Case Briefs - Constitutional Law - Prof. George R. Wright - Spring 2012

Beginnings/General Powers

Martin v. Hunter’s Lessee

Federalism/Supremacy clause. 

If a there is a conflict between Federal and state law, Federal law ALWAYS trumps. 

The Virginia Supreme Court decided the case, the loser appealed to the US Supreme Court. 

Held: The Supreme Court has appellate jurisdiction over state court decisions.

Marbury v. Madison

Judicial Review (i.e. the Supreme Court is the final determiner of whether Congress’ statutes are constitutional or not). 

There is a conflict between the jurisdiction bestowed in Article III of the Constitution (original in limited matters and appellate generally) and Sec. 13 of the Judiciary act of 1789 (which granted original (trial court) jurisdiction to issue a writ of mandamus).

Held: The Supreme Court does not have jurisdiction to hear this case. We do not have original (trial court) jurisdiction to issue a writ of mandamus.  A law cannot add powers to Art. III.  

Only the Supreme Court can compose legal tests, not Congress.

Congress cannot overrule a constitutional interpretation by statute.

Added symmetry to the checks and balances system. 

James Bradley Thayer: congress now knows that they are not the final authority, they know that the Supreme Court is there, which encourages Congress to go too far and trust the Court to be there as a backstop.

McCulloch v. Maryland

As/more important  as/than Marbury. 

Issue: What is congress allowed to do?  Where does the Constitution say Congress can incorporate a bank? 

Facts: Maryland taxes a Federal bank discriminatorily (it doesn’t tax other state banks, only the Federal one). 

Held: Congress's enumerated powers do not have to be expressly enumerated.  The enumerated powers are just a broad outline for broader powers.  Any broad, necessary, legitimate, not otherwise prohibited means is OK.  The power to tax is the power to destroy.

Ex parte McCardle

Congress can limit the appellate jurisdiction of the Supreme Court, but still cannot add its original jurisdiction (Marbury).

Facts: Habeas Corpus action.  McCardle disagrees with Reconstruction, the Federal military state in the South, and is imprisoned.  The 1867 Habeas statute seems to allow McCardle a cause of action but Congress fears that the Supreme Court may strike down Reconstruction.  The Supreme Court accepts the Habeas application and hears oral argument.  Before the Supreme Court can issue an opinion, Congress repeals the 1867 Habeas statute, leaving McCardle without a cause of action.  The Supreme Court says that Congress can make exceptions by statute to the Supreme Court’s appellate jurisdiction.  However, it can't add to the Supreme Court’s original jurisdiction.  The Supreme Court says that McCardle has no recourse, even though briefs and oral argument happened.

McCardle might have a cause of action under Section 14 of the Judiciary Act of 1789.

The Supreme Court used to be a place to appoint incompetent people that the President owed a favor to; it was not as important as it is today.

NOTE: If Congress takes away the Supreme Court’s appellate jurisdiction, then Congress has effectively locked in the case law that they found disagreeable to begin with.

Standing

Generally

2 aspects:

1.      Constitutionally required (Article III) – Non-waivable elements: a distinct and palpable, personal, concrete injury; causation; redressability (the law will likely repair or compensate the Plaintiff for his injuries).

2.      Not Constitutionally required (not Article III; the judge-made, waivable, prudential, or pragmatic aspects of standing) – Political questions, Jus Tertii (litigation by an unrelated third party), Plaintiffs must be arguably within the zone of interests protected by the statute.

Allen v. Wright

IRS says: If a private school discriminates, then it will not get a tax exempt status. 

The IRS did not enforce the statute and did not deny a tax exempt status to discriminatory private schools. 

Plaintiffs say: There would be more white kids in the public schools if the IRS were effectively enforcing the policy. 

Supreme Court says: You have to show a direct impact on yourself.  There is no causation or redressability (how do you know for sure that the white kids would leave the private schools if the IRS denies discriminatory private schools a tax exempt status?)

Administrative law, the IRS has to prioritize enforcement based on its funding.

Zone of interests – Who can sue black market jart dealers for violating the Child Protection Statute that banned the sale of jarts? Kids, competitor toymakers.

Lujan v. Defenders of Wildlife

Plaintiff says: I have standing because I would go visit Sri Lanka to see the animal "in the future" after its Civil War is over. 

The Supreme Court says: We only worry about money for projects protecting endangered species in the U.S. or on the seas.  The injury is too remote, you have no standing.

Interstate Commerce Clause Powers, 1824-1937

Gibbons v. Ogden

Gibbons has a Federal license to ferryboat.  Ogden has a New York license.  Ogden says that his monopoly is not allowed to be threatened by Gibbons.  But Gibbons wins. 

Chief Justice Marshall wants to expand ISCC power.  Says navigation is commerce.

This broadens ISCC because this case involves no exchange of goods, ONLY navigation!  Next, Marshall broadens the concept of "interstate".

Wickard v. Filburn

WWII/Great Depression concept of mutual sacrifice. 

Congress wants to raise the price of wheat; tells farmers to limit their wheat production.  Race to the bottom problem: Everyone has to comply for it to work. 

This case is crucial to several other cases: Raich, regulation of marijuana cultivation.

Gonzalez v. Raich

FDA regulates controlled substances.  Does Congress have the ability to regulate the growing of marijuana in a specific territory for consumption in that territory?  That marijuana is an illegal commodity is a non-issue, the fact is that it is a commodity!  The Supreme Court says growing it is commercial activity, even for individual consumption. 

