Constitutional Law Bar Review

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I. SUPREME Court's Jurisdiction, constitutional law bar review

A.) Historical 1. Articles of Conf: adopted to unify states, but w/understanding that each state retained sovereignty. Created only legislative branch, but no pwr to tax or regulate commerce. Probs: interstate jealousies, disunity in foreign relations, need for revenue, no standing military, economic instability, social unrest, states’ failure to fulfill obligations. 2. Trewitt v. Wheaton – butcher refused to accept RI paper $, fined w/o jury trial. a. SC – fine w/o jury violated state cx b. Another state, MA, tries to pay off debt w/tax revenue instead of print $, protecting wealth but hurt farmers who couldn’t pay, led to Shay’s Rebellion. c. Led to Cx’l Convention 3. Federalist (Hamilton) – should concentrate pwr at the nat’l level. Vest more pwr into 1 person – the president. a. Factions are primary prob of govt. B/c factions are less able to command maj where there’s great diversity of interest over large geographical area, hetergenous republics less susceptible to oppression by factions than small homogenous communities. Federalist no. 10 (Madison) b. To contl abuses, separate govt into 3 independent branches, each w/checks upon the others. Federalist No. 51 (Madison). 4. Anti-Federalist (Jefferson) - embraced republican principle of civic virtue – people are fundamentally good. Pwr is fundamentally corrupting. Thus, should govern at local level. Give pwr back to people, to local gov’t. Decentralization imp b/c civic virtue flourishes best in small homogenous communities.

1.) Judicial Review CONSTITUTIONAL LAW BAR REVIEW

5. Origins: nothing in Cx expressly gives SC pwr to rule on cxality of acts of Congress or state statutes, nor pwr to review state ct decisions. Art III merely creates SC and extends judicial pwr to “all Cases, in Law and Equity, arising under this Cx, the Laws of the US, and Treaties made. . .under their authority.” § 2 spells out cases where SC has original jx and that in all other cases, Ct has app jx. 6. Judiciary Act of 1789: Congress created lower fed cts, but did not give them genl jx in civil cases arising under fed law. State cts had jx. SC authorized to hear 3 types of cases on appeal, involving state ct rejection of claims made under fed law. 7. Review of Acts of Congress: authority of SC to review acts of Congress not in Cx. In early days, dispute re propriety of this doctrine. a. Hamilton: Federalist No. 78 argues that judiciary is least pwrful of branches of govt, neither controls pubic funds nor military. Independence of judiciary allows it to guard Cx and individual rights from improper actions of other branches. Judicial decisions must be governed by Cx rather than by any contrary statute. b. Jefferson: (Anti-Federalist) each branch responsible to determine cxality of own actions, judges should not be ultimate arbiters of all cx’l questions. But recognized that cts would face cx’l question more often than other branches. c. Judiciary Act of 1789: Congress also gave SC pwr to issue writs of mandamus to US officials. Lawrence v. Texas (US SC June 2003) F: Police observed Lawrence engaging in sexual act w/another man. Arrested under TX statute criminalizing “deviate sexual intercourse w/another individual of the same sex.” Lawrence challenge arrest. TX law, unlike Georgia, does single out homosexuals. PH: trial de novo in Harris Cty Crim Ct, petitioners challenged statute as violation of Equal Prot Clause of 14th Amend & of TX Cx, which were rejected. Petitioners entered plea of nolo contendere, fined. TX Ct of App rejected cont’l args & affirmed convictions based on Bowers v. Hardwick. Dissent (Scalia): Should try to be consistent, stare decisis. Ct was willing to strictly adhere to Roe v. Wade even though highly criticized. Precedent now result-oriented expedient. There are state laws which are sustainable only b/c of Bowers (bigamy, incest, prostitution, etc.). If don’t want to adhere to stare decisis, must show Bowers wrongly decided and TX statute uncx’l. 14th Amend does allow the State to deprive its citizens of liberty so long as due process of law. Sodomy not fundamental right deeply rooted in tradition & majority opinion doesn’t address. Majority says no longstanding anti-homosexual laws, but sodomy (whether same sex or diff sex) was criminalized. Majority should not make up cx’l entitlements b/c some States eliminate criminal sanction of behavior nor should it have looked at foreign nations. Governing majority in a state viewing practice as immoral = sufficient govt’l interest. Notes: ● TX law singled out homosexuals. Most people thought SC would decide case on basis of equal protection but the ct decides on basis of privacy rights. ● Issue: does this law violate substantive due process, which protects our right to use contraceptives, possibly assisted suicide, etc. ● Ct finds that it is a violation of privacy. Overturns Bowers. ● What persuades ct that it’s wrong? If you look at history more closely, it’s more richly textured. Actually, there were periods when homosexuality was not illegal, prohibitions have been recent. ● Change of attitude is relevant in how to interpret Cx. Cx is fixed/entrenched but b/c things change, need to allow certain degree of change. Look at original intention of framers. Eg. President is commander in chief of navy, army. What about the airforce. Make him commander in chief of airforce too. ● Who should decide? - SC or local (State elected reps or by federally elected representatives) - In a liberal democracy you leave some substantive decisions up to an individual. But Scalia says you should let states decide what’s immoral, not right for SC to place its morals on state.

Rule of law: must be a separation from the one who makes the law & the one who apples it. Need uniformity. - Different outcome when phrase question differently: “is there a guarantee of homosexual sodomy?” v. “do adults have a right to have consensual sex in their own home?” Scalia: Kennedy never answered the question of whether or not there is a fundamental right to this particular act which TX decided to criminalize. Majority changed their position. - Scalia says people are hurt by changing rule b/c there are many who believe it’s an abomination. Morality woven into the law: bigamy, prostitution, incest. All of those laws are based on nothing more than moral attitudes. - We were absolute on stare decisis re Roe. Thus, should be too on this case. - Distinction of Roe and Bowers: the TX people who rely on the criminalization of sodomy aren’t affected but Roe women are. 1. Anti-majoritarian difficulty: there’s something fundamentally antidemocratic of having 9 men to make these decisions for us. Must reconcile judicial review with what country is about. 2. Role of morality in interpreting Cx: Whose opinions count?: Gallop poll of general society or attitudes of most judges, law profs. Foreign gov’ts?

2.) Original Jurisdiction CONSTITUTIONAL LAW BAR REVIEW

Marbury v. Madison BL: Where Cx as interpreted by the SC, conflicts w/laws enacted by Congress, the SC may declare such laws uncx’l & invalid. (Original jx can’t by expanded by Congress). F: Marbury was a last-minute judicial appointee of outgoing Pres Adams, whose commission was not delivered to him b/4 Adams left office; Jefferson, the incoming Pres, declined to deliver the commission. 1. Established judiciary’s pwr to declare fed legislation uncx’l

3.) Appellate Jx + Judicial interpretation CONSTITUTIONAL LAW BAR REVIEW

Martin v. Hunter’s Lessee BL: The Cx permits the SC to exercise appellate jx over cases pending in state cts. F: The VA Ct of App refused to submit to the US SC’s exercise of app jx over its judgment in a land dispute b/c it found this jx uncx’l.

McCulloch v. Maryland BL: States have no pwr to burden the operation of federal laws designed to execute powers vested in the federal government by the Cx. (Necessary & Proper means helpful & useful to achieve legitimate end authorized by the Cx.) F: McCulloch, a federal band cashier, refused to pay state tax levied on Bank of the US.

Calder v. Bull BL: against all reason for a state to pass an ex-post facto law burdening everyone, some laws that aren’t specified in Cx are implicit in the order of things. F: state imposes an ex-post facto law

4.) Standing, political questions, ripeness and mootness CONSTITUTIONAL LAW BAR REVIEW

Allen v. Wright BL: Standing requires a P to allege a personal injury fairly traceable to the Ds allegedly unlawful conduct and likely to be redressed by the requested relief. F: Black parents sued the IRS for granting tax-exempt status to discriminatory private schools and thereby interfering w/the desegregation of their public schools. I: Do these parents have standing on behalf of their children who are stuck in racially isolated schools b/c of the tax exemptions for racially segregated schools. H: No standing. Too many ifs. If school raises tuition: - Assumption: white parents will send to public schools or parochial schools - basic principle of econ, demand & supply: if price goes up, demand falls and vice versa. Logic suggests that gov’t subsidies keep costs of private schools down. It’s difficult to argue that if the price of private school goes up, not some of the kids will go to public.

Mootness doctrine: prohibits cts from deciding issues that are only abs tract and don’t involve a real dispute, or which have already been resolved. Political question doctrine: requires cts to refrain from deciding issues which are more properly resolved by the other branches of gov’t. Language derived from Marbury v. Madison. Marshall says that a question which is in its nature political cannot be made in this ct. Once the commission is signed/sealed it becomes his vested prop right.

Ripeness doctrine: requires cts to decide onhly issues which involve a real dispute and an actual injury, and not merely potential or speculative harm. Standing: status of being qualified to assert legal rights in ct b/c one has a sufficient stake in the outcome of the controversy 1.) Legal Issue – Do the parents have standing? A party must have standing in order to allow them to come into ct. Derived from Art III, § 2: these cases and controversies. Emerged in the 1930s. a. Ct was routinely striking down legislation that were intended to protect workers saying they were an interference w/the economy that was not permissible. b. Cases were brought often times on behalf of employers who would say their employees really want to wk 100 hr wks. c. Campaign to try to restrain the ct’s jx, to keep them out of legislation intended to regulate the economy & wkrs. d. 3 Requirements i. Injury in Fact – particularized, concrete specific injury suffered by that individual. Cannot be a generalized grievance, such as gov’t is wasting money on a war. ii. Directly traceable to D’s actions (causation b/w harm suffered and Ds actions) iii. Likely Remedy – there must be a remedy that will remedy/redress the situation e. The above are the cx’l minimum. The ct has added more hurdles, Prudential Concerns: i. Own claim – a person can’t bring a claim on behalf of another person, can’t litigate another’s rights ii. No generalized grievance – don’t allow taxpayer suits (if that many people were injured they could organize and affect legislation); must be identifiable interests iii. Within the Zone of Interests protected by the law - cx’l or statutory provision f. 3rd party Standing: branch of case law that’s an exception to the prudential requirements (cx’l reqs still req’d) i. in some specific instances where P has suffered an injury in fact, P may file an action on behalf of himself and another whose interests are congruent. ii. Very rare. g. All of these concerns (cx’l and prudential) are respecting the separation of powers. To prevent interference w/other branches of gov’t. h. Purposes Served by Cx’l Minimum & Prudential Concerns: i. Judicial Restraint – cts not to get too involved in political process ii. Restrict caseload iii. Judicial branch = private law disputes. Public disputes = legislature. iv. Ct should have the advantage of experience, make judgments based on concrete data rather than hypos. Decisions based on hypothetical, abstract cases of generalized harm= bad judgments.

Bush v. Gore F: Bush brought suit to US SC arguing that all those ballots w/hanging chads were being counted by hand and those counters were too liberal. Bush gets an injunction to stop counting. Ct decides the counting has to stop, the certification of FL. Problems: 1.) the votes of those people w/hanging chads are being counted differently. This is a case of 3rd party standing. His interests may/may not be congruent w/those people. We don’t know what those interests are. They can’t go to ct & litigate. Likely didn’t vote for Bush. 2.) The harm is not likely to be redressed by the remedy. Remedy of stopping counting isn’t going to address the harm of some people’s votes not being counted.

Political Question CONSTITUTIONAL LAW BAR REVIEW

Baker v. Carr (1962) BL: The Guaranty Clause may not be used as a source of a cx’l standard for invalidating state action, but an equal protection claim may be so used where it does not implicate a political question. The relationship b/w judiciary & other branches of fed govt gives rise to political questions, not he fed judiciary’s relationship to the states. This case involves none of the types of probs normally id’d as involving political questions. F: TN voters seek a reapportionment of state assembly districts. Representation didn’t change when demos changed. Bias in state legislature favoring rural dists & against cities. Vote dilution. Ps making claim under Equal Protection Clause.

Equal Protection Clause: 14th Amend clause providing that persons under the same circumstances shall be afforded the same cx’l rights Guaranty Clause: a clause in Art IV, §4, providing that “the US shall guarantee to every State in this Union a Republican Form of Govt.” Political Question: A question involving the use of discretionary authority by Congress or the Executive Branch.

If none of the following present, then case should not be dismissed on the ground that it’s a PQ: a. Basic grounds for political question: When text of Cx has expressly given a particular decision to pres/congress. (Brennan, p. 114) b. 2nd Ground: Lack of judicially resolvable standards. The ct needs something to measure its decision against. Needs a standard. In Marbury v. Madison, Marshall invented the standard. a. Brennan argues that the judicial standard is the Equal Protection Clause. c. 3rd Ground: the impossibility of a ct’s deciding the issue w/o an initial policy determination of a kind clearly for non-judicial discretion. (ct not in biz of making policy determinations, no expertise; admin agency has expertise Ct lacks institutional knowledge, thus should avoid making policy judgments. d. Expressing lack of respect for a coordinate branch of gov’t. e. Sometimes, simply have to defer to different branches of govt. Unusual need for adherence to a political decision already made. f. Risk of embarrassment from multifarious pronouncements from diff branches of govt. Undermines political process if ct made decision in conflict. a. Eg. case against pres for going to war w/Iraq. i. Political question doctrine arises b/c if the ct were to hold that the war in Iraq were illegal that would have discernible effects on national security, foreign relations, etc. ii. Political question also arise b/c congress, arguably, didn’t authorize the war iii. War Powers Act violated– whenever prez wants to introduce troops in place where hostility is imminent, prez must ask Congress for permission or use troops for up to 30 days. iv. Policy determination, political question, embarrassing the prez v. Lack of judiciable standard. Ct can’t make political judgments on risks.

Was Bush v. Gore a political question? PQs aren’t about politics or outcomes. ● Risk of embarrassment? ● Has the pwr been committed to some other branch of govt? ● ct didn’t think it was a PQ b/c Art II language. FL had right to decide the rules of election process. FL SC had interfered by changing the rules. The ct found that that gave them a judiciable standard. That doesn’t match what the FL legislature said.

Ripeness & Mootness ● when is claim timely? ● if too soon, it undercuts case in controversy; want to know facts. ● If case is overripe, it becomes moot. ● If challenging grounds of denial into law school. Claim is moot 10 yrs later.

II. CONGRESSIONAL POWER CONSTITUTIONAL LAW BAR REVIEW

5.) Commerce Clause

Art. I – dividied into 10 sections. 1.) def of congress 2.) how members of house are qualified & selected 3.) how members of senate are qualified & selected 4.) describes the election process, states have pwr to run the election subject to congressional regulation 5.) each of the 2 houses have pwr to manage themselves 6.) compensation of members of congress 7.) defines the legislative process, how bills get passed. House & senate individually have hearings debating/voting bill. House & senate will pass their own version where language may be different. Bill goes to joint committee of congress who actually writes the bill. Revised bill goes Congress may prohitib the interstate back to house and senate for vote. Once passed, it will go to prez for signature. If he vetoes it, the house & senate have opp to override veto so long as it has 2/3rds. 8.) Powers of Congress: incl. Necessary & Proper Clause 9.) Limits on Congress Pwrs: can’t pass an ex-post facto law or bill of attainder (punish a particular individual as if they had judged the individual like a ct). 10.) States can’t: impose tariffs, conduct own foreign policy, have army/navy, negotiate treaties

Commerce Clause (Art I, § 8): Congress has pwr to regulate commerce among several states, w/foreign nations & Indian tribes

Gibbons v. Ogden BL: The commerce pwr, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than those prescribed in the Cx. F: A ferry boat operator, given an exclusive license by the State of NY to run a ferry from NYC to NJ, filed suit when a competing boat began to operate a similar service in the same waters.

