FEDERALISM: DIVIDING POWER VERTICALLY CONGRESSIONAL POWER McCullock v.

Madision Rule: If themeans are legtitamte, within the scope of te consatution, appropitate, and rtelated to the te desired ends that are not prohibited within the cpoonstatuion, is constatutional. Issue: Does Congress have the power to incoprtate a bank. Yes This is a precident argumett. Was setttled whe first bank was incorprtated and this conflict arises from an attempt to renew the the National Bank Marylan made a contrac In Marland view, the states would have power ofver the govermant and permsiion was needed by the sates for the National Bank to stand. t thoery based argument that the Bank worked for tte sate and not the govermant.. The Courts resue this argument. The power in the Constatusion is vested in the peole and not the states. Hisotrcal backing below: The power of the National govermat is limited but within that limitatin the scope of reach is and always be in question. Govermeantg will act beyond the enumerated pwoeres to sceure the nation. Govemenat must have ample means to ensure that the limited focus of the deferal govermant Founders did not inted to prevent federal actio with th constant requierment of state apporval, like that which promted the consrtuction of the Consatution in the first place The court refuses to adopted a limited teteual construction that te framers did not inted to give te federal govermant expansive pwoeres within tthier limited jurisdictino. The Constution does not grant Congress the power to emply means. Neccesary and Proper Must be constructed broadly to allow for a function govermant to operate The scope of the meas/ends argument is limited by the Consatutional retraint against enacting laws tat are not within scope of govermant or inteded to exteded fereal jurisdition S.C. Would have to deny action (Intentional Confidense Argument Issue 2: Van te state of Maryland tax the National Bank? NO States does not and never did, have the right to tax and part of the Federal Govermants operations. Background and Meaning of McCulloch . The Jerffersonp-Hamilton Debate: Hamitlon urged for the craation of the bank in 1790. As sectery of the Tresury he urged that the House of Reps that the abnk was nessary to oversee and operate the montary funds of the govermant. Te Congress agreeed and created the First National Bank. The Presidents than asked his Cabite memvers what they thougt Jefferson (Sec. Of State) that that is was unconstatutiona. Based on te tenth amdement he emplained that the Neccare and Proper clause id not include the creation of a national bank. Adheraing to a strinct consturctionalis approch stateing that anyinthg can be reasoned as

neccary and that the intention was to limit and not widen the scope of the fderela govermant. Hamioton asserted that te creation of te abk as related to the collection of tazes whih is within the scope of te federal govermant. Jerfferson maintined his strict consrtucionalist apporch until he shifted suring hisresideancy. The Second Bank of the U,S, First charted expireed in 1811 durinf a fiscial troubles in the US. The War of 1812 lead a cll for a nrew national bank to be created. Even Pres. Madison, who had sided with Jerfferson agreeed. Second bank was cleared inad intially succesful. The bank survied intil Pres Jackson veto at renwal. Marshals oir of cour defense of bank: Conssitution is a stament and at of sevel sates acting as one and not as indpenedt states in an alliance. Note 4 flushes out the two holding in the case

Interstate Commerce The Commerce Power and its Federlisim based Limits 1. Art. 1 Sec 8 cl. 3: Grants federal govermant power to control interstate coimmerse Hamilton, ederlist 22: tio limit interstate hositalits and disruptance of national commerce Art became bases for Federal govermant reglatory attepmts and were mostly thowarted until 1937. Lopez and Morrsion marked a return to judicaalinvertaention to prevent the uncheck csop of the commerce clause to allow federal regulation. Section 1: The Commerce Power before te New Dael Gibbson v. Ogden (Chanllege to a ferry monoply in NY) Rule: The Commerce Power is a power to regulate in completely vested in the govermant and included decding te means to exersise this power. The liiotation of this power is inly withn te democttraic electio prcess were te people decide who will be in Vongress to decided te mose means to persue to reach the desired ends. Marshell definition of commerce includes navigation winth and to te states. Marshall intermet Commerce Clause of the Amdeent to not be limited outside of state boundries but to extened to the flow in and out iof the states. Enumuration al leads to the conlsusio that hile the states aintain internal control the feederal govemeant controls commers that ouccurs outside of the internal realm of the state. Judicail Limits on the Commerce Power 1. The Direct vs. Inderect Test: Ersise of the commerce power was rare vefore 1887. (Marigold) With the rise of industriazion bought an increase of the exersie of commerce power and challenges to this rise follloowed. The test looks ro see if the regilation has a direct ir indirect effect on interstate commerce. The Sherman Act did not extend to manufaturing because that is an indirect eddect that is not wiinth the realm of federal control. Bduring this era three judicial approches emerged. Test 1: United States v. E.C. Knight Co Sugar Trust Case 1865G Govermant opbejtion to sugar monoly denied because the commerce clause does not include the right to regulate manufacuting, which is an indrect effect government has te right to regulate buying, selling, transportation, contracts, and navigation (Shreport and Gibbions) Harlan Dissent: Manufactuuin is a direct effeect and wiinth the realm of federal regulation

2. The Substanital Econominc Effects Test: Huston E&W v. Us 1912) The Shreveport Case This test foucused on if te regulation, govermant action has a pratical physica or ecomimic effect og the regilated intrastate activites on interstare commerce. Iintrastate (in side the state) activity can be regulated if it has an effect on interstate (among te states) commerce. (Huges Opiion) ; Cpongress has a right to cpontral anything that has a direct and substantial effect on interstate commernce nd must oprevent any intrastate ctivityies that can threaten interstate commerece. Carriers may be inrtrastate but hat are directly and substantialy related to interstate commerce. 3. The Sttream of Commerce Test: Swift v. US: Upheld Sherman Act busting of price fixing ring. On the basis that if the prodit is meantt, does, and will, enter innto the stream of commerce accros the states that te federal govermant has a right to regulate its. The Commece power was also used to regulate moral and socail actvites like drinking and gambeling accros the states. 1. Chamion v. Ames (the loottery case): Rule if te object in questin is subject to traffic than it is subject to being regulated by the commerce clause. This included regulatoing ojects of persons that Congress deelms harmful to tnerstatate commerce. However of te govemant foes to far in montering the moralty and saftey outside of theier bounds te juducary must stop. (Gibbions) Dissent: Four judges stated thatg it was clear tat the ends was to prevcent lotttery and that givin power tof general poplice popwer on the basois of rationaliation is not wise and guts the 10th Amd. This stepo could lead to a general centerlized govermantt and this type of regulation should be left to te states The Lottery case was used tto uphold many govermant initenves under the commerce clause to exlcude persons or objects seen as harmful or dfangerious. Hipolite Egg Co v. US: Seziure upheld because the tainted eggs had been in tberstate commerce and seazure at destination os an acceptable means to an end of keeping tainted goods of the interstarte matket. (Gibbions) Hoke v. US: upholding ban pof trtansportation of woman for immoral purposes. Congressd has power over transportation among the severla staes, this power is absolute, and may be enforced even if it looks like a police regulation.

Hammer v. Dagenhart (the Child Labor Case): 1918 Denied case attempting to bar mining products tha wew manufacted by child labor. Rule: Congress does not have te power to regulate manufacturing, or to attemot to equalize advatages among the states, under the Commerce Clause\. The first line of te opiion is refering to McCollough ad that an expansio of commerce power can not be done a pretext Lottery Case, Hipolite Eggs, and Hoke: Focusede on how the objects/person was transportedacross state lines and not wih how they were namufactured The objects where proitbited form using intersrestate transportation to move accors the states as regiulation Control of manufacturoing is in the states hands. Acceting te Act would lead to a incresing reach of govermant control into sttes matter and lead to the distruction of your government. HOLMES DISSENT: (4 joining)Act was within the discreatio of their spehere and that the

indirect edects should not be considiered by the cour when the Sates are acting as they want. THE COMMERCE POWER AND THE NEW DEAL 1. The Court invalidation og the New Deal: Rossevlt took office on 1944 in te middle of the great Depression. The Govermant ttried to justify the meayres under the Shreveport doctirne of substanially affectinf commerce raionall and the incommerce rational in the Child Labor Case Hammer and Kinght direct vs inderect rationals. The Cpourt increasinlgy rejected thises arguments The First Test: Railroad Retierment Board v. U.S. (1935) 5-4 vote: Overturned acts making a retierment fund for carrier workers mandaroty on te gournds that it was not apparent how what te act was trinf to regulate affected te commerce. The Second Test: Schentter Pultry Corp v. Us. (Sick Chicken Case) 1935 :The National Industrial Recovery Act awas also denied fpr attepting to regulate inernal factors like wages, hours, on the gorunds that the Congress did not habe power to regulate which has been tradintally deemede within state control. Hughes delivered the opinion of the the Court assered that there are no transation in interastate commerce.,. The Court rejected the govermant arguyment that wages, hours, and trade pratcies effected the Stream of commerce (swift) ans affecting commerce thoeoy (sheverport), Huges stated that there are no transactuons in intrastate commerce Assersted that the govremant can only rech into the states and control commerce wiinth the bounds of the Constatution, Cordozo and Stone concurace:Locla activitesd that are within the realm of te state don't become a federal issue because they travel aross state lines. Allowing this woul lead to an ersion of te line between state and federal power, that can not stand. President Rossevelt personally responsed to the discision and urged Congress to continue passing his initives, even if it was sure that they were constatuoinbal Carter v. Carter Coal co. 1936: Production is a local activity witin the control of the states. Court rejected Federal attemt to regulate miminae wages and hours, and enforcing a tax on conpanies that did not omply after a shareholder brought suit against the company. Court noted that the govemrant cant not argue a right to contriol an indrtry localy because it effect national commerce. The govermant can not point to a lack of sate action as a reson to intate efederal regulation. This is not wiinth ihte enumerated powers of the Constuion. Court opion pointed to Schechter's holding that there are no tranaction in intrastate commerce and that direct effects are not formal but are substantial. It is the manner and noot the magnitude of te effect that determines if ther is an idrect or direct result. The question to ask is relation between the activuty or conditinos and the effects? Local eveils that can effect national commerce are within state control. Dissent(Cordoxo, Stone, Brandels): Asserted that price provisions were constatutional/ 2. FDR's Court Packing Plan:Pages 95-96

The Commerce Power After the New Deal (The effects of the Sitch in Time that saved Nine NLRB v. Jomes and Lauglin Steel Corp 1937 (Background on p 96) The Act is constatuaionl because it is stopping behavori that can dorectly durden of obstruct the flow in interstate and foregn commerce. (Prevent the formation of unions) This is a flip of Cordorzos' dissent in Carter to the majority here Schecter and Carter are not controlling here bacause When a company is on a national scale it is subject to federl regulation. This power is limited, if a company is only operating at a state level, than te federal govermant can not regulate I Dissent:L Prevention of labor discontent is not witin federal control and is a state matter because it is with the realm of local production. Anything can be reasponed to have an effect on commerce. U.S. v. Darby (1941) The Govermant may regulate under pretext, the Courts can ony deny if te attepeted regulation is outside of Constautal powers. There are two issues in this case: 1. Can Congres prohibt transortatio of luber that was not produced at the mimin wage level? Regulation of the shipment of manufactured goods is within the scope of the Commerce Clause.(Gibbions) Probition of certain types of artcles from being traspoerted on the national highways is within the schopoe of Congressional Power.. (Lottery Case) The Court declines to follow Hammer and that case is overruled. (page 100) 2. Can Congress porhbit the employment of workman at a wage level below the minum wage?' Congress may set the standards to to able to engae in interstte commerce and this incldues regulationg matters that have traditionally been under state control. Not like Carter (p 101) JUDICIAL DEFFERENCE TOWARDS EXERCISE OF THE COMMERCE POWER 1. Shift in Judges lead to unquestioned passing of New Deal initivies 2. The In Commerce Rational: Te first rulling in Dargby overrulled Dagenhart. Pretect exlusion is nolonger applied. (McCullogh) 3. The Substanially effectinf commerce rationale: Jpnes, Laughlin and the first part of Darby applied te SEC test and basis for allowing Congressional regulalation. Wickard v. Filburn 1942 (Who's stashing the Wheat?): Congress may regulate what sin isolatin may not effect commerce but if unchecked can lhave a substinala effect on Commerce. (Aggregatio Principle) Farmer fined for not staying within the regiulation and saving some wheat for private consumtion during foos cris that lead to regulation. A question adfter Darby because the regulation is notw effecting product that was not intented to be entered into the national stream of cemmerce. Gibbions states that the reach and scope of the Commerce clause is expansive (Gibbions) Congress may regulate anything, local or iinterstate, that has a substainal effect on

national commerce, regardless of if te measure is direct or indirect. Private p[roduction prevents particiatiopn on the national market and could effect the the stabilty of the natial commerce. 4. The Commerce power and civil rights: Background on page 103 Heart of Atlanta Motel v. US (1964) court uphel resual to allow a motel to continue to refuse service to people of color Commerce Clause Test: Is the activty that is sought to be regulated is commerce that deals with more than one state and has a real and substanial effect on commerce. It does not matter that the discriminateion is instate, the effect in felt by all te states. Katzeenbach v. McClung (1964) upheld like heart Allowed because the the resurant funbctioned as an intersate busniess Black Concuring opion Would have came to same conlsution but rooted it in te 14th Amdn. Perez v.U.S. (1971) Uphe;d loan shark conviction becaue the indurty had a substanial effect on natinal commerce. The Rehnquist Courts Revieal of Internal Limits on the Commerce Power For 60 years after the new deal nothing was streuck down as excedding Commerce Clause Power unitl Lopez

U.S> v. Lopez (1995) Congess many not ecersice the Commerce Clausee to regulate activites that do not have a substanial effect on commerce and there must be some reasonable rational to allow Congresess exersie power. The age of pretext acceptence in t the S.C> ended here. Three brad areas that the federal govermant may May regulate the channels of Commerce May regulate regulate and protect intrmatalites of interstate commerce, or or persons and things in interstate commence, ebven if theyhave intrastate origins. May reglate what has substantail effect on cemmerce not clear if ther must be an affect ir substnaital affect Staute of Lopexz falls under the third realm DinedL The govermant ust shoe that a desired statute hads a substainal affects on cCommerce to stand and pretec will not be upheld if it allowance would lead to an expansion of govermant reach nito matters outside of te Commerce Clasue Kennedy and O'Conner concurance: Wickered is NOT overturned It is not in the Courts descretion to determine if something is witin the Commerce Clause, just if it extends past the Constuinoal boundroes layed out. Federlist 10L That here should be a firm seperation between the bracnehs and allowing theFEderal Govermant to reah into state affirs based on unbacked, and streaching rationale to justify the federal expandion would remove citeznes ablilties t holsd comone accoutable for govermant actions.

 There must be balance an d that is ahieved thourgh the poltical process and the court can not allow an expansion. The Courts are also to ensure tha the bracnches don;t abdicate pwer to eachother an dcrate a ce bteral government that violaties the Consitutio n Concering(Thomas: Congress has abslout control over ommerce, but not undless control over all things that substanitly effect commer. Article Sec 8 was clear that Congres could control commerce, withhin a limited sphere, Should abdon the substanil effects text because it is an invention not rooted I the Consatution Dissent(4) Should have reviewd the case with rational review because Congress should be gioven defference in terms of ehat needs to be controloed' Creates three legel problems Goes aginst precedent that has allowed sfederal control over less serious matters than guns in schools Creates a formal approch to determining if Congress is ating within it Consatutional bounds (Wickard) Goes againt hisorty Scouter's Dissent Lopex is a discuied return to the direvt v indirect test Stencne's dissent Guns are witin the control of commerce Commerce Clause Review After Lopez 1. The role of Congressional findingsL In Katzenbach v. McClung the cort noted that congressional findigs were not nessary, and in Lopez the court notted that there weren't any to help the Goverments statute. U.s v. Morission was denied disoite volumes of congeressional findings. Lopez also rose up the question of that is within the realm of the of state and federal control and Lopez may have been a reminder to Congress to respect federlisim. Also raised questions about what is and is not economic. U.S. v. Morrison 2000 Congress ma not regulate nonencomic things that do not effecrt the intermantiltiy, channels, or goods that are in the stream of congress. There must be a maintce of te line between what is state and what is federal. Considering if the civil remedies witihn gender specif Act fr or woman who have suffered violence is constatutional. Lopez states that congress has only upheld statues that had substanal effect on commerce. Gender motivated viloence, the cpourt deems, is not within the realm of economic Congressional findings alone are not enough to substain a statue that expands the application of the Commerce Clause beyound Constatual bounds. Control over crminal precsutions and remedies is within te state controlling Looking to the hisorty is an acceptable way to determine if a relam is witihn state of federal controlling

Concurring Thomas He still hates the substaantial effects test

Dissent (4) Deffernce should be goiven to Congress to determine what has a substanial effect The amount of Congressional findins should be considerted and makes ist clear that there is a rational reason for congress wanting to include the provsion Judicary is stepping into the poltical prcess and interjecting it own views I what the people, thgh the elction of te Congress have chossen to do. Dessent 2 asserted above wit a strigner call for the Jjudiicail to not step into what Congress has deemed nessacry Limits of Lopez and Morrision 1. This did not lead to a resurgange of federlisim 2. The Aggregation Principle and general schemes of regulation: remember that Wickerd allows the aggregation princple.Lopez and Wickard seems to limit the aggregation principle to what Congeress being able to regulate the ecominoc but not the noneconi/cponcemmecial. 3. The Aggregation princle that was unlitmted in Wickard was retuned to in Raidh, whth most of the Judes switching from Lopez/Morission, and only two judges applying the Lopezx/Mporision limitation of Economic.nonencomic. Gonzales v. Raich 2006 Four judges joined the Majority Can congress probhibit cultivation of marijuania under the Commerce Clause? In response to Prop 215, People gorwing for peronsal and private use and did not intend to place the product into te sttream of commerce. Court returnes to Wickard and sttes that this case is sqaulry witthin te bounds of Wickard. Scalia Concuring Asets that Wickard and this case are based on the Nesscary and Proper Clause The real question is wher the Congress act was nexxare and proer to resict te flow of pot into the te srtream of commerce Possion of contriolled substance is within the scope of congressinal power under the N&C clause Dissent (2) Lopez and Mjorssin should have been applied. This discusion allows for a sweeping feeral reach that shold not be allowed Act/Holding is stoping the federlist idea that states are labs that lead to progress for the whole nation Upholding the congressional findings used hwer set a low standard Thomas Dissent: Act encoruces on state control of what is criminal or not Commerce Clause Review After Raich Economic vs. Noneconmic activity: Raich etended the Economin vs. nonecomic distingish in Morrision by allowing a nonembminc activity (personal home growing for medical use not inteded to enter the stream of commerce). General v. Specific Copngressional Schemes: The court noted that Loez was a narrow statue vs Raiich where the Act was comprehensive.