Argument: In order to effectively control any Schedule A, or whatever, drug, you have to be able to control them all (i.e. marijuana is a gateway drug to harder drugs).  Drug users can't be allowed to select out one single aspect of the interdependent regulatory scheme (i.e. the regulation of one drug is related to the regulation of another drug). 

Is there a race to the bottom problem? 

States can prosecute possession of drugs, but it has traditionally been in the Federal domain going back to Prohibition to regulate drugs.

U.S. v. E.C. Knight Co.

Sugar refining case.

If the effect to ISC is direct, then Congress can regulate it.

Very narrow view of ISC. 

American Sugar Refining Co. buys up 4 sugar companies (98% of the sugar market), leaving only 1 competitor company left. 

Issue: Does the Sherman Antitrust Act apply through the ISC scope of authority? 

The Supreme Court says NO!  American Sugar Refining Co. has only a "PRODUCTION" monopoly, not a commerce monopoly.  Production precedes commerce.  Moreover, the monopoly has only an indirect impact on ISC.

Houston, E.W. Texas Ry. v. U.S.

            Railroad operated rails between Louisiana and Texas.  Texas mandated that they charge higher rates on freight travelling between Louisiana and Texas than on freight travelling solely within Texas.  U.S. mandated maximum rates and ordered the railroads to fix their intrastate rates.

            Held: ISCC power extended to intrastate matters "matters having such a close and substantial relation to interstate traffic."

Champion v. Ames

Lottery tickets are undoubtedly corruptive of the public morals.  Congress was assisting those states that wished to protect public morals by prohibiting lotteries within their borders.

            U.S. made it illegal to send lottery tickets across state lines.

            The Supreme Court upholds the regulation the lottery tickets are “subjects of traffic.”

Schechter Poultry v. U.S.

Sick chicken case

The Supreme Court says Congress can’t regulate it before or after interstate commerce takes place.

But see NLRB v. Jones & Laughlin: not 3 categories (before, during, after), but a stream of commerce.

Congress can't regulate it because it is AFTER commerce has occurred.  Congress overstepped its ISCC powers.

This case will be seen again as a non-delegation doctrine case. 

Carter v. Carter Coal

1936, Great Depression context here, plus FDR's court packing plan.

Congressional Act regulated the coal mining industry. 

The Supreme Court says the Act is outside ISCC powers because coal mining is a local activity and the coal mining is PRODUCTION, not commerce.

 Carter v. Carter Coal (1936) is to NLRB v. Jones & Laughlin (1937) as U.S. v. Butler (1936) is to Steward Machine co. v. Davis (1937).

Interstate Commerce Clause Powers, 1937-present

NLRB v. Jones & Laughlin Steel

"If it is interstate commerce that feels the pinch, it does not matter how local the operation that applies the squeeze."

The Supreme Court upholds the NLRA by overturning its prior opinion that labor relations had only an indirect effect on ISC.

U.S. v. Darby

Congress can exclude from interstate commerce articles which deteriorate the health, welfare and morals of the nation. 

Previously, the Supreme Court said in Hammer v. Daggenhart that Congress can't regulate manufacturing done in a state, then shipped in interstate commerce.  Now the court is saying that manufacturing injurious to health, welfare, and morals done in a state and shipped interstate can be regulated.

Heart of Atlanta Motel v. U.S.

Occurred right after Civil Rights Act. 

Green book – Blacks would not travel because they knew they would have trouble finding food and lodging. 

The moral impetus is justified by ISCC (¾ of motel patrons were from out of state). 

Katzenbach v. McClung

Occurred right after Civil Rights Act. 

Took place in Birmingham, a smaller city than Atlanta.

Ollie McClung bought a significant amount of product from out of state.

Court says segregation can reasonably be inferred to “substantially affect” interstate commerce. 

Hot, southern summers, no A/C in the car during trips.  Need to stop and eat somewhere, but Blacks could not eat inside in the A/C.

U.S. v. Lopez

A stopping point to the ISCC powers.  Congress passes a statute that says no guns allowed in public school zones. 

Supreme Court says its outside the scope of ISCC power!!  Says that Congress did not make any "findings.”  This is a change in what the Court wants to see. 

Problem:  there is no commerce involved in the statute, it’s not economically purposed, no interstate nexus. 

4 dissenting Justices say that it’s enough to support the statute if Congress comes up with any plausible story to support a need for the statute.

But the majority says that’s a slippery slope.  What’s to stop Congress from enacting a breakfast statute (i.e. no more sausage, bacon, eggs because it has adverse effects on the healthcare system and the nation's overall productivity and economy)?

Ten years after Lopez, ISCC powers are expanded in Gonzalez v. Raich. 

3 part Lopez test applies as a template to all ISCC cases.

Congress can regulate:

1.      Persons and things in interstate commerce;

2.      Channels and instrumentalities of ISC (buses, courier systems, transports, delivery services, roads); and

3.      Intrastate activities that have a "SUBSTANTIAL EFFECT" on ISC. 

U.S. v. Morrison / V.A.W.A.

This case, like LOPEZ, puts limit on ISC powers.

Congress is ready to comply with the Supreme Court’s decision in Lopez.  Congress enacts a law that awards a Federal civil money damages remedy to what looks like a tort, to wit: gender based violence. 