Supremacy Clause (Art VI): when a state law conflicts w/either the Cx or a law passed by Congress pursuant to the pwr granted it by the Cx, the fed law is supreme.

H: Textualist approach to interpret CC (Marshall): 1.) everyone knows that commerce incl navigation (not obvious to everyone) 2.) “commerce among the several states” means more than goods/services that are in the immediate instant of crossing the state border. Cx must have meant that commerce continues into the several states & is still subject to fed regulation. Intermingling b/w state & fed’l pwr when goods/services get into the interior of the state. 3.) Power to regulate is complete, not subject to limitation except as otherwise provided for in the Cx. Thus if Congress decides it will grant monopoly, they have the pwr to do it, so long as states are part of intercourse. a. Decisions of congress are supreme law and trumps state laws. b. Doesn’t necessarily preclude a state from having laws re navigation. Eg. laws re qualifications of navigation license. Grey area of concurrent pwr. Concurrence (Johnson): - the powers of the states is at an end. - Gibbons is in part about whether states have enough pwr to regulate slavery

Hammer v. Dagenhart (law re morals not upheld; child labor case) BL: Congress’ pwr to regulate interstate commerce does not incl the pwr to forbid certain commerce form moving interstate. Congress may not regulate interstate commerce as a ruse to contl what it considers to be improper local manujfacturing producing legitimate goods. F: A father whose children’s wkg hrs were limited by a fed child labor act sought an injunction against the enforcement of the act & any restriction on his children’s hrs. H: Congres’ pwr to regulate interstate commerce is a pwr to contl the means by which commerce is carried on. Not pwr to forbid commerce form moving and thus destroy it as to particular commodities. CLA does not regulate transportation among the States, but aims instead to standardize the ages at which children may be employed w/in the States.

Champion v. Ames (eg. of statute regulating morals that was upheld) BL: Congress may prohibit the interstate transportation of any things or commodities that are ordinary subjects of traffic, such as lottery tix, and have a recognized value in money. F: Fed Lottery Act criminalized selling tix across state lines. D appeals b/c he says not commerce. Lottery tix is a K. Justice Harlan: interstate commerce incl lottery tix. Congress has pwr to prohibit any evil involved in commerce. In fact, congress isn’t threatening pwrs of state, trying to protect states. CA and TX has already made lotteries illegal. H: This case is the beginning of fed police pwr. Nothing in Cx that gives the fed govt police pwrs. Congress has pwr to prohibit piracy, immigration, but not the express pwr to make something a crime. All of fed govt’s pwr is in commerce clause. - The ct is recognizing that commerce involves things that are not tangible. K right is not tangible like other types of commodities. If govt has the pwr to regulate a promise to pay then it has the pwr to regulate debts, Ks to truck goods, etc.

Expansive view of Commerce Clause = Gibbons & Champion Challenged: a. In 1933, FDR & Congress created and enacted many statues desingemed to alleviate eocn prlbs of Depression. Many of those statutes, grounded in the commerce pwr, were challenged in ct. at time of establishment of police pwr, countervailing trend to limit the fed’l commerce pwr b. labor unions/unrest: country was polarized form 1880s to 1900s re this issue. States passed legislation intended to protect wkrs, to try to avoid the violence occurring, to limit the use of children in factories, guarantee of a minimum wage, to organize & bargain collectively, improve conditions of factories, limit hrs c. In a number of the first New Deal cases, the SC took a very hard-line position on the CC, and req’d Congressional legislation to actually regulate interstate commerce (Schector & Carter)

Schecter Poutlry v. US (conservative approach to CC) BL: Once a good in interstate commerce is disposed of in the state of final destination, it’s no longer in interstate commerce and thus no longer subject to the fed commerce pwr. F: NIRA (legislative program intended to revive economy) Roosevelt created local industrial boards, setting prices. Shetrick, butcher in Brooklyn, sued NIRA. Butcher operated slaughterhouse in violation of local standards. Conditions in slaughterhouse were bad, refused to comply w/labor standards and sold unhealthy chickens. H: Chief Justice Hughs (sp?) says 2 probs w/NIRA: 1.) It goes beyond the commerce clause pwr because the chickens are no longer part of the stream of commerce b/c they’ve come to rest. Once slaughtered, they’re sold to local mkt. 2.) No direct effect on interstate commerce. Cardozo’s concurrence: distant repercussions insufficient. Even if possible that Butcher selling chickens at lower price could affect a NJ butcher, it’s not enough. His slaughterhouse is fixed and local.

Carter v. Carter Coal Co. (conservative approach to CC) BL: fed regulatory pwr under the CC doesn’t begin until interstate commercial intercourse begins. Thus, mining, manufacturing and agricultural production are local events not subject to fed regulatory pwr. F: Legislation designed to ensure min wages, max hr laws, intended to protect wkrs & to limit production of coal to drive up price of coal & reverse effect of inflation. Carter, shareholder, challenges application of this act. H: Justice Southerland: any effect here on interstate commerce is merely indirect.

● Shetrick, Hamer & Carter represent formulistic approach: Ct establishes certain categories of things local, has only indirect effects on interstate commerce. Didn’t look at particulars, idea that a mine, farm, plant is at one place. ● highly controversial. Ct was greatly criticized. ● Southerland, known by critics as 4 horsemen of the apocalypse. Refused to consider the widespread poverty in nation. ● Roosevelt decided to appt 5 more justices. Art. III doesn’t specify how many justices.

6. Modern Commerce Clause

● in 1937, SC did an about-face, adopting a liberal approach ot the CC that prevailed for a umber of yrs. Occurred after Roosevelt’s proposed “ct packing plan.”

NLRB v. Jones & Laughlin Steel Corp BL: Congressional pwr to protect interstate commerce is not limited to transactions which are an essential part of the “flow” of interstate commerce, and may reach activities that are deemed to merely burden or obstruct interstate commerce. Upheld Act. F: Jones & Laughlin Steel refused to follow an NLRB order to cease anti-union efforts, & challenged the statute on which the order was based. ● ct says it changed position b/c of economic conditions of time. Right to organize is fundamental right. Right to bargain collectively is a form of price fixing, but necessary to prevent Great Depression. ● When industries organize on a nat’l scale, their implication affect national. A practical conception, actual experience. ● Legal Realism - intellectual shift from 19th cent way of legal formalism thinking - legal application of moral pragmatism. - moral pragmatists thought to judge an idea, should look at its consequences. Law is not a brooding omnipresence in the sky, not about fixed ideas, fundamental truths. - Holmes began legal realism movement - Law as experience. Impossible to isolate the judge as a neutral decision maker from being a policy maker. They apply as well as make the law.

Wickard v. Filburn BL: An activity that’s local and may not be regarded as commerce yet may be regulatecd by Congress under the CC if it exerts a substantial economic effect on interstate commerce, regardless of whether the effect is direct or indirect. F: Filurn, a farmer, contest a Dept of Agric. Wheat production quota as uncx’l, contending that it goes beyond the reach of the CC. ● cumulative effect: if all those similarly situated like Wickard, produces extra wheat for family, repercussions on interstate commerce, enough to apply CC & fed govt can regulate. ● No matter if you’re big or small, everyone can be subject to fed’l regulations even if what you’re doing is purely intrastate.

Reasons for shift from Hamer to Wickerd (modern) ● Authoritarianism follows economic dislocation. Failure of govt to step in & control the political/economic effects led to the rise of national socialism in Germany, rise of Stalin in Russia. ● Judges changed/replaced. Many apptd by Roosevelt ● Urbanization, growth of immigration, growth of nat’l economy, growth of US in world economy ● Problem w/freeriders. If Wickard takes adv of govt program, selling wheat at gov’t set prices & keeps some for himself, he’s a freerider b/c he’s getting something for nothing. Shifts some of the costs onto freerider to prevent them to take adv of gov’ts farm support program w/o paying for it. ● Power of congress limited by the political structure of the govt rather than thru the exercise of the ct’s jurisprudence. We’re trying to protect the prerogatives of states to do their own thing. Ambiguity of where we draw the CC’s limit. Not everything is decided by SC, some things are decided by the political process.

Heart of Atlanta Motel v. US BL: local actions having effect of discouraging various types of interstate commerce, such as interstate travel, are w/in the regulatory pwr of Congress. F: Owner of Motel (P) refused to rent rooms to blacks. P sought declaratory judgment that Title II of the Civ Rights Act of 1964 was uncx’l. H: Congress may prohibit racial discrimination by private motels that accept out-of-state business. ● Discrimination deters interstate travel. No hotels for blacks. ● discrimination may restrict commerce. Integrated hotel may = fewer customers. Congress doesn’t have to boost aggregate demand or increase productivity. ● Ollie’s BBQ – refused to seat any Af Ams; located on state highway where most customers come from inside the state. - Sec 5 of 14th Amend constrained by earlier precedent (covers only discrimination mandated by state); forced to use CC ● How much scrutiny re evidence of effects of discrimination?  Rational basis – ● basic approach in reviewing any econ legislation. Defer to leg branch unless legislation is wholly irrational. doesn’t matter if Congress got facts right, don’t have to prove by preponderance of evidence ● Ps provided evidence that they would lose tremendous amts of biz if integrated.

Hypo: What if Congress, troubled by spread of STDs & teen pregs, outlaws sexual education in the schools under the CC pwrs? Can they do that? - can link it to sale of condoms/birth control - fewer sick people/pregnancies mean lower insurance costs - teaching materials crossing state lines - medical services are part of interstate commerce, band aids, equipment are part of interstate commerce

Counter Arg: It is not substantially related to interstate commerce. Too many inferences. ● Education is an inherently local activity. It reflects certain morals/judgments people may have. Argument gets complicated b/c w/in one city, there are different values. Why privilege the views of the people who have cont’l in a particular locality over others, who may represent the ones controlling in rest of country? ● people are paying for this (taxes) choice. ● There are fed laws, however, that eliminate possibility of choice, eg. min wage standard, pollution, labor relations. ● Every state is mini laboratory. Everyone has an opinion of education.

Businesses engaged in interstate commerce (even if it just touches on it) is enough for them to fall under CC pwr.

Relevant activity that we look at? The activity that’s being regulated is the serving of out of state customers or buying out of state chicken.

Katzenbach v. McClung H: Ct combined the aggregate actions of local restaurants throughout the nation to hold that a single restaurant’s activities could be regulated under the Commerce Pwr as having a substantial effect on interstate commerce.

7. New Federalism CONSTITUTIONAL LAW OUTLINE 2004

US v. Lopez (return to conservative CC interpretation) BL: Congressional authority based on the CC extends to activities that implicate (1) the channels of interstate commerce; or (2) the instrumentalities of interstate commerce; or (3) activities having a substantial relationship to interstate commerce. F: A student who was arrested for having a concealed handgun & bullets at highschl was convicted under the CC

Rehnquist: Does this Act fit within the 3rd Category? 3 broad categories of activity covered by CC: (a) Congress may regulate use of channels of interstate commerce; - ie. a highway, a waterway (b) Congress may regulate the instrumentalities of interstate commerce, as well as persons or things in interstate commerce; and - instrumentality: vessels, facilities utilized in interstate commerce; mail, email, telephone (c) Congress can regulate activities that have a substantial relation to interstate commerce, ie that substantially affect interstate commerce - rejected th arg that one can take the aggregate of minor activites to show that they affet commerce (as Katzenbach ct had done) - Govt claims possession of firearm in local school zone substantially affects interstate commerce b/c it might result in violent crime, which imposes costs on society, which are borne throughout US thru insurance rates. That it disrupts educational process (children in fear of their lives), leading to less productive society, affecting interstate commerce. ● Ct not satisfied, it proves too much. Virtually any kind of criminal activity & all educ can fall under Congress’ CC pwr. If congress mandated a fedl curriculum for schools or reach every criminal activity, it would eliminate distinction b/w states’ job & fed govt job. ● Structualist arg: appropriate balance b/w fed & state pwr. Fundamentally, educ is a noneconomic activity even though it affects commerce. Thus, doesn’t fall w/in Congress’ pwr. ● 2 arguments: 1.) too attenuated 2.) act of being/carrying gun in school is not interstate commerce; want to preserve local cont’l over public education ● Value for local cont’l over education: fed govt doesn’t necessarily know more re education, reflects local values, prejudices, people can move elsewhere. ● Although fed govt can regulate all guns under CC it doesn’t necessarily follow that it can regulate it more narrowly

Different Responses ● It would have been cx’l if Congress had limited statute w/guns involved in interstate commerce. But it’s form over substance. ● Gun manufactures have the benefit of having a huge natl mkt that federalism gives them. So they should have some of the burdens too.

Concurrence (Kennedy, O’Connor): any conduct can have a commercial origin or consequence. Ct must determine whether the exercise of nat’l pwr intrudes upon an area of traditional state concerns. Education is a traditional state concern. People should know which govt to hold accountable for a failed function Concurrence (Thomas): “commerce” more limited that ct’s opinions have recognized. It referred to buying, selling, and transporting goods (as opposed to agriculture and manufacturing). Cx doesn’t give Congress pwr over all activities that “substantially affect” interstate commerce. If it did, would be no need for specific Cx’l provisions giving pwr to enact bankruptcy laws, post offices, grant patents, etc.

Dissent (Stevens): Congress has pwr to regulate guns to some degree. Pwr should incl ability to prohibit possession of guns at any location. Dissent (Souter): Ct seeks to draw fine distinctions b/w what’s [atently commercial and what is not, which is basically the same distinction b/w what directly affects commerce and what affects it only indirectly. Congress whould make these distinctions, not the Ct. Majority approach of the last 60 yrs should prevail. Dissent (Breyer, et al): Congress could rationally find that violent crime in schools affect quality of education thus interstate commerce.

US v. Morrison (return to conservative CC interpretation) H: Ct held uncx’l a portion of the Violence Against Women Act (purportedly grounded in the commerce pwr) based on the view that gender-motivated crimes of violence are not economic activity, and that the commerce pwr can only be used to regulate economic activity.

Dissent (Souter, et al): pwrs of fed and states have changed substantially since the framers. 17th Amend was a major factor of change, and the majority should consider our modern integrated nat’l economy in their notion of federalism. Dissent (Breyer et al): If Congress had approached same prob w/legislation focused on acts of violence at public accommodations or by those who have moved in interstate commerce, there would be complex rules creating fine distinctions w/random results.

● We can’t aggregate the effects b/c any crime aggregated could potentially affect commerce. ● Can only Aggregate Economic Activities: For eg. Wickard was committing an economic activity. Can’t aggregate non-commercial activity ● Ct didn’t want to overrule Wickard. - difficult: law re air pollution limiting what you can burn, protection of certain species

Lopez and Morrison, return to conservative pre-1937 interpretation of CC, represent current Ct’s stance on the issue. Both were 5-4 decisions, so retirement of even a single justice could change the current majority view.

