify it both in terms of local benefits flowing from the statute and unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake." Strict scrutiny is the standard of review where the statute has a discriminatory effect.. a. How statute can be discriminatory other than on its face: 1. purpose: discriminatory in its purpose against interstate commerce. 2. effect: discriminatory in effect against interstate commerce. There are 5 particularized forms: a. straight discrimination: state A discriminates against state B (state A tries to give competitive advantage to its own producers. Baldwin v. GAF Seely. b. leveling effect type of discrim.: enables us to negate a competitive advantage either in quality or cost of production from out of state. Hunt v. Wash. State Apple. c. coerced relocation: Pike v. Bruce Church. d. projecting legislation into other states. e.reciprocity. b. Except in a bizarre case, everytime you see discriminatory purpose, you'll have discriminatory effect. The point is

36

that the "purpose part is largely obiter dictum." 4. Discrimination Analysis: a. Is the statute facially discriminatory against interstate commerce? b. Does the statute discriminate against the market or against a particular firm? Exxon. c. If not, is there legally cognizable discrimination in terms of the effect of the statute on interstate commerce? (Use the 6 particularized forms to make this determination.) If so, apply strict scrutiny. d. If no discrimination, apply the Pike test. Burdens on Out-of-

C.

Regulation of Incoming Trade and Other Commerce: State Suppliers Seeking In-State Markets. 1.

Pike v. Bruce Church, Inc. (1970), p. 241. a. Issue-specific standard of review (balancing test): Where statute is not discriminatory it w/b upheld unless the burden on commerce outweights the local benefits. Baldwin v. G.A.F. Seelig Inc. (1935), p. 242. N.Y. regulated milk prices and prohibited the sale of milk in N.Y. bought outside the state at lower prices. Pre-Pike case. a. Statute was invalid because NY was regulating out of state prices. Purpose in doing so was to make sure that local residents had plenty of milk in a time of shortage (economic protectionism). They are really trying to create a barrier to competition. b. particularized form of discrimination: straight discrimination - created an economic barrier against competition with the products of another state or the labor of its residents. c. Baldwin has been cited widely by the Court as basic authority, and has never been questioned. Dean Milk Co. v Madison (1951), p. 244. This case gives us the "least restrictive means test." This is the first case where strict scrutiny is applied. A local ordinance prohibiting the sale of milk not processed w/in 5 miles of the town imposed an undue burden on interstate commerce. a. Standard of Review: strict scrutiny: substantial relation to a compelling governmental goal, with no less restrictive alternatives (LRA's) available. 1. Where there is no LRA, the legislative purpose is substantially related to the governmental goal. 2. Where there is a LRA, legislative purpose is not substantially related. b. LRA's: We are talking about LRA's which are likely to be equally effective and not cost prohibitive. d. The fact that some interstate commerce is allowed to come in will not save a discriminatory statute, nor does the fact that it also discriminates against intrastate commerce. Breard v. Alexandria (1951), p. 246. Upheld an ordinance forbidding door-to-door soliciting of orders for the sale of subcriptions to out-of-state magazines. a. We never get to strict scrutiny here because there's no discrimination. 1. The act creates no barriers against interstate independent dealers. 2. the clause protects the interstate market, not just

2.

3.

4.

37

b. c.

particular interstate firms. Local homeowner's right to privacy outweighs the economic burden even though "interstate commerce itself knocks on the local door." Test that came from the sky and disappeared: When there is a reasonable basis for legislation to protect the social, as distinguished from the economic welfare of a community, it is not for this court because of the Commerce Clause to deny the exercise locally of the sovereign power of Louisana.

5.

Hunt v. Washington State Apple Advertising Comm'n (1977), p. 248. N.C. violated the commerce clause when it barred from the state closed apple containers bearing any grade marks except those of U.S.D.A. or not graded mark. Leveling type of discrimination (the Wash. grading standards are more rigorous). a. Rule: When such a state legislation comes into conflict with the Commerce Clauses's overriding requirement of a national common market, the Court must effect an accomodation of the competing national and local interests. b. Statute not only burdens interstate commerce, but discrminates against it. Exxon Corp. v. Maryland (1978), p. 249. The Court upheld a state statute preventing producers of petroleum products from operating service stations in the state during times of short supply of petroleum products (because they were supplying their outlets 1st so they could run other gas stations out of business). a. The statute does not discriminate against interstate commerce because there is no local commerce to favor. b. The Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulation. To protect the market means: 1. same amount of gas will flow over the borders of the states as there was before; 2. other out-of-state marketers can still come in and market gasoline as long as they are not refiners (doesn't discriminate against particular firms). c. No standard of review in this case. Threshhold matter is whether it discriminates against particular interstate firms. Since it doesn't analysis need not go any further. d. Limits of the Exxon principle: It says it doesn't protect particular interstate firms. 1. reducing free-flow of interstate commerce over the border. 2. all interstate firms are discriminated against simultaneously. Minnesota v. Clover Leaf Creamery Co. (1981), p. 251. Upheld a state law that banned nonreturnable milk containers made of plastic but permitted other nonreturnable milk containers, largely cartons made of pulpwood, though the plastic containers originated out of state and the pulpwood containers in-state. a. Applied the Pike balancing test: 1. The statute does not discriminate between interstate and intrastate commerce (it prohibits all milk retailers from selling their products in plastic, nonreturnable milk containers, w/out regard to whether the milk, the containers, or the sellers, are from outside the State). 2. Nor is the incidental burden imposed on interstate commerce clearly excessive in relation to the putative local benefits. b. Even though the out-of-state industry is burdened relatively