States as labatoriesL Agrubgent that state desions should not be stoped by federal govermant because state can dtermeine what needs to be done within its own bourders. Bstate Efforts to legalize federal crimes: While the ban is federal, states have to enforcel. Do

states have the power to legalize thoruhg nonenforcemnt? (yes)\ External Limit on the Commerce Power: Federlisim and te 10th and 11th Amdenments
Background Lopez.Morrsion limited internal exercise of art. 1 Sec 8 of te Commerce Clause In te folloewing section congressal statues were denied because te went against e federal limitatoin in the 19th and 11th Amdenments even though it may have still been acceptabe unerder Article 1 and applicable to private parties. Feerally Based Immunity is found in the 10th and 11th Amdements The question is wherether the action ovters the seperation between sate and federal powers. 10th Amedmen (Powers of Stetes and People)t: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 11th Amdenment(Judicial Limit): The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the nited States by Citizens of another State, or by Citizens or Subjects of any Foreign State. State Authority and the 10th Amendment 10th Amedmen (Powers of Stetes and People)t: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

1. The Rise and Fall of state autonomy: There was never a question that there was some external limit on Congresional power. Coyle v. Oklahoma (1911) Denied federal ttempt to tell stte where the captial would be located because it was understood that ewas a discion soly in the hand of the state and not subject to federal control.THis has never been naroowed or overuled, It is harder to dtermine the limits of federal rach into the stae when the state is acting alonsgide priivate actors in econimic activites. Unsuxxesful Attemts to exersice state immunity (during the New Deal Area): United States v. Caliborniea 1936: Govermaent exersning tax on state for not complying with Railroad Act Court Upheld tax Powers of states in diminished in relation to the exersice of Congressional power ther is not limit to the federal ecerise of Congressional power and the state like the indvisial can not resit Congressional power New Yourk v. United States ( 1946) 6-2 vote Majportiy opion with 2 Judges upheldte right of govermant to tax Ny on sales of stae owned mineral water

Tax upheld becaue it ws a gneral tax and is not only being applied to one state Four Judges concuring in seperate opion A Federal tax may not always be imposed by the state and the litiation shound not be narroed to if the tax is being applied generlly. Dissent 2 Judges State immunity should be allowed when state is acting with sovergin right to ensure it internal economic stabilty. Natinal Leauge of Cites v. Usery (1976) 5-4 vote At Issue an Act that extended miminuam wahe and hours to stae workers The court acknowledge that the action was with Congressional Power but was still unconsitutional Unvalid because they are aplipled directly to the state or its subsidaries and in effects twlls states how they must structure theier internal affirs and this is not allowed witin a federlim stutcture This is based on the desiion in Coyle Blackman and Reinwuist both advotaced a Balancing Test despite the concerns the above holding may have triggered Allows a federal regelatio of braod issue that efect everone like envormental prtection, and where state compliavce is viotal for the inicitive to work. Dissent: Three judges Sstates can protect their own intrest Garicia v. San Antoion 1985 (National Leauge is Overturnes) A federal tax on a state can ot be dineed in judicial review because the tax will affect a finction that has been tradially or is intgeral to state function. The poltical process will determine. Allowed a prvsion exatly like the one in National Leuge allowed to stand. Allowed because the the system of determining what was traindiatlly and intergal functions within states there are immiunie from tax The poltical process that selcets those ion the HOR and Senate (Page 130 last paragrapgh) Dissent in Garcia Allowing Congress to determin own limits is not in lign with ferderal system Madision fer to the lthreat of fraction in the modern reality that those in te HOR and Senate may not actuallre reflect the populas States must reatin ability to taoilor solutions that will bes tfit their needs and may not e meet by a general application designed my CongressIONAL Dissent 2 Congress trusted to much and the courts must ensure that the line os not blurred within federlisim

2, The Substantive values of federlisim The Power of the State Control: The states can can talor policy to their particular needs, can act as labs, allow national govermant to be close to citenzry, and people can fote with their feet and more to systems of governant that they like. (O'Conner in Homegrown Pot case) Case for Cecterlized power: Arise when there are fears that a state may be weak to facilite a strong force, state more effective to achive large goals because of mass reosoursces and authority, and will ensure that that there is balance among the states.. 3. The Pilitcal Safegaroursds of federlisim:

Wessler argumentLSturtece of gover,mant can balacne itself p 133 a Judicary should never intervine p 122 17th Amdement had change the level of direct and refective presitation of the populas Could the altersd sytem have helped persever the fedelisim model page 134

4. Judicial Protection of State Autonomy After Garcia South Carilaion v. Baker Nre York v, United States (!992) This case is similar to MccCollough Congress may not direct the state on how to operate interastate activities, enven though it may control econopmin maters that are related to the Commerce Clause. Cpngress may compell the state to om[ppy with federl regulations stadards by attaking conditions to reciving federal funds and/or decide not to comply and have thiere state regulation preemted by federal power. Two ways to vir Federeral uestions 1: Is the Act within te Enumertated pwers oitlined in Article 1 of the onstitution? Does the Act invade intio the realm of the states control in the 10th Amdendment? The two questions ar einverses of each other. The bonds atributed to the tent Amdment are noit actually in the text, Allowing the Federal Govermat to foce instead of compell statews to comply reove the abiltiy fot te people to have input in the decsion in the selection of the repes that will dicide if compliace should occur. State Soverinety if for te prtection of the people against unchecked Ferederal controlling Ferdlist number 39 also cited Dissent (Three judges) Should be allowed to stand because the states wanted it to occur, The court should not have interviened Tere is an argument here that e courts should still stipp vountary meddiling because of the ptential threat to the democracy giving way to one central govermant. Dissent( One Judge) nothing bared the At in the Constution of the 10th Amement The Scope and Limits of the Anticommendering Principle 1. Cpmgresonal altunative to commendering: Monerty and Acces provisions allowed 1. Spening Power: Under the spendgin power that may allow Congress to conditino acceotance of feeral find ith compliance to fedetral stadards 2. Commerce Power: May tac a state to use federally controlled forms of naviagation and channes for non complince of federal standards.' 3. Conditional preeumptin: Congress may threaten to pass federal legislation to preaemt state inaction. This is alllowed becas any action not dfone by the state will e done by the federal govermant.

2. Commandering State Executive Bracnh officials

1. Priritz v, US. 1997: There federal govermant can not commeder the finctions of stte excutives to excutive federal stadards. 1. Turned doen Act provision that forced polive offers to run backgounrd shecks on people getterin hand guns 2. Consideration of Feerlist papers on p 140 3. Constautional Consideration on page 150 State Soverim Immunity and the 11th Emendment 11th Amdenment(Judicial Limit): The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the nited States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

1. The origins and meaning of the 11ith Amdenment: Was adopted becase of the uprare from Chrishom v. Georifia 1793 and Hart v. Louisiina These cases made it clear that federal eersie or poweres against t state was a vilation of ste sovernty and lead to the 11th Amend. There was a shirt wawy from this strict recpest of not allowinfg federal action against the states EX Parte Young 1908: Federal government could place injuctiontion against state from enacting an unconstutional law. Allowing because iit was not the state but a govermant officalactiong beond his constutial aiuthiry that was being acted on by te feceral injuction. Eldman v. Jordoan 1974: Injctions against state officals are allowed but not retorspective d amages Fitzpatrick v. Bitzner 1976: Resprotective damages allowed under the the enforcment opweres granted in section five of the 14th Amdement This case left open the qustio of the federal govermant could abbrogate stat immnity Within the Commerce Clase of Art. 1 Sec 8 Atascadoreo State Hosital v. Scanton 1985: Fedreal government must cleeary wstate its inention to aborgate statre immunity with inte statue for it to be allowed to stand. Penn. v. ?Union Gass 1989: Answered the Fitzpatrick Question: Congresss may aborgate stae immunity through the Commerce Clause. No rational was given for this. 2. The Revival of the stae soveing immunity by Rehnquist Seven years later Seminole Tribe of Flordia v. Flordia 1996 OVERRULED UNION GASS The Commerce Clause may not be used to too abrogat e state immunit granted by the 11th Amden. Seminlole BriefL 11TH AMENDMENT - ENFORCE. FED RIGHTS IN SUITS AGAINST STATE OFFICERSRETROACTIVE RELIEF. Facts: The Seminole Indian Tribe was attempting to set up gambling enterprises within the boundaries of the Seminole Indian Reservation in Florida. The Indian Gaming Act requires a compact between the Tribe and Florida. The Governor of FL and FL refused to enter into good faith negotiations for inclusion of certain gaming activities. Issue: (1) Does the Eleventh Amendment prevent Congress from authorizing suits by Indian tribes

against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?; and (2) Does the doctrine of Ex parte Young permit suits against a State's Governor for prospective injunctive relief to enforce the good-faith bargaining requirement of the Act? Holding: Yes and No Procedure: Res moved for dismissal at D. Ct. DENIED> Ct App. reversed, Suit dismissed lack of jurisdiction. S. Ct. Affirmed. Rule: A3S1: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the US by Citizens of another State, or by Citizens or Subjects of any Foreign State. A1S10C3: No State shall without Consent of Congress, enter into any agreement or compact with another State, or with a foreign power. . . . Ct. Rationale: It is clearly stated in the Act that Congress has "unequivocally expressed its intent to abrogate the States sovereign immunity. Congress has not acted "pursuant to a valid exercise of power. It is fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. As the dissent in [Union Gas] made clear, [Fitzpatrick] cannot be read to justify "limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution." The 11th Amendment is not so ephemeral as to dissipate when the subject of the suit is an area that is under the exclusive control of the Fed. Government. Even when the Const. vests in Congress complete law making authority over a particular area, the 11th Amend. Prevents congressional authorization of suits by private parties against unconsenting states. Minority View - There is no state sovereign immunity, recognized in Fed. Ct., when abrogated by legislation by Congress. PL A : (Pet/Seminole)Congress through the Act abrogated(abolished) the States' sovereign immunity and the Governor of Florida is a government official separate from that States immunity. Def A: (Resp/Governor) Congress does not have the power to abrogate the States immunity nor to make the Governor liable to suit under the Act. Notes from Case Abrogation - abolishment established fact. Indubitable - absolute, without doubt, certain. The Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes. ACT (Sub Rule) - Certain Gaming activities may be conducted on Indian Reservations only when in conformance with a compact between the tribe and the state the activities are located in. [UNION GAS] Rule - The Interstate Commerce Clause granted Congress the power to abrogate state sovereign immunity, where the power to regulate interstate commerce would be incomplete without the authority to render States liable in damages. 3. Extending State soverign immunity from federal to state courts Alden v. Maine 1999: Extedend imunbity of states from suit in federal courts to states I staes courts as well. Denied suit by workers for non payment of overtime

 Opiion acknowledge that reasoning cound not be found in text of the 11th Amedment Reasofound in the structre of the Consatution and history. (Reasoning on page 146 Artl 1 Sec 8 cant be used to comple states into court because that would lead to a means of absolute control of the poltical pricess in te hans of te federal govermant and can not be used by indvisals to bering the states into court because it may threten the fiscial secuirty of the states to be forced to pay uinanticapated damages States still have to comply with Federal dictates (Bottom of page 146) Three options for Federal Goveement to exersie power over the states 1: Suits brought by the Federal govermant are allowed under Art 1 and do not offend state immunity anllowed in the 11th Amendment 2: Suit against suits may still be brought under sec 5 of the 14th Amdenment (Fitzpatrcik) 3: State is subjectto injuction or delcatarory relief (Ex Pare Young) Dissent (Same four judges that dessented I Simonole) There isn't a hisotrialc of stuctraul argument to allow state immunity from suit. 4. Extending State sovering immunity to other federal laws Same Day as Alden State enties are also immune fron suit in federal court. Pages 147 5. Federal power v. Federal remedies Note that the the Judicary did not limit he reach of the rederal goverrment but the redmes that it may use against the states. 6. Extending State seovgein immunity to federal ageny preceding Federal Martitime Commision v. South Coralina State Ports 2002 State entites are also immine from suit in federal court. Princile of Dual Sovernity is enraned ithin the sysem Reinerated the holdein in Alden ackonlegdes that Chilsiom was an relfection of a broader principla state Hans also stated the undertanding was that the govermant could not bring suit aginst he state and should be considered within the perspective of the Framers. Dissent: Within Federal scope Rasions and effeccts on page 149 7. State Sovergin immunity and Art 1. Bancrupcy power Centeral Virgina Community College v. Katz 2006 5-4 vote stted that congress was not barred from bringing states to court to be held accoutable tpo creditors and this is within te realm of Congress enummertattees pwoers of Art 1 Sec 8 cl 4 Semonles and similar cases did not extend to to nullify the Banfuptcle clause or govermant enformacent otf it. Thropugh hisortical consideration the coort holds that the framers inteded the Page 150 has the reasiong for the above DissentL 4 Jusdges:NTher is not hisortal bais for tis reasoing

Other National Powers: Tazing, Spending, War, Treaties, and Foerign Affairs

Intro: Art 1 Sec 8 is relvant in this section Section 1: The Tazing power as Reglatory Device
Child Labor Case 1922 Facts: After the Court held that regulation of child labor was unconstitutional if its basis was the Commerce Power (Hammer v. Dagenhart), Congress passed the Child Labor Tax Law of 1919 which imposed a federal excise tax of 10% of the annual net profits of any employer who exceeded the age or working hours limitations provided. It was almost identical to the Act declared unconstitutional in Hammer, but it rested on the taxing power instead. 3. Procedural Posture: Drexel brought this action for refund in the District Court after paying $6,000 under the tax, and won. The IRS appealed. 4. Issue: Whether Congress may impose a tax on industries as a means of regulating child labor, under the pretext of the taxing power. 5. Holding: No. 6. Argument: The Act is a regulation of the employment of child labor internal to the states, which is an exclusively state function under the 10th amendment. 7. Argument: The Act is a mere excise tax levied by the Congress under its broad power of taxation under the Constitution. The court has already gone so far un upholding taxing statutes that it is bound by precedent to uphold this one as well. 8. Majority Reasoning: The Act, on its face, appears to be a penalty enacted under the pretext of a tax. It provides a heavy burden for departure from a detailed and specific course of conduct. It is imposed without regard to the severity or proportion of the violation of the child labor provisions. It also requires a mens rea in that the violator knowingly depart from the standards. Thus, it clearly looks like a penalty. To allow it merely because it has the magic word tax would be to break down all constitutional limitations on Congress power to interfere with state activities, because then any subject of federal concern could be regulated by the taxing power. Even though some taxes have an incidental penalty-like action, this one is primarily a penalty. This case is the same as Hammer. Also, the previous authority relied upon by the government is distinguishable because it involved taxes that were not enacted under a pretext. Note Cases: 3. Federal excise and license taxes p 154 U.S. Constatine: Fee excess to the point of being a pentalty U.S. v. Kahriger: A tax is not invalid because it may dicrouage an activity. The court does not have the right to limit the tax and this tax is like otheres that it has a reglatory effect ' Section 2: The Spending Power as a Reglatory Device''

United Staes v. Butler 1936 Brief Fact Summary. Butler, the Respondent (Respondent), seeks judgment that the Agricultural Adjustment Act of 1933 (the Act) is unconstitutional in its scope. Synopsis of Rule of Law. Congress may tax and apportion for the general welfare, but Congress may not use taxation as a means to exercise powers retained by the States. Facts. The Act authorized the setting of limits on the production of certain crops and the imposition of taxes on crops produced in excess of these limits. Respondent alleges that this tax acts as a regulation of crop production, which is a local issue. Issue. May Congress tax crop production in excess of preset limits? Held. No. Appeals court ruling reversed and remanded. The taxing and spending power is broad that is, not limited to the enumerated list of issues in Article I, Section: 8 of the United States Constitution (Constitution). However, the tax in this case was levied to discourage production of crops beyond the limits set by the Act. This is beyond the powers delegated to the Federal Government. Specifically, the regulation of agriculture is, absent a nexus with interstate commerce, delegated to the states. Dissent. Justice Harlan Stone (J. Stone) argues that the Supreme Court of the United States (Supreme Court) has overstepped judicial restraint in declaring the Act unconstitutional. Discussion. United States v. Butlers holding that the taxing and spending power is broad is still good law, however the Supreme Courts view of the Tenth Amendments intersection with the taxing and spending power has subsequently changed. In particular, Butler views the Tenth Amendment as a mere tautology, a view which has changed in subsequent cases. The Spending power After the New Deal 1. Machine v. Davis 1937 Brief Fact Summary. The federal unemployment system provided a scheme whereby employers paid a tax to the federal government, but they could deduct the same tax if they made a contribution to a state employment fund. Synopsis of Rule of Law. For a tax and credit scheme to be unconstitutional as against the Fifth Amendment or of principles of federalism, there must be a showing that the tax and credit used together are coercive and/or that they impair the autonomy of the States. Facts. Under the federal unemployment compensation system employers were required to pay a certain tax to the United States Treasury. But if they made a contribution to a certified state unemployment fund, they could deduct up to 90 percent of the same tax liability. The Plaintiff, the Steward Machine Company (Plaintiff), challenged the validity of the tax system on constitutional grounds.