8. Spending Power & Implied Limits on Congress CONSTITUTIONAL LAW OUTLINE 2004

Cx Art. I Sec. 7 Sec. 9

Steward Machine v. Davis BL: The fed govt may use the spending pwr to promote the enactment of state legislation in the area of general social welfare w/o violating cx’l provisions. F: The fed unemployment compensation system allowed employers 90% tax credits for any money pd into state-run unemployment comp programs.

Congress can appropriate money subject to: 1.) for the general welfare 2.) any condition imposed must be unambiguous so it’s objective 3.) the condition imposed must be related to the federal purposes of the program a. may attach conditions to influence state behavior ok so long as related b. eg. highway funds going to state on condition of state passing a local VAWA is not allowed 4.) can’t violate any Cx’l provisions

● spending pwr is an alternative to CC pwr to getting what you want.

NY case F: Most states export their waste to another state. Comprehension statute where states have 6 yrs to create own waste disposal sites.

1985 Act has 3 provisions: 1.) states having waste disposal sites impose surcharge escalating over time. Part of surcharge goes to fed govt, putting it into escrow acct, paying it out that meet their goals in having disposal systems. Tax and provide subsidies. 2.) Access to waste disposal sites – the state that has a waste disposal site can limit its access by imposing escalating fees. 3.) If state doesn’t have waste disposal site in place according to fed regulatory standards, then states must take title to all its waste as of 1996. States are then liable and it becomes their problem. - NY et al. signed off on this proposal, NY gets cold feet, doesn’t have the political will to impose on any of its communities a waste disposal site.

● 1st provision – ok under appropriations pwr. ● 2nd provision – ok b/c fed govt can limit interstate commerce ● 3rd provision – unacceptable; fed govt can’t require state to be its regulatory arm; shifting financial & political burden from nat’l congressmen to state assemblymen. - question about accountability, if CA decides to build a waste disposal site at behind X’s house, who should X blame - if fed govt can force state to take title to the material, then the state has no choice, state is left holding the bag, individual blames state rep instead of Congressperson. - many different ways to achieve same result: incentives re appropriations, pass law that you can’t ship radioactive waste out of state ● There’s a limit on CC pwr. Fed govt cannot use state to obscure democratic accountability.

Justice White (dissent): ● is a pragmatist

Printz v. US – compelled enlistment of state executive officers for the administration of fed programs is generally improper F: fed govt passed law requiring registration at time of purchase of hand gun. During transitional period, b/4 fed govt hooked up computers, chief law enforcement officer was responsible for making a best efforts attempt to see if potential purchaser had criminal record. H: (Scalia) ● Though CC pwr does extend to regulation of handgun sales, clear economic transaction ● if fed govt can shift responsibilities to state employees than it could just keep extending its duties to state employees  slippery slope ● accountability problem ● allow fed govt to take credit w/o paying for it ● relationship b/w congress & executive branch – commandeering state officials to perform functions that otherwise might be performed by executive branch.

Ct’s Interpretive Arguments – structural: tension b/w different branches – historical/intentionalist (dissent): Cx should be an extension of broader source of pwr, evidence that Congress makes a sort of strategic judgment. Thus, Congress can’t order state to do something.

There are fed laws that apply to both states & fed govt - Where there’s a general application (public & private), it’s enforceable against the states. - Laws of specific application to states are beyond CC pwr b/c of risk that fed pwr will not be held accountable. When state is being commandeered, problem b/c state doesn’t have enough protection from fed govt. - But if fed govt imposes on all employers, there’s possibility of forming political coalitions, as a check on fed govt. Fed govt accountability. Can’t single out state alone.

III. FEDERALISM: limits on state power CONSTITUTIONAL LAW OUTLINE 2004

9. Dormant Commerce Clause & Discrimination

- Limits state pwr that interfere with interstate commerce - it’s a dormant cc question if fed govt hasn’t yet enacted legislation on their CC pwr. - congress may be sleeping & a state law interferes w/CC 1. Dormant CC doctrine (modern): states may not pass laws which impact interstate commerce causing harm to other states, whether intentionally or unintentionally, directly or indirectly [only Congress is allowed to cause harm among the states]. The issue becomes what, exactly, is the purpose of the state law & how much of an impact does it have on other states. 2. The doctrinal aim is to have a nation which is politically unified & economically efficient. 3. When a state enacts a law that burdens local residents, those residents may utilize the in-state political process to oppose that law. However, when a state enacts a law benefiting its residents, while burdening out of state residents, the out of state residents have no ability to protest the law, lack of access to political process. 4. Cts must determine whether a particular state law violates the dormant CC. Case by case analysis.

City of Phila v. NJ BL: State laws which regulate commercial activity may not, on their face or in effect, favor in-state interest over out-of-state interests. F: SC held as a violation of the CC a NJ statue that prohibited other stated from disposing of solid and liquid waste in NJ.

Carbone v. Clarstown BL: A state law is per se invalid under the CC if it discriminates in favor of local interests, unless the state can prove that it has no other means to advance a legitimate local interest. F: The SC held as a violation of the CC Clarkstown’s ordinance requiring all (whether originating in-state or out-of-state) solid waste w/in the town to be processed at its new waste transfer station. - generating revenue for local businesses is not a legitimate local interest - though some of the burden of state falls upon elocal interest, still can’t ship to burden of a local benefit downstream to be pd for by other states - an “article” in the stream of commerce can be a service, eg. picking up & disposing trash

Rationale of Dormant CC: 1. Framers intended to create a nat’l mkts: if states were allowed to exclude other states form participating in each other’s mkt, the value of the nation’s resources would be severely impaired and the cost of doing biz would escalate. So when states create burdens interfering w/nat’l mkts, must strike down. 2. Political Representation Arg: ct concerned that when a state imposes a cost/burden on nonresidents, they have no political recourse.

West Lynn Creamery BL: States may not tax in-state sales, then distribute the tax’s revenues only to in-state producers. - Issue of vicarious representation. If you impose a tax on just in state milk producer, there will be an internal countervailing political force w/in state. But if only out of state milk producers are affected, then it places a burden on nonrepresented industries. Ingeniousness of separate acct is that it stays off the books. - When there is a small group of people for whom the tax strikes at their livelihood, those people have a sufficiently large financial interests, & much easier to organize. More likely to organize than say everyone being affected by a small tax. - Easier for special interests to lobby than when the majority is affected. Why Paul thinks dissent is inadequate.

10. Discrimination against Interstate Commerce & Facially Neutral State Statutes CONSTITUTIONAL LAW OUTLINE 2004

Exceptions to Dormant CC 1. If congress speaks and authorizes discrimination 2. Market Participant Doctrine: when a state acts as a mkt participant by operating a state-run business, & not just as a law-making entity, the state may favor local interests. However, a state may not impose regulations that have a substantial regulatory effect outside its particular mkt. South Central Timber.

South-Central Timber F: AL owns land, has K to sell trees to timber co.s, req that they must have trees milled in AL. Cheaper to have them milled out of country H: a. AL pretending to be a mkt participant but mkt participants don’t impose these types of downstream requirements in their Ks. b. AL, for eg., could have decided to cut down themselves and sell them to millers it the state as a mkt participant. Allows state as a buyer/seller who to do business with but can’t impose downstream reqs. c. Recognition: states have broader social welfare responsibilities & engage in industries. Thus, have certain freedom to discriminate as mkt participant that it doesn’t have in its capacity as regulator. d. Flip: when private companies act like state, run prisons for eg., have responsibility not to discriminate.

Art IV Privileges & Immunities Clause: although a state act may regulate commerce w/o violating the CC, its regulation may nonetheless violate the P&I Clause, which provides, “The citizens of each State shall be entitled all the Privileges & Immunities of Citizens of [of other States].”

If a state law discriminates against out of state residents on matters of “fundamental concern,” these state must show: (a) it has a substantial reason for treating in state residents differently, and (b) the degree of discrimination bears a close relation to the reason. United Building & Construction

United Building & Construction Trades Council F: Camden NJ requires that companies that do construction for city has to have 60% of their employees who live in Camden a.) it would appear that Camden could do this as a mkt participant. b.) Ps attack the city’s construction Ks under Art. 4 of the Cx, which differs/wks in conjunction w/ dormant CC a. Art. 4 – contains full faith and credit clause. b. Sec 2 – citizens in each state privy to all privileges of citizens of all states; all US citizens are entitled to be treated w/o discrimination in their dealing w/other states; nondiscrimination principle. c. By treating residents of other cities differently, Camden was in violation of Art. 4. d. PIC – if state discriminates re fundamental rights or economic activity then state must show that it has a substantial reason for doing so, ie. there has to be a substantial relationship to an important state objective. Look at the means and the ends. e. Heavy presumption that discriminatory law is invalid f. PIC differs from dormant CC b/c: i. it only applies to US citizens, doesn’t apply to corp or to aliens. ii. No exception for mkt participants or congressional authorization iii. Does not apply to state laws that burden interstate commerce in general, only applies to laws that injure a particular group of nonresidents. g. Dormant CC is broader but has more exceptions. Both work together to create a national mkt.

Exxon v. Governor of MD BL: (CC in place to protect interstate commerce as a whole, not to ensure particular co.s may participate.) A state law that burdens some, but not all, out of state interests does not, by itself, violate the CC. F: SC upheld a MD law that prohibited producers & refiners of petroleum products form operating retail gas stations w/in the state. Reason: during gas shortages, major petroleum co. provided fuel to own retailers & not independent retailers putting a many out of business. 90% of the independent retailers in MD were residents. And 95% of producers/refiners were out of state. Although law facially neutral, impact would be borne by out of state, benefits would flow to state residents. a. Out of state refiners/producers bear cost of this regulation. b. MD residents may also bear cost. Independent retailers will charge higher price. Less competition. c. Though appears discriminatory in effect, ct upholds the regulation; treats law as nondiscriminatory. i. Law doesn’t affect flow of gas into MD. Doesn’t discriminate among instate or out of state refiners or place added costs upon goods. ii. Bulk of burden are borne by residents of MD. iii. MD still open to competition, out of state ind retailers can still come in

Hypo: if MD had law saying all stores must be mom & pop, no more than 2 stores in city. State could reasonably say that we want to encourage small business. A: most job growth occurs with small businesses not large. Large business more efficient. - If you want to sell widgets in MD market, & instead of having 12 home depots there are 1500 mom & pop stores. The cost of distributing your good will go up. The effect of keeping home depots out of MD is prices go up & some portions of carried objects will be elastic. Flow of goods coming into MD will be reduced. - Different from Exxon. Here, this broad scale legislation will have effect of prices going up, less goods being sold. - If costs of interstate commerce are so great, ct could find it invalid.

In asking if law is discriminatory, ct looks at costs and benefits.

11. Facially Neutral State Statutes & Federal Preemption (dormant cc)

Hunt v. WA State Apple Advertising Council BL: States may regulate matters of local concern, particularly food sales, even if such regulation affects or effectively regulates interstate commerce, unless the regulation is discriminatory or unduly burdensome. [NC may not require WA apple dealers to abandon superior grading standards] F: When NC req’d all apples to be labeled under USDA grades, WA, which uses a superior grading system, challenges the req as uncx’l. Discriminatory how: - Repackaging costs raised for WA. Stripping away economic adv WA has of own superior grade. By taking away grading system, NC at an advantage b/c NC apples are cheaper (less distribution costs, less packaging probs, less costs in growing inferior apples). - in order to have a competitive mkt, need homogeneous goods. If 2 states apples are indistinguishable, they will have to compete on price alone. The grading system WA has created, regardless of accuracy, is interference w/the mkt intended to make WA state apples distinct so that it doesn’t have to compete on price alone. - Ct collapses 2 steps of the analysis. Discriminatory b/c costs/benefits don’t justify themselves.

Clover Leaf Creamery BL: MN may require milk to be sold in recyclable containers for environmental reasons, even if this shifts business to MN firms.

Southern Pacific v. AZ BL: States may not regulate matters on which there is a “need for natl uniformity,” any regulation of such matters is for Congress [state may not regulate interstate train lengths b/c weight of asserted safety purpose must still be balanced against the degree of interference w/interstate commerce]. H: The law facially doesn’t discriminate b/c law applies to all cars. - The effect felt by all people (added cost of transportation thru the state of AZ  added costs of shipping to AZ). - Ct says state’s args re safety are dubious. Whereas true that larger trains have an increased risk of decoupling. Decoupling trains will make more trains = more risk of collision. - nature of regulation, i.e. RR, is national in character. - Costs > Benefits - May appear like common sense but in South Carolina Hwy, ct appears to reach opposite conclusion.

South Carolina Highway Dept. BL: If a state regulates a matter which is properly w/in its authority, the regulation is valid if it has a rational basis & does not discriminate [state may impose draconian restrictions on highway use]. F: law saying no trucks above certain weight/height - facially not discriminatory - benefits seem reasonable - distinguish these 2 cases: highways less well funded, harder to travel upon, RR was the main way to travel thru country.

2 Kinds of Preemption 1. Express Preemption eg. weight of trucks shall be X lbs., states can’t interfere.

2. Implied Preemption (more common) a.) imposes obligation which is mutually exclusive of another state obligation eg. fed law says speed on I-hwys should be 55 mph. Thus state can’t impose 65. - but not always obvious when such conflicts occur - eg. If fed govt requires training as does state. Although you can have 2 trainings, ct finds that they are quietly in conflict. b.). Field Premption - fed law so pervasive as to occupy a field of operation - Eg. the Arisa law dealing with employee benefits. Federal govt as to so occupied the field of employee benefits that it takes over. - Treats Congress’ silence as if Congress had regulated so as to preempt state from act.

Kassel BL: When the safety purposes are marginal & the burden on commerce substantial, the law must fail.

II. EXECUTIVE POWER CONSTITUTIONAL LAW OUTLINE 2004

12. Plenary & Concurrent Powers

Cx Art. II

Youngstown v. Sawyer (1952) BL: Cx does not permit the Pres to seize private prop to prevent the consequences of a labor dispute. F: Truman ordered Sawyer, the Sec of Commerce, to take possession of the nation”s steel mills and keep them running on the eve of a steelwkrs’ strike.

Legal basis for prez order: Art. I 1. Sec. I: executive power 2. Sec. II: commander in chief 3. Sec. III: his other responsibilities, to address congress & receive foreign ambassadors - Prez’ responsibility for troops overseas gives him power to take measures in US to protect them overseas. - Ct’s problem w/that arg: the Cx specifically provides that pwr to congress. Not pres’ job to support the army. - Cx: Congress has authority to raise army & navy, to regulate the army & navy, and to declare war. - Prez has authority to be commander in chief: 1. Washington directed troops on the field. Notion that prez directs the military; different from congress’ authorization of military action. 2. Problem w/seizing steel mills: tenuous link b/w directing military & seizing prop. Taking concept of theatre of war too far. 3. Chief Executive Authority: congress must legislate in order for the prez to then act. Here, no act by congress. 4. Any other source of presidential authority? a. p. 336. Pres pwr if any to issue the order must stem from Congress or the Cx itself. Prez only has authority under Cx plus whatever additional pwr congress chooses to give him. According to Black, congress had not given him the pwr prez claims Opinion is famous b/c (an eg of ct imposing limitations on executive authority) but mainly b/c of Jackson’s concurrence.