6.

7.

38

more heavily that the Minnesota pulpwood industry, the burden is not clearly excessive in view of the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems. Regulation of Interstate Migration. 8. Edwards v. California (1941), p. 252. People are interstate commerce. Invalidated a California statute making it unlawful to knowingly bring any indigent person into the state. a. No single state may isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. (straight discrimination: economic protectionism) D. Regulation of Outgoing Trade and Other Commerce: State Interests Seeking In-State Resources. 1. Burdens on Out-of-

H.P. Hood & Sons v. Du Mond (1949), P. 254. The Court rejected the existence of state power to develop a discriminatory plan that would curtail the volume of interstate commerce to aid local economic interests. a. The states are not separable economic units. Baldwin: One state, in dealing with another, may not place itself in a position of economic isolation. Cities Services Gas Co. v. Peerless Oil & Gas Co. (1950), p. 257. A state may engage in price-fixing within the state because there is no undue burden on interstate commerce (does not discriminate against interstate commerce). Pike v. Bruce Church (1970), p. 257. Pike balancing test was not applied here because there is discrimination against interstate commerce. Arizona violated the commerce clause when it required that growers of Arizona's canteloupes pack them in Arizona containers bearing the Arizona name and address of the packer. a. Coerced relocation: (particularized form of discrimination) The commerce clause cannot permit a state to require a person to go into a local packing busines solely for the sake of enhancing the reputation of other producers, if it will not allow it for the purpose of creating jobs in the state. Philadephia v. New Jersey (1978), p. 259. Held invalid a statute which prohibited importation into New Jersey solid or liquid waste from outside the state. Garbage is interstate commerce. a. The statute is facially discriminatory. The statute differentiated between instate and out-of-state garbage. (virtual per se rule aka strictest of strict scrutiny) b. Unconstitutional because a presumably legitimate goal is sought to be achieved by illegitimate means of isolating the state from the national economy (protectionism). Hughes v. Oklahoma (1979), p. 262. Wildlife is interstate commerce. Held invalid under the commerce clause an Ok. statute prohibiting the transport of minnows from the waters of this state for sale outside the state. The legitimate state concern here was for the conservation and protection of wild animals. a. The statute is facially discriminatory because it completely bans the sale of minnows from inside the state, outside of the state. b. Standard of review: strictest of strict scrutiny (virtual per se invalidity). Even if there is a legitimate state goal, there are nondiscriminatory alternatives available.

2.

3.

4.

5.

39

6.

Maine v. Taylor (1986), p. 263. The Court upheld a Maine law that prohibited importation into Maine of live baitfish that competed with Maine's native baitfish industry (clearly protectionism). a. The statute is facially discriminatory, and strictest of strict scrutiny (virtual per se invalidity rule applies). b. But, there was a legitimate and substantive local purpose, and there were no less restrictive alternatives here, so the statute was permitted to stand. Chemical Waste Management v. Hunt (1992), Supp. p. 13 (reaffirms Philadelphia v. N.J.). The Court invoked Philadephia v. N.J. to invalidate an additional fee imposed by Alabama on disposing hazardous waste from out of state. The Act's additional fee facially discriminatory because Alabama targets only interstate hazardous waste to meet its legitimate local goals. Less discriminatory alternatives are available.

7.

Reciprocity. 8. Great A & P Tea Co. v. Cottrell (1976), p. 264. Held that a reciprocal statute was invalid (Mississippi could not refuse to accept milk from another state if that state refused to accept milk from it). Reason: the State had other adequate alternatives for protecting its interests. a. Reciprocity is another particularized form of discrimination that is different from the others because it is facially discriminatory rather than discriminatory as to purpose or effect. Extraterritorial Regulation. (involves both incoming and outgoing commerce) 9. Brown-Foreman Distillers Corp. v. New York State Liquor Auth., (1986) p. 271. NY passed a statute that made it illegal for a distiller of liquor to reduce its price in other states during the period it is posted in NY, thus directly regulating commerce in other states. a. projecting legislation into other states: (another particularized form of discrimination) regulating commerce in other states is considered discriminatory in effect. 10. Healy v. Beer Institute, Inc. (1989), p. 272. expounds upon BrownForman. States cannot regulate activity outside of its borders. A state may not adopt legislation that has the practical effect of a. establishing a scale of prices for use in other states; b. controlling conduct beyond the boundaries of the state.