Issue. Was the federal unemployment tax system in violation of the Fifth Amendment or of principles of federalism? Held. No. The lower courts decision is affirmed. The tax system was constitutional. The tax system at issue is merely designed to assist the federal and state agencies to work together. Neither the States nor the citizens are injured. The system does not require the States to surrender powers essential to their quasi-sovereign status. It is necessary to distinguish between coercion and temptation. Every tax is to some degree coercive. Every rebate from taxes conditioned upon conduct is to some extent a temptation. In the instant case, the tax system did not reach coercion. Discussion. With respect to the federal governments ability to enact federal regulation pursuant to its power to spend, this case gives back to Congress a little of the power that United States v. Butler took away. The Supreme Court here draws a distinction between federal regulation that encourage (i.e., pressure) the States and those that coerce them. The former is permissible, the latter is not. The precise point at which the line from encouragement to coercion is crossed remains an open question. South Dakota v. Dole 1987 Brief Fact Summary. Appellant alleges that the federal withholding of a small percentage of highway funds to states allowing public possession or purchase of alcohol by individuals under 21 years is unconstitutional. Synopsis of Rule of Law. Non-coercive financial incentives by Congress are a constitutional exercise of the taxing and spending power. Facts. 23 U.S.C. Section: 158 directs the Secretary of Transportation to withhold a percentage of federal highway funds otherwise available to states that allow the purchase or public possession of alcohol by individuals under 21 years of age. South Dakota allows individuals nineteen and over to purchase beer with up to 3.2% alcohol. As a consequence, the Department of Transportation will withhold approximately 5% of the federal highway funds earmarked for the state. Issue. May Congress withhold funds from states that do not maintain a 21 year old drinking age? Held. Yes. Appeals court ruling affirmed. A withholding of a small amount of funds is not a coercive measure and a proper exercise of taxing and spending power. Dissent. Justices William Brennan and Sandra Day OConnor both dissent on the unrelated ground of the Twenty-first Amendment, which relegates regulation of alcohol sales to the states. Discussion. Congress may put strings on funds disbursed to States, so long as the conditions are explicitly stated. The Spending Power After Dole 1. Doles Four Part Test: Is exersise of he spending power constatutional 1. Does Congrtess's pupirese server general welfare 2. Has Congress made a clear statement of he finding conditiona Spending will be determedto be illigitamte if

3. If it unrelated to the to the spending power. (Dole took a brad view but the dissent noted that this may be to brad of a pass. 4. If barred in any other part of the Constatuion The War and Treaty Power and Imp[lied Power over Foerign Affairs Woods v. Cloyd 1938 Brief Fact Summary. Congress passed Title II of the Housing and Rent Act in 1947 to control rent in areas experiencing a housing deficit due to World War II. A landlord increased rent after hostilities ended in 1946 and the tenants brought suit to enjoin the violations. The Supreme Court of the United States agreed with the tenants. Synopsis of Rule of Law. The war powers in Article I Section: 8 of the United States Constitution confer very broad authority to initiate whatever measures deemed necessary to provide for the national defense in peacetime as well as in wartime. This includes the ability to remedy conditions which war created. Facts. Title II of the Housing and Rent Act of 1947 controlled rent in the Cleveland Defense Rental Area because the war caused a housing deficit. Residential construction was reduced to provide material and men for military projects. After the President terminated hostilities on Dec. 31, 1946, the landlord increased rent by 40% and 60%. Appellant brought suit to enjoin the violations. District Court agreed with the landlord and stated that when hostilities were terminated so was Congressional war power to regulate rent. The tenants appealed to the Supreme Court. Issue. Should Congressional war powers extend after hostilities end to remedy conditions caused by war? Held. Justice Douglas opinion: Yes. District court judgment is reversed. Congress must be able to use its war powers to remedy the situation caused by war because consequences can be just as severe immediately after war as they were when hostiles were formally under way. Effects of war can last for years, and if war powers are used to treat those wounds for years, then many civil liberties would be overlooked. The court trusts that Congress would not abuse that power and that they are alert to their constitutional responsibilities. Concurrence. Justice Jackson concurring: The result of the case is correct because the country was still technically in a state of war. Armies were abroad and there were no peace terms with the enemy. He is not, however, willing to hold that war powers can be indefinitely prolonged merely because the effects are long lasting. Discussion. The court saw that the housing shortage was largely caused by the war effort and the tight correlation between the damage and the cause justified the Government asserting its vague war powers as justification for its action. Missouri v. Holland 1920

Facts
President Woodrow Wilson proclaimed a treaty between the United States and Great Britain that provided for the protection of several species of migratory bird. The Migratory Bird Treaty Act was later enacted to

give effect to the convention. The Act prohibited the killing, capturing, or selling of any birds included in the terms of the treaty. The State of Missouri brought this lawsuit to prevent Holland (D), a game warden under the authority of the Secretary of Agriculture of the United States, from enforcing the Act. Missouri contended that the law was an unconstitutional interference with the states Tenth Amendment rights and an invasion of the states sovereign rights. The District Court sustained a motion to dismiss by the United States, holding that the Act was constitutional. The state of Missouri appealed.

Issue
Does Congress have the power to enact a statute in order to give effect to a treaty authorized under the Executives treaty power (Article II Section 2), if that statute standing alone would be an unconstitutional interference with states rights under the Tenth Amendment?

Holding and Rule of Law (Holmes)

Yes. Congress has the power to give effect to a treaty authorized under the Executives treaty power (Article II Section 2) through legislation, even if that legislation standing alone would be an unconstitutional interference with States rights under the Tenth Amendment. The Migratory Bird Treaty Act is valid under Article I Section 8 of the Constitution as a necessary and proper means of effectuating the treaty. The treaty and statute do not infringe property rights or sovereign powers respecting such birds reserved to the States by the Tenth Amendment. The treaty-making power is not limited to what may be done by an unaided act of Congress with respect to rights reserved to the States. A treaty becomes the supreme law of the land and preempts those areas typically reserved to the States by the Constitution. Congress can constitutionally enact a statute to enforce a treaty even if the statute by itself is unconstitutional. The Tenth Amendment is irrelevant here because the power to make treaties is delegated expressly. Under the Constitution, the President has the power to make treaties, which then become part of the supreme law of the land. If a treaty is valid, Congress has the power to enact legislation that is a necessary and proper means to enforce the treaty under the Necessary and Proper Clause. Acts of Congress are the supreme law of the land when made in pursuance of the Constitution. There are qualifications to the treaty-making power, but they must be determined by looking at the facts of each case. There are situations that require national action which an act of Congress could not deal with, but which a treaty enforced with a congressional act could. In these cases, joint action under international law is the best solution. Because neither Missouri nor any other state acting alone have the power to adequately control the problem connected with the migratory birds, this is a situation which requiring national action.

Disposition
Judgment affirmed. The War and Treaties Powers and Federlisim

1. A treaty made by the veto and supported 2/3 of the Senate ais supreme law under Art. VI, Sec 2 is supreme law of the land and overrides state laws. Ware and Lynhann was first established in p171 2. The Bircker Debate because of he seeminly brad reach the federal govermant had to override staae laws through trates p 171 3. Reid v. Covert Decided during the Briker debate. Facts Covert killed her husband, a US Air Force sergeant, at a base in England. The was tried and convicted by court-martial, which asserted jurisdiction over her under the Uniform Code of Military Justice. Article 2(11) of the UCMJ provides: The following persons are subject to this code: (11) Subject to the provisions of any treaty or agreement to which the United States is or wmay be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States. At the time of the killing, an executive agreement was in effect between the US and England which allowed the US military courts to have exclusive jurisdiction over crimes committed in England by US servicemen or their dependents. Procedural History and Arguments Covert seeks writ of habeas corpus on the ground that the Constitution forbade her trial by military authorities. Issues Can the US suspend individual rights based on a treaty entered into with a foreign government? Holdings & Court Order No, reversed and remanded for a civilian trial Reasoning The US is a product of the Constitution. When the government punishes a citizen abroad, the protection of the Bill of Rights and the Constitution are not stripped from the individual because the individual is in another land. All agreements made with a foreign nation are restricted by Constitution to the degree of power they confer on any branch of the government.

The Doorment Commerce Clause

Facial Discrimination against out of state Commerce Philadelphia v. New Jersey 1978 Brief Fact Summary. A New Jersey law prohibited the importation of solid or liquid waste that originated or was collected from outside of the State. Private landfill operators challenged the constitutionality of the law. Synopsis of Rule of Law. Where a state regulates non-discriminatorily for the achievement of a legitimate local purpose and thereby affects interstate commerce, the state action is constitutional unless the burdens of such regulation on interstate commerce are clearly excessive relative to the putative local benefits of it.

Facts. A New Jersey law prohibited the importation of solid or liquid waste that originated or was collected from outside of the State. The stated purpose of the statute was to protect the quality of the environment of New Jersey. Private landfill operators challenged the constitutionality of the law. The State Supreme Court held that the statute advanced vital environmental objectives. Issue. Did the New Jersey waste importation statute violate the Commerce Clause? Held. Yes. The judgment of the State Supreme Court is reversed. Protectionism measures can be unconstitutional for their means as well as their ends. Whatever the purpose of the statute, it may not be accomplished by discriminating against articles of outof-state commerce, unless there is some reason, apart from their out-of-state origin, for doing so. On its face, the statute imposes on out-of -state commerce the full burden of conserving the states landfill space. The statute violates the principle of non-discrimination both on its face and by its effect Dissent. Justice William Rehnquist (J. Rehnquist) stated that the Constitution does not require New Jersey to receive and dispose of solid waste from other States when doing so will inexorably increase the health problems of its citizens. Discussion. State actions that are protectionist in nature (i.e., favoring in-state interests at the expense of out-of-state interests) are generally unconstitutional. In this case, the Supreme Court explains that state statutes need not be proven purposefully protectionist in order to be held unconstitutional. A state statute may also be regarded as unconstitutional protectionist legislation if it is only discriminatory on its face. The Nondiscrimination Principle 1. Commerce Clause, historically asserted, to be done to prevent intra state eco wars that would threaten the unsion 2. Poltical foundation against discriminatory state laws p189 3. Econmic foundations p189 4. Flushing out Philadelpho aon p191 5. Facially disctrinatroy subsides p 194 Includes a bar on tax exemption Home Processing Requirement p 195 The Court has repeatdly denied statues that requier products be inspecrted in state before they enter in to the stream of commerce. These type of statutes temt to favor in state prducts. Dean Milk Co v. Madision 1951 Brief Fact Summary. A city ordinance prohibiting the sale of pasteurized milk not processed and bottled in a pasteurization plant within five miles of Madison, Wisconsin is invalid because it imposes an undue burden on interstate commerce. Synopsis of Rule of Law. A city ordinance that places a discriminatory burden on interstate commerce that is not essential for the protection of local health interests violates the commerce clause.

Facts. The city of Madison, Wisconsin enacted an ordinance that barred the sale of pasteurized milk unless it had been pasteurized and bottled at an approved pasteurization plant within five miles of Madisons central square. Of the five processing plants within the allowed distance, only three of them did business in Madison. Plaintiff, Dean Milk, a processing plant in Illinois, challenged the ordinance, claiming that it violated the commerce clause. The highest state court rejected the commerce clause attack. Issue. Whether the discrimination inherent in the Madison, Wisconsin ordinance can be justified in view of the character of the local interest and the available methods of protecting them. Held. No. Judgment of the highest state court reversed. The Supreme Court of the United States found that there were reasonable and adequate alternatives available to pasteurize milk other than limiting pasteurization to the local market. The Court found that the effect of the ordinance was to block the free flow of commerce. The Court further found that the ordinance was protectionist in nature and thus, a violation of the commerce clause. Dissent. There was no finding in the state courts that Plaintiff, Dean Milk, is unable to have its milk pasteurized within the five-mile radius of the city square. The ordinance is not discriminatory, but rather an attempt to safeguard public health. Such a health regulation should not be invalidated merely because the Court believes that alternative milk-inspection methods might insure cleanliness and healthiness of Plaintiffs milk. The alternatives suggested by the Court would not assure the people of Madison as pure a supply of milk as they receive under the ordinance. Discussion. The majority looked to the purpose of the ordinance, the laws effect and whether there was a less restrictive alternative available to the city. The Court found that intrastate milk from outside the Madison area was subject to the same prohibition as that moving in interstate commerce.

C&A Carbine, Inc. v. Clarkstown 1994 Brief Fact Summary. The Respondent, Clarkstown, New York (Respondent), required all wastes collected within the town to be deposited at a designated private waste station. Whereupon, the station would collect a certain fee. The Petitioner, C & A Carbone, Inc. (Petitioner), wanted to send its Clarkstown wastes collected to an out-of-state station, which charged a lower fee. Synopsis of Rule of Law. The Commerce Clause forbids the enactment of local laws that impose commercial barriers or discriminate against an article of commerce by reason of its state origin or destination Facts. The Respondent subsidized a private waste disposal station by guaranteeing a minimum flow of waste to a private waste station and allowing the station to charge a certain fee. To assure the guaranteed flow, the Town enacted a flow control ordinance whereby all solid waste collected from within the town were required to be deposited at the designated station. Petitioner, a private recycling facility, collected waste from elsewhere in New York and in New Jersey. Without the flow control ordinance in effect, Petitioner would have sent its non-recyclable waste to an out-of-state waste station and paid a

lower fee for disposal. Issue. Was the Respondents flow control ordinance in violation of the Commerce Clause? Held. Yes. The judgment of the lower court is reversed and the case is remanded for proceedings not inconsistent with this decision. While the immediate effect of the ordinance is local in scope, its economic effects are interstate in reach. The Petitioners facility receives wastes from places outside of Clarkstown and even out-of-state. To require such wastes to be channeled to the designated Clarkstown facility with its higher fees, drives up the costs of out-of-state interests to dispose of their wastes. Moreover, with regard to wastes originating in Clarkstown, by preventing everyone but the designated facility to dispose of wastes, the ordinance deprives out-of-state businesses access to the local market. Concurrence. Justice Sandra Day OConnor (J. OConnor) wrote that because the in-town processors and the out-of-town processors are treated equally, she could not agree that the ordinance discriminated against interstate commerce. The ordinance is unconstitutional, however, because it imposed an excessive burden on interstate trade relative to the benefit it conferred. Discussion. Perhaps, the Supreme Court of the United States real concern here is with regard to interstate retaliation. The fear is that this type of regulation by New York will trigger similar retaliatory regulations by other states, thereby negatively affecting the national economic market.

United Haulers v. Oneida Brief Fact Summary. There is an ordinance requiring all trash haulers to deliver solid waste to a particular waste facility. The plaintiffs (trash haulers) brought suit stating this was unconstitutional. Synopsis of Rule of Law. Flow control ordinances that favor the government instead of a private facility are constitutional as long as they do not violate the Dormant Commerce Clause Facts. This States legislature put into affect a flow control ordinance. It favored the Oneida-Herkimer Solid Waste Management Authoritys site and requiring all haulers to bring sold waste to their facility only. When this occurs the cost is shifted to the haulers to go to that site, whether convenient or not. This group is a state-created public benefit corporation. Issue.

Whether a flow ordinance favoring a government entity is constitutional, when the Supreme Court has previously ruled flow ordinances are not constitutional under the Dormant Commerce Clause. Held. Yes. Previously the Supreme Court has held that ruled flow ordinances are not constitutional under the Dormant Commerce Clause. However with this case there is a major factual difference. In the first case the facility was privately owned, and in this case it is owned by the state. Disposing of trash is a traditional government activity, and the state has the right to legislate for the health safety and welfare of its citizens. This ordinances does not discriminate against out-of state versus in-state businesses, everyone must use this facility. Since it does not discriminate, and it is a government entity it does not violate the constitution. This court does not wish to regulate a government entity with the same respect it does a private entity. Dissent. In the earlier case the facility was going to be owned by the town, the fact that this facility already is owned by a town is a technical difference not a salient one. Also this is the first time the court allowed the state to be favored when the market participant exception did not apply. Also other laws that favor the state but burden interstate commerce have been held unconstitutional, and this is no different. Discussion. The biggest issue with a flow ordinance is increase cost. However it is noted that the cost would be shifted to the people who voted for the ordinance. Discrimination under the Dormant Commerce Clause is found when there is a cost-shift to out-of state business and citizens, not when the burden falls upon all parties equally. The Dean Milk Carbone -United Trilogyp 202 t 204 /

The Market Participation Exception p204 The second exception is "market participation exception". This occurs when the state is acting "in the market," like a business or customer, rather than as a "market regulator."[6] For example, when a state is contracting for the construction of a building or selling maps to state parks, rather than passing laws governing construction or dictating the price of state park maps, it is acting "in the market." Like any other business in such cases, a state may favor or shun certain customers or suppliers. Timber v. Wunnicke Brief Fact Summary. Defendant, the State of Alaska, acted as a market participant by including in a sales contract a provision requiring all purchasers of the states timber to partially process the timber in Alaska before shipping the timber out of the state. Plaintiff, South-Central Timber Development Inc., an Alaskan corporation, rightfully contends that the provision violates the commerce clause. Synopsis of Rule of Law. This case demonstrates a limitation on the market-participant doctrine which

permits a state to influence an identifiable class of economic activity in which the state is a major participant. Specifically, a state may not impose conditions, whether by statute, regulation or contract, that have a substantial regulatory effect outside of that particular market. Facts. Defendant, the State of Alaska proposed to sell timber owned by the state. In the contracts of sale, Defendant included a provision requiring all timber purchasers to partially process the timber in Alaska. The provision was incorporated in order to protect Alaskan timber-processing industries and to derive revenue for the state. Plaintiff, an Alaskan corporation, purchases timber and ships it elsewhere for processing. Plaintiff claims that the contract provision violates the commerce clause. The Court of Appeals found that Congress had implicitly authorized Defendants processing requirement. Issue. Whether Defendants restriction on processing was exempt from the commerce clause because of the market-participant doctrine. eld. No. Judgment of the highest state court reversed and remanded for further proceedings. Defendant may be a participant in the timber market, but it may not use its leverage in that market to exert a regulatory effect in the processing market, in which it is not a participant. The processing restriction here takes place after the completion of the parties direct commercial obligations, rather than during the course of an ongoing commercial relationship. Thus, the Defendant-State may not avail itself of the market-participant doctrine to immunize its downstream regulation of the timber-processing market in which it is a participant. Because of the protectionist nature of Defendants local-processing requirement and the burden on commerce resulting therefrom, it falls within the rule of virtual per se invalidity of laws that block the flow of commerce at a states borders. Dissent. Defendant is merely paying the purchaser of timber indirectly, by means of a reduced price, to hire Defendants residents to process the timber, and that is not a violation of the commerce clause. Discussion. The plurality uses this case to demonstrate a limitation on the market-participant doctrine and bases that limitation on three key facts: the processing requirement is not a simple transaction; the timber is a natural resource; and the requirement takes place after the sale is finalized. The Theory and Limits of the Market Exception p 208-209 Facially Neutral Laws with Protectionist Purpise or effect

Baldwin v. G.A.F. Seelig, Inc 1935

Brief Fact Summary. The state of New York passed a statute regulating the price of Vermont Milk. Synopsis of Rule of Law. States must not violate the dormant commerce clause through the use of its police power. Facts. Certain milk distributors sell its product at different prices to different buyers. The State of New York passed the Milk Control Act. This law states that milk can not be sold to a New York farmer at a

higher price than is sold to Vermont farmers. This law is constitutionally challenged. Issue. Whether a statute that violates the Dormant Commerce Clause may be upheld under an Economic Welfare exception. Held. No. States are not allowed to pass legislation that specifically discriminates against out-ofstators. If allowed, most states will not hesitate against using the law for economic retaliation. New York argues they are doing this to ensure wholesome milk for its citizens, and that this is connected to the welfare. They also argue that the economic motive is secondary. While states are allowed to legislate under its police power for the health safety and welfare of its citizens, this court will not permit states to carve an exception that allows them to discriminate against other states. The police power can not be used to squash competition Discussion. This statute would allow New York to have control over the price of Milk from Vermont as if it was customs agents. This would have worked like a custom duty on a boarder, which states are not allowed to have against one another. Hood v. Sons (1949) Brief Fact Summary. The Supreme Court of the United States found that denial of a distribution license to Plaintiff, H. P. Hood & Sons, a Boston milk distributor, on the basis of a state law requiring issuance of licenses only where the Commissioner of Agriculture and Markets finds that such issuance will not encourage destructive competition and such issuance is in the public interest is a violation of the commerce clause. Synopsis of Rule of Law. A state may not use its powers to protect the health and safety of its people as a basis for suppressing competition. Facts. Plaintiff, H. P. Hood & Sons, a Boston milk distributor, applied for a New York license with the Commissioner of Agriculture and Markets (Commissioner) to distribute milk in New York. The Commissioner denied Plaintiff a license on the grounds that issuance of a license to Plaintiff would create a destructive competition with other suppliers. Plaintiff contends that the law violates the commerce clause. The state courts rejected such a contention and held the law to be valid. Issue. Whether New Yorks licensing law which prohibits licensure to suppliers who will create destructive competition or where the Commissioner finds that such licensing is not in the public interest violates the commerce clause? Held. Yes. Judgment of the highest state court reversed. The statute, as applied, violates the commerce clause because a state may not protect its own inhabitants from competition by forbidding licensure where granting a license to an out-of-state supplier will create destructive competition. The purpose of the licensing scheme is to protect instate suppliers and the direct effect of the licensing law is an obstruction on interstate commerce. Therefore, this law violates the commerce clause. Dissent. The language of the state law is not discriminatory. The legislative history shows no discriminatory intent and the Commissioner has not acted with discrimination. Further, it is not the function of the Court to revise the states economic decisions. The degree to which interstate commerce is burdened is highly questionable.