Three possibilities Zone 1: Prez acting on some legislative authority given by congress. Pwr at peak having all authority given by congress + his own cx’l authority. PP + CP Zone 2: President could be acting on own where congress has not said anything. Twilight zone, we’re not sure whether or not president can/can not do it. PP Zone 3: look at president’s power & subtract from his power whatever power congress has. President’s pwr at lowest point. PP – CP

- Other possibilities: congress & pres have concurrent power or pres has supreme pwr & congress’ pwr is elastic. - According to Jackson, congress has supreme pwr unless explicitly stated. pres pwrs are elastic, expanded or contracted by what congress does. - This case is in Zone 3 b/c congress considered to give Pres authority to seize steel mills & decided not to, congress thus expressly withheld. Is it the same as if congress had passed a provision that Congress shall not be allowed to seize? No. - Read Congressional Silence, in some cases, as if congress had expressly preempted the states. Here, Jackson also hears something in silence. - Something troubling w/congressional silence = striking bills down. - Here read congressional silence as prohibition: - Congress can authorize a taking with just compensation (5th Amend). - Problem w/pres authorizing taking is that in order to take property, congress has to appropriate money to take property. If Pres takes prop w/o money, he violates 5th Amend. Pres can’t act w/o congressional authorization b/c only congress can give money. - If we read congressional silence as prohibition b/c it has not appropriated money, then must ask if it’s a taking of property. Shareholders (still are owners) they lost the right to control and 30 cents more. Is that a taking of property that can be compensated for? Management losing profit margins. - If failure to authorize constitutes a taking that puts you in Zone 3.

Real Hypo: President Bush gave executive order which provided that a noncitizen could be subject to military tribunal if president determined that he was a member of Al Queda, etc. These military tribunals provided for conviction of 2/3 of judges, no jury. Had power to impose death penalties. No appeals permitted. But would be able to appeal to president or secretary of defense. Where does the president’s executive order fit? - congress authorized president to use all necessary & appropriate force against all nations, persons to prevent future terrorist attacks or those responsible for 911. - Youngstown suggests that there are limits to presidential pwr. Congress gave pres pwr, we’re in zone 1. 1.) president is acting in a much expanded theatre of war. Nature of international terrorism is that anything could possibly be part of theatre of war, thus his commander in chief pwr is much broader. 2.) geographical argument: most/all the terrorists who are/have been seized are seized outside of US borders. Therefore, Cx does not apply. The Cx does apply to legal aliens in US and may apply to illegal aliens in US but does not apply to aliens outside. Thus, president could act outside of Cx for them. - We may never know whether the tribunals are cx’l b/c no one can challenge. The only ones who have standing are the ones subject to military tribunals who under terms under the executive agmt have no recourse. Cts have no jx over these people. They can’t appeal their decisions in fed ct.

Ct may be establishing a dangerous precedent, which may be applicable in other situations.

INS v. Chadha BL: A House of Congress may not act alone if its act is an exercise of legislative pwr & does not fall w/in one of the specific exceptions stated in the Cx. F: The House of Reps passed a resolution overriding the Atty Genl’s decision to allow Chadha, a deportable alien, to remain in the US. - Present clause requires all legislation be presented to Pres b/4 becoming law, applies to bills, orders, resolution and votes. Insures that all legislation will be carefully considered. - Applies to the resolution b/ was legislative in character: it altered legal rights & status of Chadha. - Congress delegated atty gen specific pwr to hear appeals of administrative law judges on immigration issues, now must abide by it 1. Legislature – general making rules 2. Judiciary – making decision, help specific cases 3. Bill of Attainder: law that purports to judge a particular person; prohibited by Cx for Congress to do this. 4. By deciding that a 1 house veto is uncx’l, the ct invalidated over 200 laws. 1 or 2 house veto is common device when it delegates authority to the executive branch. Congress has repeatedly enacted laws giving executive branch while saying that we have right to overturn. 5. Requiring presentment changes balance of pwr b/w executive branch & legislature. 6. The president with 1/3 of either house + 1 vote can use the pwr delegated by Congress w/o accountability. White’s dissent: believes the majority is being overly formulalistic. - Only way Congress can enact laws that protect, say for eg. purity of food and drugs, is to give over/delegate. - If you want to maintain democratic accountability, then necessary for Congress to have leap on executive branch. - in 1973, congress passed law intended to require President to come to Congress b/4 committing troops overseas. 1. President Johnson did not have authority to send troops to Vietnam. Congress never got up the guts to face down the president. 2. War Powers Act – in the event of nat’l emergency or foreign crisis, president can commit troops overseas for up to 60 days unless Congress authorizes the action. Congress also has authority to bring home troops earlier than 60 days if both houses vote to bring home troops. 3. The provision of WPA allowing Congress to veto president’s decision violates Cx b/c no bicameralism/presentment. 4. Presentment: presenting it the president for signature. 5. Bicameral Req: requires legislative branch be divided into 2 houses, both of which must approve all legislation by majority vote 6. An act is the same thing as a joint resolution. When congress says the WPA, it means that it has gone thru bicarmeralism & presentment. 7. Concurrent Resolution: it expresses the opinion of both houses, not law. Just congress expressing its opinion.

Chadha and Bowsher described as formalism over function. Black letter approach to pwrs of each branch.

13. Executive Agencies & Independent Officers

Bowsher v. Synar (1986) BL: It’s a violation of separation of pwrs for Congress to impose executive functions on an officer over whom Congress has the pwr of removal. F: A balanced budget law passed by Congress req’d conclusions about budget cuts to be made by the US Comptroller Genl, who was removable by Congress. White (dissent): need to be flexible with separation of pwrs to deal with modern exigencies of cold war, quick disposal of low level radioactive waste etc.; endorses the 1 house veto Burger (majority): Congress was given pwr this way and has no other way to act; functionalist - Congressman Synar, voted against act, has standing b/c if law is valid then as a member of congress won’t have an opp to vote on the cuts. His pwr as member of congress will be diminished. - Act requires Comptroller to engage in executive functions: ultimate authority re budge cuts. - By placing responsibility for execution of Act in hands of an officer who is subject to removal only by itself, Congress has in effect retained contl over the Act’s execution and intruded into the executive function. Problematic b/c he will act loyal to congress. Real problem (Stevens concurrence): - Given up so much pwr to an unnamed/unknown individual (pwr to decide how to spend the entire fed budget) that Congress has violated the delegation doctrine.

Curitis Wright – re external sovereignty, president acts extra cxlly Dames & Moore and Garamendi – examples of exec agmt used to trump fed law; to change in fundamental way, rights and legal status of citizens.

Limits on the state to interfere with property an economic rights 1.) Economic, Property Rights 5th Amend – deals with judicial process - due process clause: no one can be deprived of life, liberty or property w/o due process of law - plain language & intent: require a minimum amt of process that every person is entitled to in judicial proceeding b/4 taking life, liberty or property. - 5th Amend phrased “no person” suggesting that it might apply to federal and state actions against individuals. People have minimal procedural rights under fed or state law. - 1820: Congress faced w/what to do with Louisiana Purchase. Southerners wanted to go into new territory and establish settlements w/slaves. North wanted to prohibit slaves, to limit influence of slave states. 1. Missouri compromise: divided into half slave, half free - 1836: Dredd Scott slave in Minnesota; appeared to live like a free man in Missouri, became property of Emmerson’s widow, who also didn’t believe in slavery. Decided to challenge slavery with a test case, claiming Scott was his slave. Scott sued her, w/her financial support. Goes to SC, which says: 1. Against due process of law to lose property merely by passing into free territory. Strikes down Missouri compromise. - only 2nd time in SC history that it struck down fed law (1st was Marbury v. Madison). - Procedural Due Process: tells what cts must do (fast & speedy trial) - Substantive Due Process: addresses Congress; certain rights so fundamental that no congress could ever take it away from you regardless of process. The substantive right is what matters, not the process.

Curtiss-Wright BL: It’s not an uncx’l delegation of Congress’ lawmaking pwr to give the President the authority to prohibit the sale of arms to a foreign nation engaged in conflict. F: Gun seller charged w/violating statute prohibiting sale of guns to foreign country challenged its cxality on ground that Congress unlawfully delegated lawmaking pwrs to the President.

14. Foreign Affairs & War Powers

Dames & Moore BL: The president has the pwr to suspend pending claims against foreign govts where such action is necessary to the resolution of a major forein policy dispute and where Congress has acquiesced. F: Reagan issued an executive order suspending al US citizens’ claims pending against govt of Iran

American Insurance v. Garamendi F: Ct invalidated a CA statute that req’d insurers doing business in the state to disclose details of insurance policies issued to persons in Europe during Holocaust. H: state law was preempted by an executive agmt b/w US and Germany. Although executive agmt didn’t expressly deal w/CA’s disclosure req, the ct held the agmt’s approach, which emphasized voluntary cooperation and settlement of claims thru a special fund, conflicted w/the statute.

15. Economic Substantive Due Process Rights A. Several provision in the Cx expressly restrict the govt’s pwr to interfere w/people’s private economic interests B. In 1905, Lochner held that the genl right to K is an individual liberty protected by 14th Amend DPC and any law that infringes on freedom in the mktplace or freedom of K is uncx’l if doesn’t bear a real and substantial relation to a legitimate govtl purpose. C. 1905-1934 (Lochner Era): SC struck down approx 200 econ regulations as violations of economic due process. Although inconsistent. D. Decline of Lochner standard began in 1934 w/Nebbia: applied a Lochner-like test in upholding a NY price contl regulation, but refused to impose its own views on proper econ policy on legislatures, opposite of Lochner E. 3 yrs later, in West Coast Hotel, SC overruled one of the most significant Lochner era precedent when it upheld a min wage law for women.

Lochner v. NY (1905) BL: A law that infringes on freedom in the mkt-place & freedom of K is uncx’l if it does not bear a reasonable relation to a legitimate govtl purpose. F: An employer, who was arrested for violating a state law which prohibited bakers form wkg more than 10 hrs/day or 60 hrs/wk, challenged the law on due process grounds. - Ct held that substantive due process rights incl right to contract for your labor. - Let mkt determine Ks. The freely bargained for arrangement b/w wkrs/employers is protected by substantive DP. Holmes (5-4; dissent): majority imposes a particular kind of economics onto the public, i.e. laissez faire. 1. 14th Amend incl a due process clause applied specifically to state, saying no state shall deny any person life, liberty or property w/o due process of law.

Nebbia ● Roberts famously changes his vote from Lochner, upholding law to protect quality of milk. ● The guarantee of due process requires only that it be reasonable. ● Reasonableness test: defer to legislature unless patently arbitrary, unreasonable or capricious. If not utterly wacko, uphold the law.

West Coast Hotel Justice Hughs: Cx doesn’t speak on freedom of K. Due process doesn’t apply to K. The exploitation of a class of wkrs in unequal bargaining pwr is against their health & wellbeing and casts burden on community that must support them.

End of Lochner Era. Everyone agrees Lochner era represents the worst of the SC jurisprudence. The Lochner case is an eg of judicial tyranny, imposing their values on the people while ignoring the democratic process. Ct can’t impose its own view re economics on the nation.

It appears that after Lochner, the idea of economic due process is dead. So dead that it’s embarrassing to talk about substantive due process for another 30 yrs. Problematic in 50s and 60s b/c the only way the Bill of Rights can be applied to States is thru incorporation of the Due Process Clause. Substantive Due Process of 14th Amend (no state shall deny. . .) incorporates Bill of Rights and applies to state.

When the right to abortion is challenged, ct decides Roe v. Wade on Substantive DP of 14th Amend, which protects a women’s right to determine when to reproduce.

How to distinguish modern SDP from old SDP? Why should we think the Cx is more protective of privacy rights not mentioned in Cx than property rights that do get mentioned in Cx.

4 Arguments in explaining why Lochner was wrongly decided. 1.) If you say Due Process is not substantive, Then what do you do about the 1st amend, won’t be able to apply to state. 2.) Even if there’s a right to SDP, no reference in Cx that protects the liberty of K. 3.) The cts ought not to interfere with the political process. Cts don’t have the knowledge, expertise, can’t judge the social conditions, not accountable to people. Separation of pwrs concern. 4.) The real mistake in Lochner: Ct simply starts from the wrong assumption. - Assumption: consent paradigm. These are equal people freely able to bargain. Reality is that they’re not equal. You can’t say wkr has ability to stand up to employer when there’s thous of immigrants. - Lochner ct said that the neutral/natural position has no floor. This assumption is incorrect. An eg. of ct closing its eyes to social realities.

- Some framers believed in natural rights. Law was out there in the ether, coming from divine will or from social K that Locke wrote about. Law was there for cts to discover. - Others felt that it gives the ct too much discretion to strike down laws. - Natural law replaced with legal positivism: most legal rights come to us by positive enactments of legislature. In state of law, there’s no law, only chaos. It’s the structure of gov’t that creates law. - Today, we don’t believe in Natural Law/Natural Rights. But we still have difficulty finding fundamental rights. 1. Today, most of the rights in Bill of Rights applied to States thru DPC. 2. Certain rights found to be fundamental to our concept of ordered liberty or deeply rooted to our nation’s history, eg. right of family.

Art. 1, §10: No state shall pass any law impairing the obligation of K. - This clause was to ensure that states would insist everyone pay their debts back. - The ct interpreted the K clause to operate prospectively, not retrospectively. - K clause gets whittled away to the pt that it has no substantive meaning by Lochner. Ks are not prepolitical, they are like corporations, something that does not exist in a state of nature. It exists b/c the state calls it into being. Eg. If you have a K re buying heroin, it’s not a K b/c state doesn’t recognize it as such.

16. Economic Regulation & the Contracts Clause

Modern Approach to Contracts Clause 1. The Ks Clause influence is threatened when the Ct broadens the police pwr exception when it holds that states may directly prevent the immediate & literal enforcement of K’l obligations by a temporary and cond’l restraint, where vital public interests would otherwise suffer. Blaisdell 2. Public Contracts a. A state cannot refuse to meet its financial obligation simply b/c it would prefer to spend the money promoting a public good. US Trust Co b. A law which severely impairs the State’s K’l relationship w/another party must be reasonable and necessary to meet an important state interest. US Trust Co 3. Private Contracts a. State laws which severely impair private Ks must protect a broad societal interest rather than a narrow class. Spannaus

Home Building & Loan v. Blaisdell (1934) BL: States can legislatively alter remedies for the collection of debts if the legislation reasonably relates to a public purpose and protects the basic value of creditor claims. F: During Depression, MN law declared emergency, gave cts right to postpone mortgage pmts. Blaisdell utilized state law to obtain extension of time to repay his mortgage. Banks challenged law stating it violated the Contracts Clause. Notes: - the nature of the economic emergency during Great Depression was sufficient to justify the momentoriam - not unreasonable b/c addressed to a specific prob, limited in scope & only for a definite period of time. Did not take away creditor’s ultimate right of repmt. - Rule seems to be that the law can interfere w/the K even retrospectively, if it’s for a legitimate purpose & if the relief is appropriate, limited, temporary & reasonable. - Ks Clause applies only to states. - Fed’l analogy of Ks clause is due process clause. - Higher standard of scrutiny applied when state is legislating in a way that impairs its own K’l obligation. Balancing: 1. Is there a significant/legitimate state interest being served. a. trying to avoid large numbers of people from losing homes. Thus, many would benefit from law, & burden is shared by all banks, who have adv in that the value of the prop securing the loan is more likely to be stable if you have a moratorium on foreclosures. 2. Is there a substantial impairment of a K? a. Blaisdell – there is clearly an impairment of a K. b. In another case, where there’s a choice of forum clause in K & CA says that every breach must be in CA ct.  impairment but not substantial. 3. Is the means chosen rationally related? Is it appropriate? a. Blaisdell – rational. b. Higher degree of scrutiny for public Ks.

