Outline - TR

8/6/2019 Outline - TR

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Rights set out in original document

1. Habeus Corpus2. No Bills of Attainder: Statutes aimed at criminalizing a particular person/particular persons behavior 3. No ex post facto law: after the fact / retroactive punishment4. States: Do not impair the obligation of contracts

a. May do so prospectively b. Intended to prevent states from getting involved in bankruptcy

5. Article IV Section 2: Priviliges & Immunities Clause: State A may not act prejudicially towards State Ba. Guarantees personal mobility.

#1-#3 S PEAK TO STATES OR F EDERAL G OVERNMENT ?O RIGINAL JURISDICTION C ITIZENS OF ONE S TATE AGAINST ANOTHER S TATE - IE TONYA , N ICOLE AND O ZZY SUE NJ 11 TH

I. J UDICIAL R EVIEW / F EDERAL JUDICIAL P OWER Article III: Defines the power of the Federal CourtsA. The Power to Review

1. Const. does not expressly create the power of judicial reviewa. Marbury v. Madison 1803: Creates the authority of the Federal Courts to review the constitutionality of federal

legislative and executive actions It is the province and duty of the Judicial Dept to say what the law is. Constitution is supreme over Federal Statutes

2. Early 19 th c. series of decisions: SCotUS created authority to review constitutionality of State & Local govt decisions3. Requirement of Cases and Controversies to be justiciable it must be a Case or Controversy

B. Limitations on Jurisdiction1. Congress Art. III power to limit SCotUS and lower court federal jurisdictions

Article III 1: Supreme Court is only court explicitly created by Const.

o Its for Congress to flush out the rest of federal judiciary.

Article III 2, Clause 1: Scope / Subject-Matter of judicial power

a. Present Statutory basis for SCotUSs jurisdictioni. Original Jurisdiction: Article III 2 and 28 U.S.C.A. 1251- Invoked sparingly but always percolating

1. State v. State controversies Limited mainly to this.

2. In which the State is a party States can only be a party if they consent.

3. Ambassadors of the U.S.

4. Concurrent jurisdiction (original but not exclusive jurisd)

a. Actions in which ambassadors or consuls of foreign states

b. United States v. States

c. Actions by a State against the citizens of another state or against aliens

ii. Courts of Appeal, Certiorari 1254

1. Certiorari optional review

2. Certified Questions expedited matters

a. Pre 1988: (2) Mandatory Review (Review by appeal) SCotUS avoided making decisions byvarious means and (2) Review by Certiorari in SCotUS

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Common Law Decisions: represent general rules and binding in their jurisd. Illustrate principles of law.

SCotUS: Represent a gloss of the current meaning of the Constitution. The cases ARE the law .

iii. Cases or Controversies Requirments

1. No Advisory Opinions

2. Ripeness

3. Mootness

4. Standing

b. Rule Against Advisory Opinions

i. SCotUS is a court of law and we do not decide the validity of texts outside Cases or Controversies.

ii. No collusion Cherokee test cases were manufactured by Statute so Supreme Court would decide on them

1. Muskrat v. United States (1911): Congress passes law that affects Cherokee status and land

ownership. To test its Const. validity, Statute provides for a test case allowing members of theCherokee nation to bring a suit with right of appeal to SCotUS. Congress handpicks s

a. RULE : The exercise of the judicial power is limited to "cases" and "controversies." NoStatutorily manufactured test cases, b/c SCotUS doesnt want to do dry runs on legislation toensure their Const. This would amt to making advisory opinions, which SCotUs may not do.

b. Declatory Judgments, however, are okay as long as they present an actual controversy

c. Collusion: Congress handpicked s and paid for all legal fees. Conflict of Interest

c. Ripeness; Mootness; Colluisve suits

i. Ripeness: May the fed ct grant pre-enforcement of a Statute or Regulation?

1. To challenge a law, usually you have to violate it.

2. Declaratory Judgments when challenges law w/o violating. Ct must assess if this is really a CorC

a. Hardship will suffer w/o pre-enforcement review

3. Fitness of the issues and the record for Judicial Review: Is the Fed Ct better off waiting for actual case before deciding? Or is it purely a question of law?

4. Boyd v. International Longshoremen : Statute says all aliens must re-apply for entrance to US if they

leave continental US. Aliens who want to fish in Alaska territory ask INS for interpretation of statute.By time it gets to SCotUS, INS says fisherman apply. SCotUS says, we have to wait for someone toactually violate the statute to hear the case.

a. RULE: to fulfill ripeness requirement, the issue must be ripe at the time the suit enters theFederal Court System. It doesnt matter if its ripened by the time it gets to SCotUs.

ii. Mootness: If events after filing of suit/injury end the s injury, the case shall be dismissed as moot.

1. must present a live controversy, that is ongoing injury at every step in adjudication

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2. Exceptions: Wrong capable of repetition, IE Roe v. Wade. Has to be a wrong against YOU?

3. DeFunis v. Odegaard (1974) sued Law School claiming he was denied admission despite higher scores than some minorities who were admitted. By the time SCotUS hears case, has been admittedto the school and is one semester from graduating.

a. HOLDING : Issue is moot and therefore SCotUS will not rule on it. The controversy between parties had "clearly ceased to be 'definite and concrete'

d. Standing

i. Is the is the proper party to bring the matter to the court for adjudication?

ii. Four requirements for standing

1. Injury personally suffere and likelihood of future harm

2. Causation and Redressability

3. No 3 rd party standing cannot bring the claims of others who are not before the court

4. No generalized grievances IE, I sue the govt as a citizen/taxpayer objecting to policye. Political Question Doctrine . . . . A p. important topic. . . .

i. There are Allegations of const. violations that federal courts will not adjudicate .Political questions are for Congress and Prez to address and not for SCotUS to second guess.

1. An example of Prudential self-limitation by SCotUS

a. Baker v. Carr (1961) : s bring EP claim under 14 th b/c since 1901 TN leg failed to pass legto redraw voting districts, resulting in highly disproportionate representation from county tocounty. HOLDING: Issue was justiciable b/c it does not raise a political question but a 14 TH

Amend question of one person, one vote. As long as issue is framed as a Constitutionalissue, it works.

2. Issues that are left to the Legislature to resolve

a. Cases under the Art. IV Republican Form of Govt Clause

b. Challenges to Prezs conduct of Foreign Policy, IE Challenges to Vietnam War dismissed

c. Challenges to Impeachment & Removal Process

d. Challenges to Gerrymandering (Jurassic Park Just b/c you CAN, doesnt mean you Should)

i. Whether or not SCotUS will hear gerrymandering is a Prudential Self-Limitation on.SCotUS will only hear cases that represent

ii. Racial/Ethnic Gerrymandering

1. Gomillion v. Lightfoot : Law altering the shape of the city of Tuskegee toremove all but 4 or 5 black voters but only one single white voter is unconstunder 15 th Amend right to vote. If something falls squarely under 14 th or 15 th, then Court CAN get involved.

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2. Shaw v. Reno States cant draw districts to HELP racial/ethnic groupsgain voting control

iii. Political Gerrymandering

1. Gaffney v. Cummings 1973 Court refrains from ruling on validity of political gerrymandering

2. Davis v. Bandemer : 1986 Redrawing plan that diluted votes was justiciable under Equal Protection b/c it minimized electoral strength. Butrejected this issue as a violation b/c too subtle to decide. But, if there wasExtreme political gerrymandering the court would step in.

3. Vieth v. Jubelierer 2004 Rejected Davis. Nonjusticiable b/c theres No judicially discernable/manageable standard to apply. Congress can step inif they want. * Is this the State the of Law?*

II. S EPARATION OF P OWERS ( AMONG THE THREE FEDERAL BRANCHES )

A. Interrelationship of Executive and Congressional Branches

1. Introduction: Constitutional and other Sources of Executive and Congressional Power

Two sources of Power:o Constitution

Article I 8 Power to CongressArticle II 2 Power to President

o Interstitial Rule-MakingArticle I 8 Clause 18 - Implied Powers give Congress power to create Fed agencies

a. Enumerated, Implied and Inherent Powers

i. Article 1, 1 Bicameral Legislative Power: All legislative Powers herein granted shall be vested in aCongress of the United States, which shall consist of a Senate and House of Representatives.

ii. Article I 7 Clause 3: Presentment Clause: every Order, Resolution, or Vote to which the Concurrenceof the Senate and House of Representatives may be necessaryshall be presented to the PotUS.

iii. Article 1, 8 Enumerated Powers. Clauses 1-17 specifically enumerate Congresss powers

Clause 1: Taxation Congress holds purse strings to limit Prez power & funds

b. Congress Elastic Clause

i. Art. 1, 8 c. 18 Elastic Clause All Necessary and Proper = Implied Powers

*Not a source of power in itself but gives Congress power to execute all foregoing enumerated pwrs

Allows stretch of Congress and Federal powers

Clause 18 gives Congress additional implied powers question is how elastic?

Implied powers: MCulloch v Maryland (Hamilton, established national bank not mentioned in theConst. but still necessary and proper.)

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c. Inherent Presidential Powers

i. Article II: Structure suggests that executive power vested in Prez is broader than the Enumerated powersgranted to Congress.