Is this allowable under ISCC?  This time, Congress held hearings, heard testimonies, etc. to support the statute.  Congress made up a story, “women don't want to go to work in another state due to the threat of gender based violence.” 

The Court says this is still not good enough, gender motivated violence is per se not commercial.  No race to the bottom in this case.  The Court says the connection to ISC is too attenuated, too many links in the causal chain. 

Dormant Commerce Clause Powers

Generally

5 step DCC test:

1.  Has the federal government in some way PRE-EMPTED the state police power regulation? If so, the state regulation must be struck down.  Pre-emption is: 1) express; 2) implied; 3) conflict (i.e. it’s impossible to follow both rules state and federal)(See Cooley v. Port Wardens; Riegel, ).

2.  Does the state police power regulation amount to what is called simple economic protectionism?  If so, the state regulation must be struck down.  (See West Lynn Creamery v. Healy; Hunt v. WA Apple

3.  Assuming instead that the state has some legitimate health, welfare, or safety interest at stake, we then ask whether the state has available to it any alternative possible state regulation that would adequately promote that police power interest in a more narrowly tailored way – that is, with a less severe burden on, or less discrimination against, interstate commerce? (See Philly v. NJ; Maine v. Taylor; Dean Milk)

4.  If no “more narrowly tailored but still effective” state regulation is available, then we somehow try to more or less intuitively WEIGH the value of promoting the particular state police power interest against the harm or burden or discrimination imposed upon our national interest in free interstate commerce.  (See So. Pac. Co. v. AZ)

5.  If the balance taken at step 4 is thought to be ‘close,’ then we generally rule in favor of the state regulation.  We do this on the theory that if Congress disagrees with that balancing in favor of the state regulation, Congress can then ‘awaken’ and adopt a statute that pre-empts and nullifies or sets aside the conflicting state regulation.  (See MN v. Clover Leaf Creamery)

Exceptions: If the 5 part test is failed, a discriminatory state law/practice can be upheld by the Market Participant Doctrine UNLESS it violates someone’s Privileges and Immunities.

Hunt v. Washington State Apple

North Carolina says that apple sellers must use the USDA grading system. 

Washington state does not use the USDA system, it uses a more stringent one.  Thus, its apples are better.

Thus, NC’s apples are the “same” as WA’s per the USDA scale. 

The Supreme Court says the practice is “severe protectionism.”  The record included a NC legislator's speech that the purpose of the statute is pure protectionism.

Exxon v. Governor of Maryland

MD says no out of state gas producers or oil refiners can also own their own gas station in MD. 

Held: The restriction does not violate the DCC because MD has no local gas producers or oil refiners; thus, MD is not discriminating against outsiders.  

Court is overlooking the fact that people won't sue for nickels and dimes.

Southern Pacific v. Arizona

AZ law prohibits long trains.  Long trains must either unhinge some of their cars or go around the state. 

There are no "long train" interests in AZ to be represented in AZ’s legislature.   

The Court is suspicious of pure protectionism by AZ and does a balancing test that is not very deferential. 

AZ’s findings show that long trains contribute to more accidents within its borders.  However, the Court says that it’s more dangerous for the trains to stop and unhinge or to go around AZ (because more miles traveled means more possibility for accidents) than it is to let the long train go through, which outweighs the findings.  (See step 4).

General Scope of Congressional Powers Relating to the States

Butler (1936)

Carter v. Carter Coal (1936) is to NLRB v. Jones & Laughlin (1937) as U.S. v. Butler (1936) is to Steward Machine co. v. Davis (1937).

Facts: Congressional Act attempted to tax food and distribute the proceeds to farmers who reduced their acreage.

Great Depression context.  Farming is inherently local and production (farming) PRECEDES commerce. 

As of 1936, ISCC powers do not reach to farming; thus, the Court must look at TSC powers.  The Court adopts a broad interpretation of TSC powers, yet still strikes down the statute.  Taxing and Spending is just something that Congress can do IN RELATION to its other powers. 

Narrow view is Madisonian.

Broad view is Hamiltonian: There is a power to tax and spend in conjunction with other powers, and a freestanding power to tax and spend to promote the general welfare, but not a police power to do so. 

The Court adopted the Hamiltonian view, BUT STILL said that Congress can’t invade a state's territory of regulation because farming is inherently local.  Congress cannot coerce states either (however, the Court never defines coercion). 

What is coercion?  Can't do indirectly what you're prohibited from doing directly

Steward Machine Co. v. Davis (1937)

Cardozo adopts a broader approach.  Race to the bottom problem. 

Congress is trying to coerce states to set up an unemployment system, which raises the cost of doing business and hurts a state's competitive edge. 

Congress creates a Federal unemployment system and offers states a 90% credit if it sets up its own Federally-approved state unemployment fund. 

Inducements and credits are OK, but coercion (direct taxing??) is not. 

Example: Federal subsidies (inducements) for setting a 55 mph speed limit.  States accede to the inducement (for the “free” money).  This is OK, but Congress probably can't mandate what speed limit a state is allowed to have.  Enforcement is different than writing a statute

Boerne v. Flores

The 14^th Amendment binds the states re Procedural Due Process and Equal Protection.  A state, city, county, etc. cannot deprive anyone of Due Process or Equal Protection.  (EP is not found in the 5th amdmnt). 

Sec. 5 of the 14^th Amendment empowers Congress to enforce EP and DP against the states (i.e. allows Congress to pass a statute). 