Discussion. The majority holds that a state may not prevent destructive competition by denying an applicant access to a market within the state if that applicant happens to intend the out-of-state shipment of the product that he buys. Identifying Protectiionisim in Facially Neautral Laws Hunt v. Washington 1977 Brief Fact Summary. North Carolina adopted a statute requiring all containers of apples shipped into the state display no grade other than the applicable U.S. grade or standard. Washington state apple growers challenged the statute as an unreasonable burden on interstate commerce. Synopsis of Rule of Law. In the absence of conflicting legislation by Congress, where a state law governing a matter of local concern comes into conflict with the Commerce Clauses overriding requirement of a national common market, the Court is confronted with the task of bringing about an accommodation of the competing national and local interests. Facts. North Carolina adopted a statute requiring all containers of apples shipped into the state display no grade other than the applicable U.S. grade or standard. The statute applied to apples shipped from all States, even those whose standards surpassed the USDAs, such as Washington States. Washington state apple growers, who could only comply with the North Carolina statute by drastically altering their packaging methods, challenged the statute as an unreasonable burden on interstate commerce. North Carolina defended the statute, arguing that it constituted a valid exercise of its police powers to protect its citizenry from fraud and deception. Issue. Did the North Carolina statute violate the Commerce Clause by unreasonably burdening interstate commerce? Held. Yes. Although facially neutral, the statute had the effect of not only burdening interstate sales of Washington apples, but also discriminating against them. For example, the statute raised the costs of doing business in North Carolina for Washington growers, while leaving the costs for North Carolina growers unaffected. In addition, by prohibiting Washington growers from marketing their apples under their states more stringent grading system label, the statute has a leveling effect which operated to benefit local growers. Moreover, non-discriminatory alternatives to the statute could have been used to accomplish the States local objectives. North Carolina could have permitted out-of-state growers to display their state labels only if they also used the USDA label. Discussion. This case presents an example of a statute, neutral on its face, that the Supreme Court invalidated, because the Supreme Court was able to infer discriminatory intent from the statutes discriminatory effect. As such, this case also draws into question how far courts should go in inferring discriminatory intent from neutral laws that have the effect of distinguishing between in-state and out-ofstate interests. Bacchus imports v. dias

Brief Fact Summary. Hawaii had a 20% liquor taxed but exempted from the tax certain locally produced alcoholic beverages. Bacchus Imports distributed liquor products and had to pay the 20% excise tax. Synopsis of Rule of Law. No State may impose a tax which discriminates against interstate commerce by providing a direct commercial advantage to local business. The Twenty-first Amendment does not entirely remove state regulation of alcoholic beverages from the ambit of the Commerce Clause. Facts. In 1939 Hawaii imposed a tax on liquor to pay for police and other governmental services that the Hawaii legislature concluded had been increased due to the consumption of liquor. At its inception the tax did not exempt local liquor, but subsequently the legislature wanted to encourage development of the Hawaiian liquor industry so it enacted exemptions for several liquors produced locally. Liquor wholesalers that paid the 20% excise tax sued to recover all the taxes paid, arguing that the Hawaii liquor tax was in violation of both the Import-Export Clause and the Commerce Clause of the United States Constitution. They requested a refund of approximately $45 million. Issue. There were two issues: Did Hawaii Liquor Tax exemption violate the Commerce Clause because it had the purpose and effect of discriminating in favor of local products? Could the Twenty-first Amendment save the statute? Held. (Justice White) The tax exemptions did violate the Commerce Clause and the Twenty-first Amendment could not save them. The judgment of the Supreme Court of Hawaii was reversed and the case was remanded for further proceedings. The tax exemption clearly discriminated on its face against interstate commerce by bestowing a commercial advantage to local products. The purpose of the tax was undisputedly aimed at aiding the Hawaiian industry, and the discriminatory effect was obvious. The Twenty-first Amendment did not entirely remove state regulation of alcoholic beverages from the ambit of the Commerce Clause. The central purpose could not have been to allow States to favor local liquor industries by erecting barriers to competition. The State does not seek to justify its tax by arguing that it was designed to carry out any purpose of the Twenty-first Amendment, but instead acknowledges that the purpose was to promote the local industry. Dissent. Justice Stevens, Rehnquist and OConnor. The Twenty-First Amendment squarely foreclosed the wholesalers Commerce Clause claim. The Amendment authorized states to place a burden on intoxicating liquors that were imported into the state and to not impose a tax on liquors that were produced locally. Youngs Market, a case that was decided in 1936, upheld a California statute imposing a similar tax and noted that the statue would have been unconstitutional prior to the Twenty-First Amendment. Hawaii may constitutionally prohibit the importation of all intoxicating liquors. It could do so without prohibiting the sale of local liquor. If the State has the constitutional power to create a total local monopoly, it may also engage in a less extreme form of discrimination by merely providing a special benefit in the form of a subsidy or tax exemption for locally produced alcoholic beverages. The majority is taking a completely novel approach by saying that state laws favoring local liquor industries are not entitled to the same deference as laws enacted to combat the perceived evils of unrestricted traffic in liquor. Discussion. The strongest basis for challenging a tax that would impact interstate commerce is the

Commerce Clause. When evaluating such a tax, it is important to determine how much the legislature is discriminating against interstate commerce with its tax, and whether the legislature could gain similar revenue in a less discriminatory manner. Exxon Corp v. Governor of Maryland Brief Fact Summary. The state of Maryland enacted a statute prohibiting producers or refiners of petroleum products from operating any retail service stations within the state. Some refiners challenged the constitutionality of the statute. Synopsis of Rule of Law. In the absence of a relevant congressional declaration of policy, or a showing of a specific discrimination against, or burdening of, interstate commerce, the States may regulate commerce. Facts. The state of Maryland enacted a statute prohibiting producers or refiners of petroleum products from operating any retail service stations within the state. The statute was designed for the apparent purpose of correcting irregularities in the distribution and pricing of gasoline. Some refiners, in a challenge to the constitutionality of the statute, introduced evidence to show that their ownership of retail service stations brings significant benefits to the consuming public and that the statute would weaken independent refiners. Issue. Did the Maryland statute unconstitutionally burden interstate commerce? Held. No. The judgment of the lower court is affirmed. The Maryland statute is non-discriminatory. It plainly does not discriminate against out of state products, nor does it favor in-state producers or refiners. Marylands entire gasoline supply is shipped in from outof-state suppliers. There are no producers or refiners in Maryland to receive preferential treatment. The Maryland statute does not burden interstate commerce. Although it may be true that the consuming public in Maryland will be injured and that some independent refiners will be weakened, these things do not amount to a burden on interstate commerce. Dissent. Justice Harry A. Blackmun stated that discrimination need not appear on the face of a statute to be unconstitutional. Although facially neutral, the effect of the Maryland statute is to protect in-state retail service station dealers from the competition of out-of-state business. Faccaily nutreal laws with a dispropotyionate adverss effect on commerce Pike v. Bruch Church 1970 Brief Fact Summary. The Plaintiff, Bruce Church, Inc. (Plaintiff) challenged a law enacted by the Defendant, state of Arizona (Defendant) that prevented the transportation of uncrated cantaloupes within the State. The Plaintiff sued arguing that the law violated the Commerce Clause of the United States Constitution (Constitution) Synopsis of Rule of Law. Where a state statute regulates even-handedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Facts. An Arizona law requires that all cantaloupes grown in Arizona and offered for sale must be packed

in closed standard containers approved by government officials. Loren Pike, the Defendant states official in charge of enforcing the law, issued an order prohibiting the Plaintiff, a cantaloupe farming company, from transporting uncrated cantaloupes from their Arizona ranch to the California packing place. The closest available packing shed to the Defendant state was California and calculated they would suffer $700,000 in losses unless the order was enjoined. The Plaintiff filed suit in district court to enjoin the order on the ground that it was unconstitutional because it violated the Constitutions Commerce Clause. Issue. Can a nondiscriminatory state law violate the dormant Commerce Clause? Held. Yes, the Supreme Court of the United States (Supreme Court) developed a test for determining whether nondiscriminatory state laws violate the dormant commerce clause. Where a nondiscriminatory law effectuates a legitimate local interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits. Where there is a legitimate local interest it must be measured against the burden it composes. Discussion. The purpose of the law in question here was to protect and enhance the reputation of growers within the State, a legitimate State interest. However, the States interest is not worth the Arizona cantaloupe company building and operating a new $200,000 packing plant Kassel v. Consalidatied Frieghtways Corp. 1981 Brief Fact Summary. Iowa prohibits the use of 65 foot doubles (a certain type of truck) within its borders, but makes certain exceptions for the same trucks used for the benefit of Iowa residents. Synopsis of Rule of Law. State regulations designed to promote public health or safety, but further such purposes only marginally and interfere with commerce substantially may be invalid under the Commerce Clause. Facts. Iowa, unlike all other States nearby it, prohibits the use of 65-foot doubles within its borders. Notwithstanding this restriction, Iowa allows its border cities to adopt the truck length limitations of the states adjoining them. Iowa also allows Iowa truck manufacturers to obtain a permit to ship trucks out of the state as long as 70 feet long. Mobile homes are also eligible for exemptions, as long as they are being used to benefit Iowa residents. Dissatisfied, the Plaintiff, Consolidated Freightways Corp. (Plaintiff), filed suit in the District Court arguing the Iowas scheme unconstitutionally burdened interstate commerce. Iowa claimed that it enacted its scheme lawfully for the purpose of promoting local safety. Issue. Was Iowas statute scheme an unreasonable safety measure enacted pursuant to its police powers? Held. Yes. The judgment of the Court of Appeals is affirmed. Iowa failed to produce any persuasive evidence that 65-foot doubles are less safe than 55-foort singles. Plus, Iowas law substantially burdens interstate commerce insofar as it uses regulations out of step with all of its neighboring States regulations. Moreover, Iowa discriminates against out-of-state interests by providing Iowans exemptions that are not extended to out-of-state interests. Although the Supreme Court of the United States usually (Supreme Court) defers to the judgment of the State legislatures as to the justification of its laws concerning local concerns, less deference is due them in cases such as these: where the States safety justifications appear illusory; and where local regulation places a disproportionate burden of its statutory scheme on out-of-state interests.

Concurrence. Justice William Brennan (J. Brennan) states that even if the burdens and benefits are related to safety, protectionist legislation is unconstitutional under the Commerce Clause. Dissent. Justice William Rehnquist (J. Rehnquist) states that where a state enacts a statute for the purpose of promoting safety, the Court should not directly compare safety benefits to commerce burdens and strike the law if former weighs heavier. Instead the Court should engage in a sensitive consideration to determine if an asserted safety justification is merely a pretext for discriminating against interstate commerce. Discussion. This case involves an apparently facially neutral statute with out-of-state effects that may exceed in-state benefits. As such, much emphasis is placed on the cost/benefit factors resulting from the regulation. Whether it is appropriate for the courts to fix the lawfulness of a statute on this type of retrospective review is debatable Balancing Interstate Harm against Local benefit 1. Deferemce to local safty conerns: Highway departmet v. Barnwell: Brief Fact Summary. The Plaintiff, Barnwell Brothers, Inc. (Plaintiff) challenged a state law prohibiting the operation of trucks on state highways as an unconstitutional burden on interstate commerce. Synopsis of Rule of Law. A state law placing width and weight limitations on trucks operating on state highways does not impose an unconstitutional burden on interstate commerce so as to violate the United States Constitutions (Constitution) Commerce Clause. Facts. South Carolina passed a law that prohibited trucks of a certain weight and width to use their state highways. Specifically, trucks could not use South Carolinas highways if their width exceeded 90 inches and if their total weight exceeded 20,000 pounds. The Plaintiff challenged the state law as an unconstitutional burden on interstate commerce, in violation of the Constitutions commerce clause. The district court enjoined enforcement of these regulations, determining that they would seriously impede motor truck traffic passing to and through the state and would increase its cost. Issue. Does a state law imposing restrictions on weight and width of trucks that use state roads violate the Constitutions commerce clause? Held. No, state regulations limiting width and weight of trucks operated on state highways does not violate the Constitutions commerce clause. The Supreme Court of the United States (Supreme Court) first pointed out that Congress decided not to regulate the weight and width of motor vehicles and left that power to the States. The Supreme Court also recognized that South Carolina had a great local concern in passing its regulations. Further, since South Carolinas regulations were nondiscriminatory, they were appropriate. Discussion. The state has a primary and immediate concern in taking care of their highways. The state may impose nondiscriminatory restrictions with respect to the character of motor vehicles moving in interstate commerce as a safety measure and as a means of securing the economical use of its highways. The regulatory measures taken by South Carolina are within its legislative power and they do not violate the Constitutions commerce clause. Southern Pacific Co. v. Arizona

Brief Fact Summary. The Plaintiff, the state of Arizona (Plaintiff), created a law limiting the number of railroad cars per trains as a safety measure. The Defendant, the Southern Pacific Co. (Defendant) asserted that the law violated the United States Constitutions (Constitution) Commerce Clause. Synopsis of Rule of Law. In deciding whether a state law created for its safety measures violates the Constitutions Commerce Clause, the Supreme Court of the United States (Supreme Court) will balance the benefit of the law against the burden it imposes on interstate commerce. Facts. The Arizona Train Limit Law of 1912 (the Law), prohibited the operations of trains of more than 14 passengers or 70 freight cars and authorized he state to recover a money penalty for each violation. The trial court found for the Defendant and the state supreme court reversed. The state supreme court believed that the statute was enacted within the states police power and that it bore a reasonable relation to the health, safety and well-being of the states people. This finding was irrespective of the statutes effect on interstate commerce. Issue. Are the benefits of a state law safety measure limiting the length of trains outweighed by burdens on interstate commerce? Held. Yes, a state law that puts a significant burden on interstate commerce, yet provides no real improvement in safety, will be found to violate the Constitutions Commerce Clause. The Supreme Court determined that the usage of trains with greater than 14 passenger cars and more than 70 freight cars is standard practice on many United States railroads. If train length was to be regulation, national uniformity in regulation, such as only Congress can impose, is practically indispensable to the operation off an efficient and economic national railway system. The Supreme Court also determined that the Law imposed a serious burden on interstate commerce. Also, the Law does not provide any actual safety benefits and in actuality makes train operation more dangerous. The Supreme Court also distinguishes this case from South Carolina v. Barnwell, 303 U.S. 177 (1978), which dealt with the regulation of the highways. Discussion. The Supreme Court must determine the nature and extent of the burden which the state regulation of interstate trains, adopted as a safety measure, imposes on interstate commerce. The Supreme Court also must determine whether the relative weights of the state and national interests involved are such as to make inapplicable the rule that the free flow of interstate commerce and its freedom from local restraints in matters requiring uniformity of regulation are interests safeguarded by the Constitutions Commerce Clause from state interference. If the length of trains were to be regulated, it should be done by Congress and not individual states. Arizonas law greatly burdens the Defendant because they have to haul over 30% more trains through Arizona than other unregulated states. Bibb v. Navajo Freight Lines, Inc Brief Fact Summary. The Plaintiff, Navajo Freight Lines, Inc. (Plaintiff), a trucking company, challenged the constitutionality of Illinois mudguard law on the ground that it interfered with interstate commerce. Synopsis of Rule of Law. In determining whether a states nondiscriminatory highway safety law violates the dormant Commerce Clause of the United States Constitution (Constitution), the Supreme Court of the United States (Supreme Court) must look to the total effect of the law as a safety measure. If it is too slight, or problematic, so that it does not outweigh the national interest in keeping interstate commerce free from interferences that seriously impede it, then it cannot stand.