Article I: All leg pwr herein granted shall be vested in a Congress (enumerated powers)

Article II: The executive Power shall be vested in the President . . . (lots of room to decide scope /limits)

o Foreign Affairs: Executive Agreements is biggest example of Inherent Prez Powers

Natl security and protection of citizens abroad

o Domestic: not so much

2. Structure of the Executive Branch

a. Article II Only creates the President and the Vice President, No discussion of Structure of the rest of Executive Branch

b. Like the Federal Judiciary, Congress will flesh out the rest of the Executive Branch by Statute.

c. Article I 7 Clause 3: Presentment Clause

i. Statutes require approval of Prez or 2/3 vote in both houses to override veto

d. Presidential appointments of executive officers need to be confirmed by Senate

e. Quasi-Judicial function

3. Delegation of Power from Congress to the Executive Branch

a. As a necessary aspect of execution of laws

i. President can make appointments of Officers, but Congress vests appointment power of inferior officers

ii. Prez has to take care that laws be faithfully executed - Power to execute self-operative provisions of Const

iii. Application: Bare-boned statutes are handed over to administrative departments Hey, put some flesh onthis skeleton Put some federal regulations on this statute to give it more specific meaning. So for every Statute there is a corresponding set of regulations drafted by exec branch and approved by Congress

iv. Quasi-Legislative Powers: Congress delegates rule-making pwrs to Exec Agencies & creates the fundsfor agencies. . . Power granted through N&P Elastic Clause.

v. Interstitial Rule-Making a fancy word to that used to describe what they did.

1. Regulations have same force and effect as the Statutes enacted by Federal Govt (Congress) itself.

2. Code of Federal Regulations (CFR)

3. Many of these regulations include Legislative Veto Mechanism

vi. Foreign Affairs: Implicit that he has power to conduct the Foreign Policy of the US?

1. Make treaties

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2. Appoint and Receive Ambassadors (decides which foreign govts are legit)

3. What about Executive Agreements? Presz can enter into armistices that dont rise to level of treaties

a. B/c theyre Temporary, and sometimes time is of the essence, and sometimes we dont wantto dignify the actions of a govt with a treaty (IE, Iran) and Trivial Matters that dont need to

be in a treaty (IE, How to handle International Mail to and fro)

4. Yet none of this is explicitly described in Art. II, but no one seems to argue with it

b. The Delegation Doctrine; Historical Perspective and present-day Limitations

i. In theory, Executive Branch is supposed to execute powers of United States

ii. Historical Background: After FDR and New Deal Fed Govt got complicated, and departments thatwere allowed to flesh out laws themselves. B/c Prez and Congress arent experts enough to figure out allthe meaning of all this stuff themselves

iii. Old RULE: Congress cannot delegate its power

iv. Schecter Poultry (sick chicken case): Court holds that in order to delegate further, Congress must havearticulate some sort of intelligible principle.

1. NRA (National Recovery Administration) Under New Deal - Create any statute you think willstimulate the US economy. NRA began to create extremely specific statutes including secondgrab at chicken coup if 1 st chicken was sick. Case tested how constitutional this statute was.

2. Court citing the Bracton theory stated that if the Constitution gave Congress power to createstatutes, then congress does not have power to delegate further to create quasi-legislation.

3. The Court proposed the use of the modified Bracton theory as the baseline for the modern dayDelegation Doctrine: Delegated power cannot be re-delegated to executive agencies for this typeof rule making unless there is some sort of intelligible principle.

v. New Rule : Congress may delegate its powers, because thats the world we live in. As long as the statutecontains an Intelligible standard to guide Executive action.

c. Congressional Oversight Committees and Presidential Signing Statements

i. Oversight Committees: We like this bill, Yay or nay

1. Congressional oversight refers to oversight by the United States Congress of the ExecutiveBranch , including the numerous U.S. federal agencies .

2. Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation

ii. Short-cut mechanisms to express approval / disapproval of Legislation

1. Avoids time consuming to approve each rule and regulation created by admin agency

2. So admin agencies in their quasi-leg capacity review rules before they go into full effect

3. If no oversight committees, Congress would have to go back, repeal statute and enact a new one

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iii. Signing Message: If Prez given bill out of Congress and likes A, B, C, D but doesnt like E, He can signthe entire bill into law but then issue statement saying, Btw, I dont like E, I think its unconst., and Imgoing to advise my people not to execute them.

4. Other Checks and Balancesa. The Presidential Veto: Normally applied to whole statute

i. Line-Item Veto See Below.b. The Legislative Veto: If Congress doesnt like the Regulations the Administrative Agencies make , they dont want

to go back to Square One and draft a whole new Statute. So instead, let us have a look-see before it has the force and

effect of law Legislative Veto Mechanism is a provision included in most Interstitial Rulesi. INS v. Chadha (1983) : Immigration and Nationality Act allowed Immigration Judge to suspend deportation

and AG to submit to Congress a suspension of deportation for any alien set for deportation. Congress myUnicamerally overrule AGs suspension and deport. SCotUS says, No, you cant do it this way. An act thatauthorizes just ONE house of Congress to invalidate a decision of the Executive Branch is an unconst. Violationof Separation of Powers

3. Statute avoids the Presentment Clause: no opportunity for possible veto by president

4. No bicameralism

ii. After Chadha, Legislative Veto Mechanisms are no longer valid No more shortcuts, no matter what themodern realities. The Judicial and Executive branches do not work for you, Congress!

5. Chadha is a bit of an odd example to illustrate Executive Branchs quasi-legislative function. Here theExecutive Branch (the Article I Immigration Judges) is serving more of a Quasi-judicial function.

iii. Contingent Delegations: Still allowed. Mechanisms in statutes that tells executive branch, If you see situationA, you should do this. . . (This is what the Chadha case really looks like.)

c. Congress Spending Power; The Line-Item Veto and Presidential Impoundment

i. Line Item Veto: Granted to Clinton for Budget Control Bills to gain control of a bloated natl budget.Congress says, sign it and you tell us which sections you dont like and take it out.

ii. Clinton v. City of New York (1998) SCotUS is NOT impressed: not for Congress to delegate to Pres the power to line item veto the text of bills. Line Item Veto is Unconstitutional

iii. Presidential Impoundment: In some situs, Prez may refuse to spend money that Congress authorizes andappropriates for programs. Validity of this power is still a bit unclear.

1. Power to Impound > Power to Veto. Unlike Line Item Veto, no action is sent back to Congress tooverride. President can adjust amts of $ impounded. With LIV: Prez can just say yes or no.

2. Example: Nixon hated that Congress gave money to EPA, didnt want EPA in the executive branch and literally tried to freeze out the agencies by refusing to give them $

3. Impoundment Control Act: Prez can drag his feet to spend $, but Congr has ability to nudge him.

a. Reflects power struggle b/t Leg & Exec: Congress in charge of purse strings for agenciesand can abolish agencies if it wants to. Prez can choose not to spend $$ for agency

d. Appointment and Removal of Executive Officers

i. Appointments:

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1. Appointments to positions are made by President: Ambassadors, Fed Judges, Officers for the US

2. All positions in the Govt are created & funded by Congress

a. Cong may vest the appt of inferior officers in others

b. Inferior Officers: one who could be fired by an Officer of the US.

i. Example: AG can fire a federal judge.

c. Congress may not give itself appointment power

3. All positions must be confirmed by a majority vote in the Senate

ii. Removals

1. Congress sometimes want to shield Exec Offs from arbitrary removal so as to allow them to perform their quasi-Judicial or quasi-Legislative powers.

2. Unless removal is limited by a federal statute, the Prez may fire any Exec branch official. At highlevels Prez is deemed to have unfettered discretion to remove officers. (IE, I need someone better thanHillary at her job. = OK)

3. All other Levels: Congress can effectively insulate the offices below the high-ranking cabinetoffices, including ones that are affecting quasi-judicial and quasi-legislative powers by specifying whatthe grounds for dismissal are. But Congress cannot participate in that removal process. (And thatswhat happened in Bowsher )

a. Congress is allowed to insulate officers who are indepent of Prez, like independentcounsel who investigates Presidential wrong-doing

4. *Bowsher v. Synar (1986): Statute allowed Comptroller Gen to make mandatory budget cuts if maximum allowable deficits were exceeded and also allowed Congress to remove Compt Gen. TheStatute, by giving Congress the power to treat CG as if hes a member of exec branch and the power to

remove him from office gives Congress unconst power of an Executive function.

5. *Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): Another wrinkle. Sarbanes-Oxley created a double-layer of insulation for members of PCAOB board. BoardMems are inferior officers apptd by SEC Commissioners and SEC Commissioners are apptd by Prez.Members can be removed for-cause, but Act does not give Prez any power to determine if cause exists.Unconst violation of Separation of Powers.

6. Effects? Free Enterprise Fund addresses an issue that has been lurking in the backgroundcreation of a v. large and complex Fed Beaucracy, much of which is exercising quasi-Jud/Leg powers= Emergence of a de facto 4 th Branch of Govt of Independent Agencies, which the Constitution never anticipated and therefore Court isnt able to recognize its existence.

a. Congress is saying, We created your executive office, let us have a look see.

b. And President is saying, Why are you depriving me of my power by trying to exercisecontrol over my Branch?

c. So Court here is trying to finally starting to address the issue of over-independence of these independent agencies.

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Article II 1: The Executive power is vested in the President of the United States Prez has powers inherent in the positionthat are not specifically enumerated in Constitution.

a. Domestic versus Foreign Affairsi. In Re Debs (1895): Pullman Strike in RR hub of Chicago posed threat to natl economy so Prez Cleveland

seeks an injuction to prevent strike. Eugene Debs says the injunction is Unconst b/c Congress gave Prez no

statutory authority to bring injunction against labor Strike

1. Holding : Injunction Constitutional. Not only did Prez have inherent authority that went beyond anything delegated by Congress or enumerated by Art.II, but particularly in anythingthat seems specifically Natl (or Intnatl).