VI.

THE STATE AS A MARKET PARTICIPANT (MARKET PARTICIPANT EXCEPTION). A. Reeves, Inc. v. Stake (1980), p. 275. The Court upheld a S.D. statute giving preference to S.D. buyers of cement over out-ofstate purchasers, as not violative of the commerce clause because the state was characterized as a market participant rather than a market regulator. 1. market participant: where state has entered the market itself to bid up its price as a purchaser of a potential article of interstate commerce, and has restricted its trade to its own citizens or businesses within the state. 2. market regulator: where state seeks to prohibit the flow of interstate commerce or to regulate the conditions under which it may occur. 3. When a state acts as a market participant it is immune from sccrutiny under the dormant commerce clause (but is not

40

immune from constitutional scrutiny). B. South-Central Timber Develop., Inc. v. Wunnicke (1984), p. 279. This case is an exception to the market participant exception. 1. When the state is just buying or selling, the market participant exception applies. But when the state is buying or selling upon conditions that go downstream in interstate commerce, then it is regulating. 2. Although the State is a market participant, if it uses its leverage in that market to exert a regulatory effect in the processing market, the market participant exception does not apply. The state can't do what is essentially regulating upstream or downstream in the market. 3. Holding: Alaska's log processing requirement falls within the Pike and Philadelphia rule of virtual per se invalidity because of its protectionist nature.

VII.

THE ARTICLE IV INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE. There are 2 privileges and immunities clauses: 14th Amendment - 1, and Art. IV, 2. The words "privileges and immunities suggest the possibility of parallel interpretation. However, P&I has something to do with fundamentality, and fundamentality for the purposes of Art. IV is not the same thing as fundamentality for purposes of the 14th. DO NOT MIX THEM UP. Corfield v. Coryell (1825), p. 281. Test for determining whether P&I are fundamental in nature for purposes of Art. IV: "those which, of right, belong to the citizens of all free goverments; and which have, at all times, been enjoyed by the citizens of the several states, from the time of their becoming free, independent, and sovereign." 8 Fundamental principles under the P&I Clause: 1. protection by the government 2. enjoyment of life & liberty with the right to acquire and possess prop. 3. right to pursue and obtain happiness 4. right to go to the gov. and assert any claim against it. 5. right to transact business w/the government. 6. right to hold gov. office. 7. right to engage in administering gov. functions. 8. right to peaceably assemble

A.

B.

Toomer v. Whitsell, p. 282. So Carolina charged $2500 for nonresidents to get license to shrimp, and considerably less for residents. Void under the P&I Clause. 1. The right to work is fundamental and the Court cannot abridge the right of a citizen from one state to work in another. 2. In the context of Art. IV P&I Clause, what is fundamental is the right of a citizen of state A to work in state B (the right is very narrow). 3. Even without Art. IV, you can reach the same result through the commerce clause because the statute is facially discriminatory (strictest of strict scrutiny/virtual per se rule). Article IV, 2 (interstate P&I Clause): 1. Whatever rights the citizens of state B have against state B, citizens of state A have also. 2. Ensures receiprocity of rights between citizens of state A and citizens of state B. Baldwin v. Fish & Game Comm. of Montana (1978), p. 280. The Court

C.

D.

41

upheld Montana's non-resident license fee of $225 compared to $30 for residents. 1. The interstate P&I Clause (Art. IV, 2) is not applicable because recreational hunting is not a fundamental right. The activity is not sufficiently fundamental to be considered privileges or immunities. 2. However, this statute bites the dust under the dormant Commerce Clause: The statute discriminates facially against interstate commerce (strictest of strict scrutiny). Philadelphia v. NJ. It also discriminates against particular market (hunting or elk). Exxon. E. Hicklin v. Orbeck (1978 - same year as Baldwin), p. 284. The Supreme Court invalidated, under the P&I clause, the Alaska Hire Act, which gave employment preferece to Alaska residents over nonresidents for all oil and gas leases and other such agreements to which the state was a party. 1. The right to work is a fundamental right protected under Art. IV P&I Clause. 2. Under the dormant commerce clause, it is facially discriminatory (economic protectionism). Even if not facially discrim., still fails under strict scrutiny analysis (Hughes v. Oklahoma) because there was no relationship between the problem sought to be solved and the act, and less restrictive alternatives were available. United Bldg & Construct. Trades Council v. Camden (1984), p. 285. A city ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be city residents was subject to the restriction of the privileges and immunities clause. 1. The out-of-staters opportunity to seek employment from contractors on city-funded projects was sufficiently basic to the livelihood of the Nation to fall within the purview of the clause. 2. The market participant concept does not create an exception from the P&I clause as it did from the the dormant commerce clause, because there is only an implied restraint with respect to commerce clause and there is a direct restraint with the P&I clause. 3. This demonstrates the divergence of the P&I Clause from the dormant commerce clause. Supreme Court of New Hampshire v. Piper (1985), p. 286. A state may not exclude an otherwise-qualified lawyer from law practice because of nonresidence in the state. 1. the law practice is a fundamental right under the Article IV P&I clause, both because a. practice of law is important to the national economy, and b. because nonresident lawyers may be the only means available for vindication of unpopular federal rights, 2. and hence, is important to the well-being of the Union. INDIVIDUAL RIGHTS