Post-Civil War, balance of power shifted.  People became identified first as Americans and second as citizens of their state.  Congress was more trusted than the states.  Congress now has the power to enact statutes to enforce the 14^th Amendment. 

Facts:  Congress waits for the Supreme Court to decide free exercise of religion case Smith, which said “if Congress passes a neutral law on religion, the fact that it burdens your free exercise passes a minimum scrutiny test.”  Congress enacts RFRA under its 14^th Amendment Sec. 5 powers, which prohibits states from substantially burdening free exercise absent a compelling governmental interest (strict scrutiny).

However, The Court looks at Marbury v. Madison which says that only the Supreme Court can compose legal tests.  Congress cannot overrule a constitutional interpretation by statute.  RFRA struck down.

Coercion, Congress cannot directly tell states what they can and cannot do.  Only the Supreme Court can judge, case by case, if a state’s action is constitutional.

Minimum scrutiny tests what the government has done by a lax test.  Only requires a rational relationship between the statute and any legitimate governmental interest (as opposed to strict scrutiny, which requires a compelling governmental interest).

Garcia v. San Antonio/SAMTA

In 1985, a Federal wages and hours legislation binds the states and cities, requires overtime pay, etc.  The law is upheld to require the state-run transit system to accede to Federal controls. 

This case overrules Nat’l League of Cities v. Usery (1976), where Congress was told that it could not regulate under the ISCC things under traditional state government regulation.

The Court says that there are unspecified areas where Congress cannot regulate state governmental activity.  There are no specified areas where congress cannot regulate state governmental activities in ISC. 

Presidential Powers

Youngstown Sheet & Tube v. Sawyer

Most judges tend to be functionalists.  Is one branch aggrandizing itself inappropriately or encroaching upon other territories? 

Context: Korean conflict, 1950's.  Steel was an important item for military weapons.   There was a threatened steel strike.  The Federal government feared that a strike would affect the war in Korea.  The President tells the Secretary of Commerce to commandeer the steel mills.  It’s an emergency situation and we need to nationalize steel mills for national security. 

The President must make sure to execute the law as the chief executive.  All executive authority is vested in the President.  As commander in chief, shouldn't the President be able to do what’s necessary?  The Supreme Court says no because the President has the power to execute the laws, but only as Congress has written and intended them. 

Congress actually considered granting the President the power to nationalize an industry on the record and voted it down, which is clear evidence of Congressional intent.  The President can't carry out laws that might have been enacted, but only what actually was enacted.  No power as commander in chief of the military to seize steel mills. 

J. Jackson’s concurring opinion in this case is oft-cited and influential in Curtiss-Wright.  It says 3 categories exist: 

1. (1+1).  When the President’s power is at its max.  All legitimate powers plus whatever powers Congress gives to the President.
2. (1+/-0).  Congress hasn't done anything to add to or subtract from the President’s powers.  All the President has are his inherent constitutional powers.

3. (1-1).  When Congress has opposed Presidential action (Youngstown).  

U.S. v. Curtiss-Wright

Congressional act gave President the power to place an embargo on arms shipments to the Chaco.

Presidential powers as augmented by Congressional authorization (Jackson's category 1 from Youngstown).

The President has wide authority to act in foreign affairs.  Treaties do not bind the U.S. until ratified by the Senate after the President negotiates it. 

1+1, Congress has supported the President in this area.  Inherent authority plus Congressional support means the action was constitutional. 

U.S. v. Nixon

Facts: Criminal defendants (Nixon’s aides indicted for Watergate) want access to the President's documents, claiming that the documents will exculpate them. 

5^th and 6^th Amendments, DP and accused’s rights. 

Nixon refuses on the basis that he is a co-equal branch with the Court, that he has either absolute privilege or presumptive/qualified privilege, and that the President needs privacy and security in his documents. 

Held: The Court held that documents containing advice from aides to the President are not important and requires Nixon to hand over the documents.  However, this holding probably will not apply to civil cases.  Criminal cases are more serious; thus, the documents must be handed over to clear up the issue.

INS v. Chadha

Limitations on Congress' power. 

No unicameral legislative veto allowed (i.e. the House cannot veto an act by the Executive suspending the deportation of Chadha). 

The House cannot enact legislation either.  There's a limit to what one section of Congress can do on its own (i.e. the Senate can ratify treaties, confirm Presidential nominations, try impeachment cases, etc.).  Legislation requires BICAMERALISM and presentment to the PRESIDENT. 

Furthermore, Congress cannot adjudicate the legal status of a named individual (i.e. determine the immigration status of Chadha), that’s what courts do.

Bowsher v. Synar

The Congressional Budget Office tells Congress it has a budget problem, huge deficit.  Congress enacts a statute giving Bowsher the authority to make automatic cuts.

Issue: Is Congress violating the Separation of Powers Doctrine by giving its employee executive powers?

Held:  Yes. Bowsher is the Comptroller General, a creature, agent, and employee of Congress because an employee must fear his employer and Congress has the sole authority to remove him.  And, Bowsher is executing the law.  This is an encroachment/ power grab. 

Morrison v. Olson

The Attorney General is an at-will employee of the President.  The AG appointed Morrison as Special Counsel to investigate Federal crime committed by the Federal officers and the President and bring an action against them/him. 

Issue: Is Morrison’s job legitimate?

Held: The legitimacy of her appointment depends on if she is a “principal officer” (which requires confirmation by the Senate) or an “inferior officer.”  The Court says she is an inferior officer because her duties are very limited in jurisdiction and time.  Also, it’s a legitimate appointment because the statute limits the President’s power to remove her.   