2. Note : Commerce Clause would have authorized Congress to delegate such power to President Contingent Delegation Grover, if you see a labor strike, you are authd to seek injunction.

ii. Youngstown v. Sawyer (1952): SCotUS attitude about Prez Inherent Pwr changes somewhat. Prez issuedExecutive Order directing Sec of Commerce to take possession of steel mills to prevent a nationwide strike.Prezzes of Steel Mills bring suit saying that seizure wasnt authorized by any Act of Congress or Const.

provision. SCotUS says Prezs order directing Sec of Commerce to seize mills was Unconstitutional, buthighly divided on Why.

1. Congress is allowed to enact legi seizing mills, but Prez cant use Exec Order to do same thing2. Commander-in-Chief role is being stretched too far. Were at war, but this is mostly a domestic

issue and not an emergency3. *Three Zones of Analysis (Jacksons Concurrence, p. written by Rehnquist)

a. Congress approves of what President has done (express or implied) ok for Prez to actb. Twilight Zone Congressional Inaction (were really going to have to look ad hoc at

the circumstances). But Jacksons tilt seems to be that inaction generally = approval.(Korean War Prez needs strong power to step in & make decisions. If Congress isgoing to be indifferent in times like this, then lets allow Prez to do it)

c. Congress disapproves of what President has done (express or implied) Not OK b. With Congressional support, acquiescence, or disapproval (*Jacksons three zones of analysis?)

i. Dames & Moore v. Regan (1981): After Iranian hostage situation Carter blocks removal of all Iraniangovt prop from US. brings against Iran b/c Iran banks owe him $3.5M. Hostages are released inexchange for termination of all litigation b/t govts (go to arbitration instead). Reagan suspends all claims.

1. HELD: Prez is authorized to suspend litigation by informal Executive Agreement6. Foreign Affairs

a. Executive Conduct of Foreign Affairsi. President, as Commander-in-Chief, has broad powers to use Amer troops in foreign countries

ii. United States v. Curtiss-Wright Export Corp. (1936): Congress passes joint resolution stating that if he wants,President may make proclamation prohibiting sale of arms to Bolivia/Paraguay. says embargo is unconst.

1. HELD : Prez proclamation and Congressional Res were valid exercises of Contingent Delegation

2. But SCotUS gives many other foreign-affairs-related reasons why Proclamation is valid to getaround the Intelligible Delegation Principle in the Schecter Sick Chicken case

a. Basically they say that Prezs powers is something different in foreign affairs than indomestic stuff. Give Prez more leeway when conducting foreign affairs

b. They may be inferring that Prez may have acted w/o Congressional resolution

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c. Whenever the power of Prez in Foreign Affairs is questioned, language of this casewill be invoked. Even though the quotable parts are almost all dicta

i. A power which does not require as a basis for its exercise an act of Congress

ii. Exercised in subordination to the applicable provisions of the Const.

b. Treaty Power and Executive Agreements

U.S. Constitution

Federal Statutes and Regulations Federal Treaties

Statutes and Treateis are COEQUAL subordinates to the Const. And latest expression of a Sovereign Will trumps an earlier

Executive Agreements

All State Law

i. Art II 2 Power to make treaties is expressly delegated to Prez

1. Treaty: an agreement b/t US and foreign country that is negotiated by Prez and effective whenratified by the Senate

a. State laws that conflict with treaties are invalid.

b. If conflict b/t a Treaty and a Federal Statute, the one adopted Last in Time prevails

c. Treaties are invalid if they conflict with the Const.

ii. Executive Agreement: an agreement b/t US and foreign country that is effective when signed by Prez andhead of foreign nation no Senate ratification necessary.

1. May be used for any purpose, but usually in 3 instancesa. Time is of the essence

b. Dont want to recognize the govt or sanction their activitiesc. Involve matters that are not of the level of treaty signing

2. EAs prevail over State Law but NEVER over Federal Law.

iii. Art. VI makes treaties supreme law of the land. If Treaty is Valid Statute is valid as nec and proper means to execute treaty

1. Example: US-BR make bird treaty Congress executes treaty by passing Migratory Bird Act

iv. Missouri v. Holland (1920): MO says that US-BR treaty prohibiting the capture and kill of Migratory birdsviolates 10 th Amendment b/c in absence of the Treaty theyd be free to regulate birds w/in their borders

1. Held: Act does not violate 10 th Amend. Because states agreed to Consts provision grantingTreaty power to Prez and Congress. (There is a bootstrapping effect of the Treaty Power itenlarges federal power over states by making treaties that must be enacted thru Leg.)

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a. Problem with this reasoning is that it makes 10 th Amendment read like a ResiduaryClause in a will and conceivable makes Federal Plenary Power Unlimited

i. Ex: 100 to A, 200 to B and everything else to C. Whats everything else?

v. Reid v. Covert (1952): SCotUS invalidates Executive Agreement b/t Br and Jp providing for Court Martialof civilians who have committed capital offenses abroad as violation of 5 th and 6 th Amend. (US doesntwant them subj to BR or JP law, but BR and JP dont want them sent back to US either.) SCotUS rules thatPrez can make treaties and EA, but he may not do so free of the Bill of Rights

vi. American Insurance Association v. Garmendi : EAs are superior to State Law. European Ins. Cos set upa superfund to contrib. $ for Holocaust deaths so as to lower resistance to entering Amer. Market. Prezmakes EA w/ Germany saying this superfund is ok.

vii. Medellin v. Texas (2008): International Court of Justice tells US that state courts are violating ViennaConvention by not notifying consuls when foreign nationals are arrested and this entitles them to have their convictions review. Prez W issues a Prez Memorandum saying that state courts should give effect to ICJdecision. Medellin files another habeas petition to have his conviction review, but State denies.

1. HELD: Ws memo was an invalid attempt to enforce a non-self-operative treaty that had not been ratified by Congress. B/c Congressional ratification necessary, Ws memo has no binding authority on State Courts.

c. Committing Military Forces to Action

i. The War Powers Resolution (1973): Prez can intro forces into hostilities w/o dec of war, but must issue reportto Prez pro tempore of Sen and Speaker of House

1. Has 60 days to terminate use of force unless Congress authorizes force, extends 60 days or isunable to meet b/c of attack on US

2. Status of this is up in the air? Works as a one-house veto mechanism (Chadha?)

3. Prez wants support of Amer. People and views/vote of Congress may more adequately reflect this?

4. SCotUS may view this as guideline indicating Congressional attitude towards how Prez should dostuff. May be too political to make a decision on . Not enough constitutional guidelines for Court to make a judgment on this.

ii. Why war isnt decd more often is prob for same reason Executive Agreements are used instead of Treaties dont want to dignify the enemy with a declaration of War.

iii. Iraq Wars Both Bushes asked Congress for Contingent Delegations authorizing use of the armed forcesgoes beyond War Pwrs Resolution, in that it first goes to congress before initiating action.

d. Detention of Enemy Combatants, Citizens and Aliens; War Crimes Trials

i. Hamdi v. Rumsfeld (04): US citizens detained as enemy combatants are entitled to only lmtd process.

ii. Boumediene v. Bush (2008): Exec needs auth to detain ppl who pose real threat to natl security, but not at ultimate cost of habeas

Guantanamo Cases are all sui generis and wont be tested.

III. DIVISION OF POWERS (B ETWEEN THE F EDERAL AND S TATE G OV TS )12


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A. Introduction: Supremacy Clause & Tenth Amendment Reservation of Powers; Preemption Issues1. Article VI 2: Supremacy Clause: The Const. and the Laws of the U.S. which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made under the Authority of the U.S. shall be the Supreme Law of the Land ; andthe Judges in every State shall be bound thereby, any Thing in the Const. or Laws of any State the Contrarynotwithstanding.

a. If theres a conflict b/t Federal law on the one hand and State/Local law, Federal law wins out and State/Local lawis Preempted

i. Express Preemption: If a fed stat explicitly says that federal law is exclusive in this area, thenState/Local laws are preempted

ii. Implied Preemption: Even if a federal statute is silent, there may still be preemptiona. If Federal Law and State Law are mutually exclusive where it is impossible to comply with both - State law is deemed preempted

b. If a State interferes with a Federal objective, then the State law is deemed preemptedc. If Congress evidences a clear intent to preempt S&L laws, then S/L laws are preempted

iii. States may not tax or regulate Federal Govt activities2. 10 th Amendment: Reserved Powers Clause: :The powers Not Delegated to the US by the Const, Nor Prohibited by it to

the States, are Reserved to the States respectively, or to the people.3. Article I 8 Clause 3: Commerce Clause: Congress shall have power to regulate commerce with foreign nations, and

among the several States and with the Indian Tribes.a. One of the major vehicles for Federal Plenary Power (seems like EVERYTHING is the CommCl!)