F.

G.

-14TH Amendment: "No person shall be deprived of life, liberty, and property without due process of law." (Due process is protects against the states by this clause. 5th Amendment protects against feds.) -Remember: rights can trump powers. (Fed:

-Analysis: Does the government have the power to do what its doing? diff. articles; State: police power) -Rights: 1. liberty:

fundamental bifurcation between things which are fundamental

42

2.

and everything else. property: economic interests. ECONOMIC INTERESTS (Protection of the Economic Rights of Citizens)

I. A.

SUBSTANTIVE DUE PROCESS. Calder v. Bull (1798), p. 337. gives us 2 fundamentally different views regarding the protection of economic interests: 1. Justice Chase: natural rights trump everthing. (noninterpretivism) 2. Justice Iredell: written word is what counts. (textualist) This is the beginning of the interpretist/non-interpretist debate. following represents a continuum: The

-textualism: interpret the test literally. -interpretivism: begins with the text, but believes that you have to interpret the test. -noninterpretivism: means that we are not confined to just interpreting the text. We, as judges, just do our own thing. -or living document analysis: may interpret Constitution consistently with the changing times. Noninterpretivist know what's best for us and want to help us. B. Fletcher v. Peck (1810), p. 339. Effort of the Court to control state legislation through the contracts clause ("no state shall pass law that impairs the obligations of contracts"). The contracts clause could mean three things: 1. protects the right to enter into a contract. 2. protects only executory contracts (stops you from having all debts forgiven) 3. protects fully executed contracts. (This is the one that applies here).

The search for a Constitutional Basis. C. Doctrine of Vested Rights: the freedom to use property without government restriction. Protection under this doctrine is based on the following clauses of state constitutions. 1. due process 2. law of the land D. Barron v. Mayor & City Council, p. 340, note a. Big Case! The Bill of Rights only applies as against the federal government (does not apply to the states). If the Bill of Rights doesn't apply, all you have is Art.I, 10. We are left with the state constitution for protection because the state's due process clause applied to the states. Stone v. Mississippi, p. 340, note b. State cannot contract away its police power. The contract will carry with it the affirmity of the subject matter. Two theoretical formulations of due process: 1. procedural due process: "you, the state, can't do this to me through the processes you have followed." 2. substantive due process: "you, the state, can't do this to me through any process." (state can't do it period!) 9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the

E.

F.

G.

43

people." (There are some rights we retain in liberty and property that the government can't take away from us - things it can't do to us.) Prof. likes this approach better than substantive due process because once you get into substantive due process you get into Dred Scott. H. Wynehamer v. People (1856), p. 341. NY prohibition statute violated the state due process clause as applied to the sale of liquor owned at the time of the enactment of the statute. 1. Substantive due process began here. But this is before the 14th Amendment. It is a state constitutional law decision. 2. Main proposition of this case was that the legislature could not destroy (by any method) whatever was considered property by law it did not have the power under the state's social compact with its citizens. Reason: prohibited by the state due process clause. It affected the vested rights of owners in their property (here, alcoholic bevereged intended for sale).

Fourteenth Amendment I. The original version submittee to Congress authorized Congress to enact laws to protect equal rights. After the Civil Rights Act of 1866 was passed, however, the Committee produced a revised proposal that added as limitations on the states: privileges and immunities due process equal protection

J.