US Trust Co F: NY + NJ passed statues prohibiting financing of RR facilities w/revenues pledge to pay Port authority’s bonds. Later, states retroactively repealed covenant to permit greater subsidizing of mass transit. P challenged law on Contracts Clause grounds. Holding: state cannot impair obligation of its own Ks, based on own determination of reasonableness + necessity. - Allowing a state to reduce its financial obligations whenever it wanted to spend money for what it regarded as important public purpose would negate all Ks Clause protection. - Complete deference to legislative assessments of reasonableness + necessity is inappropriate. Notes: a. Apply Test. a. Is it a substantial impairment of K? – Yes b. Is there a significant, legitimate state interest? – arguably, there’s a state interest in controlling traffic c. Means chosen rationally related? - yes. b. Nevertheless, ct not satified. Ordinarily we would apply a reasonable basis test. Not appropriate to defer to state legislature when state is self dealing. State is changing the terms of a K, which it has a private obligation to. Seems fundamentally unfair. State’s interest is tainted by own involvement in K. c. So ct’s usual deference to legislature is insufficient. Justice Blackman strikes down state law as impairment of K. d. Unlike Blaisdell, there’s a discreet no. of bondholders. It’s only that one covenant that’s being affected by law; burden carried by small number of people, whereas Blaisdell affects tens of thous of mortgages. e. K Clause Purpose: prevent govt from taking easy path of pushing costs on discreet classes of persons in order to generate general benefits. Dissent (Brennan): One state legislature can’t bind the hands of future state legislatures. Blackman’s answer: Public interest will always trump the private interest. Contract Clause meant to do is to tie govt hands so that they don’t take easy way. The public should pay for it.

Allied Structural Steel v. Spannaus BL: State laws which severely impair private Ks must protect a broad societal interest rather than a narrow class F: MN law subjected employers to pension funding charge upon termination of pension plan or closing a Minnesota office. H: Ks Clause precludes state legislation that significantly expands duties created by private contract. - Although Ks Clause is not an absolute prohibition against any impairment of Ks, it does limit a state’s ability to abridge existing K’l relationships. - Severe impairment of K’l relationship justified only by the need for the law. - Unlike Blaisdell, law here is directed at narrow class, not intended to deal w/broad and desperate economic emergency, and imposed a permanent/immediate change. Notes: - State interest is sufficient but not sufficient nexus b/w the means & ends. Not reasonable. May have an interest in making sure everyone gets a pension but it only burdens a relatively small number of business & benefits only a small number of people. - Not permissible here b/c benefits and burdens are too narrowly circumscribed. - Like US Trust, ct concerned with making sure that if govt is burden someone, the burden will be fairly distributed and benefits widely distributed. Like an equal protection concern.

17. Takings Clause (Eminent Domain Clause) A. Purpose & Reqs 1. Takings Clause: if govt seeks to produce some public benefit, pmt ought to come from public at large rather than a few individuals (5th Amend: private prop shall not be taken w/o just compensation) 2. 2 Reqs: 1. All takings must be for public use; and 2. All takings must be justly compensated B. Regulatory Takings 1. While prop may be regulated to a certain extent, if regulation “goes too far” it will be recognized as a taking PA Coal a. the more govt reduces value, the more likely a taking will be found 2. Police Power: Nuisances a. If one class of prop has a detrimental effect on another class, which forces the state to choose b/w the two, the state doesn’t effect a taking by favoring one over the other. Miller v. Schoene b. Rationale: legislative inaction carries the same effect of favoring one class over the other. 3. Regulatory Takings analyzed case by case a. Ad Hoc Factual Inquiry (1) In determining whether govt regulation effects a taking the Ct must engage in an ad hoc, factual inquiry using several factors such as: econom impact of regulation; extent to which the regulation interferes w/investment-backed expectations; & the character of the govtl action Penn Central b. Balancing Approach (1) character of govt action weighed against the effect regulation has on the prop owner (2) Prevention of Public Harm: If a state is acting to prevent a public harm, regulation will be deemed a taking only if it makes it impossible to operate the land profitably or it unduly interferes w/investment-backed expectations. Keystone 4. Per Se Rules a. Although it generally undertakes an ad hoc approach to determining whether a regulation effects a taking, the Ct has developed 2 categories of regulation deemed as takings (1) permanent physical occupation (2) Regulation that denies land-owner of all econ beneficial or productive use of his land is a taking. Lucas D. Heightened scrutiny applied to land-use regulation 1. Any land use regulation which a state chooses to adopt must substantially advance a legitimate state interest. Nollan a. Where a conveyance of prop is made a condition to the lifting of a land use restriction, the conveyance must substantially advance a legitimate state interest. Nollan

2 kinds of Takings 1. Possesory Takings – where state physically occupies property, literally takes physical prop away; must be permanent. a.) police occupying temporarily after murder not possessory taking 2. Regulatory Takings – where state is taking some measure intending to public that has effect of diminishing the economic value use of the property a.) PA coal case is an eg – govt not stationing people there. Aiming to regulate the conditions of mining that has affected value of coal.

PA Coal Co. (1922) BL: A regulation that severely restricts land use rights can constitute a taking, which is uncx’l unless just compensation is pd by the govt. F: A coal co. challenges a state law which prohibited the co form mining in such a way as to cause subsidence of living structures Notes: - Holmes: it’s a regulatory taking b/c it diminishes the value of some of the coal owned by mining co. That law represents a diminuition in the value of the coal for which coal co. should have been pd compensation. Mahon bought only the house sitting on property not the subsurface minerals. - Mahon agreed on his own to waive right to sue. - Thus, struck down law as violating Ks clause. Test: 1. Is it a substantial impairment of K? – Yes 2. Is there a significant, legitimate state interest? – Yes, protect homeowners. 3. Means chosen rationally related? – arguable. a. Coal co. would argue – more like Allied Steel b/c it’s affecting a narrow class. nuisance actions aren’t regarded as takings even though it has effect of preventing people from enjoying their property a. Doesn’t entirely prevent him from enjoying the property, just limited to how it negatively affects neighbor. b. bundle of rights: has idea that you can’t use your property that causes damage to other people’s property even if you own the property. i. reason we treat statutory norms diff from CL norms is b/c everyone is deemed to have notice of CL norms. ii. But there’s a problem when CL changes. Is it then a taking b/c you’re deemed not to have prior notice?

PA Coal (Holmes) – 1.) Physicality to the regulation. Physically, there are columns of coal which have been taken away from the coal co., and taken by the gov’t. Holmes analogizes it to a physical occupation. 2.) There’s a lack of what Brandeis calls an average reciprocity of advantage, i.e. the benefit here flows to the particular individuals whose homes are located in the coal fields, no benefit to coal co.s. Blaisdell had a reciprocity of advantage b/c the banks were assured that the property would retain its value w/the moratorium on mortgage. 3.) Mahon didn’t actually pay for the subsoil and expressly waived this right. He bargained away, gave up his CL rights. a. Holmes, conflicts himself in Lochner where he said low pd wking class employee has no real bargaining pwr. Holmes ignoring that aspect of the case.

Why are CL nuisance actions not takings? Possible answers: a. Not state action b. Nuisance action is part of his pre-existing prop rights. Everyone presumed to have notice that everyone have these rights in their bundle. c. Not that much of an imposition on the coal co. Doesn’t take away all of the coal co.’s coal. 1.) Mahon buys home, signs waiver, changes mind, realizes imminent threat to property, goes to ct to seek injunction. Ct says no injunction b/c you waived that right? Is that a taking of Mr. Mahon’s property? Lots of K provisions not enforceable. He had the right b/4, if the enforcement of the agmt a taking of his property? 1.) Probably not. 2.) Maybe it should be against public policy. 3.) Revised hypo: What if ct grants Mahon’s CL injunction despite waiver? Ct sees a public threat of coal co. and doesn’t allow neighbors to waive that right. i. Probably not regarded as taking b/c it looks like it’s just ct making decision based on public interests, what’s not/waivable by Ks. 2.) PA passes statute preempting use of CL nuisance action against coal co. where there is a threat of subsidence. Legislature favors efficiency, wealth maximation, etc. Is that a taking of Mahon’s property, his CL nuisance right, a remedy he would otherwise have? 1.) Not a taking b/c even though it may diminish his enjoyment of his property, doesn’t take it all away. Can still enjoy house, just lost 1 stick. 2.) But if taking away 1 stick causes him to lose entire house, maybe that should be a taking. May be too speculative. Depends on factual circumstances, if Mahon sues after house falls, better. 3.) Actual Case – PA adopts Kohler Act and Mahon enjoins. PA gives people a right to stop coal co. from taking all coal underneath people’s homes. 1.) Looks more like a taking when there’s a change in the statutory law than when there’s a change in the CL. 2.) Ct’s Assumption – the CL creates a baseline, where your property rights start from. It’s pre-political, almost like nat’l law, something that exists out there that everyone knows is part of the Bundle of Rights. Thus, not a taking. 3.) But to assume that it’s part of baseline is to privilege judge made law over legislature. Statutory law seems subject to review the way CL is not, troubles Paul.

Keystone Bituminous Coal v. DeBenedictis (1987) (Stevens) F: New PA law re leave behind 50% coal underneath buildings, cemeteries, & homes. 1.) ct distinguish the 2 cases a. PA coal only benefits homeowners, this benefits public generally, spread more widely. b. Counter: there is no reciprocity of advantage, coal co. doesn’t benefit immediately. c. But the x million tons of coal doesn’t constitute separate property for takings purposes. Coal co. owns millions of tons of coal underground. They’ve only been told they can’t touch a small fraction of total coal holdings. Doesn’t take away full value of their property. d. When ct says it’s a taking only if it completely takes away prop value, do we just look at the fraction individually or the total investment. i. Stevens (Keystone) takes 2nd approach, this is only a fraction of total holding. ii. Holmes (PA Coal) treats every column of coal as sacred. e. ct falling into trap of balancing public interest and private interest, which is dangerous b/c private always loses f. Many believe Keystone reversed PA Coal.

Miller v. Schoene (1928) BL: The police pwr may permit a state to destroy one class of prop in order to save another, which is of greater value to the public F: State orders Ps to cut down a large number of red cedar trees growing on their prop w/o affording compensation

1.) Justice Stone: state can choose a or b, if neither b will happen anyway so state chooses a. In either case, state makes a choice. 2.) Imaginary negotiation b/w tree owners where there will be a wealth maximizing solution. problem in real world – a. Result will be distorted by litigation so that it’s not efficient. Apple tree owner doesn’t realize why they’re dying, different owners, get attys to incur legal expenses, counter claims, etc. b. We don’t even know that preserving apples is the most efficient result. Cedar tree owner could be incredibly wealthy & could pay off everyone else. c. Coase Theorem – Ronald Coase, economist, said if there were no transactional costs then there would be an efficient allocation of resources no matter how you settle entitlements b/w 2 parties. The 2 will bargain in a way so that you will the most efficient wealth maximizing solution. i. Applies when you have the problem of joint activity/costs – there’s no harm where you have just cedar trees or apple trees. It’s that the 2 activities can’t co-exist w/o causing injury to the other. One is not the cause of the social harm anymore than the other. If neither existed, there would be no harm. Harm is due to joint nature. ii. Coase Theorem hijacked by conservative attys who said then ct should figure out what the most efficient result. Exactly opposite of what Coase said you can’t do.

Utility: theorem only concerned about maximization of wealth, not about distribution to different classes of people.

Penn Central v. NYC (1978) BL: Landmark preservation schemes, which are pursuant to a comprehensive plan and limit prop use, don’t’ effect a taking requiring just compensation under the 5th Amend. F: City enacted a historical preservation scheme whereby the Ps building was designated a landmark, which significantly restricted the uses to which the prop could be put.

Public interest here: a historical landmark that people want to preserve the aesthetic beauty. Benefit to P: they get transferable development rights and they also get to own a historical landmark building that people will want to visit. But because of this law, they have to go and get permission to make any changes here. real average reciprocity here?: No, not really Different from zoning: This is one building so all buildings around it could have higher structures than the station. Transferable development rights - if they own other properties (which they do) they can use those rights to develop on top of other buildings, even against zoning laws there, they can. Further, they could sell these rights to other people. So there is some benefit here that would not otherwise exist if not for this law.

In Penn Coal, the benefit was to one person while in this case, it goes to many. We look to who is benefited and who is burdened. We want to see them both spread widely. Here, Penn Central is the only one burdened. Also, think about expectations of your property interests. Penn Coal thought that when they sold the property, they got to keep their ability to mine the coal. But Penn Central didn't have the reasonable expectation that they would be able to build a skyscraper. They didn't lose what they HAVE, they lost what they COULD HAVE.

The public has a valid interest in protecting landmark buildings, even if it is aesthetic. It is just as important as legislating to prevent fires, for instance. Although Penn Central is uniquely burdened, they're not losing the existing value of their property. It still works as a RR station and it still brings in tourists. All they've lost is a future hope of building a large tower. Maybe if they were allowed to build it, real estate prices would fall there. Also, other possible obstacles could have prevented them from building the tower

Important Test: 1. There's no taking if it doesn't interfere with your existing use of your property 2. There's no taking if it doesn't frustrate an investment back expectation a. Here, they could still earn a reasonable return from their investment in the property

DISSENT: But the interest here that the public has is squishy. It's not sufficiently tangible. If the gov't regulates property not for the purpose of preventing a nuisance, not for the purposes of protecting public safety or welfare, but merely for an aesthetic purpose, there must be some sort of reciprocity of benefits. There's no reciprocity here because not ALL of the buildings around Grand Central are landmarks.

18. Police Powers & Env Protection

Nollan v. CA Coastal Commission (1987) F: Man buys prop after CA Coastal Comm’s law has been passed. The commission is supposed to preserve the public's access to the water. P's house was right on the beach. There was a public beach on either side of his house. In order to make his house bigger, he has to apply for a permit from the Commission. Their policy was that if you want to make changes to your property, the permission to build will be granted conditioned on an easement being placed in front of your home so people can walk along the coastline unimpeded. P objects to this condition as a taking.

Interesting example of taking- if the state had decreed that whoever's house was along the ocean had to grant an easement, we would have a possessory interest. It would be as if the state built a sidewalk through your property. But that isn't the case here. He doesn't have to give up part of his property if he doesn't want to build his house bigger.

SCALIA OPINION: While it may be permissible for state to condition the grant of a building permit on doing certain things, there has to be some sort of proportionality. Must be a reasonable relationship between the condition & the request for the permit.

HYPO: If we said that your building blocks the view of the beach from the highway, it would be reasonable that you may have to give up some sort of easement to allow a view. But here, the easement has nothing to do with his desire to enlarge his house.