B. Federal Plenary Power under the COMMERCE CLAUSE The Affirmative side of the ComCl1. Power to Regulate Transport of Goods in Interstate Commerce

a. Historical Context: Federal Govt did not originally get involved at all with actions b/t local buyers andsellers. Fed Govt, did however have the Police Power to get involved in matters of Health, Safety and Welfare.

b. Plenary Power- absolute power with no review or limitations. IE Presidential pardonsc. In Commerce Clause cases, SCotUS will look to the Validity of the Federal Action

i. Gibbons v. Ogden (1824): Ogden purchases exclusive NY State license to operate steamboat of NYwaters. Gibbons runs steamboats from NJ to NY and has federal license to do so. NY State court enjoinGibbons from running his steamboat in NY waters.

a. NY: 10Th Amend gives states powers not given to Congress. Therefore, (1) State hasConcurrent power to regulate interstate commerce and (2) there was no conflicting federalstatute the Pre-Empted the state monopoly licensing law.

b. Gibbons : There is no concurrent power b/c ComCl grants Congress Absolute power to regulateinterstate commerce, with No room left for the States. And even if there was concurrent jurisd,

there IS a Pre-Empting federal statute governing licensing that conflictsc. RULE: A state may not by its laws or acts regulate commerce among the several states.i. Majority: Accepts the Pre-empted law argument and gives a narrow read to the case.

Begs question, what happens if Fed licensing law taken away?ii. Johnson Concurs: Commerce Pwr is exclusive. If the Fed Licensing law were

repealed tomorrow, Gibbons would still be able to take his boat to NYii. Two Different Lines of Analysis :

a. No concurrent/overlapping powers b/t Fed and Statei. Intrastate Commerce 19 th C. Apple growers growing and selling in NY was thought

to be something that Fed govt couldnt regulateSTATE Federal

ii. Court soon realizes that non-overlapping circles are unworkable today. Criticalargument is that there may be concurrent jurisdiction to step into the overlappingzone, assuming that theres no conflicting/pre-emptive fed statute.

b. Overlapping/Concurrent Powers in the Commerce Realm New Model

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i. Affirmative Commerce Clause

1. How broad is Fed Pwr to regulate commerce?

2. Can Federal circle pacman the red one?

3. Cooley v. Board of Wardens (1851): States may exercise a localized, non-

preempted jurisdiction over Commerce. States can step in and regulateInterstate Commerce where there is diverse treatment. Commerce is a vastfield that can accommodate both a blanket natl law for every port and for diverse ports based upon local conditions. Concurrent, non-conflicting jurisd.

4. The Daniel Ball (1871): Parties involved in the transporting of goods fromone state to another are involved in ICC even if they themselves do not leavethe state. What matters is if the goods are crossing boundaries, not the people.

a. Navigable Waterways Theory : Even if its INTRAstate travel onfederal waterways, the actions can be regulated by the ComCl.

ii. Dormant (Negative) Commerce Clause Issue:

1. S/L laws are unconstitutional if they place an undue burden on IC.

a. SCotUS has inferred this from ComCl.

2. If there are no preemptive fed statutes and there is State power, does theComCl nevertheless emanate signals to the States, asserting limits on States

powers? Sure does.

a. Wabash v. IL (1886): IL tries to set INTERstate RR rates anexercise of Dormant Concurrent Non-Preemptive jurisd, essentiallystepping into a vacuum of Federal Regulation and reaching out andinto the states around them.

i. HELD: This type of regulation is only amendable to federalleg. unlike diversified, localized Pilotage (Cooley). Theremay be a vacuum, but States, you may not step into it.

b. 1887 Creation of Interstate Commerce Commission (another example of Interstitial Rule Making and Contingent Delegation)

c. In the wake of Wabash questions come to Courts concerning abilityof States to set INTRAstate rates for transport of goods and SCotUSsays, Sure thats in the red circle.

d. The Shreveport Case (1914): TX RRs are giving better rates to travelw/in TX than to go out of state, so that Dallas and Houston cancompete with Shreveport for E. Tx business. ICC tells RRs it cannotdo that. SCotUS affirms, ICC has the power to regulate RRsINTRAstate rates to eliminate discrim against out of staters

i. Conceptually, this case goes farther than the Daniel Ball

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iii. Is there any zone exclusive to State regulation where Fed govt cannot reach via thecommerce clause? There are some inherent limitations. The blue circle used to pacmanthe red circle, but not so much anymore.

iv. Today we know there IS a Concurrent Realm subject to Federal pre-emption, but it isExtraordinarily broad. As soon as we use the word commerce to describe regulationthe blue circle almost entirely encompasses the red circle

2. Power to Regulate the Economy Production of Goods

a. Pre-1937: Limitation to regulating Direct Effects on commerce excludes Fed Govt fromregulation of Production

i. 1890: Sherman Anti-Trust Act Fed govt starts to flex its regulatory muscles. But ComCl does not extendto attempts to monopolize

ii. US v. E.C. Knight 1895: Fed govt tries to enjoin purchase of 4 sugar refineries that would create near monopoly. EC Knight says that production is a purely intrastate matter and beyond Fed Govts power toregulate. SCotUS agrees.

a. Harlans Dissent: If Congress can regulate Commerce, then it should be able to remove restraints onInterstate commerce, such as Monopolies

b. SCotUS: Regulation of production is a State matter. But b/c of the broad read on the 14 th

DPC, theyre really not going to regulate it very much either.

iii. 1890s-1937: The Doctrine of E.C. Knight Small read on the Commerce Clause, BIG read on Due ProcessClause. Economically conservative, laissez-faire oriented Court reads Fed Comm Pwr to be a small one anddoes not permit very much regulation by either State or Fed govt.

a. Production of Goods: SCotUS is on States side of the Commerce Fence

b. Instruments of Transport: SCotUS is on the Federal side of the Commerce Fence

c. HOWEVER, States regulation is still subject to the Courts BIG read on the 14 th Amendment DPC.

d. =Federal Govt is in Courts handcuffs over Commerce Clause and States are in Courtshandcuffs over Due Process Clause.

iv. Protective Prohibition as a Limited Federal Power to keep Products deemed noxious out of Interstate Commerce

a. Protective Prohibition: Power of Fed Govt to choke off arteries of interstate commerce fromtransport of goods that Congress does not approve of. So while, States may still regulate productionof goods, Fed govt can freeze out from across state borders stuff that it finds noxious.

1. Lottery Case (1903): Transport of lottery tickets by independent carriers constitutescommerce that Congress may regulate under commerce clause .2. Hippolyte Egg Case (Pure Food & Drugs): Congress may pass Pure Food andDrug act to prevent impure foods/drugs from being transported from State to State3. Hoke Case : Govt can prevent traffic of women for sex trade.4. Brooks Case (Kidnap Victim): Human beings can be the subject of ProtectiveProhibition. Fed govt is saying practice is noxious, not the people being transported .5. Hamer v. Dagenheart (Child Labor Case) (1918): Congress may not eliminateChild Labor within state by regulating Interstate commerce of the goods child labor produces.

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Struck down as ultra vires. Court takes a very different tack from Lottery, Pure Food & Drugs, Prostitution and Kidnap

b. Post-1937: The Doctrine of Substantial (cumulative) economic effects creates a conceptuallyLIMITLESS FEDERAL COMMERCE CLAUSE POWER

i. 1936 FDR threatens to pack court with more activist justices to counterbalance the older laisezz faire judges. Psychological Impact Court turns 180 degrees in a matter of years on Due Process and CommerceClause analysis. Doctrine of E.C. Knight and Direct and Indirect Effects Test begins to burst wide open.

ii. Up to this point Court has knocked down over 400 State statutes attempting to regulate production as aviolation of Due Process, creating perhaps too much deference to the federal govt regulation?

a. Democrats in Power are Pro-Labor. Labor is huge constituency and good way to stimulate econ.Enterprises that were once regional, are now national and subject to Federal Regulation.

iii. Dam Breaks: Development of the Substantial (Cumulative) Economic Effects Doctrine

a. NLRB v. Jones-Laughlin Steel (1937): Natl Labor Relations Act gives employees right tounionize. violates by firing union employees and NLRB orders to rehire w/ back pay.

1. Held : NLRB Order upheld. Acts that directly obstruct IC are w/in reach of congressional power. Its the effect upon commerce, not the source of the injury that is the criterion for Congress action.

2. TEST : Activities may be interstate when considered separately but if they have a Close &Substantial relation to IC, Congress cant be denied pwr to exercise control.

b. SCotUS justifies federal regulation of the circumstances of Production

c. United States v. Darby (1941): Overrules Hammer by upholding newly passed Fair Labor StandardsAct which creates a baseline for MGMT to follow for work standards. Creates 2 possible violations:(1) If we catch you at the border with these goods youre in trouble. (2) If we find evid that you

produced goods w/ attempt to transport Interstate youre in trouble.

1. *E.C. Knight officially overruled (?)

2. RULE: The power of Congress to regulate Interstate Commerce extends toINTRAstate activities which have a Substantial Effect on Interstate Commerce.

1. Effects must be analyzed in the aggregate . Small potatoes producers likeDarby cant opt-out by saying, Im just one lumberjack, Im too small to have aneffect on the national economy. SCotUS will respond, But if we let YOU do it,then well have to let all the lumberjacks. And that will have a substantialCumulative effect on the natl economy.

d. Wickard v. Filburn (1942): Agri Adjustment Act 38 passed to control volume of wheat moving inIC and avoid surpluses, shortages and prices. Sec of Agr implements a compulsory marketingquota and Filburn harvests 239 bushels in excess of quota and is fined. He says, This is just for myfamily. Im not selling it.

1. HELD: Homegrown wheat for personal use is an influential variable in the market andtherefore must be regulated as well. If Filburn eats his excess bushels, and all the other farmers eat their excess, then many wheat consumers will be taken out of the consumer market resulting in a substantial effect.