Scalia's dissent:  Myers (law that required President to seek Senate consent to remove postmaster struck down.  Postmaster is Executive position; President has sole and absolute power to remove), Humphrey's Executor (contrary to Myers, President does not have absolute removal powers over quasi-judicial, quasi-legislative agencies.  President’s removal of FTC commissioner is limited to for-cause grounds), Weiner (President cannot remove at-will the commissioner of the quasi-judicial War Claims Commission set up by Congress; it needs to be able to decide cases on the merits without fear of removal).

Equal Protection

Generally

Three levels to determine whether or not a state can deny a citizen EP of the law:

Strict Scrutiny

Requires a compelling governmental interest, narrow tailoring, and specific facts.

Applied to historically suspect classifications, laws that affect discrete and insular minorities, textual referrals to race, inferred referral to race in the legislative history, and laws that deprive persons of a fundamental constitutional right.

Mid-level Scrutiny

Requires an important governmental interest (beyond convenience but less than compelling), a substantial relationship between the interest and the scope of the statute.

Applied mostly to gender discrimination; otherwise, when there is an intent to discriminate by the legislature.

Minimum Scrutiny (with or without teeth)

Requires a legitimate governmental interest, a rational relationship between the interest and the scope of the statute.

Applied mostly to businesses/corporations. 

High deference to legislature.

Brown v. Board of Education

Plessy was decided in 1890, separate but equal. 

The Court says “if education is provided to some children, it must be provided to all.” 

The 14^th Amendment was adopted amongst legally accepted segregation.  Education was not important at EP clause drafting.  There is no constitutional guarantee to education.  However, separate but equal schooling is not allowed.  Separate is not equal.  

Brown II, how to implement Brown I.  Some things are self-executing, school desegregation is not.  There is widespread resistance and the Supreme Court has no enforcement powers.  The Court says states must implement its ruling “with all deliberate speed” (a common-law term meaning ASAP).

Bolling v. Sharpe

Federal analogue to Brown decided the same day.  Can't apply same logic to Washington D.C. schools because the Federal government is not bound by the 14^th Amendment.  Thus, the Court looks at the 5^th Amendment DP clause because EP is found ONLY in the 14^th Amendment.

Held:  It’s inconceivable to have different Federal and state standards regarding school segregation.  The theory is that, when something is so vile within the states that it violates the EP clause, if the same thing is happening in a Federal jurisdiction, then it inherently violates the DP clause of the 5^th Amendment.

NYC Transit Authority v. Beazer

            Facts: Beazer takes methadone (methadone users either had or are currently struggling with a heroin addiction).  The NYTA has an across the board rule that no methadone users can be hired for any job.

            Issue: Does the hiring practice deprive Beazer of EP?

Held: The Court applies minimum scrutiny without teeth because methadone users are not a discrete, insular, politically powerless, historically unpopular class of people.  The practice is constitutional.

The Court fails to negate every conceivable ground that NY might have for adopting the rule (is that possible for any case?). 

U.S. v. Moreno   

            Facts: The Federal government restricted food stamps in D.C. to make people who live in a household with unrelated people (by blood or marriage) ineligible, presumably to prevent hippie leaches.

            Held: The Court applied minimum scrutiny with teeth and found that there is a legitimate governmental interest, but no rational basis.  Teeth are applied and the Court says that the reasons for the restriction are not good enough because the law is simply trying to hurt a politically weak group.

            In a minimum scrutiny without teeth review, the restriction would be upheld.

City of Cleburne v. Cleburne

Facts: A special use permit was denied to a mentally retarded group home because “it’s on a 500 year flood plain” (but a nursing home is on the same plain!). 

Held: The Court applies minimum scrutiny with teeth and strikes down the denial.  Cleburne asserts that kids will harass the tenants.  The Court asserts even so, that is not a legitimate governmental interest.  “We don't tolerate a heckler's veto” (i.e. the legal response to the possibility of harassment should be to punish the kids, not to punish the tenants).

Minnesota v. Clover Leaf Creamery

Facts: MN prohibited plastic milk containers, even though empirical evidence shows that paper container production is more damaging, less efficient, and more costly than plastic container production.  Plastic container manufacturers sued.

ISCC analysis: If the benefit of the state statute is "fairly debatable" then it will be upheld.

            EP analysis:  EP theory rejected.  “Plastic container manufacturer” is not a suspect classification or a fundamental right.  That plastic is less damaging than paper is irrelevant.  The Plaintiffs must challenge the theoretical connections.

            Held: Restriction upheld.

Railway Express Agency/REA v. New York

Facts: 1949 NY law prohibits advertising on trucks unless it is delivering something because drivers need to be able to pay attention and excess advertising is a blight on the city. 

Issue: What level applies?

Held: Not strict scrutiny because no suspect classifications or fundamental rights (commercial speech is not made a constitutional right until 1976) are involved.  Not midlevel scrutiny because it’s not gender-based.  Thus, minimum scrutiny applies and the NY legislature is allowed to make this law, as long as it is implemented across the board.

Williamson v. Lee Optical

Facts: State law prevents non-professional eye care workers (opticians) from fitting glasses with lenses. 

Held: The Court applies minimum scrutiny without teeth because opticians are not a historically suspect class.  The governmental interest may be unwise or needless, but the Court does not want to sit in judgment of the state legislature in this matter.  The legislature has freedom to deal with its own problems as it wants.