Facts. The state of Illinois passed a law requiring trucks to have contoured mudguards. In Arkansas, states were required to have straight mudguards, while in all other states either shape was acceptable. The Plaintiff challenged the Illinois law arguing that it violated the Commerce Clause because it unduly burdened interest commerce and enforcement should be enjoined. The District Court found for the Plaintiff and required the Defendants, Bibb and other Illinois officials (Defendants), from enforcing the law. The District Court determined that the cost per truck would range from $4,500 to $45,850 to obtain the mud flaps required in Illinois. Issue. Is this Illinois statute requiring a special mudguard constitutional? Held. Justice William Douglas (J. Douglas) first observed that States have an important interest in providing for the safety of their highways. Moreover, safety measures carry a strong presumption of validity. However, here, the costs of doing business would be greatly increased. The Supreme Court observed that trucks could not enter Illinois and Arkansas without stopping at the border to change their mudguards. Moreover, the Illinois regulation would seriously interfere with interline trucking, which is the changing of trailers between carriers. The Supreme Court also determined that contoured mudguards have no real safety advantages over straight mudguards and in actuality actually caused additional hazards. Discussion. States have the power to regulate their highways, however, these mudguards create operational delays and costs. The statute also seriously interferes with the interline operations of motor carriers. The carriers will not be able to switch cargo that does not allow certain mud flaps. The clearly violates the dormant Commerce Clause. 2. State Burden on buisness entry Lewis v. BT Investment Brief Fact Summary. A Florida statute prohibited an out-of-state bank holding company from owning or controlling a business within the State that sells investment advisory services to any customer. Bankers Trust sued after the Board rejected its proposal to open a subsidiary that would furnish investment advisory services to the general public. Synopsis of Rule of Law. The negative Commerce Clause (also known as the Dormant Commerce Clause) prohibits economic protectionism in the form of regulatory measures designed to benefit instate economic interest by burdening out of state competitors. The only way to save a facially discriminatory statute is by asserting a justified goal or motive unrelated to economic protectionism. Even if there is a valid motive the State has to use the least restrictive means possible. Facts. In 1972 Bankers Trust New York Corporation sought and received approval to open a subsidiary in Florida that would furnish investment advisory serves to the general public. At the time its proposal was approved because only giving advice to trust companies or banks was prohibited. The Florida financial community reacted negatively and many filed comments with the Board objecting to the Bankers Trust proposal. The state legislature also took action and shortly after Bankers Trust qualified to do business, the legislature amended the statute so that no out-of-state bank holding company could own or control a business within the State that sold investment advisory services to any customer, including the general public, trust companies, or banks. The amendment was a direct response to Bankers Trusts pending application and the amendment had the strong backing of the local financial community. In April 1973 the Board rejected Bankers Trusts proposal on the ground that it would co

nflict with state law. Its entry would ordinarily have a desirable pro-competitive impact but the Board could not vote for the proposal since the statute intended to and does prohibit Bankers Trusts entry. Bankers Trust sued and the District Court on summary judgment held that the two statutes (prohibiting business with banks, and prohibiting business with the general public) violated the Commerce Clause. Issue. Did the Florida statutes that prohibited an out-of-state corporation from setting up an investment advisory business within Florida violate the Commerce Clause? Held. Justice Blackmun opinion: Yes. District Court judgment affirmed. The statute overtly prevents foreign enterprises from competing in local markets. The State makes the out-of-state location of a bank holding companys principal operations an explicit barrier to operating within the State. The statute thus prevents competition in local markets by out-of-state firms. The State virtually conceded this effect and the circumstances of enactment suggest that it was the legislatures principal objective. Therefore the district Court did not err in applying a stringent standard for the facially discriminatory statute. The State then argued that this case was similar to Exxon Corp v. Governor of Maryland. The Court did not agree because Florida engaged in additional discrimination by saying that all companies with principal operations outside Florida were barred. In Exxon, interstate independent dealers were permitted to enter Maryland so long as they did not own production or refining facilities. That rule served a legitimate state purpose of controlling the gasoline retail market, which was necessary because of inequities in the allocation of petroleum products to retail outlets during the fuel shortage of 1973. The absence of discrimination between interstate and local producer-refiners is significant. In-state and outof-state businesses were both barred. Here the critical factor is not the type of business the subsidiary is a part of but where their principle office is located. The businesses at issue are discriminated against only if their principle operations are outside Florida. There is no valid justification for the disparate treatment of out-of-state bank holding companies. Discouraging economic concentration in the arena of high finance and protecting the citizenry against fraud are legitimate state interests but these interests do not justify the heavily disproportionate burden this statue places on bank holding companies that operate principally outside the State. None of the states interests concerning local control are advanced by this statute because, as the State concedes, the statute does not prevent entry by out-of-state entitles other than those having the prohibited organizational forms. Discussion. This statute was obviously passed in response to local companies anti-competitive actions and to protect local economic interests. Thus, the Courts decision is on solid ground. Edgar v. Mite Corp Facts of the Case The MITE Corp, organized under Delaware laws with its principal office in Connecticut, initiated a tender offer for all outstanding shares of Chicago Rivet & Machine Co., an Illinois corporation. The Illinois Business Take-Over Act requires a tender offeror to notify the Secretary of State and the target company of its intent to make a tender offer and the terms of the offer 20 days before the offer becomes effective. During that time, the target company, but not the offeror, is free to disseminate information about the offer to the target company's shareholders. In addition, the Secretary of State could call a hearing, and the offer could not proceed until the hearing was completed. Finally, the Secretary of State

could deny registration of a takeover offer he or she found inequitable. MITE Corp. sought and won a declaratory judgment holding that the Illinois Act was pre-empted by the Williams Act, 15 U.S.C. Sections 78m(d)-(e) and 78n(d)-(f), and that it violated the Commerce Clause. Question Is the Illinois Business Take-Over Act unconstitutional under the Supremacy and Commerce Clauses of the U.S. Constitution? Argument Conclusion Decision: 6 votes for Mite Corporation, 3 vote(s) against Legal provision: Article 1, Section 8, Paragraph 3: Interstate Commerce Clause Yes, with regard to the Commerce Clause. The Illinois Act imposes burdens on interstate commerce that are excessive in light of the local interests the Act purports to further. Among the ways a corporation can be covered by the Act is if 10% of the class of equity securities subject to the offer is owned by shareholders located in Illinois. Thus Illinois would have the power to determine whether a tender offer may proceed even if made for a corporation incorporated and having a principal place of business outside of Illinois, with up to 90% of the shareholders residing outside of Illinois. Illinois's asserted interest in protecting resident security holders is insufficient to outweigh the burdens Illinois would impose on interstate commerce. In addition, Illinois's asserted interest in regulating the internal affairs of a corporation incorporated under its laws not only fails to justify the Act's coverage of foreign corporations, but transfers of stock to a third party do not implicate the internal affairs of a corporation.

CTS Corp v. Dynamic Corp of America Brief Fact Summary. Appellee, Dynamics Corporation of America, challenged the validity of an Indiana state law that granted additional shareholder rights, claiming that it was preempted by federal law and violated the Commerce Clause of the United States Constitution. Synopsis of Rule of Law. States, as the creators of corporate entities, have the ability to define the protections afforded to shareholders providing that it is possible to comply with the state law and federal law. Facts. Appellee owned 9.6% of Appellant, CTS Corporation and announced a tender offer to increase their ownership to 27.5%. Six days before their announcement, an Indiana law, Indianas Control Share Acquisitions Act, came into effect. The Act allows for disinterested shareholders to hold a shareholders meeting to discuss the merits of a tender offer for controlling shares. Appellee argues that the Act is preempted by a federal law, the Williams Act. The Williams Act provides guidelines that offerors need to follow when making a tender offer. Appellee also argues that the Indiana Act violates the Commerce Clause because it treats in-state entities differently from out-of-state entities. Issue. The first issue is whether the Williams Act preempts the Indiana Act. The second issue is whether the Indiana Act violates the Commerce Clause due to unequal treatment between in-state and out-of-state entities.

Held. The Indiana Act is not preempted by the federal law because entities can comply with both federal and state law without frustrating the federal law. The state law furthers the federal laws goal of protecting shareholders from tender offer abuses but does not tip the balance between management and acquirers. Instead, the rights of shareholders are strengthened in a situation where many believe shareholders are traditionally at a disadvantage. The Indian Act does not violate the Commerce Clause because corporations by definition are entities created by state law, and therefore it is only logical that states would define the rights and characteristics of corporations. The United States Supreme Court noted that there are several instances where states have laws regulating the powers of acquiring entities, such as supermajority voting requirements. Dissent. The dissent believed that the law prevented shareholders to act in their best interests by forcing them to act only after the shareholder meeting. Concurrence. The concurring opinion would simplify the Commerce Clause analysis by just examining whether the state law discriminates against interstate commerce, and simply holds that state corporation codes should rarely if ever be preempted by federal law. Discussion. The decision illustrates that states can offer further protection, in particular for shareholders, in response to the deluge of questionable tender offers. Preemption (Express & Implied) Assignment: CB 232-43 Congressional preemption amd consent Express Preemption Express preemption occurs only when a federal statute explicitly confirms Congress's intention to preempt state law. English v. General Elec. Co., 496 U.S. 72, 78-79 (1990). "If a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress displacement of state law still remains." Altria Group v. Good

Implied Preemption
Implied preemption can occur in two ways: field preemption or conflict preemption. Massachusetts Ass'n of HMOs v. Ruthardt, 194 F.3d 176, 179 (1st Cir. 1999). 1. Conflict preemption Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). Conflict arises when it is impossible to comply with both the state and federal regulations, or when the state law interposes an obstacle to the achievement of Congress's discernible objectives. Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992). Actual conflict. A conflict exists if a party cannot comply with both state law and federal law (for example, if state law forbids something that federal law requires). Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). Obstacle. In addition, even in the absence of a direct conflict between state and federal law, a

conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby v. Natl Foreign Trade Council, 530 U.S. 363, 372-73 (2000). Minimum Safety Standard vs. Uniform Safety Standard Often there may be a question of frustration of congressional purpose or the state law standing as an obstacle to congressional intent. This will raise a question of whether congressional or administrative intent in passing the law was uniformity or minimum national safety standards. Congressional intent may be to allow States to pass laws that will establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor. Geier v. American Honda Motor Co., 529 U.S. 861, 870, 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000). Alternatively, the purpose of a federal law could be to set a uniform national standard. This was the case in Geier, where the National Traffic and Motor Vehicle Safety Act of 1966 required auto manufacturers to equip a certain number of their 1987 vehicles with passive restraints. Id. at 864865. the question before the Supreme Court was whether the Act pre-empted state common-law tort claims saying that the auto manufacturer, although in compliance with the Act, should nonetheless have equipped a 1987 automobile with airbags. The court indicated that, despite a savings clause, the statute reflects a desire to subject the industry to a single, uniform set of federal safety standards. Its pre-emption of all state standards, even those that might stand in harmony with federal law, suggests an intent to avoid conflict, uncertainty, cost, and occasional risk to safety itself that too many different safetystandard cooks might otherwise create. Id. at 871. 2. Field preemption Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to occupy the field in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it. Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992). See also Rice v. Santa Fe Elevator Corp. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976).

Section 3: Congressional Ordering of Ferderal State Relationships by Preemption and Consent Congresional Preemtion of state Regulation The doormant commerce clause stops state action in the absnesee off congressional regulation. A federal law may superseed a stae law under Art, VI (Supremecy Clause) Preeumtion by federal over state can still be claimed even if the law did not clearly stae that it inteded to preemt a state law. The decision that preemtuion is occuring is based on congressional intent and outside

consideration liethe text and hostory of the statute that is preemting a state regulations Pacific Gas v. State Energy Brief Fact Summary. The Supreme Court of the United States held that a California law imposing a suspension on the certification of nuclear energy plants within the state until the Defendant, State Energy Resources Conservation and Development Commission, approves of the means for disposal of the waste was not preempted by the federal Atomic Energy Act of 1954. Synopsis of Rule of Law. The doctrine of preemption allows Congress to preempt state power to regulate in three ways: 1) by express statement; 2) by implied occupation of a regulatory field; or 3) by implied preclusion of conflicting state regulations. Where there are two different evils being addressed by the state and Congress, there is no preemption of state power. Facts. In 1976, California adopted a law that imposed a moratorium on the certification of nuclear energy plants within the state until the Defendant, State Energy Resources Conservation and Development Commission, approves of the means for disposal of the waste. Plaintiff, Pacific Gas & Electric Company (PG &E), sought a declaratory judgment that this provision was preempted by the federal Atomic Energy Act (AEA) of 1954, and therefore invalid under the supremacy clause. The District Court granted the injunctive relief and the Court of Appeals reversed. Issue. Whether the California statute falls within the field which the federal government has preserved for its own exclusive control because it regulates construction of nuclear plants and because it is allegedly predicated on safety concerns. Whether the California statute conflicts with decisions made by Congress and the federal Nuclear Regulatory Commission (NRC). Whether the California statute frustrates the federal goal of developing nuclear technology as a source of energy. Held. No. Judgment of the Court of Appeals affirmed. In passing AEA and its subsequent amendments, Congress intended that the federal government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but the states retain their traditional responsibility in the field of regulating electrical utilities for state concerns. Congress legislated here in a field traditionally occupied by the states so we start with assumption that the historic police powers of the states were not to be superseded by the Federal Act unless that act was the clear and manifest purpose of Congress. Californias economic purpose for enacting the law lies outside of Congress occupied field of nuclear safety regulation. No. Judgment of the Court of Appeals affirmed. Compliance with both the NRC and the state statute is possible. Further, because NRCs regulations are aimed at insuring that plants are safe rather than economical, the California law does not interfere with the objective of the federal regulation. No. Judgment of the Court of Appeals affirmed. Congress has allowed states to determine, as a matter of economics, whether a nuclear plant should be built. Thus, Congress has left sufficient authority in the states to allow the development of nuclear power to be slowed or stopped for economic reasons. Concurrence. Since the Court finds that California is not motivated by concerns of safety, this suggestion is unnecessary to the Courts holding. Discussion. The majority looks to the evils that each regulation is addressing. The federal Act is ensuring safety of nuclear plants whereas the California law is dealing with economic aspects of the plants. Therefore, the Court found no preemp

Modes of Preemption 1. a. Express Preemption: When an preemstion is expressed the only issue is if te state staute falls within the preeemted area b. Field Preeemtion: Presume againt preemution of state funtion, The Court requires a clear showing that Congress intened to occupy a field and displace the stte from acting in that zone. 1. Rice v. Santa Fe: Federeal intervention of hisortically state regulated field. If the field was historcally in the hands of the state than Congess must cleary stae that it intedes to take over the field. To determin if Congress intended to take over what was a state function can be seen in the fallowing ways: The shemce (set up) of te federal regulation is so detailed and persavive that is is a reasonable inference to infer that that the Congress left no room for the Sentate to act. OR The Congressional Act may touch a field that where federal intrest is so dominant that it can be assumed that Federal law will preemt the state lawfulness 2. Conflint Preemption: Pressume that federal law will preemt state law if the state law will hinder the actions of te federal govermant OR IF THE STAE IS TRYING TO ACT IN A FIELD THAT IS USALLY PRECIVED AS BRING WITHIN THE REALM OF THE FEDERAL GOVERMANT. In this section must consider of the federal regulation is the floor of the ceiling. Tis condiseration is ver fact specif. 1. Hienz v. Davidowitz: Opinion of the Court (Stae action hinders feeral actions) The Court applied the prong of preemption doctrine under which inquires whether "under the circumstances of [the] particular case, [state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."[1] Under the preemption doctrine, enforcement of a state alien registration law was barred by the federal Alien Registration Act. Justice Hugo L. Black emphasized the supremacy of federal power over this area of law:[2] That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court. When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land. No state can add to or take from the force and effect of such treaty or statute, for Article 6 of the Constitution provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The Federal Government, representing as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties. "For local interests the several States of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power." In his dissent, Justice Stone noted the absence of any conflict between state and federal laws or any express congressional prohibition of state regulation 2. Conflict Preemtion type 2 , Impossabilty.

Flordia Lime & Avacado v. Paul Brief Fact Summary. A California avocado oil law differed from a Federal avocado law. Florida Lime and Avocado Farmers sued because of the stricter California law precluded them from the Florida markets. Synopsis of Rule of Law. When a state and federal law exist with different standards, as long as they can coexist, the Supreme Court of the United States (Supreme Court) will not decide which one preempts the other one. Facts. Section 792 of Californias Agricultural Code, which gauges the maturity of avocados by oil content, prohibits the transportation or sale in California of avocados which contain less than 8% of oil, by weight excluding the skin and seed. In contrast, Federal marketing orders approved by the Secretary of Agriculture gauge the maturity of avocados grown in Florida by standards, which attribute no significance to the oil content. Therefore, California markets certain Florida avocados which although mature under Federal law do not satisfy Californias requirement of 8% oil. The Appellants, the Florida Lime & Avocado Growers Inc. (Appellants), challenge the California law under the Supremacy Clause of the United States Constitution (Constitution). Issue. When a state statute is different than a federal statute, which should apply? \Held. It does not matter because the two laws can co-exist. Discussion. There is no need to look into Congressional intent if compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce. There is no present record, which demonstrates an inevitable collision between the two schemes of regulation, despite the dissimilarity of the standards. Gade v. National Solid Waste Brief Fact Summary. Illinois and Congress both had legislation that regulated safety and health for people working with hazardous waste material. Synopsis of Rule of Law. Preemption may be either expressed or implied. Express preemption exists when Congress either explicitly states in the statutes language or preemption is implicitly contained in its structure and purpose. Implied preemption exists when there is field preemption (when the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it) and conflict preemption where compliance with both federal and state regulations is physically impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Facts. The statues that were the subject of this case were the 1988 Hazardous Waste Crane and Hoisting Equipment Operators Licensing Act and the Hazardous Waste Laborers Licensing Act of Illinois versus the federal Occupational Safety and Health Act of 1970 promulgated by the Occupational Safety and Health Administration (OSHA). The Illinois licensing acts required the license applicant to provide a certified record of at least forty hours of training under an approved program conducted within Illinois, to pass a written exam and to complete an annual refresher course of at least eight hours. The applications for the hazardous waste crane operators license must submit a certified record showing operation of equipment used in hazardous

waste handling for a minimum of 4,000 hours. The OSHA regulation required the workers to have forty hours of training off the site, a minimum of three days actual field experience under the supervision of a trained supervisor, managers would have an additional eight hours of specialized training on various health and safety programs and all were required to receive eight hours of refresher training annually. The OSHA regulation further expressed two areas that were saved from federal preemption. One was state worker compensation laws and the second was Section 18(a) which stated that the Act did not prevent any state agency or court from asserting jurisdiction under state law over any occupational safety or health issue with respect to which no federal standard is in effect. Section 18(b) allowed states to assume responsibility for the development and enforcement of occupational safety and health standards relating to those that the Federal standard addressed. Issue. Were the state licensing acts preempted by the OSH Act to the extent they established occupational safety and health standards for training those who worked with hazardous wastes? Held. Justice OConner opinion. Yes. Congress intended to subject employers and employees to only one set of regulations, be it federal or state, and the only way a state may regulate an OSHA-regulated occupational safety and health issue was pursuant to an approved state plan that displaces the federal standards. This is a case of conflict preemption because although the goal of both laws were the same, the states law stood in the way of the full implementation of the federal law. Congress sought to promote occupational safety and healths while at the same time avoid duplicative and possibly counterproductive regulation. Illinois contended that they wanted to only supplement and not supplant the federal regulation, however, Congress did not intend to let states supplement. The entire scheme was aimed to provide consistent uniform federal standards and encourage states to assume full responsibility for development and enforcement of their own plans if they so chose. The OSH Act preempts all state law that constitutes in a direct clear and substantial way regulation of worker and health safety. However, even if the state articulated a purpose other than health and safety regulation it still cannot avoid OSH Act preemption. That such a law may have a non-occupational impact does not render it any less of an occupational standard for purposes of preemption analysis. The key question is at what point the state regulation sufficiently interferes with federal regulation. Dissent. Justices Souter, Blackmun, Stevens and Thomas dissenting. The language of the statute failed to demonstrate the intent to preempt state law. The implication of Section 18(a) which states that the Act does not prevent any state agency or court from asserting jurisdiction under state law over any occupational safety or health issue with respect to which no federal standard is in effect, is that the provision rules out field preemption and is otherwise entirely compatible with the possibility that preemption will occur only when actual conflict between the regulations renders compliance with both impossible. The implication of Section 18(b) is that if a state wishes to take on a certain amount of the federal mandate they must gain approval of a plan. The dormant Commerce Clause could mitigate Section 18(c) concern for regulating interstate commerce. Section 18(h) was intended to allow for the possibility of just one transition from pre-Act state law to the post-Act state laws. The court instead reads it as requiring the employers and employees be subject to first their state laws, then after promulgation of a federal standard to that standard, and then after approval of a state plan, to a new state regime. Each provision of Section 18 could be read consistently with the others without any implication of