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iv. At this point in time, Commerce Clause seems to be a doctrine of potentially Limitless Federal PlenaryPower. Conceptually it seems that Fed Govt can use the Commerce Clause to regulate EVERYTHING.

a. Red circle may be almost entirely within the Blue circle?

v. Development of the Conceivable Rational Basis Test

a. Congress started to use the Commerce Clause to address discrimination in Deep South, where theycouldnt use 14 th Amendment EP to get at non-state actors.

b. Heart of Atlanta Motel v. United States (1964): Title II: Prohibs discrimm in places of publicaccommodation. Hotel located near interstate highway is violating the ComCl thru Title II of CivilRights Act 64 by discriminating against black guests. SCotUS says that Record is replete withevidence of the burdens that discrimination places upon interstate commerce Black ppl will stayhome and not spend $$ if theyre uncertain theyll be able to find a hotel that will take them.

c. Katzenbach v. McClung (Ollies BBQ) (1964): Harder case for court to make. Restaurant says that

if they allow black ppl into restaurant, theyll lose the rest of their customers and as a result $$ andnegative effects on ICC. SCotUS says Nope. Title II applies to all restaurants so playing field islevel in that all restaurants are being forced not to discriminate.

d. United States v. Carolene Products (1938): Famous Footnote Four. Points to the end of SCotUSsActivist anti-regulation era and the beginning of the era of Judicial Self-Restraint

1. Theres a difference b/t legislation that regulates ordinary economic activities andlegislation that curtails important personal liberties.

1. Constitutional authority of State and Fed Leg to regulate economic matters isPlenary, so laws passed to regulate such matters is entitled to a presumption of

Constitutionality as long as they serve any conceivable rational basis.

2. Presumption of validity, however, does not apply to certain categories of noneconomic leg, such as leg that restricts the political process, discrimms, etc.

c. The modern (two-pronged) Conservative Counter-Revolution: Re-imposing limits on federalCommerce Clause Power

i. Prong 1: State Sovereignty as a Limitation

a. National League of Cities v. Usery (1976): State Soverignty Wins! First suggestion of a counter-rev. New leg to extend Fair Labor Standards Act from private companies to federal and state employees,telling States what they are to pay their employees. Rehnquist:

1. Of course State employee pay has Substantial cumulative effects on IC, but

2. State Sovereignty is a Countervailing Doctrine that pushes back on Fed Pwr

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3. Activities having Substantial Relation to Interstate Commerce

c. Under Carolene Rational Basis test, might court have argued that kids avoid schools if there is nogun-free zone Less educated population Lowered GNP Likely not an argument for Conservs

d. United States v. Morrison (2000): Rehnquist: Violence Against Women Acts provision for a fedcivil remedy for victims against GBV is an unconstitutional exercise of Commerce Clause (and 14 th)

1. Gender-motivated crimes of violence also do not constitute economic activity and thereforeCommerce Clause does not vest Congress with authority to enact a statute regulating it

2. (14 th Amend protects actions by State Actors. State Action is missing here.)

e. Gonzalez v. Raich (2005): Fed Controlled Substances Act authorizes Congress to use regulatoryCommerce Pwr to seize and destroy marijuana plants CA residents were growing for medicinal

purposes, under CA state Compassionate Use Act, b/c they claimed there was a established,lucrative, albeit Illegal, INTERstate market

1. SCotUS says that the federal power is valid, not withstanding Lopez/Morrison, b/c the courtsays its similar to Wickard, production of both wheat & marijuana is specificallyquintessentially economic and thus w/in the scope of the commerce clause

2. As distinguished from Lopez/Morrison where statutes regulated non-economic activity

3. SCotUSs Jurisprudential views do not match its Ideological views in this case.

C. The Dormant or Negative Commerce Clause: Implied Limitations on State Power to Exercise aConcurrent, Non-Conflicting Regulatory Jurisdiction over Interstate Commerce

1. Introduction: Recap of the Early Cases

a. Gibbons v. Ogden: NY could not exercise concurrent power under the commerce clause by issuing a state monopolylicense for the use of steamboats in NY.

b. Cooley v. Board of Wardens: Local steamboat pilotage statute upheld. SCotUS affirms, that yes There is a zone of Concurrent jurisdiction b/t States and Federal

c. Wabash v. IL: Illinois cant set interstate railroad rates even though there is no federal statute. States may NOTexercise their concurrent powers with RRs. This regulations is Amenable only to national uniform regulation, even if there is no federal reg yet.

d. Two Main Themes to Dormant Commerce Clause Analysis

i. Hey, States, Dont discriminate against other States

ii. Hey States, Dont excessively burden Interstate Commerce

e. Negative implications arise in the fact that the Federal govt. has power rather than the states, such that there is ashadow over state power even if there is no federal statute that regulates commerce issue.

f. State Powers under the Commerce Clause:

i. States May: Exercise Police Power Create legislation in an area where there is concurrent, non-conflicting regulatory jurisdiction in regards to IC to protect health, safety, welfare, edu of citizens

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ii. States May NOT: Create legislation where Constitution gives Federal Govt powers to legislate even whenthere is no conflicting, preemptive regulation. (IE, Like the RRs.)

2. State Regulation of Interstate Transportation

a. South Carolina v. Barnwell (1937): SC Statute banning oversized trucks from State highways b/c regulatingstate highways is so peculiarly of local concern. Plus Congress had not yet invoked CommCl to implement natlstandards on highways, so SC had a right to act in absence of fed leg. The law was carefully drawn and applied equallyto intrastate and interstate travelers. based on local safety issues and at the time there was no interstate highwaysystem.

b. Southern Pacific v. Arizona (1944): AZ statute limiting Trains to specific car lengths violated CommCl b/c it placed an unconst. Burden on IC.

SC v. Barnwell So. Pacific RR v. AZ

Rationality of States Regulation Safety IssuesSlack action; trouble rounding curves. Not a

proven theory that slack action.

Negatively Impact I.C.? Most out of state trucks dont meet reqsTrains would have to reorganize at each state

border, or follow the state with the shortesttrain length reqs

State Health, Safety etc. InterestRATIONAL? (rationality withsome teeth in it. )

No interstate highway sys at time, so state not gettingfed aid to maintain roads. Understanding of local conds.

Court is 2 nd guessing States judgment.

More trains arent safer than fewer, longer trains

Subject Amenable to DiverseTreatment?

Trucks seen as more local Trains more amenable to natl treatment

Local Interest adversely affected?SC trucks were basically stuck in their driveways;

Impacted both SC trucks & Outside trucks Nodiscrimination of out of staters.

In-State issues not impacted the way Out-of-State interests are. But in-staters dontBenefit either.

Constitutional?

c. When may states regulate in the Vaccum?

i. Is there a burden on Interstate Commerce?

ii. Is the safety interest Rational?

1. Asserted Purpose v.

a. Compelling purpose

b. Substantial; Important Purpose

c. Rational or legitimate Purpose (a very low test after 1937)

2. Ends-Means Analysis accords with all three tiers.

iii. Is the subject amenable to diverse localized treatment?

iv. Are in-state interests adversely affected in the same way out as out of states?

**The Rational test is a very week test nowa days, so rational was probably not the best choice of words, even at the time of Barnwell. Kassel later makes clear that you need a lot more than merely a Rational Test.

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d. Bibb v. Navajo Freight Lines (1959): IL statute reqing a different kind of mudguard on trucks/trailers unconst b/ccosts and burdens of adjusting to new guard were too great. Local Safety concerns in this case dont outweighinterests of I.C. in this case b/c IL req is so diff from other states reqs .

e. Kassel v. Consolidated Freightways (1981): IA law restricting size of commercial trailer trucks but allowing border cities to adopt local ordinances permitting such trucks was Unconst violation of I.C. Benefits border cities butdiscourages Interstate travelers from benefits of IAs highways.

i. States interest is rational, just as SCs was when there was no natl highway system, but by esting limitsin their states, theyre effectively setting standards for ALL states, therefore Interstate Highway system andtruck regulations are more Amendable to National Regulation or no regulation at all Fed steps in and

preempts State laws

ii. Balancing Test: Rational Safety purpose must be weighed against and Overcome Burdens to IC System.

1. The non-discriminatory issue is also a positive but not decisive factor alone

2. Local v. Natl must also be taken into consideration

3. But Safety v. Burden to ICC is most important

3. State Regulation of Incoming Commerce: burdening the market of extra-state goods, and favoringintrastate enterprises, competing for sales to instate consumers

a.Taxation and Licensing

i. Shreveport Case manipulating RR rates so that rates were unfairly low EX of affirmative CC power

ii. Dormant Side : Adding a tax is the most obvious way to burden out of state goods.

1. Cant burden incoming commerce w/ a tax that makes it less competitive (direct tax)

2. Cant tax peddlers who peddle out of state goods (indirect tax).

3. Ban out of state goods (No)

4. Licensing

b. *Minimum Pricing and Sales Tax Equalization

i. Price Equalization = NOT OKAY

ii. Tax Equalization = OKAY

iii. 1930s Laissez Faire SCotUS doesnt like Govt reg and price-setting despite econ atmosphere

iv. Nebbia v. NY (1933): State law sets minimum price for milk, b/c unless you put a floor on prices,mfgs will stop producing and children will die. Somehow in this case, the conversative court buysthe argument, despite having struck down 400-some other State regulations. So Cheap milk floods into NY.

v. **Baldwin v. G.A.F. Seelig : ( 1935) Cardozo: As result of serious deflationary price cycle created by Nebbia, NY passed law that extended state price protections to milk shipped in from out of state. Price equalizations schemes are unconstitutional.

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1. Sims: So whats the point of allowing NYs minimum pricing scheme if its not allowed todefend it? *shrug. Seelig is still good law.

vi. Henneford v. Silas Mason (1937): WA State statute taxed chattels brought in from out of state. Does notviolate I.C. b/c you dont want to incentive citizens to avoid sales tax by buying products out of state.