Slaughter-House Cases (1873), p. 343. First case interpreting the 14th amend. deals with whether you can kill a pig in your backyard. Upheld a legislatively-granted monopoly to operate slaughterhouses in the New Orleans area, subject to letting others use the facilities at stateregulated fees. (Upheld on basis of police power - health, safety and welfare - get slaughterhouses out of the city.) 2. Reasons: a. P&I (14th Amd): 14th Amend. only prohibited states from making and enforcing laws that infringed on privileges of national citizenship. The statute did not infringe on any privileges and immunities of national citizenship - so no COA under this clause. b. Due Process (14th Amend.): this provision only guaranteed that states would enact laws according to the dictates of procedural due process. It did not guarantee the substantive fairness of the laws passed by state legis.. So no COA here. c. Equal Protection (14th Amend.): argument rejected because the court believed that the drafters only meant to protect blacks from discriminatory actions by the state. 3. Per Prof., w/in 5 years of its birth, the 14th Amend. is dead. Allgeyer v. Louisiana (1897), p. 347. Struck down a Louisiana statute which prohibited anyone from giving effect to marine insurance on any La. property if the insurance company that issued the policy had not complied in all respects with Louisiana law. 1. This case has nothing to do with the Contract Clause. This is substantive due process with a vengeance. a. protection of economic interest b. protection of freedom to contract (liberty). Lochner v. N.Y. (1905), p. 348. Substantive due process/fundamental right to K case. LIBERTARIANISM. Struck down a state law that limited the number of hours that a baker could work. 1. The law was uncnstitutional because it was an arbitrary and

K.

L.

44

unnecessary interference with the liberty to contract between an employee and employer - a liberty interest protected by the 14th Amendment. 2. Justice Holmes dissent is what is important in this case. Later becomes the law: a. Case is decided upon an economic theory to which a large part of the country does not subscribe (laissez faire - gov. has no business helping the bakers). b. The big Kahuna which begins the undermining of Lochner: "But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire." c. The Court should invalidate a law only when "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and out law." This case bites the dust in Nebbia, which sustained NY price fixing for milk on the ground that a state is free to adopt whatever economic policy reasonably deemed to promote public welfare. Hours of Labor. v. Oregon (1908), p. 352. Sustained regulation of work hours for Basis was special considerations relating to women as set forth Brandeis brief. (general welfare/arguable social benefit.)

3.

Control over M. Muller women. in the

Control over anti-union discrimination. N. Adair v. U.S. (1908), p. 352. Struck down legislation forbidding discrimination by employers for union activity and requiring employees to sign yellow-dog sheet not to join union. Interfered with due process (liberty to contract.) Regulation of wages. O. West Coast Hotel Co. v. Parrish (1937), p. 353. Upheld minimum wage even though it was a limitation on freedom to contract. Regulation of prices. P. Nebbia v. N.Y. (1933), p. 353. Sustained NY price fixing for milk. State is free to adopt whatever economic policy reasonably deemed to promote public welfare. Limitations on entry into business. Q. New State Ice Co. v. Liebmann (1932), p. 353. Relying on liberty of contract, struck down legislation limiting entry into a business, despite strong demonstrations of need for such limitations. R. Test for subtantive due process today: RATIONAL BASIS TEST. It is applied when the economic interest is being abridged and the challenge is under due process: 1. Rational relationship to a legitimate government goal? Williamson v. Lee Optical (1955), p. 358, note b. Upheld legislation requiring that people get new prescriptions to get new lenses unless they had a copy of original prescription. 1. Lenient version of rational basis test: "The statute need not be in all respects logically consistent with its ends in order to be Constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative meaasure was a rational way of correcting it." 2. How do you find (articulate) the legislative goal? a. statute might have an articulated purpose; b. look for the true purpose (what is the real purpose);

S.

45

c. T.

conceivable purpose (the purpose the lawyer invents on the way to the courthouse).

Usery v. Turner Elkhorn Mining Co. (1976), p. 360. A statute that provided that the employer had to pay for medical expenses, even without proof of causation, if an employee or ex-employee came down with black lung disease, was constitutional under economic substantive due process, even though it was retroactive. This is the exception to the rational basis test: "The prospective aspects of a statute as well as the retroactive ones, must meet the test for substantive due process, and the justifications for the former will not necessarily suffice for the latter." There's also a takings clause claim here and a contract clause claim. ON FINAL: analyze the statute under substantive due process, the takings clause, and the contracts clause. TAKINGS CLAUSE. 5th Amendment: " . . . nor shall private property be taken for public use, without just compensation." Analysis: a. is it for public use? b. is there a taking? c. is there just compensation? d. who should bear the burden? 1. Public Use: a. Berman v. Parker: public use means public benefit. b. Hawaii Housing Auth. v. Midkiff: rational basis test. Just Compensation: fair market value. Taking: classic taking is the exercise of eminant domain power (where fmv is paid). a. Loretto - permanent physical occupation (per se rule).

U.

II. A.

2. 3.