preemptive intent. Those provisions are consistent with a purpose and objective to permit overlapping state and federal regulations as with one to guarantee employers and employees are subject to only one regulatory regime. There is no conflict preemption if there is compliance with both standards. Concurrence. Justice Kennedy concurring in part and concurring in the judgment. Justice Kennedy finds that OSH Act preemption is express rather than implied. He finds express preemption by relying on the negative inference of Section 18(b), which governs when state law will preempt federal law. Past cases required a high threshold to be met if a state law is to be preempted for conflicting with the purposes of a federal Act. Congress intent must be determined from the language, structure and purpose of the statute as a whole. The structure and language of Section 18s other provisions leave little doubt that Congress intended to preempt supplementary state regulation as well. Discussion. Congress could draft legislation so that their intent is crystal clear and the court does not have to embark on a balancing test. Federal regulation may present preemption problems in regards to whether or not state law regulates interstate commerce. One example is in De Canas v. Bica 424 U.S. 351 (1976), which involved an alleged conflict between a California statute regulating employment of illegal aliens and the federal immigration laws. The Supreme Court of the United States has upheld a state law, forbidding employment of illegal aliens under the states police power, since it did not interfere with the exclusive federal power over aliens Another example is if State X enacted a statute requiring firms who do business with and for the state to prohibit nonresident aliens from engaging in any state related business activities. In evaluating the constitutionality of this law under the Supremacy Clause the treaties and immigration laws of the United States would be most directly relevant. Since Congress is vested with the primary authority to regulate immigration and aliens, any state legislation, which affects aliens, is likely to be preemp Wyeth v. Levine Brief Fact Summary. A woman lost her hand and forearm to gangrene when she was injected with Phenergan, an anti-nausea drug made by Wyeth. She won a jury verdict in Vermont under a theory Wyeth had failed to include an adequate warning on the drugs label. Synopsis of Rule of Law. Congress did not expressly intend for the FDCA to preempt all state common law tort claims, and with respect to prescription drugs, state tort law claims offer an additional important layer of consumer protection which complements, and does not obstruct, FDA regulation. Facts. Plaintiff Levine was treated for a migraine in an emergency room with an injection of the drug Phernergan manufactured by Defendant Wyeth, which can be injected intramuscularly or intravenously (IV-push), or put into an IV-drip. The drug is corrosive and causes irreversible gangrene if it enters a patients artery. While administering the IV into Plaintiffs vein, the drug somehow entered into an artery (either because it penetrated an artery or escaped the vein and mixed with arterial blood). Consequently, Plaintiffs forearm had to be amputated. After settling medical malpractice claims, Plaintiff brought common law negligence and strict liability claims for failure to provide an adequate warning of the risks of the drug. The FDA approved Defendants label in its new drug application, as well as in a subsequent revision of the labeling. The trial court jury found in favor of Plaintiff and awarded damages and disregarded Defendants preemption arguments. The Vermont Supreme Court affirmed because federal labeling requirements create a floor, not a ceiling for state regulation and Defendant could have

provided an additional warning for IV-push administration. Issue. If a drug meets the labeling requirements of the FDA, does that give rise to federal preemption of state law regarding inadequate labeling? Held. No, state common law claims do not provide an obstacle to the accomplishment of Congressional purposes in the FDCA. Discussion. [Justice Stevens] Defendant raised two arguments in favor of FDA preemption: a) impossible for it to comply with both state-law duties and federal labeling regulations, because the latter forbids it from changing its label without FDA approval; and b) allowing states to require stronger warnings creates an unacceptable obstacle to the accomplishment and execution of the full purposes and objectives of Congress, because it substitutes a lay jury's decision about drug labeling for the expert judgment of the FDA. The Court noted that in all preemption cases, the ultimate touchstone is the purpose of Congress, particularly where Congress has legislated in a field which the States have traditionally occupied. However, this must be balanced against the powers of the States, which shall not be superseded by a federal act unless that was the clear and manifest purpose of Congress. Defendants impossibility preemption argument that it cannot change its label after FDA approval is off-base, as there exists an FDA regulation (changes being effected or CBE) which allows a manufacturer to make certain changes to its label that add or strengthen a contraindication, warning, precaution, or adverse reaction or to add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug product. Defendant misplaces responsibility on the FDA, whereas it is always the manufacturers responsibility to craft an adequate label and ensure that its warnings remain adequate as long as the drug is on the market. Moreover, the FDA retains authority to reject CBE changesso absent evidence that the FDA would not have approved a change to the drugs label, it was not impossible for Defendant to comply with both federal and state requirements here. The argument that the state law duty obstructs the FDA regulation holds no merit, and is an overbroad view of an agencys power to preempt state law. If Congress thought state claims posed an obstacle to its objectives, it could have expressly preempted such claims. Citing Riegel, Congress only included a preemption provision which relates to medical devices, not prescription drugs. Its silence and knowledge of state tort litigation must mean that Congress did not intend FDA oversight to be the only means of ensuring drug safety. The FDAs opinion (in its 2006 agency preamble) that state law frustrates the agencys implementation of its statutory mandate does not merit deference either, because the Court has never deferred to an agency conclusion regarding preemption. Furthermore, the FDA for decades has relied on state tort claims to assist in uncovering unknown drug hazards and provide incentives to disclose safety risks promptly. The longstanding coexistence of state tort law and FDA regulation clearly undercuts the FDAs recent change of heart 2. Preemuption and the Foern affairs Powers: Looks like a field preemtion but is rarley evnoked/explained on those grounds. Crosby v. National : Facts Massachusetts passed a law black-listing companies that worked with Burma from state procurement. The NFTC represented companies on the black list.

Arguments Crosby: Because they share the same goal, there is no conflict between the statutes. Additionally, Congresss failure to preempt state acts implies permission. Procedural History District Court found statue unconstitutional and enjoined enforcement. Court of Appeals Affirmed. Issues Can a state enact legislation restricting its agencies authority to purchase goods from another country? Holdings & Court Order No, affirmed. Reasoning Fundamental the Constitution is the principle that Congress may preempt state law. Whether or not congress occupies the field, state law is naturally preempted if it conflicts with federal law. Congress intended to empower the President with flexible and effective authority over economic sanctions against Burma. It is implausible that Congress would have made the effort to do so if it was willing to compromise his effectiveness by deferring to any state or local law that would reduce Presidential discretionary action, which the Massachusetts law would it. The state laws sanctions are immediate and have no termination provision. This undermines the Presidents intended authority by inhibiting his ability to fully restrain the national economys coerce power when chooses to utilize his discretionary power. It compromises the Presidents capacity to speak in foreign relations with one voice for the nation. The Mass. statute conflicts with federal law at a number of points by penalizing individuals and conduct explicitly excluded or exempted from sanctions by Congress. The Mass. Statute restricts both foreign and domestic companies, while the federal statute limits its coverage only to US persons. The fact of a common end hardly neutralizes conflicting means. A failure to expressly preempt may reflect the settled nature of the implied preemption doctrine. Congress does not have to explicitly recognize a potential conflict of state and federal laws for such conflict to fall under the Supremacy Clause. Congressional Consent to State Power The restrictions which the dormant Commerce Clause imposes on state power are not explicitly stated in the Constitution but are inferred from the exclusive grant to Congress of the power to regulate interstate commerce. Therefore, the limitations which the Court imposes on state authority to regulate commerce may be reversed by Congress. Congress may enact laws empowering the states to interfere with interstate commerce in any given manner. 1. The McCArran Act and state discrimination in insureance: Prudential Insurance Co. v. Benjamin: 328 U.S. 408 (1946), argued 8 and 11 Mar. 1946, decided 3 June 1946 by vote of 8 to 0; Rutledge for the Court, black concurring in result without opinion, Jackson not participating. South Carolina imposed a 3 percent tax on the premiums received by outofstate insurance companies from policies written in the state but did not

impose a similar tax on South Carolina corporations. The Prudential, a New Jersey corporation, argued that in light of the Court's decision in United States v. SouthEastern Underwriters Association (1944), such a discriminatory tax imposed a burden upon interstate commerce and therefore exceeded the powers of the state. Congress, however, had reversed the SouthEastern decision in the McCarran Act of 1945 and explicitly delegated to the states the power to regulate and tax insurance companies. Justice Wiley Rutledge's opinion assumed that a tax discriminating between instate and foreign corporations constituted a violation of the Commerce Clause, but the Court upheld the tax in this case because Congress had consented to state regulation of insurance even if such regulation impinged on interstate commerce. Where earlier cases had held that states could act if Congress had failed to exercise its authority (e.g., Cooley v. Board of Wardens of the Port of Philadelphia, 1852), here the Court approved a consent authority for states to do w 2. Federal deleopmant Grants and local hire rules: White v. Massachusetts: Brief Fact Summary. The mayor of Boston issued an executive order that required all construction projects funded in whole or in part by the city funds to have a work force consisting of at least half bona fide residents of Boston. Synopsis of Rule of Law. When a state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause. The only question to ask is whether the program constituted direct state participation in the market. Facts. In 1979 the mayor of Boston, Massachusetts issued an executive order which required that all construction projects funded in whole or in part by city funds or funds which the city had the authority to administer, should be performed by a work force consisting of at least half bona fide residents of Boston. The Supreme Judicial Court of Massachusetts decided that the order was unconstitutional because of the Commerce Clause. Issue. Does the Commerce Clause prevent the city from giving effect to an order by the mayor that would require a workforce consisting of at least half bona fide residents on all construction projects funded by the city? Held. Justice Rehnquist opinion. No. Supreme Judicial Court of Massachusetts judgment reversed. To the extent the city expended its own funds, it was a market participant and therefore exempt from the Commerce Clause. To the extent that Congress provided the funds, the order was affirmatively sanctioned by the pertinent regulations. Congress is granted authority under the Commerce Clause and is not restricted in what it may do. Where state or local government action is specifically authorized by Congress, it is not subject to the Commerce Clause even if it interferes with interstate commerce. There is no Dormant Commerce Clause issue presented by the federal funds. The statute authorizing the federal programs shows that these programs were intended to encourage economic revitalization and improve opportunities for the poor, minorities, and the unemployed. The order was harmonious with those goals. Discussion. Alexandria Scrap, Reeves, and now White all stand for the idea that if the state is a market

participant it is not subject to the Commerce Clause. Here, it is important to note that Congress authorized the program and intended it to encourage economic revitalization. Congress has the final word on permissible state activity in interstate commerce. 3. Other Devices for Congressional ordering of federal-state relatinships: Besides preemstion and congressional conset the federal govermant can regulate p 243 bottom Check here to see if other things are allowed. RECONSTRUCTION AMENDMENTS Enactment Assignment: CB 694-96 Section 1: The Civil Rights Statutes of the Reconstruction Era: This section deals with the 13,14,15, Amendments and the enactemt of the Civil Rights acts og 1866, 1870, 1871,1875 1. Bacground on pages 694-695 Section 2L The Rewuierment of State Action Civil Rights Cases (The First Crack): Consalidation of five cases from four states lead to the fallowing points p 696. 14th amd only applies to state action, Taken from the 2nd line of the amdn. State are given a 1st crack at addresing civil right actions, congress steps in if the states doe't enforce the 14th on their own Court takes te stance that invidials cannot interfer only the state p697 13th Amd only grants civil rights Claims tha te issue of slaver is over in 20 years Dissent on page 698 totally disagrees The Scope and Limits of Stat Action after the Civil Rights Cases 1. The Civil rights cases invlaidated Congress restriction on private actors for the purpse of race iscrimination. Copurt cited respecting federlisim and aloowing staes to govern their own cizens as they see fit. 2. Public Function as a basis for state action (Public Function Anylisi): Marsh v. Alabama Brief Fact Summary. Marsh, a Jehovahs Witness, was arrested for trespassing after attempting to distribute religious literature in a privately owned Alabama town. Synopsis of Rule of Law. A private entity that acts like a governmental body and performs a public function is subject to the United States Constitution (Constitution). Facts. A Corporation owned a town called Chickasaw in Alabama. The town was accessible and used freely by the public except for the fact that the Gulf Shipbuilding Corporation owned title to the town and

paid the police. Marsh, a Jehovahs Witness was told she needed a permit to distribute her flyers. However, Marsh declined to obtain a permit and refused to leave the sidewalk. Marsh was arrested and charged with violating Alabamas anti-trespassing statute. Marsh claimed that applying the statute to her violated the First and Fourteenth Amendments of the Constitution. Issue. Is the Constitution applicable to privately owned towns? Held. Yes, it applies, because the town acts like a government body. The Supreme Court of the United States (Supreme Court) first recognizes that if Chickasaw had been a municipality the anti-trespassing statute would not be unconstitutional. The Supreme Court specifically states that a private town is not the same as a private homeowner. Meaning, it is not appropriate to suppress unwanted religious expression in the town like it would be in a private home. Discussion. The more an owner opens up his property to the public, the more the Constitution is applicable. Here, the town was treated like a town, where the public was free to do as they pleased. The fact that the property (the town) is privately owned, does not justify restricting fundamental liberties. Therefore, Alabamas attempt to convict Marsh cannot stand. (Enforcing othe Constutial amdments thourhg the 14th Amedment) Public Test Applied in another way Evens v. Newton Brief Fact Summary. A provision of a will left by a Senator Augustus Bacon (the Senator) conveyed a park to Macon, Georgia to be used by whites only. The provision was challenged under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. Operating a park is a public function and therefore, the owner is subject to the Fourteenth Amendment of the Constitution. Facts. Upon his death, the senator devised land to Macon, Georgia that was to be used as a park for whites only. The city was named trustee, and a Board of Managers was created under the trust to administer the park. The park was eventually opened by the city and Negroes were allowed to use it. The City argued they could not enforce segregation in a public park. The Defendants, individual Managers from the Board of Managers (Defendants) sued to remove the city as trustee so as to effectuate the Senators will. The city resigned as the trustee and a state court appointed private trustees to continue the exclusion of Negroes from the park. The Plaintiffs, a group of Negroes (Plaintiffs), intervened alleging violations of the Fourteenth Amendment of the Constitutions Equal protection clause. Issue. Is operating a park a public function and therefore subjected to the Fourteenth Amendment of the Constitution? Held. Yes, black people cannot be excluded because operating a park is a public function. Discussion. For years, the city used this park as a tax exemption. Therefore it was a public park. Just because the Senator gave money to private people to make it whites-only, does not mean the city can become untwined. Where tradition of municipal control becomes firmly established, substituting private trustees will not move the park from the public to private sector. Parks provide a municipal service that serves an entire community. Mass recreation is clearly in the public domain.

The White Primary Cases: The courts does like defiance of direct orders. Nixon v. Herdon: Found that exlusion of blacks in Democartic party a vilation of the 14th Amd Nixon v. Condon: Commit formed in response to Herdon that defined mebership to exculde blacks still inconstutional Groovey v. Townsend: Decided that 4he convenctin that committee was a private function and not subject ot 14th Amdment. Smith v. Allwright: overturned Rovvey by applying Classic(Stated that Art 1 Sec 4 allows cong ressional control of enies that are apart of the electtion process) and thus deemed elction bodies a part of the public realm and subject to 14,15,13 amdments Public function test ultimaly limited: p702 3. State enforment of private agreements: Shelly v. Kraaemer Shelly v. Kraemer Brief Fact Summary. Petitioners Shelley, who were black, bought a home in a neighborhood in which thirty out of thirty-nine parcel owners had signed a restrictive covenant which stated that no home was to be sold to any person who was black, which led to the suit by the neighborhood to undo the sale of the property to Shelley. Synopsis of Rule of Law. The Fourteenth Amendments guarantee of equal protection applies in this case to prohibit the enforcement of the restrictive covenant at issue due to the fact that the provisions of the Fourteenth Amendment apply only where there is state action, which is found in this case due to the action of the Supreme Court of Missouri in enforcing the agreement, the result of which is to deprive the Petitioners of their property. Facts. On February 16, 1911, thirty out of thirty-nine property owners in a neighborhood in St. Louis, Missouri entered into a restrictive covenant which stated that for a term of fifty years no property in the neighborhood could be sold or rented to any black or Asian persons. On August 11, 1945, Petitioners Shelley, who were black, bought a property in the neighborhood from Fitzgerald, and Petitioners were not aware of the restrictive covenant at the time of the purchase. Respondents, who were the other owners in the neighborhood, sued in the Circuit Court of St. Louis on the basis of the restrictive covenant with the intention of having the Court divest the Petitioners of their newly acquired property and revert title to Fitzgerald, or to some other person at the Courts discretion. The Circuit Court declined to enforce the agreement on the basis that not all of the property owners had signed the original covenant. The case was then appealed to the Missouri Supreme Court which rev ersed the Circuit Courts decision and held that the provisions of the covenant were enforceable against Petitioner. Petitioners then appealed to the U.S. Supreme Court. Issue. Does the action of the state court in enforcing the restrictive covenant deprive Petitioner of rights guaranteed by the Fourteenth Amendment and acts of Congress? Held. Yes. The judgment of the Supreme Court of Missouri is reversed. First, the Court noted prior decisions and found that the restrictive agreements, standing alone, could not be regarded as a violation of any Fourteenth Amendment rights. The Court found that the requirement for state action was not met in a purely private and voluntary covenant. However, the Court found that in this