1. Not a price equalization scheme, a Tax equalization scheme, which are generally upheld

2. Things acquired or transported in interstate commerce may be subjected, when once they are at rest, toa nondiscriminatory tax upon use or enjoyment.

3. Only thing being equalized was sales tax factor in Henneford; Baldwin was trying to equalize theENTIRE pricing structure for milk.

c. Health-oriented import Restrictions

i. Regulations that interfere with IC may be struck down if they are not ABSOLUTELY necessary to healthand safety.

ii. Mintz v. Baldwin (1933): Where not prohibited by Federal Stat, NY State ban on out of state cattle to prevent spread of Bangs diseases is Constitutional. Banning on import is okay health grounds.

iii. Dean Milk v. City of Madison (1951): Classic example of discrim against out-of-state middlemen .Madison, WI ordinance bans sale of milk that has not been pasteurized w/in citys five mile radius under rationale that it has interest in protecting health/safety by regulating milk.

1. Unconstitutional: Although State has interest in protecting Health/Safety, by regulating milk it may notimpose regulation that discriminates if nondiscrim alternatives are available. (IE, This is not absolutelynecessary. why not just inspect outside milk?)

2. NOTE: Dormant CC only protects IL pasteurizers. In state pasteurizers outside the 5 mile radisuwould have to bring claims under Equal Protection/Due Process but with a very weak rational basistest that probably not work. So their best recourse would likely be a political one lobby state leg.

d. Masking Discrimination: General Tax coupled with Subsidization of Instate Producers

i. West Lynn Creamery v. Healy (1994): MA taxed all milk sold in state and redistribd money to MAdairy farmers, but not to out-of-state farmers who produced 2/3 of MAs milk.

1. Unconstitutional: Remitting a tax in the form of a subsidy is the same thing as a discriminatory taxsystem to begin with. Tax nondiscrim but remittance only went to one group of tax payers.

4. State Regulation of Outgoing Commerce: Restrictions on access to local products and raw materials;Hoarding

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State AValuable Resources$In-State Consumers

$$$ State B

$$$ State C


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Thou shalt not discriminate in favor of your own people. If SCotUS suspects any hoarding of goodsafter benefit of local consumers are met, they will put their foot down!

A-C are examples of types of hoarding/state restrictions on exports.

a. Export Price Control

i. Milk Board v. Eisenberg Farm Products (1939) Converse of Seelig case. PA Law fixes minimum price that milk dealers must pay to state producers even if dealers are buying for out of state resale.

1. Constitutional. Did not pose a prohibitive burden on IC b/c amt of milk going out was incidental.Design to protect local economic interests.

b. Pre-exportation processing requirements

i. Foster-Fountain (1928) LA Shrimp Act made it illegal to ship shrimp from LA if the heads and shellshad not been removed, basically requiring that shrimp be processed in state before taken out of state

2. Unconstitutional.

c. Preventing the Exportation of Natural Resources (hoarding)

i. H.P. Hood & Sons v. Du Mond (1949): NY denied MA company license to est. milk receiving station

3. Unconstitutional. System fostered by ComCl is one in which every person will have free access toevery market in the Nation. Want to discourage state rivalries and reprisals that will occur if states areallowed to enact local protectionist measures.

ii. Pennsylvania v. WV WV sent natural gas to PA after all WV citizens needs were met. Unconstitutional.

iii. Hughes v. Oklahoma (1979) OK statute barred export of minnows that were caught in natural waters of the state. OK says its a conservation measure but SCotUS says

4. Unconstitutional. State is hoarding minnows that can be used for commercial purposes (cat food)5. Overturns traditional exception to Dormant CC animae ferae naturae Common law vests title to

AFN in state and state may set terms by which AFN are taken out of State and privatized.

5. The Market Participant Exception

a. Definition : Where state itself is either a Seller or purchaser of goods/resources it may discriminate.

b. Reeves v. Stake (1980) Out-of-Staters claim SDs state-owned cement factory was discriminating against themduring natl shortage by charging less for in state purchase of cement and more for out of state.

i. Constitutional. SD has entered market as a producer, not a regulator. Plus Cement is not a naturalresource, limestone is. And SD is only using a small portion of it to create cement.

ii. Sims: Sends the wrong signal about market participant exception?

c. Hughes v. Alexandria Scrap (1975) MD wants to stimulate scrap-processing so subsidizes the purchase of instatescrap. First invocation of market Participant Exception.

i. Constitutional. MD has right to enter consumer market as buyer and to discrim in favor of its own ppl.

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d. South-Central Timber v. Wunnicke (1984) AK law requires buyers of state-owned timber to partially process itin-state before taking it out of state.

i. Unconstitutional. Alaska is acting like a market participant and a market regulator. Its projecting itsmarket participant status downstream into other states.

e. Commonwealth Edison v. Montana: MT gen coal severance tax reqs everyone to pay 1/3 value back to MT

i. Constitutiona l All coal miners must pay, plus mining puts huge environment burdens on state so MTsrational basis met.

f. United Haulers Assoc v. Oneida-Herkimer (2007) NOT a classic market participant exception. Countyordinance reqs delivery of all solid waste to a publicly owned local facility.

i. Constitutional - Does not impose a substantial burden on IC plus all private facilities are treated same

ii. Pike Test: Garbage collection is traditionally a public benefit

g. Dept of Revenue (KY) v. Davis (2008): State provision providing an income tax exemption for interest on bondsissued by the state, while denying exemption to interest on bonds issued by other states doesnt violate Dormant CC.

i. Constitutional - Bond proceeds are a "quintessentially public function," and therefore likely motivated bylegit state objs other than simple economic protectionism. These objectives outweigh any negative effectthe tax may have on interstate commerce.

6. Article IV Privileges and Immunities Clause Compared to Dormant Commerce Clause

a. Introduction

i. Definitions:

a) Dormant Comm Cl Principle: State/Local laws are unconst if they place an undue burden on IC.

b)Art 4 P&I: No state may deprive citizens of other states of the P&I it accords its own citizens. Ananti-discrimination provision.

c) Privileges OR Immunities of the 14 th Amend ALWAYS the wrong answer unless thequestion involves the right to Travel. B/c SCotUS gave it such a Narrow read in theSlaughterhouse Cases, it effectively wrote it out of the Const. (Not the Blockbuster that wedexpected!)

ii. Key Question: Does the State/Local law discriminate against out-of-staters?

iii. Analysis of the State/Local Law does Not discriminate

a) Article IV P&I does not apply

b)If the law puts a burden on ICC, it violates DCC if burdens on IC outweigh the benefits of the law.

1. Mud flaps on trucks Didnt discrimm but Unconst b/c it didnt satisfy Balancing test.

iv. Analysis if State/Local law DOES discriminate against out of staters

a) If a law puts a burden on IC, it violates DCC unless it is Necessary to achieve a Compelling StatePurpose. Must show that no less a discriminatory alternative can achieve this objective

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1. Exceptions:

a. Congress Approval once they approve, theyve acted & no longer dormant

b. Market Participant Exception

v. Article IV P& I

a) Applies only if theres discrimination against out-of-staters

b)Discrim must be in regard to Civil Liberties or to Earning ones living.

c) Corporations and aliens may not sue under Article IV P&I

d) Discrimination will be allowed only if it is Necessary to achieve a Compelling govtinterest

vi. Personal mobility as original purpose; Benefits of clause available to natural persons only, notcorporations.

a) Most s in DCC cases are private corporations and therefore cannot invoke Privileges &Immunities Protection

b) Most Article IV 2 Privileges and Immunities cases, however, involve individual workers.Market Participant Exception does not apply to P&I claims

a. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

c) Note this is different from 14 th Amendment P&I clause. (One of the most important distinctionsin this course. Do not confuse the two.)

d) On its face: creates parity among the states equal treatment in terms of travel/courttreatment. Only a guarantee of relatively fair treatment. (ie. will be treated as all the people of this particular state will not hold against you that youre from another state, no more Ps &Is than any of our own citizens; held to the same standards/disadvantages of our own citizens)

e) This idea is parallel to the discrimination models b/c the relative idea of fair play. Earlyguarantee against discrimination against out of staters.

vii. P&I Clause now viewed as only protecting rights which are deemed to be (F Word)Fundamental

a) Baldwin v. Fish & Game Commission of MT 1978: Elk hunting in MT is not afundamental right protected by the Privs & Imms Cl, therefore licensing scheme reqingnonresidents to pay higher fee is Constitutional

1. Hunters are willing to concede that hunting wild game is not really an IC issue (sport).

2. So can only fall under P&I, but its not a Fundamental Right.

b. Use of the Privs & Imms Clause Parallel to Dormant Commerce Clause

i. Toomer v. Witsell (1948) SC law subjects out of state commercial shrimpers to licensing fees

a) Unconstitutional. While not absolute, P&I bars discrimm against citizens of other Stateswhere no substan reason for discrimm exists besides fact that they are merely citizens of another state. Affecting shrimpers ability to earn a living!