(1) Scalia treats the permit to build as if it were a basic right or entitlement that P has rather than a benefit that the gov't is giving to him Back to the basic question: What is the baseline of your rights? How limited is your bundle of property rights?

One idea behind his opinion is that the baseline includes the right to build what you want to build. To condition that would be for the state to take away your right to do it

(2) The reason we insist that the condition has to be related to the purpose for which the permit is being given is that when you have unrelated conditions, there is a greater risk that the gov't can impose costs for which it won't have to be held accountable. It's hard for the public to see the work of the Coastal Commission [Democratic Accountability] The cost is hidden from the public here and the public can't decide whether it would be reasonable to demand this of the owners.

If we accept Scalia's principles, then how do we judge if there is a sufficient relationship? o The Coastal Commission's concern is that if we let the houses get bigger and bigger; the public won't be able to see that there is a public beach behind them. If we grant easements, they still have access and can see it

Brennan in his DISSENT thinks that this is sufficient enough " Brennan accuses Scalia of "Lochnerizing"- "Such a narrow conception of rationality, however, has long since been discredited as a judicial arrogation of legislative authority" (Pg 979) " Brennan says that Scalia is substituting his own judgment for that of the employees of the Coastal Commission, which isn't right

Lucas v. South Carolina Coastal Council (1992) BL: if govt regulation denies a prop owner all econ beneficial or productive use of his land, the govt has effected a “taking” and must affor just comp pursuant to 5th Amend. F: P buys property along the ocean to build a house. 2 yrs later, state passes law that b/c of the risk of erosion, it will prevent any habitable structures on certain portions of beachfront property. P can't build any houses there. P sues claiming a taking.

SCALIA: It is a taking because the regulation effectively denied him all the economic benefit of his property. There's no viable benefit for his land. They should have paid him for it if they had to take it.

Stevens DISSENT: But what do you do if the regulation only takes 95% of your value away? You get nothing then. Where do you draw the line then? How far is too far? Scalia says this is a clear case so we'll cross that bridge when we come to it. He says the property is worth nothing. But is this beautiful beach front property really worth nothing? You could build a golf course; you could donate it as a park, etc. Is it appropriate for the Ct to say that anytime a regulation affects the value of your property the gov't has to pay you for it? Maybe this is like Penn Central where you only get the value of your existing property not the ultimate highest value you could possibly get

Scalia says that the state changed his property rights as stated by CL. The baseline is the CL & when state regulates & changes your bundle of rights, it's a taking But should we say that the CL is privileged over statutory law such that your property rights are inherently subject to CL principles and not to statutory laws?

Penn Central – when the person purchased the property, what was their set of expectations, what did they pay for. - Penn Cent’l did not purchase station w/intention of adding floors, thus denying that add’l benefit did not constitute a taking.

1. It costs the govt money to compensate. If govt had to pay everytime it zones, it would be hard to regulate. It limits the subsect of cases that the govt has to compensate. 2. When govt does regulate in a way that takes away 100% of viable economic use of what owner intended to use the property, the owner may experience that as if it had taken away everything. That individual experiences it as a total loss even if he hadn’t lost all money. 3. When you lose 100% there’s no argument that there’s been a reciprocity of advantage. a. Eg. If Lucas had been able to Retain A but can build on B, he obtained some benefit. He’ll have a smaller house, but maybe one w/a better, unblocked view since no one could build

- How do we fit in Nolan (state conditions right to build on property saying you can build only if you give easement) 1. It looks alternatively like a possessory taking (requiring condition of easement) or regulatory taking (not going to give permission to expand house) 2. Nolan knew at time he purchased property of this condition to build, had notice. So arguably he didn’t have that expectation, thus not frustrated. So why do we compensate?

Palozzolo F: 1959, P & assoc buy land in RI. P buys out partners. Then in 1961, P applies for right to subdivide prop and fill in wetlands to build homes. Govt turns him down. P applies several more times. In meantime, RI passes law prohibiting filling of salt marshes so completely unable to build. As a result, his co. has no source of revenue. In 1978, they skip paying franchise taxes & corp is desolved. Prop conveyed to sole shareholder P. P begins again to apply for various permits. Finally decides to bring action for taking. a. Should timing matter? 1. He has notice and therefore he’s acquired property w/notice of law. Therefore, shouldn’t be entitled to compensation. b. But future generations should be able to challenge passing of law. 1. Creates problem b/c at some point everything was subject to some regulation. Does that mean that everytime there’s a new owner he can bring action. c. What is the norm here? 1. He never had the right to fill wetlands. He always knew he had to get permits. He didn’t get any of those permits. Unclear what the base line is to decide that it was a taking. d. Paul likes: You could have decided the case in his favor b/c nothing’s changed. There hasn’t been an acquisition from a prior owner. P is the same at beginning. He owned corp. 100%, he was the alter ego of corp. Under some circumstances, ct will say that the individual who holds shares etc. have the rights/obligations of corp. 1. Taking the legal fiction of corp a little too seriously. 2. It directly affected his own property. e. Kennedy has struck a knife in ability of govt to regulate private property b/c he says if you lose 100% of a portion of your property, then it’s a compensatory taking. f. The fact that the property was conveyed to Palazolo didn’t defeat his claim for a taking. He still has this claim for some kind of compensation. The ct thinks this is consistent w/Penn Central. g. Paul thinks it’s very different from Penn Central b/c the ct makes a point that the property hasn’t lost all of its value. Even if the property hasn’t lost all value, can do many things w/property. Nevertheless, it might still be a taking, conflict w/Penn Cent’l. h. Case creates a problem b/c despite all the factors, the SC leaves door open for takings claim. Unresolved.

VI. State Action & Private Power

14th Amend intended to guarantee blacks full citizenship. Congress passed Civil Rights Act of 1875, intended to prohibit discrimination by private actors in public accommodation. - was struck down in the civil rights cases - ct said that all the 14th Amend accomplished was to prohibit state govts from discriminating on basis of race, never meant to prevent private discrimination - Cts decision in civil rights cases important b/c if the Equal Prot Clause only prohibits state actions, how do we decide when the state acts?

19. Determining the Baseline Judicial Action and the Theory of Government Neutrality

Shelley BL: Judicial action in enforcing a discriminatory private K’l agmt is state action for purposes of the 14th Amend. F: State cts enforced a racially restrictive covenant & enjoined willing African Am homebuyers from purchasing homes from white homeowners who were willing to sell.

a. The judicial enforcement of a K/property right is state action. b. Even though CL principle may be facially neutral, in the social context in which that decision is rendered it’s racially discriminatory. Ct knows that there are only racial covenants against minorities. So ct looks beyond face of rule to see if it violates Equal Protection Clause. c. Shelley denaturalizes CL. CL is ct made doctrine representing policy choices. d. Judicial enforcement of other kinds of prop laws that may have discriminatory effect: a. Eg. Trespass laws. If homeowner invites everyone in neighborhood to open house except blacks and someone black shows up. i. homeowner chooses to exclude. In Shelley, homeowner chose to sell to blk family. ii. Private homeowner should be allowed to exclude. b. Restaurant owner doesn’t want to serve blk people (assume no civil acts law) i. The exclusion is accomplished w/assistance of police ii. EPC applies only to state action iii. character of property influences whether it’s considered state action Private public Home---------------------country club------------------------restaurant iv. Freedom of association limits the intrusion from state when acting from private side of spectrum. v. Distinction b/w action v. nonaction. Difference b/w cts enforcing an agreement & cts refusing to allow a CoA.

Burton v. Wilmington Parking Authority (1961) BL: When a state becomes so entangled in a private party’s actions that the state may be considered a joint participant in the actions of the private party, then the private party’s racially discriminatory actions are a violation of the 14th Amend. F: A restaurant, which had leased its biz space from a state agency and was operating inside of a state owned operated parking ramp, refused to serve customer b/c he was black. a. Although private conduct abridging individual rights does not violate the Equal Protection Clause, it becomes unCx’l if state action is involved. D like a joint participant and the restaurant is not so purely private. Govt has symbiotic relationship & is profiting from discrimination. b. Concurrence (Stewart) No evidence that P as an individual was a person whose reception would injure the biz. c. Dissent (Harlan, Whittaker): It’s unclear what’s in record that is “state action.” d. This is state action b/c restaurant: a. was on state property b. parking c. subsidy d. lease e. State seems to subsidize Eagle financially f. State failed to act to prevent discrimination, therefore it’s discriminating. Generally speakingin 14th Amend cases, cts distinguish b/w action and nonaction. g. “No state may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. State has so far insinuated itself into a position of interdependence w/Eagle that it must be recognized as a joint participant in the challenged activity, which on that acct, cannot be considered to have been so “purely private” as to fall wo the scop of the 14th Amend. h. State has insinuated itself, interdependent relationship. State profits from having Eagle as lessee and state benefits Eagle by providing parking facilities, maintenance, Eagle also made improvements on property. Mutuality of benefits is the basis of state action. i. This case has been limited to only lease relationships.

Moose Lodge No. 107 v. Irvis (1972) BL: A state agency’s issuance of a liquor license to a discriminatory private entity does not violate the equal protection clause. F: Black man sued private group and state liquor agency for being denied service based on race, and asserted “state action” due to issuance of state liquor license to group. a. State involvement must be significant to implicate Cx’l standards. b. Here, state’s liquor regulation does not foster or encourage racial discrimination. c. Dissent (Marshall, Douglas): State’s licensing scheme incl complex quota system. Quota in Ds area has been full; no more club licenses may be issued in city. State has restricted access by blks to liquor by granting license to D instead of to a nondiscriminatory club. d. Dissent (Brennan, Marshall) State has become an active participant in operation of Ds bar thru its detailed reg scheme. Notes: e. Mere fact that state might confer some benefit doesn’t constitute state action. f. There’s only a certain amt of liquor licenses. At certain time/day, Moose Lodge only place to get a drink. State actively participating b/c black people can’t get a drink anywhere on Wed afternoon. BUT ct finds no state action. Why? g. Distinguish: a. freedom of association: Moose is private club b. Extent of relationship is insignificant. State only confers liquor license. Burton had much more involvement. i. Counter: state attaches restrictions with license so state really is involved.

Jackson v. Metropolitan Edison (1974) BL: There is no violation of the 14th Amend due process clause where the challenged procedures are contained in a state authorized and approved general tariff. F: Utility customer suffered alleged violation of due process after utility co terminated service, the procedures for which were approved and authorized by the state. a. State regulation of private business, even if extensive/detailed, doesn’t by itself convert private action into state action. Must be a close nexus b/w state & activity of the regulated entity. Ds monopoly status not nexus. Nor is Ds public function since state has no obligation to furnish such service. Notion that biz that are “affected w/a public interest” are state actors cannot be expanded ot incl private utilities. b. State approved of Ds termination procedures as permissible under state law, did not consider specific cases. Ds actions not state actions. c. Dissent (Marshall) Nature of Ds service requires that D be subject to same standards as govt entities.

Marsh v. Alabama (1946) BL: The actions of a private entity, whose primary function benefits the public, constitute state action subject to cx’l restraint. F: Jehovah’s Witness was criminally charged w/trespass on streets of privately owned town, and claimed the town was subject to provisions of Cx. a. The more a private owner extends use of his prop to public, the more his rights must yield to the rights of those who use his prop. b. Cx’l rights of freedom of press/religion outweigh the cx’l rights of prop owners who open their prop to public. c. On private prop against the will of the owner as long as she is there to spread her religious views. Co’s town’s pwr over inhabitants not same as homeowner’s right to regulate his guests. Notes: d. Why can’t company define when people can come onto its property? a. Sign is not enough, there’s no gate, it was totally open to public. b. Town has a citizenship, a resident group who live/shop there. Their info of outside world is shaped by the newspapers, the solicitors, the religious tracks etc. c. This town has assumed a public function, acting like a town. As if town had privatized a town. For all reasons that we value free speech, those same values apply when you apply to a town which happens to be privately owned. This case in some ways anticipates the increasing privatization of public functions: school systems, parks, prison systems, security. State delegating authority to other people it would otherwise do. d. State doesn’t cease to be liable for the actions of its delegates/assignees. We impute those actions to the state b/c the values in Cx (personal autonomy, open mktplace of ideas, etc.) need to be protected by private power as much as public power. e. Not a question of the fact that Marsh has used the police to enforce the trespass laws b/c Black was trying to make larger arg re public and private pwr.

Shelley – limited to restrictive covenants for sale of land & 3rd party seeks to enforce it. Marsh – narrowed. Where a private actor exercises a function which is traditionally & exclusively performed by state, that private actor may be a state actor. Burton – limited to situations with lease.

5 situations of state actions: 1. Govt is actor i. Corporations govt forms ii. Govt agencies 2. Judicial enforcement i. Still possible even though Shelley is limited to restrictive covenants of homes 3. Interdependent relationship b/w state & private property i. Subsidies alone insufficient to constitute state action. Need more to show state involvement. 4. Public Function Doctrine i. Limited to cases which a traditional & exclusive function of the govt is performed by private actors. ii. Eg. Private co. running prison systems would be subject to cruel and unusual punishment clause. 5. State tolerates some kind of private activity that is integral to govt. i. aka White Primary cases. For a long time in the South, democratic party won every election. Democratic party, private assoc, excluded blks from voting even though they could vote in general election. But winner of primary, won general election. Ct found that the private assoc. was integral to govt.

20. Establishment Clause & Anti-Coercion Principle

History of Religion Clauses 1. Most of the early settlers of US came to escape religious persecution 2. Old world religious practices began to thrive here a. Govt sponsored churches were established & people req’d to pay taxes to support 3. Jefferson & Madison led fight against VA’s tax levy to support the established church

Establishment Clause A. Govt action violates the EC unless it meets the 3 part Lemon Test a. Govt action must have a secular legislative purpose b. Govt action’s primary effect must not be to advance religion c. Govt action must not foster excessive govt entanglement w/religion B. SC criticized the Lemon test in recent yrs. More modern test is the “no endorsement” test. C. At a minimum, govt may not coerce, support or participate in religion or its exercise. a. The inclusion of general religious content in an official public school function violates the EC. Lee v. Weisman b. Children are particularly susceptible to coercion & should not be req’d to attend a school function at which references to God are made. Lee c. A religious invocation at a high school football game would coerce support or participation in religion. Santa Fe Independent Schl Dist D. Govt action that has either the purpose or effect of “endorsing” or disapproving a particular religion violates the EC. a. The govt’s display of a crèche during the holidays does not violate the EC. Creche symbolizes the history of the holiday season and does not endorse any specific religion. Lynch v. Donnelly b. However, shifting majorities held uncx’l a nativity scene in a county cthouse b/c the setting of the scene celebrated Xmas in a way that endorsed a Christian method, but upheld the display of a Jewish menorah placed next to the city’s Xmas tree. Cty of Allegheny v. ACLU c. De facto establishment of religion tend to be upheld when the Ct can find a secular justification for the law. i. For eg., Sunday closing laws are upheld on the ground that they provide a uniform day of rest for all citizens. The fact that Sunday is also a traditionally religious day of rest is irrelevant. McGowan v. MD. d. Laws requiring posting a copy of the 10 Commandments tend to have no secular purpose under the EC and are invalid. Stone v. Graham e. Statutes requiring public schools to teach “creation science” w/the purpose of advancing religious viewpoints is uncx’l. Edwards v. Aguilard f. It’s often difficult to determine the objective purpose of a statute. Edwards (Scalia dissent)

E. Some statues are facially neutral, but incidentally aid religion. a. For eg. a statute that authorized local schl boards to repay parents for the cost of bus transportation to private schools was held cx’l b/c it was part of a program where the state pd the fares of students attending public schl. Everson a. Similarly, programs that neutrally provide benefits to citizens are not subject to EC challenges, and thus a schl dist may pay the salary of a sign-language interpreter for a deaf student attending a Roman Catholic high school. Zobrest v. Catalina Foothills Schl Dist b. Where govt aid program is neutral w/respect to religion, & provides assistance directly to a broad class of citizens who, in turn, direct aid to religious schools wholly as a result of their own ind private choice, the program is not readily subject to EC challenge. Vouchers facially neutrality aid that passes thru parents, not going directly to school. No state coercion. Zelman. c. Accordingly, a univ will not violate the EC by providing pmts to printers hired by a student group, from a mandatory student activity fee acct, to print the group’s religious magazine. Rosenberger v. Rectors and Visitors of UVA. d. However, a program providing publicly-funded teachers to educationally-deprived students in private religious schools was held uncx’l. Ct held that the supervision req’d to prevent the program from inculcating religious beliefs would result itn the excessive entanglement of church and state. Aguilar e. The ct overruled Aguilar, holding that it would no longer assume that the placement of public employees on private school prop, created an impermissible link b/w govt and relgion. Agostini v. Felton.