B.

bundle of rights approach. Unless everything is taken, it is not a taking. Must look at the bundle of rights as a whole, not at each individual component. Penn Central 3 part issue specific standard of review: 1. the economic impact of the regulation on the claimaint (Hadacheck: must be severe) - [this prong will likely be dispositive]. 2. interference with distinct investment backed expectations (did the right to do what the owner wants to do exist prior to the regulation?) 3. character of the governmental action (is it a permanent physical occupation? Loretto.) Examples of permissible regulatory taking: 1. Miller v. Schune: cedar trees c/b cut down to save apple trees (no taking) 2. Hadacheck: brickyard inconsistent with neighbording uses can be zoned out (no taking) Andrus v. Allard: (eagle feathers case) Bundle of rights approach (this is always a good argument for the state: whatever the statute does, it does not wipe out everything - something of value is left.). Still value here: can possess, devise, donate, etc. 1. must ask how badly your economic impact has been hinked with.

C.

D.

E.

46

2. F.

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

First English Evangelical: re temporary taking/inverse condemnation (take and pay): cause of action against the gov. in which a landowner may recover for the taking of his property, even though formal condemnation proceedings have not been instituted by the gov.. 1. Temporary takings are compensable (fmv for loss of use of property while the gov. hinked around with the zoning process.) Nollan v. Calif. Coastal Comm., p. 375. Conditional permanent easement = taking. 1. Standard: if there is a substantial relationship between the condition and the request, there is no taking (no such relationship here). 2. Issue specific as to denial of permit on condition that it could not ordinarily impose as to the granting of permit. Yee: No physical taking where the owner is not required to submit to the physical occupation. Lucas: Depriving a property owner of all economically beneficial use of his property is a taking, regardless of the important state interest. 1. But, must determine if building on the prop. would've been a nuisance before the statute was passed. If so, no taking. If not, a taking. Causby: Taking where gov. airstip built next to chicken ranch and flew right over, making chickens nervous - couldn't lay eggs. (Here, it was a taking & the chickens were still alive. In Nollan, his property was completely dead - no other use.) CONTRACT CLAUSE. of contract.) (No state shall pass a law impairing the obligations

G.

H. I.

J.

III. A.

History of the Contract Clause. Problem was a problem with debtor relief laws. There are a number of possibilites in terms of what the contract clause applies to: 1. to abridgements of private contracts. 2. to executory contracts. 3. to both public and private contracts (contracts between state & A as well as between A & B). 4. fully executed as well as executory contracts. Fletcher v. Peck (1810), p. 339. Public contract to purchase land from the state of Georgia. The contract was fully executed. 1. Held that Georgia could not pass a law that impairs obligations of contracts, even fully executed (public) contracts. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge (1837), p. 340, note b. Ct will not imply obligations to contracts that didn't exist before. Stone v. Mississipi (1880), p. 340, note b. (Takings clause argument: Has state regulated?) One cannot evade the strictures of the police power by making a contract about something. The K will carry with it the infirmity of the subject matter. (Can't bring suit against the government based on the contract clause, but can't sell coca cola w/cocaine in it either. Is this a taking?) Connolly v. Pension Benefit Guaranty Corp. (1986), p. 389. This differs from the other cases because here, the fed. gov. passed a law impairing

B.

C.

D.

E.

47

the obligations of a state ("no state shall pass a law impairing the obligations of K's"). a. Threshhold question: To whom does the K clause apply? 1. solely to the states by virtue of the text? 2. or also to the fed gov. by virtue of reverse incorporation? b. Rule: The K clause only applies to the states. c. Perhaps the framers were aware that some things that Congress would do under the commerce clause c/b construed as impairing contracts (otherwise, why place the K clause in Art.I, 10, and not Art.I, 9?). d. The Court rejected the K clause analysis and shifted back to a takings clause analysis. Then it applied Penn Central (P saw it coming, so no taking). Then Usery (due process clause analysis), then Spannus (K clause analysis), then facts of Connolly (not analyzing pursuant to K clause because its the fed gov., not the state.) The point is, analyze pursuant to the taking, K, and substantive due process. F. Threshhold questions re: applicability of K Clause: a. sweeps to fully executed and executory. b. sweeps to public and private. c. applies only to state, not feds. Home Loan v. Blaisdell (1934), p. 382. Someone borrowed $ from bank, didn't pay it back, and bank wanted to foreclose. Minnesota passed a statute which said "pay what you can when you can, but the bank can't foreclose." Court created a laundry list approach, which is not a standard of review because we don't know which elements are dispositive. Under the laundry list, 5 reasons the Ct said the statute was unconstitutional: a. state legis. declared in the act that there was an emergency. b. enacted to protect a basic societal interest, not a favored group (Clearly it is intended to protect mortgage debtors. But that group is probably broad enough to have a broad societal interest.) c. relief was appropriately tailored to the emergency. d. imposed conditions were reasonable. e. legis. was limited to the duration of the emergency. Supreme Ct folded on the K Clause at the same time it folded on the restrictive interpretation of the commerce clause in 1934. So the K Clause fairly well went out of existence (didn't make a K Clause argument unless you were desparate) until . . . U.S. Trust v. N.J. (1977), p. 387. Public K case. NY & NJ wanted to build tunnels under the Hudson. They needed to float bonds to pay for this stuff. NJ passed legis. allowing them to get out of contract to pay the bondholders, and use that $ instead "for the social benefit" (building new tunnels and bridges). NJ statute violated the K clause. a. If a state could reduce (abridge) its own obigations, the K Clause would provide no protection at all. b. democracy & distrust: generally, we trust democracy, but in some kinds of situations we apply more rigorous scrutiny (when we inherently distrust). We saw this in the dormant commerce clause (facial discrimination - strict, strict scrutiny). We apply heightened standards of review w/any classifications we distrust. c. When a state is trying to get out of its contractual obligations, we give it a higher standard of review. We distrust more where the legislature can abrogate its own contracts. d. In this case we begin to get the Cronic bifucation: private v. public contracts: irony comes from the fact that in 1787, what they probably had most on their mind was private K's. So strict interp. of framers intent would never have gotten to Fletcher v. Peck (public K). But now we realize that even though the framers