Washington v. Davis

A city police hiring practice required a written test, which had a disparate impact on black applicants.  The test had no relation to success on the job.  However, the city was taking steps to diversify its police force.

The Court found no facial reference to race and no intent to discriminate, so minimum scrutiny applied.

At a certain statistical level, racially discriminatory intent can be inferred, but not here.

McCleskey v. Kemp

Facts: Black death row inmate appealed his sentence on the basis of a study that showed blacks who kill whites are more likely to get the death penalty than blacks who kill blacks, whites who kill whites, and whites who kill blacks.

The Court rejects the EP argument and finds the statistics unacceptable.  Statistics do not have any bearing on what happened in his particular trial. 

However, Title VII discriminatory employment actions allow statistical evidence.  But statistics are not allowed in a capital punishment case because the result might be that the Court abolishes Georgia's death penalty law altogether. 

Majority says that the right remedy is to approach the Georgia legislature (however, this is a fallacy because the EP clause is meant to protect citizens from their state legislature).

  

Adarand v. Pena

Facts not important. 

Held: All laws with racial (not gender or any other) classifications must pass strict scrutiny (compelling governmental interest and narrow tailoring). 

Craig v. Boren

Facts: State law allowed women to buy 3.2% beer at 18, but men had to be 21 to buy it. 

Held: Unconstitutional.  The Court applied mid-level scrutiny (legitimate governmental interest plus a substantial relationship).  Statistics show that men have a much higher DUI conviction rate than women.  However, the statistics were a mere generality and did not show a substantial relationship between the restriction and traffic safety. 

U.S. v. Virginia/VMI

Facts: VMI only accepted males; however, Virginia offered to create a similar school for women only.

Held: The Court applied mid-level scrutiny (with teeth).  Virginia had to show an exceedingly persuasive justification for how the discrimination furthers a governmental interest.   Ginsburg is adding a third prong to the normal mid-level gender scrutiny cases. 

Compensatory programs to offset discrimination are OK, however, that doesn't apply to gender based affirmative action (i.e. the proposed women’s school is not good enough to provide EP to the women).

Sugarman v. Dougall

Facts: State hiring practice prohibited aliens from working for the state.

Held: Unconstitutional.  Aliens are a discrete and insular minority.  The Court says it would generally apply “close scrutiny” in such a case; however, it appears that the Court is applying mid-level scrutiny because it wants to see a substantial government interest.  But the key paragraph says that there is not a legitimate governmental interest (minimum scrutiny). 

Equal Protection and/or Due Process

Generally

4 things that the 14^th Amendment DP clause does:

1. Protects ordinary Procedural Due Process, see Ruth/Perry
2. Protects economic/contractual Substantive Due Process, see Lochner

SDP: you have the right to contract with your boss without government intervention.

After 1937, contractual SDP doesn't exist.

3. Protects privacy or autonomy-based SDP, see Roe v. Wade

Intimate/lifestyle decisions are SDP

4. Incorporates the first 8 Amendments against the states.

Lochner v. New York (1905)

The high point of economic based SDP

            Facts: NY law restricted bakery worker’s hours.

            Held: Unconstitutional.  There are certain implied constitutional rights (unenumerated rights) that are fundamental interests.  The Court applies minimum scrutiny with teeth to determine if the restriction violated SDP rights to contract.  The Court upholds a laissez faire view on employment and finds that the restriction does not serve a sufficient governmental interest.  However, there is clearly a plausible argument for the law.  A bakery in 1905 was a difficult work environment.  The Court says that DP only supports a laissez faire economic system.  General principles don't decide concrete cases.

            Holmes’s dissent: The restriction is reasonable, even though it is not smart.  Several economic and political theories work under the constitution, and they will work themselves out naturally.  Holmes is a social Darwinist.  He thinks that NY’s intervention here is probably making things worse because it increases the number of weak persons and allows them to reproduce and create a larger society of weak persons.  If NY thinks that they should help the weak, that is imprudent but constitutional.  Holmes would only strike down state laws that violate fundamental principles pursuant to our history and tradition (a rigorous test).

            The difference between conservative and liberal justices comes down to the test they apply.  According to conservatives, a constitutionally fundamental interest must be found in history.  According to liberals, history and tradition are not important because history often shows a bad side that we don't want to perpetuate.

West Coast Hotel v. Parrish

Facts:  Worker was paid less than minimum wage, sued for unpaid wages.

Issue:  Is minimum wage a violation of SDP?

Held:  No.  The Court kills SDP.  Its 1937, the 7^th year of the Great Depression.  The Court’s language (exploitation, unconscionability, unscrupulous employers, overreaching, etc.) here is different than in Lochner, where the free market was worshipped.  Now, things are getting desperate, free markets are not respected.  The Court says the employer is coercing society to take care of his employees through welfare by paying his employees a tiny wage; thus, society is subsidizing the employer’s business.  The Court also notes the inequality of bargaining power in the employment contract.  Employers can drop employees and hire new ones easily during the Great Depression.

Skinner v. Oklahoma (1942)

Facts: Statute allows the state to sterilize people who commit 3 felonies of moral turpitude.