The Free Exercise Clause A. The Free Exercise Clause bars any law “prohibiting the free exercise of religion.” This prevents the govt from outlawing or significantly burdening a person’s religious practices. B. A state law requiring that businesses be closed on Sundays was held cx’l, even though it burdened Orthodox Jews who closed their businesses on Saturday. The ct held that the competitive disadvantage to Jews was indirect and merely made the practice of their religious beliefs more expensive. The state’s goal of providing a day that was free of commercial noise and activity was valid. Braunfeld v. Brown. C. An employee was fired b/c she would not wk on Saturdays, her religon’s Sabbath. The statute denying her unemployment compensation b/c she failed to accept suitable wk w/o good cause (ie refusing to wk on Saturdays) violated the Free Exercise Clause b/c it imposed an undue burden on the free exercise of her religion. Sherbert v. Verner. a. On the other hand, a statute may deny unemployment benefits to those who are fired for violating a criminal law, eg. using peyote, as part of their religious beliefs. Empl Div, Dept of Human Resources v. Smith. D. The Ct refused to apply to 14 and 15 y/o Amish children a state law that req’c students to attend school until tjhey are 16, b/c the law violated Amish beliefs. Ct held that the state interest in providing the add’l one or 2 yrs of education was not very strong. WI v. Yoder.

Under certain circumstances, statutes may accommodate religion w/o violating the EC. A. Allowing religious orgs to discriminate in employment w/respect to their secular non-profit activities does not violate the EC. The legislature’s purpose is to alleviate significant govtl interference w/religious orgs’ ability to define and carry out their religious mission. Amos. B. However, a subsidy that applies exclusively to religious orgs may be invalid. a. For eg., a statute that exempted religious publications from a state sales tax was held uncx’l. TX Monthly v. Bullock. b. A statute designating a religious community as an independent schl dist was uncx’l b/c statute singled out a particular religious sect for special treatment. Bd of Edu of Kiryan Joel Village Schl Dist v. Grument.

Lee v. Weisman (1992) BL: Including religious content in public school function is coercive in nature and thus violates the 1st Amend. F: A public school principal invited a rabbit to deliver the invocation and benediction at a graduation ceremony. Rabbi told he shouldn’t use any specific reference to god. Didn’t require people to participate in the prayer in anyway. How does Student have standing? - Not a moot point. ct can provide relief by preventing this in her high school graduation. - An eg. where the ct would say that it’s capable of repetition yet escaping review which is why ct willing to take case even though not a continuing injury. - Is there state action? 1. Seems like a high degree of entanglement where the principal is telling what the rabbi is supposed to say 2. Part of the offense is that they told rabbit what to say

It’s coercive b/c: - in order for Student to feel autonomous she’s put into a position to reveal something about herself that’s very personal/private. - She doesn’t want to be put in the position to turn her back, socially awk behavior.

Difference b/w rabbit and Pat Buchanan: 1. rabbi has been selected by principal & told what to say, thus clear state action. 2. When state invites Buchanan w/o knowing what he’s saying, arguably there’s no state action, can’t cut him off b/c of his 1st Amend rights. a. Eg. once they give you a school newspaper, a forum, can’t shut you up 3. won’t protect Student’s autonomy from political speech

Everson v. Bd. of Education (1947) F: Local NJ be of education authorized reimbursement to parents of the costs of using the public transportation system to send their children to school, public or parochial. P said uncx’l exercise of state pwr to support church schools. H: State may use public funds to assist student transportation to parochial, as well as public schools. - EC intended to erect wall b/w church & state, does not prohibit state from extending its general benefits to all its citizens w/o regard to their religious belief. - 1st Amend requires state to be neutral in its relations w/groups of religious believers and nonbelievrs, doesn’t require the state to be their adversary - Scheme intended solely to help children arrive safely at school, regardless of their religion. To invalidate system would handicap religion, which is no more permissible than favoring religion.

History of the Religion Clauses A. EC prohibits govtl preference for some religion over others; others have concluded that it also forbids religion over irreligion. Justice Thomas B. Jefferson construed EC to forbid not simply state coercion, but also state endorsement of religious belief; saw separation as means of protecting state from church E. Framers didn’t share common understanding of the Establishment Clause F. Early prezs incl religious mssgs in inaugural + Thanksgiving addresses. Jefferson refused to issue Thanksgiving proclamations of any kind G. Other traditions – Roger Williams saw separation largely as vehicle for protecting churches against state, aka positive toleration.

General Approaches to Religion Clauses H. states must use purely secular criteria as the basis for their actions. I. Religion clauses rest on fundamental principles a. Voluntarism – advancement of church should come only from voluntary support of its followers, not state; free exercise clause prohibits direction coercion and indirect coercion, which might result from subtle discrimination b. Separatism – state should not involve itself in religious affairs, derive authority from religious sources and religious bodies should not be granted governmental pwrs c. no-aid theory - baseline is govt inactivity, doing nothing neither helps nor hurts d. nondiscrimination theory - baseline is govt’s treatment of analogous secular activities

Lee v. Weisman (US SC 1992) 1.) At a minimum, Cx guarantees that government may not coerce anyone to support or participate in religion. Although attendance is not req’d for diploma, it’s in a fair sense obligatory. 2.) Govt decided to incl prayer, chose clergyman and advised rabbit about the content of the praryer. Means he controlled the content of prayer, which EC forbids. 3.) Religious beliefs too precious to be either proscribed or prescribed by govt. Govt can’t compose a nonsectarian prayer. 4.) 1st Amend protects speech, insuring full expression even when govt participates, since most imp speeches directed at govt. but in religious expression, govt not allowed to intervene. 5.) Prayer in public schools carry particular risk of indirect coerciosn. Pressure to stand and remain silent, signifying adherence or assent. 6.) Dissent – tradition of invocations and benedictions at grad ceremonies as old as ceremonies themselves. Prezs have incl prayer in their official acts. Act does not establish “participation.” P faced no threat of penalty or discipline.

Similarities of protecting religion & property: prevent govtl intrusion into people’s lives Distinction: property rights are instrumentalists, protect prop rights b/c prop rights create economic efficiencies, which is not true re religious freedom. Protect rel out of value for religion itself. The way we protect people in their religious exercise is different from how we protect takings. J. b/4 state takes prop there ought to be some open discussion/debate about why it’s worth it for tax payers to pay for takings K. want prop rights to be an appropriate subject for political discourse L. in contrast, we are trying to safeguard people’s religious belief by preventing religion become part of politics. Cheapens religious practice/worship. Where state becomes people’s religious belief systems, it makes people not engaging in politics. M. Lee v. Wiseman: student who objected to rabbi was herself Jewish. For her, it was a lessening of her religious experience by allowing the state intruding that way. a. suggests that ct is being highly protective, ct maintaining strict neutrality as b/w religious practice and nonpractice. Lemon Doctrine 1.) state must act for a secular purpose (can’t have religious purpose in what they do. 2.) state’s action must have a primary effect that neither advances nor inhibits practice of religion 3.) state must avoid excessive entanglement w/practice of religion (must maintain distant relationship) N. govt can do many things: can provide for a street that’s used by church members, can provide certain services to parochial schools so long as supplied for other schools, as long as state is neutral b/w religious actor and nonreligious actor O. so long as not entangled w/religion by telling it what it can or cannot do. P. What is it about Lee that violates Lemon Test? a. Excessive Entanglement: telling rabbit what to do. b. Secular Purpose: seems to have no secular purpose Q. Lemon Test is often cited by members of Ct in dissent, at one time or other, most of the ct has expressed doubt a. Closest we can come to black letter rule and it’s not really the rule. R. Justice Kennedy’s take on Lemon Test: is the state involved in coercive actions? a. State was having this as condition of graduation. b. Not strictly coercive – didn’t really need to go to graduation c. One version/principle is Anticoercion S. Scalia: if you want a pluralistic society than should expose people to different practices T. How do we distinguish science and religious belief system? a. Science propositions are falsifiable (can prove black holes in space) b. No such thing as falsifiable proposition in religion U. religious belief systems can co-exist w/o govt intrusions while science/rational beliefs need to be scrutinized V. Framers more soliticitous of religious beliefs b/c of the persecution of early immigrants.

Santa Fe Independent Schl Dist F: election where individual could say what he/she wanted to say. State trying to create a break b/w the state action and the individual who’s actually speaking. a. Having a vote in high school was epitome of what the EC was meant to prevent. Should not make religion political. b. The cts strain in other cases that individuals can promote religion so long as independent of state. Here, not good enough. c. Here, ct has enjoined speech b/4 it’s spoken. Generally, ct will not give injunction against speech. Enjoined b/c there’s risk that speaker will carry impromptor of state even though chosen by classmates.

21. Non-endorsement, impermissible purposes & impermissible effects.

Lynch BL: Govtl action that has either the purpose or the effect of endorsing or disapproving a particular religion is in violation of the Establishment Clause. F: City of Pawtucket, RI, set up displays during Xmas holiday season that incl. a crèche w/traditional figures form Christianity. A citizen challenged the use of city resources to display the crèche. O’Connor concurrence: sets out her theory of the Lemon case: State cannot become excessively entangled or endorse religious practice. The state is not endorse religious, just celebrating holiday itself. She analogizes to “In God we trust,” a use of a religious symbol done to add solemnity, so familiar that it loses its religious meaning. - This depiction is really to promote sales. - Paul: this case represents the most offensive aspect of govt involving itself in religion. More likely that people who do believe in Jesus to find this offensive. This is how the case interprets the Xmas holiday. After Lynch, people confused where to draw line. C. US has highest religious participation rate in Western world. Part of the reason is separating politics and religion. D. Lynch case is good example of ct apply Lemon Test E. Lemon Test is closest we come to black letter rule. F. In Lynch – Burger says that Lemon is rule but we must decide each ease on particular facts. Even though it may seem to many people that a placement of crèche in park would have some kind of religious purpose. The purpose is to celebrate the holiday and to mark the historical origins of the holiday. Context suggests secular purpose of promoting sale. G. Ct focuses not on legislative history but on factual context. O’Connor concurrence: advances “endorsement theory” of Lemon, collapsing purpose and effect requirement. Does govt action have effect of endorsing religion. a. Is this something that would cause a nonadherent to feel like an outsider? b. O’Connor concludes no. It’s a public, not a religious, holiday. Cty of Allegheny F: 2 simultaneous displays. Xmas tree & menorah outside ct house. Inside, there’s a baby Jesus. H: Creche is clearly impermissible b/c it represents an endorsement of religion but as to the Xmas tree and menorah is merely a celebration of public holiday, not endorsement of religion. Notes: a. We expect neutral environment in cthouse that’s not appropriate for religious symbol. b. Thomas: as long as you treat the same, can do it. c. Natl holiday of Xmas is permissible as secular holiday b/c as a practicable matter, most people wouldn’t show up to wk anyway. Eg. Sunday closing laws: origin was to protect/respect Christian Sabbath. Jews and Muslims recognize different days for Sabbath. Even though it has a religious origin, like Christmas, there’s a rationale for govt to limit the number of days a wkr must work. H. secular gloss given to religious practice. I. On one hand, ct says placement of crèche inside cthouse violates EC but placement of menorah next to Xmas tree does not. Xmas tree neutralizes religious effect, now has secular purpose of promoting sales. J. However, crucifix next to Star of David would retain religious symbolism. Logic doesn’t follow.

Purpose of Evolution cases: K. If we say EC mandates govt maintain neutrality b/w religion and nonreligion or b/w different religions then must draw line b/w religion and non religion. L. Those people who insist that creationism should be included in education system say both evolution and creationism represent a belief system on par w/each other. M. Cts ask whether these belief systems are based upon falsifiable tests. Trying to protect individual beliefs and practices from the kind of scrutiny that science is subjected to. Will not have school bd mtg re whether creationism is a valid theory to be included in school system.

6 Different Approaches to Establishment Clause. 1.) Lemon Test – black ltr a. strict separation of church & state b. although still good law, has been questioned by majority of the members of the SC, thus status of test is unclear c. Justice Souter

2.) Noncoercion Test a. as long as govt doesn’t engage in coercion of people, than it’s acceptable b. differential to most govt aid or support for recognition of religion c. Justice Kennedy in Lee: characterizes situation as coercive b/c Wiseman’s participation in grad ceremony is conditioned on her presence at prayer. Elastic concept of coercive force. - If KKK decides to put cross in public park unaccompanied, they should be allowed to b/c no coercion. But state putting crucifix on state capitol building permanently is coercive b/c see it while driving by, tax dollars pd for, etc.

3.) Neutrality Approach a. Justice Blackmun b. State shall be neutral b/w religion & secularism

4.) Non preferential approach a. Justice Thomas b. State can support religion over secularism but cannot support one religion over another - eg. State can provide support to all religious institutions but not some religious institutions while not others

5.) Endorsement Approach a. Justice O’Connor b. Most of what O’Connor has said has become law b/c she’s usually swing vote c. the state can’t exclude people by giving its impromptor to some religious practices d. Allows for greater degree of support for religion than strict separations or Blackmun’s neutrality but state should be clear in its actions that it is neither approving nor disapproving. e. Rather than focusing on purpose and effects test, ask whether govt has expressed approval or disapproval of religious beliefs. f. Much like Neutrality approach but focus on “endorsement”

6.) Accomodationist Approach a. Justice Rehnquist b. Religion is part of heritage/culture thus ok for US to recognize religion c. should be pragmatic about it, short of establishing a religion, the short can do a lot in accommodating a religion. d. Can have prayer at beginning of legislative sessions of congress, “In God we Trust” on money but not in schools where children are more impressionable.