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c. Use of Commerce Clause to protect Out-of-state workers, where Market Participation Exceptionmight make Dormant Comm Cl argument unavailable

i. Hicklin v. Orbeck (1978) AK statute providing for the preferential hiring of AK residents over nonresidents is Unconstitutional.

ii. United Building v. Camden (1984): City insists that certain % of construction companies must be fromCamden so as to recirculate $$ back into city. SCotUS says right to work construction in S NJ isfundamental enough to invoke P&I. But, if Camden can come up with Substantial reasons to support itsdiscrim against out of staters, may be ok.

a) Right of out of staters to work is a fundamental right that is sui generis to Article IV P&I. Notfound under Equal Protection of DPC

b)But right to work / choose profession are given v. v. v. low tier protection.

d. Reminder: both the definition of rights which are deemed fundamental enough to be protectedby the Aricle VI Privs & Imms Cl AND the test which govt must meet when it burdens those rightsare unique unto this Clause ( sui generis ), and should not be confused with comparable rightsprotection analysis for Due Process and Equal Protection

i. ****Does not make sense in context of due process or equal protection. In economic matters laissez fareholds. States are given broad latitude to legislate and complaints of economic discrimination are given avery low level of review. Court would immediately throw these arguments out if it came from the instateresidents. They have political recourse. IE, Camden govt need only rational or valid justification for sucheconomic discrimination -- lowest of three tiers of rational, intermediate, and strict scrutiny. Out-of-statersdo have standing.****

D. Federal Preemption of State Law

1. Article VI Cl 2: Supremacy Clause: If there is federal legislation on point, then states are preempted from legislating.

a. State law may be preempted in two ways:

i. If Congress evidences an intent to occupy a given field, any state law falling w/in that field is preempted

ii. Where state law stands as an obstacle to accomplishment of full purposes & objs of Congress

2. Silkwood v. Kerr-McGee (1984) works at nuclear plant and gets contaminated. Plant employees follow her home, findmore contamination and destroy her stuff and send her to Los Alamos for study. later brings state law action for destruction of property and wins $10M punitive. 10 th Cir overturns damages award b/c Fed Stats regulate nuclear plantsand therefore punitive unavailable.

a. SCotUS overturns Congress assumed that state tort remedies would be available to those injured in nuclear incidents and therefore no conflict b/t State and Federal laws.

3. Gibbons v. Ogden This was Preemption #2 where state law stood as an obstacle to accomplishment of the full purposes and objectives of Congress.

IV. C ONSTITUTIONAL S AFEGUARDS OF LIBERTY AND P ROPERTY - INTRO

. . . .Shifting focus away from the relationship among govt branches and among Federal & State towards the Relationship betweenthe govt and the individual.

A. Pre-Civil War Safeguards

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1. Against federal govt:

a. Ex Post Facto laws

b. Bills of Attainder

c. Bill of Rights

2. Against state govt (or subdivisions thereof):

a. Contract Impairment Clause

b. Ban on Ex Post Facto Laws and Bills of Attainder

c. Article IV Privileges and Immunities Clause

****IMPORTANT: Prior to the Civil War, the Bill or Rights applied only against the Fed Govt, not against State Govts****

Barron v. Baltimore (1833): Bill of rights does not apply to the States, it speaks ONLY to the Federal Government. Only a fewsubstantive limitations in Constitution apply to states ex post facto, bills of attainder, impairment of s, etc. This is a MAJOR limitation prior to Civil War had it gone the other way, couldve potentially allowed a ton of legal challenges to slavery.

3. Concept of National Citizenship generally derivative of a states recognition of ones citizenship.

a. Denial of national citizenship to African-Americans Slave or free

i. Const. has no definition of what it means to be a U.S. citizen. Status of natl citizenship is derivative of your status as a citizen of a state. (IE, Pre-Civil War: Im an Ohioan, therefore Im an American.)

ii. Dred Scott v. Sandford (1857) Lawsuit specifically generated by abolitionists to test boundaries of slavery.Case technically turns on argument that Dred Scott is NOT a citizen of US and therefore no Subject-Matter

jurisdiction and rest of the opinion is really dicta.1. Rule: Federal Govt does not have the power to extend or prevent slavery into US Territories

B. The Civil War Amendments: 13 th , 14 th , 15 th 1. Key Features

a. 13 th Amendmenti. 1: Speaks to any private indvds and to ALL THE WORLD (including federal & state govt)

a) Self-Operative and Directly Enforceable Requires no legislation for it to go in effect.ii. 2: Enforcement Clause: Ability that Congress may or may not use as it sees fit.iii. Congress starts to worry that 13 th Amend is not strong enough to go after Badges and Incidents of Slavery

and hence, 14 th Amendmentb. 14th Amendment

i. 1, Sentence 1: Designed to throw out Dred Scott decision.ii. A Bill to apply the Bill of Rights to the United Statesiii. 1: First federal constitutional definition of National Citizenshipiv. Three Clauses

a)Privileges & Immunities: Comes from Article 4, same concept but not the same use.1. Meant to be the Blockbuster, but has been read THE smallest of all the clauses nearly

eviscerated by the Slaughterhouse cases.2. Protects citizens in their new status as Citizens of the US

b) Due Process: Has Exact Counterpart in 5 th Amendment restrictions on Federal Govtc)Equal Protection: New language which speak to EVERYONE generally.

1. SCotUS will begin to read this language into the 5 th Amend even though its not there2. State Action as a limitation on the 14th Amend Privs & Imms, Equal Protection and DPC

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a. The Constitution applies ONLY to the Government (at all levels), not to private individuals or institutions.

b. Congress, by statute may apply Constitutional norms to private conduct.

i. Pursuant to 13 th Amend Congress can prohibit private slave ownership and race discrimination

ii. Pursuant to the Commerce Clause Congress can apply Const. norms to private conduct.

1. Civil Rights Act of 1964 Title II:

a. Ollies BBQ

iii. Pursuant to 14Th Amend 5, Congress can only regulate State and Local govt

a. Private Entities serving Public functions Jehovahs Witness case.

b. Entanglement Exception- If govt affirmatively authorizes, encourages or facilitates unconst conduct, the const applies

The WHITE BOARD OF FEDERALISM

V. P RIVILEGES AND IMMUNITIES (14 TH AMENDMENT ; NOT A RTICLE IV P&I)

A. The Slaughterhouse Cases (1873)

1. LA passes statute that bans slaughter of animals in N.O. unless done at state-created monopoly. Competitors argue thatthis violates the 13 th and 14 th Amendments

2. SCotUS says NOT a violation of 14 th

a. 14 th EP Passed to prevent discrimination against blacks, not butchers. 13 th and 14 th meant only to protect slaves

b. 14 th Privileges and Immunities Clause applies to national citizenship, not state citizenship

i. There is nothing in Const that talks about freedom from a state-mandated monopolyii. Essentially, says Majority, only a specific list of things fall under 14TH P&I

1. Gibbons v. Ogden navigable waters (Dormant CC)

2. Crandall v. Nevada : anti-transit tax inferred a right to travel (decided years before 14 th)

3. Access to seaports, use of waterways (inferred out of Dormant CC)

4. Use of Federal Court system.28

FederalConstitution

Bill of Rights

Beyond?

Privileges &Immunities

Due Process

Equal Protection

State

Persons

14thAmendment


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d. Is there a correlation b/t the reasons given and the rights impacted?

3. Distinguished.

a. Example: Punitive Damage awards

i. Procedural Due Process: Requires that there be safeguards such as instructions to the jury to guide their discretion, and judicial review to ensure reasonableness of the awards

ii. Substantive Due Process: Prevents excessive punitive damage awards (deprivation of property)regardless of the procedures followed.

B. The Early Historical Evolution of Substantive Due Process

1. Rise and Fall of the Lochner Doctrine

a. Lochner v. New York (1905) NY passes State law prohibiting Bakers from working more than 60 hoursa week. SCotUS overturns the law as an infringement on the right to and thus on liberty.

i. SCotUS says, Words are given Substance by the court by its Re-evaluation of laws as unfair or unjust. This is the heart of Substantive Due Process Reevaulation.

ii. Lochner Doctrine: A Doctrine of Substantive Due Process that narrowly was a Doctrine of Economic Laissez Faire

b. Progressive Era thru 1937: BIG read on 14 th Amendment Due Process and small read on CommerceClause in terms of federal power. Laissez Faire oriented SCotUS has little interest in Economic Regulation andLabor. State is held in chains b/c not permitted to pass economic regulation that has a social impact (labor standards, minimum wage, etc.)

i. Reasonableness and Rationality , very low-tier stuff in todays world, are seen as ExtremelyHigh hurdles to clear

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ii. SCotUS sees 14 th Amendment DPC as speaking specifically to the States, and Bill of Rights still justtalking to the Federal Govt ( Barron v. Baltimore still good law)

iii. This allows court to interpret the clause on its own and take terms Life, Liberty and Property and givethem meanings that went BEYOND the Bill of Rights. (no cross-reference to these definitions in theBill of Rights) Justice Harlan: 14 th Amendment stands on its own bottom. And the meanings theygave to it translated to economic Laissez Faire

iv. YEARS after Lochner, Ct uses this Doctrine to knock down 100s of laws as infring upon Substant DP.

v. Three Principles from Lochner era

a. Freedom of is a basic right under 14 th,

b. Govt can only interfere with Freedom of if it serves a valid Police person

c. Judicial role to carefully scrutinize legislation interfering with freedom of to ensure itserved a valid police purpose.

c. 1937 The Death of Lochner

i. West Coast Hotel v. Parrish (1937): WA Statute setting min wage for women and minors isConstitutional. Freedom of is NOT a Const protection. Const is concerned with liberty and thedeprivation of it w/o DP. Regulation which is reasonable in relation to its subject and is adopted in theinterests of the community IS Due Process.

a. Govt is not lmtd to regulating only to advance public health, safety, morals. It may regulatewhere a group with unequal bargaining power is being exploited to detriment of community.

ii. Carolene Products Justice Stone: Famous Footnote Four (1938): Economic regulations should beupheld so long as they are supported by a Conceivable Rational Basis, even if it cannot be proved thatit was the legislatures actual Intent.

a. Generally SCotUs will defer to the govt an uphold laws so long as they are reasonable

b. But this deference will not extend to laws interfering with fundamental rights or lawsrestricting the ability of the political process to repeal bad legislation or lawsdiscriminating against discrete and insular minorities.

c. Why did Stone single out these types of rights (ie. political rights) as examples of whatgovernment should not do? These are not free-standing but have basis in other parts of Const.

d. Stone says these rights have to have a higher hurdle & higher standard because these arespecifically liberties that are at the basis of the democratic process (thus by not protectingthem, there is distortion of the legislative process itself).

d. * Nexus between Procedural Due Process and Substantive Due Process: Both tie into a broader view of Procedural Fair Play of the fed govt. This gets distorted if the political process gets distorted. And political

part ties into Substantive DP, b/c its not just the way the law is applied, but also the way they are enacted.(Law permitting legislators they could only read the first 100 emails a day would be stupid. ????)

i. Also seen in 4 th, 5 th and 6 th Amendment procedural protections in Criminal Process. No warrantlesssearches is a Procedual DP Protection, but is Substantive in that it affects the deprivation of liberty.