Held: Unconstitutional.  Justice Douglas rules under an EP theory since SDP is not revived until 1965 in Griswold v. Connecticut.  The Court finds an implied constitutionally fundamental interest in having offspring/procreation under EP.  Douglas says that the statute is not narrowly tailored because the 3 exceptions to the “moral turpitude” classification makes it demonstrably under inclusive:  1. Revenue acts violating prohibitory laws (a store’s liquor tax evasion); 2. Embezzlement; 3. Political crimes. 

The best way to uncontroversially strike down a statute is to concede that it addresses a compelling governmental interest, but that, assuming a compelling governmental interest, the statute is not narrowly tailored. 

Shapiro v. Thompson

            Facts: Durational residency requirement statute requires at least one year of residency in the state to get welfare.

            Held: Unconstitutional.  The Court applies strict scrutiny because of the implied constitutionally fundamental interest in interstate travel under EP.  The Court finds the statue not narrowly tailored.  There are several illegitimate reasons for the law that are not even worthy of the balancing test (i.e. discouraging people from moving into the state simply for more favorable welfare amounts, the European roots of care for the poor).  There are some legitimate reasons, but legitimate is not compelling.  The court looks at 4 legitimate, not compelling, governmental interests:

1. Better for preparing the welfare budget;
2. Encourages newcomers to hit the employment market early; incentivizes gainful employment;
3. Anti-fraud; and
4. Objective test for residency

Harlan’s dissent: what authorizes the Court to protect welfare with strict scrutiny with the classification as a fundamental right?  Harlan says there is a SDP fundamental right to travel and introduces a balance of interests test.  The state can't place an undue burden on the right to travel.  Undue burden analysis is later used in the Planned Parenthood v. Casey abortion case.

Note: many cases could be decided either on a theory of 1. An implied constitutionally fundamental interest (or not) theory, or 2) a fundamental right (or not) on a SDP privacy/autonomy theory.  BOTH will usually draw the same test (strict scrutiny). 

Griswold v. Connecticut (1965)

Facts: A law prohibited the use of contraceptives within marriage (which can be used for disease prevention as well as preventing pregnancy).  The statute didn't address the use of contraception for the purpose of preventing disease.  (Side note: the statute inherently requires an unreasonable search in order to prosecute the crime!! How did the prosecutor get past the 5^th Amendment self-incrimination and Spousal privilege!?).

Held: The Court revives SDP after killing it in West Coast Hotel v. Parrish.  The law prohibited the "USE" of contraceptives, but the case was not decided on those grounds.  The case was decided on privacy and the sanctity of marriage.  The Court revives SDP, but creates a different kind; not economic SDP, but privacy SDP.  Douglas says the Court is not a super-legislature for economic purposes, but it IS a super-legislature for privacy purposes.  Privacy is a theme that runs throughout the constitution.  The 1^st, 3^rd, 4^th, 5^th, and 9^th Amendments together create a privacy right.  If each Amendment were a candle, a top down view would illuminate a central area, privacy:

1^st protects political association and assembly.  The US government can't demand a list of a political group's membership (privacy).

3^rd prohibits quartering troops in homes during peacetime.  Privacy theme, your home is your castle.

4^th prohibits unreasonable searches and seizures.  Privacy violation without cause or a warrant.

5^th prohibits self-incrimination.  A defendant does not have to talk, testify, etc.

9^th says that the enumeration of rights in the constitution is not exhaustive, nor does it disparage any unenumerated rights.

Black’s dissent:  Hugo Black, civil libertarian.  This law that potentially subjects couples to enforcement for a particular purpose is an asinine law; but that doesn't mean it’s unconstitutional.  The Court shouldn't strike it down just because it’s a terrible law, but only if its unconstitutional.

See Eisenstadt v. Baird.  Logically similar to Griswold, but the case is about distribution, not use, of contraceptives applied in the case of unmarried persons.  Griswold, however, was about the sanctity of marriage, privacy.  The rule in Griswold has to be applied equally to unmarried persons; thus, the marriage rhetoric in Griswold was superfluous.  Brennan frames it as an EP problem and applies minimum scrutiny with teeth.  The case is about individual rights.  Every statute is a tradeoff of rights.

Roe v. Wade

Issue:  Who counts as a person?

Held:  The Court applies strict scrutiny to the SDP privacy fundamental interest (whose interest? The fetus or the mother's?).  The DP clause only protects persons.  And, the constitution only refers to born persons; it does not speak to unborn or potential persons.  The Court differentiates between trimesters; however, the trimester differentiation is overturned in Planned Parenthood v. Casey. 

Ginsburg later says this case could have been decided on gender based EP grounds. 

Lawrence v. Texas (2003)

Facts: Law makes consensual sex between adult males a misdemeanor offense.

Held: Sounds like EP, but it is unconstitutional under SDP privacy.  The level of scrutiny in sexual freedom cases doesn’t usually matter because they are results-driven cases.  If the Court were to decide the case on history and tradition, it would have to overturn the recent case of Bowers v. Hardwick; thus, it decides the case on the “emerging awareness of societal standards.”  That some people find sodomy unworthy of constitutional protection is irrelevant; rather, emerging awareness decides (privacy interests, marriage, family choices).  The Court applies a deliberately vague balancing test, “the statute furthers no legitimate state interest which can justify its intrusion into the individuals’ personal lives.”  Morality is not a legitimate police power interest.

Like District of Columbia v. Heller, this is just a common sense case involving two consenting adults.  Obviously, the rule does not apply to minors, the mentally ill, public places, etc.

See Goodrich, for a sexual orientation EP case.