Coercion + Endorsement Tests. N. Brought up in Public Displays or Symbols generally use

Neutrality O. Govtl aid to parochial schools, churches

McGowan BL: F:

Stone v. Graham F: 10 commandments posted in classrooms H: statute requiring 10 Commandments be posted on walls of each public classroom is uncx’l b/c “no secular legislative purpose” Dissent: but 10 Commandments have secular purpose. Historically, a basis for western system of law. Just a recognition of historical roots of a secular practice.

Harris - by denying funding there may be creating economic pressures on poor women not to have abortions. Possible arg: it’s a coercive force of state. - Counter: there may be other reasons why people may be opposed to abortion, not necessarily an endorsement of Catholicism nor coercion b/c women have other options

Aid to Parochial School Issue a. One extreme position – state can do nothing to aid any religious institution. Thus cannot provide fire/police protection, no highway safety, no acknowledgment of existence of religious institution. b. Other extreme position – b/c religion is important, people ought to be taxed to support religious organization w/all religious orgs based upon membership. c. But that approach strikes at heart of EC. EC has historically represented 2 concerns: a. Literal establishment of religion: European countries had established religions, at time of Cx adoption, states had official religions b. Prevent tax money from going to religious institutions: at time of Cx adoption, states often taxed people for purposes of supporting particular churches. d. States can provide assistance to parents of parochial schl children in traveling so long as state provides same assistance to public schools. e. State has stated that you can’t provide textbooks to parochial schools b/c indirectly it would help parochial schools buy religious texts. f. But if state can pay for cost of transporting kids, parochial schools can use extra money to religious books. How are they different. a. AID is different. Money goes to the parents who autonomously decide. Thus permissible in cts view. b. What if state said we’ll simply send science texts to every parent who will decide. May avoid the problem but will be impractical. Not clear. c. Ct most concerned @ having state money directly in contact w/administrators of parochial schools.

Edwards v. Aguilar - Ct struck down program in NY to provide teachers for parochial schools. They would provide this remedial aid no matter in public or parochial schools. - But even though remedial education has clearly secular purpose it involves too close relationship = resulting in excessive entanglement

22. Facially Neutral Statues that incidentally aid Religion

Agostini - Overruled Aguilar & took opposite view. Teachers could go to parochial schools so long as minimal involvement w/public school teachers and parochial school. - Ct focuses on neutrality principle. i. State has same program, treats everyone the same. ii. No risk of entanglement. iii. Makes special exception for remedial classes (why not create exception for all courses). iv. Ct willing in this case b/c they saw remedial classes as something extra, something parochial school would not otherwise fund. v. Deleting program would negatively effect poor kids.

Zobrest F: state pays for sign language interpreters for deaf kids. One of the kids attend a parochial school w/the sign language interpretator, incl religious classes. H: Rehnquist upheld this plan b/c it was a general plan where aid went directly to child and didn’t advantage religious institution. - No preference among schools. State was neutral among public/private school. Simply parents decision to send child somewhere. - Benefit to par schl: (1) added tuition - parochial schools would have to provide one interpretator adding to cost of instruction or parochial schools would not be able to accommodate child who would go to public schools. But the parochial school doesn’t really need that add’l tuition, enough people who go to parochial schools. - Zobrest & Agostini represent a widening of EC. Created concern among people of increasing state assistance to religious institutions/practices.

Popularity of vouchers – linked to white flight of public school systems. Created a racial segregation, isolation which may hinder education process. Concern: b/c voucher doesn’t pay full cost of education, it advantages only those students whose parents are able to make copay. There will be less public support for public education. Bond issues have been voted down.

Zelman F: Vouchers had face value less than total cost of private/parochial school. Students could stay at public school w/extra tutorial assistance or private school or magnet school or public school in suburbs. But suburb schools didn’t open their doors to city schools. 82% of schools were religious, over 95% of kids took voucher to parochial schools. H: Rehnquist focuses on facial neutrality of aid. Aid passes thru parents, not going directly to school. Thus, no state coercion. If you total up the money, state was prepared to spend more on public school education than private school education thus no EC violation. Dissent (Souter): Should we evaluate the student aid program in the particular factual context (more than 90% of money is going to parochial schools) or look at facial neutrality? In the actual context, the voucher, only benefits private schools, overwhelmingly religious schools.

Education is peculiarly sensitive area for the Ct. Ct more worried about establishment in public schools than in other contexts. Reflects concerns that education is compulsory, universal, & about indoctrinating students. - process of indoctrinating students create risk that teachers can promulgate specific values/beliefs - risk is heightened by the fact that education is controlled at local level. Risk of faction is much greater at local level. Town may have a majority of a specific religious population. 1. Sante Fe case: town w/Baptist majority has election to have someone offer football prayer 2. Ct goes to extreme in trying to keep prayer out of classroom even if voluntary or merely a moment of silence or offered by a 3rd person. - Lopez case re interstate commerce: education should reflect the attitudes of community. Thus, tension b/w desire of local control and avoiding influence of local factions in curriculum 1. Town wants to offer only abstinence training for sex ed. 2. Is that reflecting local morals or is Bd of Educ religiously motivated. - Cts have taken strict separation view in schools - Recently, cts have tried to insulate the physical boundaries of school. 1. Eg. 10 Commandments in school - Cts willing to accommodate religious instruction 1. Can have religious instruction outside of school during school hrs while other students in school 2. Zorak (sp?) approach – can make other kids sit in class and do nothing, that’s permissible accommodation w/o EC problem. a. Paul sees EC problem b/c it burdens other kids, waste an hour. - Recently, cts are allowing greater degree of contact b/w religious schools & state in form of state aid Cts rely on Lemon analysis: 1. Is there a secular purpose for the aid? Is the aid facially neutral, going to secular/private schools the same? If yes  aid has secular purpose. 2. Does aid advance/inhibit religion? But aid doesn’t go directly to parochial school. The aid is going to parents who choose parochial school. A matter of free choice. 3. Cts satisfied that you don’t need complete firewall b/w public school employees and private school employees. Sign language interpretator pd by state in parochial school is permissible. Agostini – public employees on parochial school grounds is ok. So long as not excessive entanglement.

Zelman case a. can read it as ct permits all vouchers b. Paul sees more of yellow light. The same legislation which provided for voucher also provided other kinds of assistance to all sorts of public schools. The amt of money going per pupil in parochial school is less than the amt of money that would have gone per pupil in public school. Rehnquist clouds issue by comparing all kinds of aid. c. Pure voucher program – might be questionable b/c can’t make the argument that legislation provides as much or greater aid to parochial school. In Zelman, public schools aren’t losing anything when students choose parochial school over public. d. Voucher program creates economic pressure that arguably inteferes with free choice – quality of public education might suffer. b/c most private schools are parochial, the quality of parochial schools will be improved.

Good News Club H: excluding club would amt to viewpt discrimination, parents gave permission for kids to attend mtgs. No resulting perceived endorsement. F: club conducted prayer mtgs after schl hrs in a room at schl attended by K-12 kids.

23. Free Exercise Clause & Req’d Accomodation of Religious Practices

a. often in conflict with EC b/c to the extent we try to accommodate religious practices, we risk possibility of establishment of religion b. both intended to promote religious liberty, to keep church out of state, & state out of church c. 2 Branches to Free Exercise Clause analysis a. Rational Basis Test – this is a facially neutral law that just happens to burden some people. Highly deferential in upholding the law in most cases. b. Strict Scrutiny Test – state must show compelling, govtl interest in burdening people’s religious beliefs. d. Difference b/w beliefs & actions. Generally, don’t punish people for their beliefs. But do sometimes constrain people’s actions with a lot of things. Some religious practices may break general laws. a. In some cases, not as protective of religious practices as religious beliefs. b. What’s a religious practice? c. Should we question sincerity of someone’s religious belief? i. Eg. pacifists during Vietnam War

Braunfeld v. Brown F: Orthodox Jew complained about the Sunday closing law. P losing 2 days a week of business b/c his religion requires him to close on Saturday. H: rejects free exercise claim saying Sunday closing law is only an incidental burden on his beliefs. It raises cost to him for being an Orthodox Jew but doesn’t prohibit him from being an Orthodox Jew. State doesn’t have to make practicing religion cost free & closing on Saturday is one of the costs. “It simply makes practice of their religious beliefs more expensive.” a. Standard of Review: Rational Basis. b. If law said close on Sunday and open al other 6 days, there would have been a more clear FE problem. c. How is taxing communion wafers different from making Jews bear cost of closing on Saturday? i. Difference b/w state action & inaction ii. Economic burden of Braunfeld is caused by mkt not by state. Tax is behavior of state. iii. State can grant deductions for religious practices like sending children to parochial schools. But obviously can’t grant deduction for Christmas presents. d. harder for state to defend the position that it doesn’t have to have an exemption e. There may also be an EC clause problem in the reverse. May be preferring Jews by allowing only them to close on another day. f. Braunfeld followed by: Sherbert BL: when directly burden one’s religious beliefs, must satisfy strict scrutiny test. F: 7th Day Adventist who could not wk on Saturdays so she had to quit her job. Applies for unemployment benefits, denied b/c she’s unwilling to take available positions requiring her to wk on Saturday. - Ct takes dramatic departure. Brennan states that where you directly burdened someone’s religious beliefs, state must satisfy strict scrutiny test. - Sherbert Balancing Test: balance state interest against person’s interest in practicing religious belief. Distinguish Sherbert from Braunfeld (Both laws interfere w/burdening religious minority): - Sherbert denied any sort of money (denied livelihood) b/c of her religion whereas Braunfeld is only using some money. - Exemptions could be administered w/o undermining the unemployment compensation system. If state is concerned about fraudulent claims, there are other ways than to burden her religious practices. - If state grants exception for Sherbert or Braunfeld, ct is placed in position to ask whether it is a justifiable religious belief.

Hypo: CA Bar Association (state action) has decided that rather than having exam on Tues, Wed, Thurs, it will be on Friday, Saturday and Sunday. Does that raise a free exercise clause? If so, which approach should we apply Sherbert (strict scrutiny) or Braunfeld (rational basis)? - Can’t literally say that everything the state does that may affect religious beliefs is subject to strict scrutiny? - Like Sherbert in that there’s no alternative. - Don’t want to be in a position to judge the sincerity of beliefs or motivation, what the EC and FE was trying to avoid.

Yoder BL: state interest in providing the add’l one or two yrs of educ was not very strong. F: Yoder, an Amish man who did not want to send children to school beyond 8th grade. B/c they were attempting to maintain separate identify of community, rejecting modernism. - Ct remarkably deferential to Yoder’s religious values. - Burger writes that Amish community has “qualities of reliability, self-reliance, & dedication to wk.” Thus, state has shown insufficient interest in not granting exemption from requirement of compulsory education - Here, an example of ct not only judging religious beliefs of people but the character and quality of people/community they come from and using that as basis for carving out an exemption. Mistakes implicit in Burger’s opinion: - Ct has carved out standing doctrines for challenges under EC. Where state has some policy that favors a religious group, any resident of that state can challenge that policy. 24. Permissible Accommodation of Religious Practices

A. Mandatory Accomodation (FEC/EC) – Strict Scrutiny; compelling govtl interest a. Where the right for free exercise borders on another right protected by the Cx a. typically free expression or privacy b. Yoder – parents have right of privacy to make decisions re education of their own children. b. When individual is forced to choose b/w their livelihood & a central religious practice a. Sherbert – she was faced w/impossible choice of honoring the Sabbath & losing her income, virtually all the jobs she was able to be trained for req’d her to work on Saturday. No safety net. c. Where the state singles out a particular religion, acting in an non-neutral fashion. Discriminating one religious group. a. City of Halai – city passed ordinance specifically targeted to church’s practice of sacrificing animals B. Permissive Accomodation – (FEC/EC) rational basis test a. Smith– example where state doesn’t have to accommodate under FEC b. Amos – another eg. of permissible accommodation, ct upheld exclusion of Title VII of Civil Rights Act; even though there’s a burden on Amos’ practice of religion, nevertheless it’s a case of the private mkt discrimination not state c. Waltz – ct upheld the exemption from property tax for churches. Ct found permissible accommodation even though it has an effect of something like a govt subsidy to churches. Nevertheless, no establishment of religion. Traditionally, if available to all religions w/o discrimination. No coercion. d. McGowan – Ct said ok to have a law requiring everyone to close on Sunday b/c even though roots are religious, there are secular purpose of protecting labor rights, regulating labor. a. No clear line b/w EC and FEC. C. Prohibited Accommodation – Lemon Test a. can’t create exception for religious practice b. Those cases falling under EC. Risk is that by accommodating religion, you establish one. a. Texas Monthly – state can’t have exemption on sales tax for religious magazines. It operated as a subsidy for those magazines. (Paul has hard time distinguishing facts of TX Monthly and Waltz.) b. ct felt exemption was not trad’l historical but one just carved out by TX in response to lobbying. c. Kiryas Joel – Kiryas Joel F: sect of Hasidic Jews in upstate NY avoid assimilation to modern world, desired to insulate children from general society in order to maintain trad’l way of life. Most students go to private religious schools which did not have facilities appropriate for special needs kids, who had to go to public schools. They felt ostracized, traumatized, etc. state legislature designated village of Kiryas Joel as separate school district. A. Probably no compelling governmental interest here for Mandatory Accommodation. a. If we do it Berger way, find compelling govtl interest for not granting exception for accommodating this sect, state will lose b. Can also do it the other way: there’s a compelling govtl interest for general public education. I: is this permissible accommodation for state? How do you argue that it’s a mandatory accommodation? - Like Yoder, overlaps w/parents rights to raise - It’s their money, they’re agreeing to finance the school district in their own village

Why is it mandatory accommodation, why not like Yoder? - Entangling the govt much more in trying to accommodate these kids. - Action/inaction distinction - The Hasidic aren’t as insistent as Amish to not engage in modern life. - Burdens other tax payers by diverting funds. Yoder required no add’l money. Yoder (less kids in class, same amt of money). - There asking for a single religion public school, much more than Yoder. - There are other remedies, could have public school classes in public schools on tolerance.

Why is it a prohibited accommodation? - Apply EC tests - Thomas’ Preferential Tests 1. Is it really a preference if no one else has yet asked for this special arrangement if no one has asked for it? 2. Rebut - but there is no guarantee that the state will. Because of the approach the state legislature is taking, no way of insuring that state will give same thing to any one else who else asks for it. Thus should strike down now. - Endorsement Test 1. Observers may get the feeling that this is govt endorsement - Kennedy: drawing district lines based on religion is prohibited per se. Just like you can’t have lines drawn on race. 1. Probs w/Kennedy: town has no prohibition of non-Hasidic Jews moving in. in fact, states often draw lines based on religion or ethnicity as a way of ensuring that encumbants are reelected.

Scalia dissent: state should be free to create exceptions for religious practices. Most efforts at accommodation seek to solve a prob that applies to members of only one or a few religions. - “Not every religion uses wine in its sacraments, but that does not require the State granting such an exemption to explain in advance how it will treat every other claim for dispensation from its controlled-substance laws.” - Difference. Scalia sees this as permissive accommodation. Should fall to political process not cts. - Rebut: Creating a popular referendum everytime when a religious group wants a favor from state dangerous. Should protect people in their practice of religion from influences of politics. - Cty of Allegheny – can’t have crèche in court or prayers/moments of silence in classrooms. Because of the coercive pressures.

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