2. Selective Incorporation of the Bill of Rights

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a. Meyer v. Nebraska (1923): WWI Statute prohibiting classes taught in foreign languages is Unconst. Anopen-ended Read on the DPC? No cross-reference is made to the 1 st Amendment. SCotUS only talks of Libertyto instruct in German and Property rights to profession. . . . some of the analysis has a distinctly economic feel?

i. Right of family to decide how its children are educated -

b. Pierce v. Society of Sisters (1925): State law requiring normal students b/t 8-16 only to attend publicschools is Unconst b/ct it Unreasonably interferes w/ liberty of parents and property of schools. Again, noCross-Reference to 1 st Amendment.

c. Once SCotUS incorporates an amendment through the 14 th Amendment, it applies to the states with full forcethat it applies to the Federal Govt. Court begins to cross reference liberties to BofR.

i. Late 1950s: Incorporation becomes more formalistic/mechanistic using Substantive app of DPC

a. 1961: Poe v. Ullman : Harlan Dissenting: DP is a rational continuum that includes freedom from allarbitrary impositions and purposeless restraints

b. 1968: Duncan v. Louisiana : Modern test to determine whether a guarantee of the BofR also applies tostates is whether the Clause in Fundamental to the Amer. Scheme of Justice.

c.1977: Moore v. East Cleveland : White: Dissenting: Emphasis on DP is on Process DPC should belimited to a guarantee of procedural fairness

d. 2000: Troxel v. Granville : Parents have a Substantive DP right to raise their children

*No Equal Protection in the Bill of Rights so 5 th Amend applies to Fed Govt in the same way that 14 th EP applies to the states.

No Privileges & Immunities Analysis because of The Slaughterhouse Cases. Liberals: Most liberties are Fundamental. Put them on the high tier!Conservatives: Korematsu & Brown v. Board are only Suspect Classifications that belong on the high tier.

C. Equal Protection as Alternative to Substantive Due Process for Protecting Fundamental Rights: The Skinner Approach

1. Equal Protection: focuses on whether the govts difference in treatment of people is justified by an adequate purpose

a. Relief that individual seeks may help to distinguish EP from PDP and SDP32

TIER of ANALYSIS

GOVTPURPOSE

ENDS-MEANSCORRELATION

14 th & 5 th Amend.Equal Protection*

SubstantiveDue Process

Strict Scrutiny Compelling

Legislation must be Narrowly drawn andnecessary to achieve a

compelling govt purpose

Suspect Classifications (by govt)

1. Race, Natl Origin, Ethnicity,Religion (coming later)

2. Skinner: fundamental right &nonsuspect classification

Govt almost invariably loses

Fundamental Right

Intermediate ImportantSubstantial

Substantially related toan important govt

purpose

1. Gender (1970s)

A bit trickier

(never fully developed.Hinted at in Casey,Lawrence v. TX)

LowRational

ValidLegitimate

Rationally related to alegitimate govt

purpose

1. Economic

2. Etc. (Everything else)

Post-Lochner: Govt almost invariably wins

Economic, etc.


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b. Example: Govt recognizes that child custody is a Fundamental Right. PDP : There must be notice before achild is taken away. SDP: Must be a sufficient justification abuse and neglect. EP: Requires that all pplsimilarly situated must be treated the same.

2. Most (F-word) Fundamental Rights have been protected by SCotUS under both DP and EP

a. Difference b/t the two is usually how the arguments are phrased.

i. Due Process: Whether Govts interference is justified by a sufficient purpose

a. If a law denies a right to EVERYONE, then DP is best grounds for analysis

ii. EP: Whether govts discrimination as to who can exercise the right is justified by a sufficient purpose.

a. If a law denies a right to some, while allowing it to others, EP and/or DP can be used.

3. Fundamental Right Analysis

a. Is there a fundamental right?

b. Is the right infringed?

c. Is the government action justified by a sufficient purpose?d. Are the means sufficiently related to the goal sought?

4. Korematsu v. U.S. (1944): Racial classifications (such as WWI internment of Japanese) are Immediately Suspect andsubject to the most rigid scrutiny. In this case, high tier was strict in theory, fatal in fact. But rarely ever the case now.

a. Court starts to develop high-tier strict review when it came to discrimination against groups.

5. Skinner v. Oklahoma (1942): OK Statute that imposes sterilization upon repeat-offenders who commit crimes of moralturpitude deprives individuals of a Fundamental Right and is therefore unconstitutional.

a. No correlation to race here, but Douglas analysis was that:

i. (1) the right to reproduce was fundamental (creation of fundamental right);

ii. (2) there is a classification that interferes with the fundamental right;

iii. and (3) thus the high tier review should be used.

b. = The Skinnerian approach to due process: non-suspect classification impacting negatively on afundamental right equals a high-tier review. Here there was no compelling governmental interest w/ anarrow tailoring therefore the state statute struck down.

c. Liberals: Equal Protection Analysis allows high-tier scrutiny when theres a Fundamental Right + Non-Suspectclass. This makes it very easy to also go to the high tier to analyze fundamental rights under Substantive DP.

i. In essence, if you have a (F-Word) Fundamental Right, youre automatically bumped to the high tier.

ii. Chemerensky: This is basically an SDP issue, but post-Lochner no one wants to go there.

d. Conservatives: ?!QUE?! All Statutes make classifications those that are bound by the statute and thosethat are not. By the time of Korematsu, theyre thinking, Wait a sec. You liberals are engrafting artificialclassifications onto the high tier analysis or just using the F-word and saying something is a FundamentalRight so that it can automatically triggers the high tier.

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i. Youre spilling high tier analysis all over the place.

e. Most subtly, SCotUS is saying the Exception for the legislation undermines Rationale. If youre interested in preventing recidivism, then tailor your legislation more narrowly and not make exceptions

i. Simss problem w/ opinion is that State can easily come back & say, Okay, EVERYONESs beingsterilized!

D. Substantive Due Process Protection Beyond the Bill of Rights: A Complex Doctrinal Debate Begins

1. Liberal judges begin to struggle with their own jurisprudence

a. Lochner Court: Well just give a free interpretation of Liberty to invoke Substantive Due Process protection

b. Griswold Court: If its not explicitly stated in the Bill of Rights, well look out to the penumbras.

2. Griswold v. Connecticut (1965): CT law banning use of contraceptives is Unconstitutional violation of a FundamentalRight to Privacy. Douglas says specific guarantees in the BofR have penumbras, formed by emanations from thoseguarantees that help give them life and sustenance. 1 st, 3 rd, 4 th, 5 th, 9 th Amends all have penumbras where privacy is

protected from Govt Intrusion.

a. Concurring Harlan: Theres a rational continuum in terms of liberties described freedom from arbitraryand purposeless restraints. We have to analyze legislation with rationality and reasonableness, but dependingupon the nature of the rights being asserted, standard may be stepped up. IE - Theres a difference b/t settingFair Labor Standards and telling people they cant use contraceptives

i. Not high tier language. Perhaps heightened rationality?

b. Chemerinsky: Douglas was trying to avoid SDP analysis because he lived thru the Lochner era, butBofR applies to states thru DPC of 14 th Amend, so whoops. No ones really used this approach since.

3. Roe v. Wade (1973): Individuals have 14 th Amend right and BofR penumbral right to sexual privacy. Right is notabsolute and is subject to state regulation, but there is no compelling state interest in forbidding all abortions.

a. Rehnquist Dissenting: Privacy may be a form of liberty protected by the 14 th Amendment, but 14 th only protects against deprivation of liberty without Due Process. And the court is transposing 14 th EP with 14 th DP inits compelling state interest test.

i. Rehnquist is a Neo-Lochnerite who thru sleight of hand is suggesting that rational basis should beapplied to Social legislation b/c even Lochner-era economic legislation was social in its aspects.

4. Bowers v. Hardwick (1986): The Constitution should protect only rights as Fundamental only if they are supported bythe Constitutions text, the framers intent or a tradition of being safeguarded. Plus taking an expansive view of DPC canlead to judge made law w/ little to no cognizable roots in Constitution, such as 1930s which resulted in the repudiation of much of the substantive gloss that Court placed on 5 th and 14 th DPC. So Hence, Sodomy is not a fu

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