Washington v. Glucksberg (1996)

Issue: Is there a constitutional, SDP privacy right to assisted suicide? 

Held:  9-0 that assisted suicide is not a constitutional right; rather, it’s a mere liberty interest, which gets minimum scrutiny.  The Court holds that a SDP right must be deeply rooted in our nation’s history and tradition AND must be implicit in our concept of ordered liberty (Duncan v. Louisiana, incorporation) in order to be fundamental (a conservative test).  The Court does not refer to the collective conscience of the people or emerging awareness (this case came before Lawrence).  This case occurred at the beginning of the assisted suicide movement when only a few states had it. 

The Court noted that the rule of Roe v. Wade may have gone too far because it applied across the board over all states.  The Court did not want to do the same thing, and decided to allow for some diversity among the states before making a ruling.  Let the 50 laboratories experiment with assisted suicide through the normal legislative means.  At this point, the right to assisted suicide is not recognized.  Maybe someday it will become an emerging awareness.

The American Medical Association was concerned that creating a constitutional right to assisted suicide might one day morph into a duty on terminally ill persons to commit suicide when they become a drain on society. 

Mathews v. Eldridge

PDP generally

            The 14^th Amendment literally says that states can’t deprive a citizen of recognized interests in life, liberty, or property without due process of law.  A desire or even desperate need for something is not enough.  It must be a recognized property interest (i.e. simply qualifying for unemployment or disability creates a recognized property interest as much as a fee simple interest in land).  Property interests are not created by the constitution, they are generally created by state and/or Federal law.  States have to recognize property interests.  Next, DP requires some sort of government action (i.e. an agent has to do something to you).  Then, there must be a meaningful hearing at a meaningful time.  The greater the stake that a citizen has in the property, the more process is required (i.e. deprivation of a fishing license requires a very informal hearing; whereas deprivation of life requires an elaborate murder trial).  The most serious stakes get both a pre- and post-deprivation hearing.  The least serious stakes only get a post-deprivation hearing.

Facts: Eldridge is disabled and has a right to a stream of disability checks.  The government determines that he is no longer disabled.  He is given a very informal pre-deprivation hearing.  He wants a more elaborate pre-deprivation hearing.

            Issue: Does denial of disability benefits require an elaborate pre-deprivation hearing?

            Held: No.  This is a question of PDP.  Eldridge cites Goldberg v. Kelly, which states that denial of welfare assistance requires an elaborate pre-deprivation hearing.  However, the Court says that welfare is different than disability because welfare is the only income on which recipients have to live.  On the other hand, disability is given to anyone who is disabled, no matter their wealth status (Bill Gates could collect disability).  Also, disability cases usually come down to the expert judgment of doctors; whereas welfare cases depend highly on credibility as an issue.

Eldridge Three Part Balancing Test for answering the question "what kind of hearing is due when?"  (pre or post, elaborate or informal?).  It does NOT determine whether you have a property interest or if it was taken.  It assumes that the government took a legitimate property interest.

1. Look at the weight of the claimant's interest (Eldridge’s interest in disability is important, but not nearly as important as others’ "life or death" interest in welfare).

2. Look at the weight of the government’s interest.

a.       The government wants to avoid wasting money.  Don’t hold an elaborate hearing if it’s not worth it (i.e. will the same result be reached by an informal hearing?).

2. However, the government wants to provide disability to people who need it.

3. Compare the accuracy rate of the government’s proposed hearing versus the claimant's proposed hearing.

Kelo v. City of New London

Facts: [Note: During prohibition, the government closed down Annheuser Busch without paying just compensation on the theory that it was a public nuisance so it was within the police power to do so.  If a house/business is blighted or a nuisance, no just compensation is required, the government can simply shut it down or take it.]  Kelo's house is not blighted.  The city wants to attract Pfizer to build a high tech chemical facility, which in turn would turn the city into a nicer area.  It was a broad-based development plan aimed at redeveloping the community, which is a valid public purpose. 

Issue:  Does the government have a legitimate public purpose in taking the property?

Held:  Yes, they have an overall well considered plan.  The city has to pay Kelo for the FMV of the house (compare with Annheuser Busch).  Kelo would have to show that there is no legitimate public purpose for taking the house.  Kelo says that the city is taking her property to give to a third party (Pfizer).   The city says that Pfizer can make more tax contributions than Kelo can; thus, it’s more economically valuable for Pfizer than for Kelo to have the property.  Kelo's argument comes from a natural law argument between Justice Chase and another Justice in Calder v. Bull.  One natural law is that government can't take property from A and give it to B because B can make more money with it.  However, the Court looks at the overall development plan rather than Kelo’s argument.  Where does “public purpose” come from?  NOT from the constitution; rather, the constitution says "public use.”  Kelo could cite this and say that taking her property to give to Pfizer is not a public use; whereas taking the property to build a courthouse, park, library, etc. is a public use.  However, the Court has included ANY public purpose within the meaning of public use.  The constitution does not restrict states from practicing eminent domain.  It’s up to the state to determine the bounds of how it uses its eminent domain power.  Kelo is limited to petitioning the state for help.  However, full compensation is required (the highest and best use of the land plus attorney’s fees). 

There are consequences to the dissent’s view.  If the government can't take property from private citizens to give to corporations, won’t the government then just take the property and lease it to Pfizer or create a government-run pharmaceutical company?  That would be a disaster because it would create even more state owned property and the gov't will be inefficiently competing in the marketplace.