G.

H.

I.

48

e.

were thinking about private K's, when we bring in democracy and distrust, we realize that maybe public K's ought to concern us most now (because if not, State can abrogate its own K's). Strict scrutiny here. It was not necessary for the state to do this. The need for public transit could've been satisfied by least restrictive means (i.e., raising bus fares, etc..)

Allied Structural Steel v. Spannaus (1978), p. 381. Private contract re: pension plans. Minnesotra passed legis. requiring that employer vest every employee's pension, even though the K between the parties did not require it. Allied tried to leave the state as a result of this legis. and the state tried to charge it $185K. Court said that the statute was unconstitutional. a. Usery (black lung case/substantive retroactive due process): the statute retroactively imposed a new burden. (The retroactive implications of the statute must meet . . .) be able to make this due process argument as well as K clause argument). b. Threshold question: Is there an impairment? Yes. Here, the act superimposed an obligation on the company beyond those it voluntarily agreed to take on in the K (subtantially altered). Does it subtantially alter the contractual positions of the parties? Yes. *****c. Issue Specific Standard of Review for K Clause Questions: 1. Has there been an impairment of K obligations? 2. Is the impairment substantial? 3. Reliance 4. Suddenness 5. Not necessary to meet a general social problem. d. This case is distinguishable from Blaisdell because this is class legislation. e. Dissent: statutes that impose new burdens s/b analyzed under substantive due process (Usery), and subsequently validated. K. Exxon v. Eagerton (1983), p. 388. This case is important because it defines broad societal interest more clearly (remedying of broad & general social or economic problem will be part of the test). a. The legislation imposed a generally applicable rule of conduct (it applied to all oil and gas producers regardless of whether they were parties to existing K's) and its effect on existing K's was incidental to its main effect of protecting consumers from the burden of the tax increase. (required oil & gas producers to absorb the tax-increase - couldn't pass it through to consumers). Energy Reserves Group v. Kansas Power & Lights (1983) handout. 3-step Issue-specific standard of review for Contract Clause Claim: a. Threshold inquiry: whether the state law has, in fact operated a substantial impairment of a contractual relationship. (total destruction of contractual expectations is not necessary) 1. Interference w/investment-backed expectations? 2. Has the industry been regulated in the past? If so, impairment is not substantial. b. If the state regulation constitutes a substantial impairment, the State must have a significant and legitimate public purpose behind the regulation (such as the remedying of a broad and general social or economic problem). (This is a hybrid of the intermediate standard of review). See Exxon v. Eagerton. 1. This requirement guarantee's that the state is exercising its police power, rather than providing a benefit to special interests. c. Once legitimate public purpose has been identified, the next inquiry is whether the adjustment of the rights and responsibilities of the contracting parties is based upon

J.

L.

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reasonable conditions and is of a character appropriate to the public purpose justifying the legislation's adoption. (are the means chosen to implement these purposes deficient?) 1. Unless the State itself is a contracting party, courts properly defer to legislative judgment as to the necessity and reasonabless of a particular measure. (Either strict scrutiny applies as in U.S. Trust v. N.J. or we don't defer to legis. judgment if the state is a contracting party.

IV.