case there was state action by virtue of the Supreme Court of Missouris decision to enforce the restrictive covenant. The Court found that state action includes actions by legislative bodies and also courts and judicial officials. The Court held that in granting judicial sanction to an agreement which, by its terms, would deprive the Petitioners of equal protections guaranteed by the Fourteenth Amendment is an action which cannot stand. Therefore, the Court held that the Supreme Court of Missouri had to be reversed. Because the Court decided the case on the question of equal protection it was unnecessary to consider the Petitioners arguments regarding due process and whether the Petitioners had been denied privileges and immunities accorded to citizens of the United States. Discussion. This is a case which relates to the case of Jones v. Alfred H. Mayer Co., infra, where the Court revisits this decision and expands the prohibition against this type of restrictive covenant to both public and private discrimination. It is illustrative to compare the decisions and consider the evolution of legal preced State Action After Shelley 1. The Scope of Shelly: Barrows exteded Shelly to racilly exluclusive covanrts but in Evens that barred a park willed to conty to be whites only was not percimable under impossailty not that it is a a state action. After Evens it sseems that the state can not inforce a testment that includes racial exclusino/ Girad College . 2. Significant state invloivment in Racially Discrimaroty action: Burton v. Willingmonton: rversed allowanes of race based exclusion of blacks because while the business was proivate it was located and using state owned facilites Brief Fact Summary. The Appellant, Burton (Appellant), brought an action under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution), claiming he was discriminated against because the Appellees, the Wilmington Parking Authority and the Eagle Coffee Shoppe, Inc. (Appellees), refused to serve him in their restaurant based solely on the Appellants race. The Appellant claims there is state action sufficient to bring a Fourteenth Amendment claim, as the Eagle Coffee Shoppe, Inc. leased its restaurant space from the City and the restaurant was attached to the Wilmington Parking Authority a City owned parking garage. Synopsis of Rule of Law. There is significant state involvement to permit an action under the Fourteenth Amendment of the Constitution when a state leases public property to a private actor who then discriminates against nonwhites Facts. The City of Wilmington created the Wilmington Parking Authority to construct parking and commercial facilities. The Wilmington Parking Authority leased a spot attached to the facility to a commercial tenant who opened a restaurant. The lease contained no requirements that the restaurant serve the general public on a nondiscriminatory basis. This action was commenced because the restaurant refused to serve the Appellant solely because he was a Negro. The Appellant sued under the Equal Protection Clause of the Fourteenth Amendment of the Constitution. The Supreme Court of the United States (Supreme Court) found the building where the restaurant was located was publicly owned and dedicated to public use in performance of the States essential government functions. Issue. Whether there was state action significant enough to permit an action under the Equal Protection Clause of the Fourteenth Amendment of the constitution. If so, whether the action was

discriminatory under the Equal Protection Clause of the Fourteenth Amendment of the Constitution. Held. Reversed. The exclusion of the Appellant was a discriminatory state action in violation of the Fourteenth Amendment of the Constitution. Dissent. Before deciding this case, it should be sent back to the state court for clarification of its decision. Concurrence. In concurrence with the majoritys opinion, the concurring justice reached the same conclusion differently. Discussion. State action is a prerequisite to the assertion of rights contained in the first eight amendments and the fourteenth amendment. State action will be found when a private actor has acted if (1) the state has delegated a traditional state function to a private entity or (2) because the state has become entangled with a private entity or because the state has approved, encouraged or facilitated private conduct. In Burton, there was significant state involvement, as the state owned the public parking facility, to trigger a state action under the Fourteenth Amendment of the Constitution. 3. State invilvement through licening: Moose Lodge No. 107 v. Irvis Brief Fact Summary. The Appellee, Irvis (Appellee), brought suit against the Appellants, Moose Lodge No. 107 (Moose Lodge) a private club and the State liquor board (Appellants) alleging discrimination under the Fourteenth Amendment of the United States Constitution (Constitution) because of the clubs policies against non-whites. Synopsis of Rule of Law. The granting of a liquor license to a private club that discriminated against non-whites does not significantly involve the state as to constitute a state action. Facts. Moose Lodge is a local branch of a national fraternal organization. Lodge policy restricts membership to whites and prohibits member from bringing black guests to the lodge dining room and bar. The Appellee, a black, was refused service because of his race. The Appellee filed an Equal Protection Action naming against the Appellants. The Appellee claimed because the State Liquor board had issued Moose Lodge a license that authorized the sale of alcoholic beverages on its premises, the refusal of service was a state action. The trial court granted an injunction restricting the Appellants liquor license until they stopped discriminating. The Supreme Court of the United States (Supreme Court) stated there needs to be significant state involvement with invidious discrimination in order for there to be a state action. Issue. Whether the State liquor boards issuance of a liquor license to a private club located on private property constitutes significant state involvement, thus, permitting an action under the Fourteenth Amendment of the Constitution? Held. Reversed. Issuance of a state liquor license to a private club does not constitute significant state involvement. The State played no part in establishing or enforcing the membership or guest polices of the club that it licenses to serve liquor. The State does not discriminate against minority groups in its ability to obtain a liquor license themselves. The state does not in any way encourage racial discrimination, nor, is it a partner or a joint venture with Appellant. Dissent. The fact that the quota for obtaining liquor licenses in Pennsylvania is now full and no more club

licenses may be obtained, restricts the ability of blacks to obtain liquor, for liquor is commercially available only at private clubs for a significant portion of each week. The State could allow this permit to go to a club who meets racially neutral qualifications. When the club obtained its liquor license, the State became an active participant in the operation of the club. Discussion. State action is a prerequisite to the assertion of rights contained in the first eight amendments of the Constitution and the Fourteenth Amendment of the Constitution. State action will be found when a private actor has acted if (1) the state has delegated a traditional state function to a private entity or (2) because the state has become entangled with a private entity or because the state has approved, encouraged or facilitated private conduct. In this case the majority of the Supreme Court found the issuance of a liquor license to a club that discriminates against non-whites does not significantly involve the state enough to constitute a state actioion 4. State encouragment of private discriminatoin Brief Fact Summary. Respondents Mr. and Mrs. Mulkey attempted to rent an apartment owned by Petitioner Reitman. Respondents allege that Petitioner refused to rent to them solely based on their racial status. Respondents then filed suit to demand an injunction to allow them to rent the apartment and for damages as a result of the discrimination. Synopsis of Rule of Law. State action can be invoked if a state law significantly encourages and involves the State in private discrimination. Reitman v. Mulkey Facts. The Respondents are husband and wife, and sued under Section:51 and Section:52 of the California Civil Code, which prohibit discrimination in housing decisions based on an individuals racial status, alleging that Petitioner refused to rent them an apartment solely based on their racial status. Respondents demanded an injunction and damages as a result of this discrimination. Petitioners filed a motion for summary judgment on the grounds that section 51 and 52 have been invalidated by proposition 14, later Art. I Section: 26 of the California Constitution, which banned fair housing measures in the State of California. The trial court granted the motion, and the California Supreme Court reversed on the grounds that Art. I Section: 26 denied equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution. Issue. Whether Art. I, Section: 26 of the California Constitution denies to any person the equal protection of the laws within the meaning of the Fourteenth Amendment of the Constitution of the United States? Held. Yes. This provision does not just repeal an existing law forbidding private racial discriminations, but Art. I Section: 26 of the California Constitution does more, it was intended to authorize, and does in fact authorize racial discrimination in the housing market. The right to discriminate became one of the basic policies of the State. The Court agrees with the California Supreme Court that this section significantly encourages and involves the State in private discriminations. The Court further agrees with the California Supreme Court in this case that section 26 changed the status of the law from one that restricted discriminatory practices to one that through its authorization in this section makes the state a partner in the act of discrimination. It is this authorization and partnership in discrimination that rises to the level of state action under the Fourteenth Amendment, because those who discriminate can now do so

under express constitutional authority. Dissent. The holding of the Court handicaps progress in the field of racial concerns. The dissent also feels that the Court is shortsighted in believing that the State of California authorizing discrimination through the enactment of section 26, and instead sees the section as an attempt to retain state neutrality. The dissent further believes that the state action required to bring the Fourteenth Amendment into operation must be affirmative and purposeful, actively fostering discrimination. The enactment of section 26 does not fall into this area, and therefore disagrees with the opinion of the majority. Concurrence. Agrees with the decision of the Court but would like to see the real estate brokerage business, like the telephone companies and hotel business, be made to require service to all without discrimination. This is conditioned by the demands of the Equal Protection Clause of the Fourteenth Amendment. Discussion. The Supreme Court, in deciding this case, has provided another instance in which state action can be said to occur. If a regulation explicitly allows discrimination then, with this holding, the state is said to have partnered with any private party that in fact discriminates with this authorization. In these cases the private party can be held to have performed state action, and must provide the guarantees purported in the Fourteenth Amendment. While the majority holds that if the regulation allows discrimination, the dissent prefers a regime that finds state action only if the state actively fosters discrimination. In analyzing a case concerning state law, it is helpful to think of the case in terms of a spectrum of state action, and see where, in respect to the current law in this field, the fact pattern lies on this spectrum. Jackson v Metropolitan Edison Co. More important than Marsh Brief Fact Summary. The Respondent, Metropolitan Edison Co. (Respondent), a private utilities company was held not to be a state actor and therefore, the Petitioner, Catherine Jackson (Petitioner), was not entitled to continuous electrical service nor did the companys termination of electrical services constitute a deprivation of her property without procedural due process. Synopsis of Rule of Law. A private company that does not have specific authorization by the state to act, is not acting on behalf of the state. Facts. The Petitioner brought a federal civil rights action under 42 U.S.C. Section:1983 against the Respondent, a private company subject to extensive state regulation because it held a certificate public convenience from the Pennsylvania Public Utilities Commission (PPUC) empowering it to deliver electricity to a specific area. Petitioner sought damages and injunctive relief against Respondent for terminating her electrical service for alleged nonpayment, claiming she had not been afforded notice, hearing and an opportunity to pay amount due. She claimed that under state law, she was entitled to reasonably continuous electrical service and that the Respondents termination constituted state action without procedural due process. The lower courts dismissed her claim. Issue. Whether Respondents termination of Petitioners electricity constituted state action? Held. No. Judgment of the lower state courts affirmed. Although Respondent had a monopoly, that fact is not determinative in considering whether Respondents termination of service constituted state action. Approval by a state utility commission of such a request from a regulated utility, where the PPUC has not put its weight on the side of the proposed practice by ordering it, does not transform a practice initiated by the utility and approved by the PPUC into state action. All of Petitioners arguments taken together

show no more than that the Respondent was a heavily regulated private utility, enjoying a partial monopoly and that it elected to terminate service to Petitioner in a manner which the PPUC found permissible under state law. Dissent. The states involvement with the utility company was sufficient enough to satisfy state action. Discussion. This case shows that the public function doctrine is not to be read broadly. Limitis on State Action afyer Jasckson and Moose Lodge 1. Insufficaebcy of state acquience. Flagg Bros., Inc v. Brooks Brief Fact Summary. Respondent Shirley Brooks was evicted from her home, and her possessions were moved to a warehouse owned by Petitioner Flagg Brothers, Inc. After a dispute over fees, and a large amount of fees remained unpaid by Respondent, Petitioner threatened to sell Respondents possessions. Respondent then filed suit for damages and for an injunction against selling her possessions. Synopsis of Rule of Law. An action by a private party does not rise to state action, guaranteeing rights guaranteed by the Due Process Clause of the Fourteenth Amendment, unless the action is compelled by the state. Permission through state law does not rise to the level of being compelled by the state, nor does refusal to act by the state court rise to the level of being compelled by the state. Facts. On June 13, 1973 Respondent and her family were evicted from their apartment in Mount Vernon, New York. The City Marshal arranged for Brook possessions to be stored by Petitioner in their warehouse. Respondent was informed about the cost of moving and storage, and found this price to be too high. On August 25, 1973, after a series of disputes over the charges, Respondent received a letter from Petitioner demanding she bring her account up to date in ten days or her furniture will be sold. Respondent then initiated this class action under 42 U.S.C. Section: 1983 seeking damages; an injunction against the sale of her belongings and a declaration that such a sale violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court dismissed the complaint, while the Court of Appeals reversed. Issue. Whether Flagg Brothers action may fairly be attributed to the State of New York? Held. No. Flagg Brothers action is not attributed to the state itself. Only a state or a private person whose action maybe fairly be treated that of the state itself may deprive an individual of an interest protected by the Fourteenth Amendment. It is important to note that Respondent named no public officials in her action. The City Marshal, who supervised Respondents eviction, was dismissed from the case by the consent of all parties earlier in the case. Respondents contention that Petitioners action is properly attributable to the state because the state and has authorized and encouraged it in enacting the law is also misplaced. The state is responsible for the actions of a private party only when the state, by its law, has compelled the action by the private party. The Supreme Court has never held that a states mere acquiescence in a private action converts that action into that of the state, and refuses to do so here. Here the State of New York has not compelled the sale of a bailors goods, but merely announced the circumstances under which its courts will not interfere with a private sale. Respondents contention in this case is not how the state acted, but how the state refused to act. The statutory refusal to act is no different from a statute of limitations whereby the state declines to provide a remedy for private deprivations of property after the passage of a period of time.

Dissent. The derived power of a warehouseman to sell the possessions of the Respondent flows directly from state. The question in this case then is whether a state statute authorizing a private party to deprive a person of his property without his consent must meet the requirements of the Fourteenth Amendments Due Process Clause. Since the framework of rules that facilitate commercial transactions is premised on the assumption that the state will control nonconsensual deprivations of property, the states control will in turn be subject to the restrictions of the Due Process Clause. Therefore the decision by the Court, creates a dichotomy of governmental legislation and governmental action by allowing the transfer of implementation of policy to private parties to avoid the requirements of the Fourteenth Amendment. The dissent concludes by saying that the Fourteenth Amendment does not provide this division and responsibility and therefore strongly disagrees with the majoritys holdin Discussion. This case places important limits on the nexus of state action. Here the Court definitively states that a state statute allowing a private party to take an action does not rise to the level of state action because it allows action. For a statute to rise to the level of state action it must compel the action to take place. If the Court, on the other hand, took the stance held by the dissent, many actions by private parties that are merely authorized by state statute would rise to the level of state action and be guaranteed the high level of due process protections guaranteed by the Fourteenth Amendment. 2. The insufficincy of stateregulation or subsudies Blum v. Yaretsky Brief Fact Summary. The Respondent, Yaretsky (Respondent), is a Medicaid recipient who was transferred from a nursing home to a lower level of care in a health related facility after case review by the nursing homes utilization review committee. Respondent alleges that this transfer was done in violation of his rights and federal law under the Due Process Clause of the 14th Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. Private entity decisions are not converted to state action simply because the state reacts to the decision. Facts. Medicaid recipients have nursing home stays paid for by the City of New York if they meet specific eligibility criteria. Federal regulations require each nursing facility to establish a utilization review committee (URC) of physicians who periodically review patient cases for appropriate patient placement. The URC may decide that a patient does not need the intensive level of care found in the nursing home and transfer the patient to a lower level of care. In 1975 the URC decided that Respondent should be transferred to a health related facility providing a reduced level of care. Respondent was transferred without notice or benefit of administrative hearing to challenge the decision. Issue. Did the decision by a nursing home committee to transfer a Medicaid patient to another facility violate his Due Process rights under the Constitution? Held. No. The decision was based on independent medical judgment made by private parties. The fact that the state responded by adjusting the benefits does not make the state responsible for the decision to transfer the patient. There is no indication that these decisions were influenced by the states obligations

to adjust payment accordingly. Dissent. The majority oversimplified the problem by mischaracterizing the facts. The state is heavily involved in the placement of the patients, as this is just a legislative means of cost containment. The state encourages these medical judgments to help achieve its legislative goals. So, the state and the nursing homes are closely intertwined and interdependent for their financial survival. Discussion. The majority provides a nice review of the three axioms for determining when there is state action by a private entity. They are as follows: Being subject to state regulation does not convert a private action into state action, A state is responsible for a private decision only when it has exercised coercive power or has provided significant encouragement of the decision, or The private entity has exercised powers that are traditionally the exclusive prerogative of the state. 3. The Insufficiency of state inaction: DEShaney v. Winnebago County Social Servs, Dept Brief Fact Summary. Custody of petitioner was given to his father, who was accused of multiple incidents of child abuse. Respondent child services failed to take custody of petitioner, and petitioner and his mother brought suit against respondents. Synopsis of Rule of Law. The affirmative duty to protect arises not from the States knowledge of the individuals predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his on behalf. Facts. Petitioner Joshua DeShaney was born in 1979, and custody of him was awarded to his father in 1980. In 1982 authorities first learned petitioner might be a victim of child abuse when his second wife complained to police. The County Department of Social Services (DSS), respondents, interviewed the father, but he denied the accusations and DSS did not pursue it further. In 1983 petitioner was admitted to a local hospital with multiple bruises and abrasions. The physician suspected child abuse and notified DSS. DSS obtained an order placing Joshua in the temporary custody of the hospital. The county convened an ad hoc Child Protection Team, which decided there was insufficient evidence of child abuse to retain petitioner in the custody of the court. The Team recommended several measures to help protect petitioner. A month later emergency room personnel again called the DSS caseworker to report that petitioner had again been treated for suspicious injuries. The caseworker concluded there was no basis for action. The caseworker made monthly visits to the home. She observed a number of suspicious injuries on petitioners head. She also recorded that the measures suggested were not being complied with. In November 1983 DSS was again notified that petitioner was treated for suspected child abuse by the hospital. On the caseworkers next two visits, she was told that petitioner was too ill to see her, but DSS still took no action. In March 1984, father beat petitioner so severely that he fell into a life-threatening coma. He suffered severe brain damage and was expected to spend the rest of his life confined to an institution for the profoundly retarded. Father was convicted of child abuse. Issue. Did the court correctly grant summary judgment against petitioner in petitioner and his mothers 42 U.S.C. Section:1983 action alleging that respondents deprived petitioner of his liberty without due process of law by failing to intervene to protect him? Held. The court acted correctly because the State had no affirmative duty to protect petitioner under the Due Process Clause.

The Due Process Clause provides that no State shall deprive any person of life, liberty, or property, without due process of law. Nothing requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is a limitation on the State, not a guarantee of minimal levels of safety and security. Petitioners contend that such a duty may arise out of certain special relationships created or assumed by the State. They assert that such a relationship existed here because the State knew that petitioner face a special danger of abuse and specifically proclaimed its intention to protect him. They argue that by having actually undertaken to protect him, it acquired an affirmative duty under the Due Process Clause to do so in a reasonably competent manner. The precedent the petitioners point to stands only for the position that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The affirmative duty to protect arises not from the States knowledge of the individuals predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his on behalf. In substantive due process analysis, it is the States affirmative act of restraining the individuals freedom that is the deprivation of liberty triggering the protections of the Due Process Clause. Petitioners concede the harms petitioner suffered did not occur while he was in the States custody. The State played no part in their creation, nor did it do anything to render him more vulnerable. At worst, the State stood by and did nothing when suspicious circumstances dictated a more active role. Had they moved too soon, it could have been charged with improperly intruding into the parent-child relationship. Dissent. I would focus first on the action that Wisconsin has taken with respect to Joshua and children like him. The Courts initial fixation that the Constitution does not establish positive rights does not hold true in all circumstances. Precedent has acknowledged that a States actions may sometimes impose upon the State certain positive duties. Wisconsin law directs its citizens to depend on local departments of social services such as respondent to protect children from abuse. I would allow petitioners the opportunity to show that respondents failure to help him arose from the kind of arbitrariness that we have in the past condemned. It is a sad commentary that this child will spend the reminder of his life profoundly retarded, but the Court now denies him the opportunity to have the fact of their case considered. Discussion. The majority found that the State accrued no positive duty under the Due Process Clause to protect petitioner, while the dissent would have not confirmed the summary judgment, permitting petitioners the opportunity to prove that the State had a positive duty to protect.