CONCEPT OF INCORPORATION. A. Barron v. Baltimore: Bill of Rights doesn't apply to the states, only to the fed. gov.. State could still pass a law establishing religion, abridging freedom of speech, etc.. (This was the period prior to the adoption of the 14th Amd. The only real limits on state power were Art. I, 10: 1787-1860.) Primary protections against states were found in state constitutions. Incorporated stuff into the due process clause of the 14th Amendment, thereby making it applicable against the states. (certain provisions of the Bill of Rights were incorporated) Bolling v. Sharpe (1954). Reverse incorporation: the 5th Amd., which applies to the fed. gov., does not have an equal protection clause (just a due process clause). The 14th Amd. applies to the states, but D.C. is not a state - its the federal gov.. The question was whether the 14th Amd. c/b reverted back to the 5th Amd. due process claue so that the equal protection clause c/b made applicable as against the feds. This case says that reverse incorporation exists. At least part of the concept of equal protection is inherent part of due process, such that it is applicable against the fed. gov. Total incorporation: view that the 14th Amend. made all of the provisions of the Bill of Rights fully applicable to the states. This has never been the majority view, and was rejected in 1. Twining v. N.J.: 5th Amend. priv. against self-incrim. is not incorporated. 2. Palko v. Connecticut: 14th did not encompass at least certain aspect of double jeopardy prohibition of the 5th. 3. Adamson v. California: Same as Twining. Total incorp. received its strongest support in the dissent in this case. Ordered liberty - fundamental fairness test: (concerned with fundamental principles of justice) Whether a particular guarantee was implicit in the concept of ordered liberty or required by immutable principles of justice as conceived by a cifilized socity. Selective Incorporation: Palko (View adopted by the Court) the suggestion that the 14th incorporates the first 8 Amendments. Basis of selection is that these provisions of the 1st 8 Amd's are incorporated which commend themselves to individual justice as indispensible to the dignity and happiness of a free man (subjective test). 1. Under this concept only those provisions of the Bill of Rights that the Court considers fundamental to the American system of law are applied to the states through the due process clause of the 14th Amendment. Therefore, the states cannot violate the 1st 10 Amdmts directly. They are only capable of violating them insofar as they are incorporated in to the 14th Amend.

B.

C.

D.

E.

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2.

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

F.

Duncan v. Louisiana (1968), p. 396. (held the 6th Amd. right to jury trial applicable to the states via the 14th.) Test: whether the procedural safeguard included in the Bill of Rights was fundamental to the American scheme of justice, or fundamental in the context of the criminal processes maintained by the American states." 1. Held that trial by jury was guaranteed by the 14th Amd. because trial by jury in criminal cases is fundamental to the American scheme of justice. 2. Court selectively incorporated (or absorbed) more and more of the specifics of the Bill of Rights into the 14th in 1969. Some of the rights protected under the 14th are: a. 4th Amd. right to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; b. the right guaranteed by the 5th to be free of compelled self-incrimination; c. the 6th amd. rights to counsel, to a speeky and public trial, to conrontation of opposing witnesses and to the compulsory process for obtaining witnesses. Pacific Mutual Life Ins. Co. v. Haslip (1991), supp. 27. The Due Process Clause did not render the punitive damage award in this case constitutionally unacceptable. The general concern with punitive damages awards is reasonableness. The Court found that the following standards imposed a sufficiently definate and meaningful contraint on the discretion of Alabama fact finders in awarding punitive damages: 1. whether there is a reasonble relationship between the punitive damages awarded and the harm likely to result from the D's conduct as well as the harm that has actually occurred; 2. the degree of reprehensibility of the D's conduct, the duration of that conduct, the D's awareness, any concealment, and the existence and frequency of similar past conduct; 3. the profitability to the D of the wrongful conduct and the desirability of removing that profit and of having the D also sustain a loss; 4. the financial position of the D; 5. all the costs of litigation; 6. the imposition of criminal sanctions on the D for its conduct, there to be taken in mitigation; and 7. the existence of other civil awareds against the D for the same conduct, there also to be taken in mitigation. Comments by Justice Scalia: Traditional practice is conclusive of fundamental fairness. No procedure firmly rooted in the practices of our people can be so fundamentally unfair as to deny due process.

G.

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H.

TXO Producction Corp. v. Alliance Resources Corp. (1993), supp. 31. Punitive damages award 526 times greater than actual damage award is not an arbitrary deprivation of property w/o due process of law. 1. General concern = reasonableness. 2. The disparity between the punitive and actual damages is not controlling. One must consider the potential loss to the respondents. 3. Stevens, concurring: The Constitution does not concern itself with $ amounts. Its fundamental guarantee is that the individual citizen may rest secure against arbitrary or irrational deprivations of property. 4. Scalia & Thomas, concurring: Would take the authority to review state punitive damages awards away from federal judges - states can do it. 5. O'Connor, dissenting: Unhappy because this decision offers no guidance to futher courts. Errs in result as well as in approach. "Due process requires judges to at least engage in searching review where the verdict discloses such great disproportions as to suggest the possibility of bias, caprice, or passion. If Haslip was close to the line, this must cross it.

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