4. Secisions finding state action: While the past actions above set the trend that the finding of state action is limited tther have been isstances where state action has been found. a. Lugar v. Edmondson:

Brief Fact Summary. The Appellant, Lugar (Appellant), owed the Appellee, Edmondson Oil Co. (Appellee) money. In order to prevent the Appellant from disposing of his property before paying his creditors, the Appellee filed an ex parte petition and had the local sheriff exercise a prejudgment attachment on the Appellants property. Synopsis of Rule of Law. Conduct is fairly attributed to the state when (1) it is caused by the exercise of a right created by the state and (2) the actor is one for whom the state is responsible. Facts. The Appellant was a lessee-operator of a truck stop who owed his supplier, the Appellee money. The state law permitted the Appellee to file an ex parte petition based solely on the belief that the Appellant might sell his property to avoid paying creditors. The state granted the prejudgment writ of attachment and sent the local county sheriff to exercise it. But, the Appellant maintained possession of the property. A hearing was conducted after the attachment to determine the validity of the attachment. Thirty-four days after the levy, the trial judge dismissed the attachment for the Appellees failure to establish the alleged statutory grounds for the attachment. The Appellant subsequently sues the Appellee on the grounds that it acting jointly with the state took his property without due process of the law Issue. When is a private persons actions so entangled with the actions of the government as to be construed as state action? Has the attachment of the prejudgment lien resulted from the exercise of a right or privilege having its source in state authority? Is the Appellee a state actor? Held. In order for the Supreme Court of the United States (Supreme Court) to find state action, a two-part test must be satisfied. First, the deprivation must be caused by the exercise of some right or privilege created by the state, or a rule of conduct imposed by the state, or by a person for whom the state is responsible. Second, the party charged with the deprivation must be a state actor by virtue of being a state official, by acting together with or getting significant assistance from a state official, or because his conduct is otherwise attributable to the state. Yes. Since the ex parte procedure is one dictated by state statute then the first prong is satisfied. Yes. A private partys joint participation with state officials in the seizure of property is sufficient to characterize that party as a state actor for purposes of the 14th Amendment. Such joint participation does not require something more than invoking the aid of state officials to take advantage of the states procedures. Discussion. Because the Appellee relied upon the state statute and the help of the sheriff, his actions were considered state action. Had the sheriff not been involved and the statute provided a self-help option for creditors, then Appellee would not have been classified as a state actor. b, Edmonson v. Leesville Concrete Co. Brief Fact Summary. The Appellant, Edmonson (Appellant), was injured at a construction site and brought suit against his employer, the Appellee, Leesville Concrete Co. (Appellee), in Federal District Court. During voir dire, the Appellee used two of its three preemptory challenges to excuse black persons. The trial proceeded with 11 whites and 1 black. They found Appellant to be contributorily negligent and awarded him $18,000 in damages. Synopsis of Rule of Law. Exercising peremptory challenges in a civil dispute is a form of state action by

a private actor. Facts. Appellant was a construction worker who was injured on the job while working for Appellee. Appellant is suing Appellee for negligence, claiming that an employee allowed a truck to pin him against construction equipment. During voir dire, the Appellee used 2 of 3 peremptory challenges to excuse black persons from the jury. Appellant requests an explanation for the excuses that is not race-based. But, the United States District Court for the Western District of Louisiana denied the request because this was a civil trial. Issue. May a private litigant in a civil case use preemptory challenges to exclude jurors based on race? Held. No. Discriminating on the basis of race in a civil trial versus a criminal trial is no less harmful to the potential juror. It violates the equal protection rights of the juror. Because the attorney for Appellee used the preemptory challenges and the courtroom to discriminate he was, according to the Lugar test, a state actor. Discussion. The majority applies the two-part test as described in Lugar to extend the holding in Batson v. Kentucky (1986) to civil litigation. Clearly, peremptory challenges were created exclusively for courtroom use and are, therefore, state action. But, here, the Supreme Court of the United States (Supreme Court) provides three attributes that determine whether conduct is governmental in nature: (1) extent to which the actor relies on governmental assistance; (2) whether the actor is performing a traditional governmental function, and (3) whether the injury caused is aggravated by the incident. c. Brentwood Acadamy v. Tennesse Secondary School Brief Fact Summary. A Tennessee Athletic Association, a private association made up of mostly public schools, is sued by a private school for suspending the private school from competition. Synopsis of Rule of Law. A private organization can be considered a state actor if there is sufficient entwinement between the state and the organization, such as here where the majority of members are public schools, and the leadership and governing body is made up of public school officials acting within their official capacity. Facts. Tennessee Secondary School Athletic Association is a not-for-profit membership corporation organized to regulate interscholastic sport among private and public high school in Tennessee. Even though no school is forced to join, 84% of the membership comes from public schools, which is almost all of the states public schools. There is no other authority regulating athletic competition, and a schools team can only play against the team of another member school. The association has a legislative arm, and a control board, and the voting membership is limited to high school principals, assistant principals and superintendents elected b y the member schools. Member schools pay dues, but the bulk of the funding comes from the member teams athletic tournaments, many held at public arenas rented by the association. Ever since the association was incorporated, Tennessees State Board of Education has acknowledged the associations functions in providing standards, rules and regulations for interscholastic competition. It even adopted a rule expressly designating the association as the organization to supervise and regulate athletics. Brentwood sued the academy when, in 1997, the board of control found that Brentwood violated a rule prohibiting undue influence in recruiting athletes, and placed the athletic program on probation for four years, making them ineligible to compete in playoffs for two years, and imposed a $3000 fine. At the

time the penalties were imposed all voting members were public school administrators. Issue. Does a statewide athletic association, incorporated to regulate competition among public and private secondary schools, engage in state action? Held. Yes. The association should be treated as state activity because of the entwinement of state school officials in the structure of the association. Dissent. (Thomas) The dissent feels that you can not find state action based on entwinement alone, for there to be a state actor, but rather, the private actor needs to be performing a public function, created coerced or encouraged by the government or acting in a symbiotic relationship with the government. The dissent focuses on the fact that schools are not required to join, the state does not fund the association, nor does it offer discounts to use state venues, does not provide a tax exemption and no TN law authorizes the association. In addition, the stat has never had any involvement in the particular action being taken by the association in this case. Moreover, the association does not nothing traditionally or exclusively reserved for the state. Discussion. The Constitution usually applies to only state actors, but there are certain instances where private organizations must be treated as state actors. State action may be found if, and only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself. The court does not look to one factor, but a totality of the circumstances when determining if there is such a close nexus. Here, since 84% of the membership is made up of public school, which are not private actors, and each school is required to send an administrator of its school, and the governing body is made up of those individuals acting within their official capacity as state employees, there is no recognizable Associationwithout the public school officials. In addition, these school officials not only make up membership, but also control the association, making the separation between the association and the public schools indistinguishable. Section 3. Congressional Power To Reach Private Ineterference with Constitutional Eights His section foucuses on federel constatutinal rights. Congress may protect statutes it has enacted against private interference United States v. Guest: Brief Fact Summary. Upon addressing specific issues of statutory construction, the Supreme Court of the United States (Supreme Court) reversed the dismissals of the Defendants, Guest and others (Defendants) indictments. Synopsis of Rule of Law. 18 U.S.C. Section:241 does encompass Fourteenth Amendment constitutional rights. Facts. Six Defendants were indicted for criminal conspiracy in violation of 18 U.S.C. Section:241. The indictments alleged a single conspiracy by the Defendants to deprive black citizens of the free exercise and enjoyments of several specified rights secured by the United States Constitution (Constitution) and laws of the United States. The charges involved the killing of a black reserve officer. The federal

indictment was brought after the Defendants had been acquitted of murder in a Georgia court. The Defendants successfully moved to dismiss the indictment on the ground that it did not charge an offense under the laws of the United States. Issue. Whether the federal indictment is based on an offense under the laws of the United States? Held. Yes. Judgment of the District Court reversed and remanded for further proceedings. Section 241 does encompass Fourteenth Amendment constitutional rights. Here, the indictment contains an express allegation of state involvement sufficient at least to require denial of a motion to dismiss. The allegation of official involvement is not clear, but it is broad enough to encompass conduct amounting to official discrimination sufficient to constitute denial of rights protected by equal protection. The second dismissal mentioned in the case was in error as well because the right to travel occupies a position fundamental to the concept of our Federal Union. If the predominate purpose of the conspiracy is to prevent the exercise of the right of travel, or to oppress a person of that right, as was the case here, then whether or not motivated by racial discrimination, the conspiracy becomes a proper object of federal law under which the indictment was brought. Therefore, the federal indict ment is based on an offense under the laws of the United States. Dissent. Section 241 reaches such a private conspiracy, not because the Fourteenth Amendment of the Constitution of its own force prohibits such a conspiracy, but because Section:241, as an exercise of congressional power under Section:5 of that Amendment, prohibits all conspiracies to interfere with the exercise of a right secured by the Constitution. The dissenting judge disagrees to the extent that it is held that Section:241 reaches conspiracies, embracing only the action of private parties, to interfere with the right of citizens freely to engage in interstate travel. Concurrence. Section 5 empowers Congress to enact laws punishing all conspiracies. Discussion. The majority uses statutory interpretation to reverse the Defendants indictment in this case. Criminal Sactions For Private Interference with 14th Amdemet Rights 1. Degree of Stte Involvement: In Guest the qustion if the 5th Amdement reaches private action was not answered. United States v. Price: Brief Fact Summary. Plaintiff, Kirby Lumber Co., issued bonds in a large amount and retired a portion of these by purchasing in the open market at below par value. Synopsis of Rule of Law. If bonds are purchased and retired at a price less than the issuing price or face value, then the excess of the issuing price or face value is gain or income for the taxable year. Facts. Kirby Lumber, Plaintiff, issued bonds for $12,126,800 and received par value. Later the same year it purchased some of the same bonds at less than par in the open market, with a difference of $137,521.30. Issue. Is the difference taxable gain or income for the Plaintiff? Held. Justice Holmes issued the opinion for the Supreme Court of the United States in holding that the difference should be considered as taxable gain or income.

Discussion. The Supreme Court notes that in this case there was no shrinking of the assets and taxpayer had a clear gain. Taxpayer gains assets by offsetting the bonds. Screws v. Unted States The U.S. Constitution grants to the U.S. Congress only a limited range of lawmaking authority. Perhaps the most significant source of congressional regulatory authority lies in its power to regulate interstate commercea power broadly defined in such important cases out of Georgia as United States v. Darby (1941) and Heart of Atlanta Motel v. United States (1964). Another distinctively important grant of authority, however, permits federal legislators to enact "appropriate legislation" to enforce the Fourteenth Amendment's prohibition on state action that denies persons "the equal protection of the laws" or deprives persons of "life, liberty, or property, without due process of law." Close on the heels of the ratification of the Fourteenth Amendment in 1868, Congress passed several civil rights statutes, including one that makes it a federal crime for a person "willfully" to deprive another of "any rights, privileges, or immunities secured by the Constitution" if the deprivation occurs "under color" of state law. This statute lay largely dormant for decades, but in 1943 the federal Justice Department invoked it in the Screws case to prosecute three Baker County law enforcement officers, including Sheriff Screws, who allegedly killed an African American by "beating him with their fists and with a solid-bar blackjack" in the absence of provocation following his arrest for the suspected theft of a tire. After the defendants were convicted in federal court, the U.S. Supreme Court in Screws ordered a new trial, reasoning that the trial judge had not given accurate instructions to the jury on the meaning of the statutory term "willfully." (Justice William Douglas observed that "even those guilty of the most heinous offenses are entitled to a fair trial," and in fact, upon retrial, all three defendants were acquitted.) The key precedent established by the Screws case, however, came in the Supreme Court's declaration that the taking of the victim's life had, despite the defendant's contrary argument, occurred "under color" of state law so that a prosecution under the federal civil rights statute in federal court was permissible. Three of four dissenting justices argued that the beating did not meet the "under color of state law" requirement because the defendants had violated, rather than adhered to, the laws of the state according to the prosecution's own evidence in the case. The dissenters also urged that permitting a federal prosecution for what they viewed as essentially a local murder would work "a revolutionary change in the balance of the political relations between the National Government and the States." The majority, however, concluded that it sufficed to meet the "under color of state law" requirement that the "officers of the State were performing official duties," whether or not "the power they were authorized to exercise was misused." In so ruling, the Court opened the door for sweeping invocations of the long-unused Reconstruction-era federal civil rights statutes in federal court actions in later decades. The majority's ruling also bespoke something morea rising willingness of the Court to address issues of racial injustice that would, within a decade, produce the seminal school-desegregation decision in Brown v. Board of Education (1954). 2. Congressional power to reach private actors under Sec 5 of 14th Amendment: Page 720-721 Congressional Power to Reach Privatte Conduct under th 13th Amendment Jpnes v. Alfred H. Myer Brief Fact Summary. The Supreme Court of the United States (Supreme Court) held that 42 U.S.C. Section:1982 bars all racial discrimination in the sale or rental of property and thereby reversed the lower federal courts dismissal of the Petitioners Joseph Jones and others (Petitioners), complaint filed in

response to Respondent, Alfred H. Mayers (Respondent), refusal to sell Petitioners a home based on their race. Synopsis of Rule of Law. 42 U.S.C. Section:1982 bars all racial discrimination, private as well as public, in sale or rental of property. The statute is a valid exercise of the power of Congress to enforce the Thirteenth Amendment. Facts. Petitioners filed a complaint arguing that Respondent had refused to sell them a home for the sole reason that Petitioner is black. Relying in part on Section:1982, Petitioner sought injunctive and other relief. The lower federal courts dismissed the complaint, concluding that Section:1982 applies only to state action and does not reach to private refusals to sell. Issue. Whether 42 U.S.C. Section:1982 bars all racial discrimination, private as well as public, in sale or rental of property? Whether Congress has the power to do what Section:1982 purports to do, which is to prohibit all racial discrimination, private as well as public, in sale or rental of property? Held. Yes. Judgment of the lower federal courts reversed. On its face, Section:1982 appears to prohibit all discrimination against African Americans in the sale or rental of property. Despite Respondents argument to the contrary, history shows that Congress meant what it said. Yes. The fact that Section:1982 operates upon the unofficial acts of private individuals, whether or not sanctioned by state law, presents no constitutional problem. Congress has the authority to enforce the Thirteenth Amendment of the United States Constitution (Constitution) by appropriate legislation to eliminate all racial barriers to the acquisition of real and personal property. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment of the Constitution includes the freedom to buy whatever a white man can buy and the freedom to live wherever a white man can live. Therefore, Congress has the power to do what Section:1982 purports to do. Dissent. The Courts construction of Section:1982 as applying to purely private individuals is clearly wrong. Discussion. Here, the majority uses congressional power to reach private conduct under the Thirteenth Amendment of the constitution, in order to hold that 42 U.S.C. Section:1982 bars all racial discrimination, private as well as public, in sale or rental of property. The 13th Amdenment Powers abd the Civil Rights Activities 1. The Scope of congressional power after the Jones case: p726 2. Later interpataions og the 1866 Act: 1. Sullivian v. Little Hunington Park: Court refused to allow the refual of lease to black man and that they could use Sec 1982 to seek relief because the case invloved a community park and was not a private action. 2. Runyon v. McCary: Private school smay not exlude based on race wither Substantive Due Process (Round One) P 375 92

Substantive Due Process

"Substantive Due Process" is the fundamental constitutional legal theory upon which the Griswold/Roe/Casey privacy right is based. The doctrine of Substantive Due Process holds that the Due

Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the governments desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a persons freedom or property or life, when the law otherwise gives them the power to do so. The Due Process Clause of the Fourteenth Amendment, adopted in 1868, states "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . " The facially clear meaning of this passage is that a state has to use sufficiently fair and just legal procedures whenever it is going to lawfully take away a persons life, freedom or possessions. Thus, before a man can be executed, imprisoned or fined for a crime, he must get a fair trial, based on legitimate evidence, with a jury, etc. These are procedural or "process" rights. However, under "Substantive Due Process," the Supreme Court has developed a broader interpretation of the Clause, one that protects basic substantive rights, as well as the right to process. Substantive Due Process holds is that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or "processes") be used whenever the government is punishing a person or otherwise taking away a persons life, freedom or property, but that these clauses also guarantee that a persons life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. In a sense, it makes the "Due Process" clause a "Due Substance" clause as well. This is an extremely significant idea because of how it greatly expands the power of judicial review exercised by the federal courts. This happens in two ways: First, it gives the federal courts unqualified discretion to decide what substantive rights are protected under Due Process and how extensive that protection is. There are two ways the Supreme Court does this: Under the substantive wing of the "Incorporation" doctrine, where the Court adopt selected provisions of the Bill of Rights and apply them to the states under Due Process. This can be called "Substantive Incorporation."

Under the "Fundamental Rights" theory, where the Court adopts whatever substantive rights it thinks are so basic, natural and fundamental that they must be protected even without reliance on any particular provision of the Constitution. Instead the Court is said to root these guarantees directly in the word "Liberty" in the Fourteenth Amendments Due Process Clause.

Second, once the federal courts decide what substantive rights are protected buy Substantive Due Process, it can use Judicial Review to enforce these rights by reviewing all state legislation for compliance with these rights. In the original U.S. Constitution itself, there are not that many express restrictions on the power of the states. Most are in Art. I 10 and in Art. VI. The Bill of Rights was added in 1791. But by it own terms, applies only to the federal government. See Barron v. Baltimore, 7 Pet. 243 (1833). The Bill of Rights contains both substantive and procedural rights designed to limit the power of the federal government. After the adoption of the 14th Amendment in 1868, the Supreme Court determined that many of the procedural provisions of the Bill of Rights (like the Fourth and Fifth Amendments) would also be protected by the 14th Amendments Due Process Clause, which was directed at the states. However, the Court also used the theory of Substantive Due Process to apply ("incorporate") many of the substantive provisions of the Bill of Rights (like the First Amendment) to the states as well. E.g. Gitlow v. NewYork, 268 U.S. 652 (1925). In the late 1800s the Supreme Court also began to use Substantive Due Process to

establish various substantive rights not actually articulated in the Constitution under the "Fundamental Rights" theory. See Lochner v. New York, 198 U.S. 45 (1905). Later on, the Court would repudiate the "fundamental rights" version of Substantive Due Process as an infringement on the authority of state legislatures. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937); Ferguson v. Skrupa, 372 U.S. 726 (1963). In Griswold v. Connecticut, 381 U.S. 479 (1965), at least four of the seven votes that affirmed the right to privacy were based on the fundamental rights theory. This reliance continued in Roe and Casey. Even while different constitutional theories were advanced in Griswold, Roe and Casey to support the right to privacy all of them, directly or indirectly, rely on Substantive Due Process. Critics of Substantive Due Process claim that it is not the laws it strikes down, but rather the theory itself which is "unconstitutional." They claim that it is a pure usurpation of power by the Court since they Court cant use Judicial Review to strike down a state law unless the law is really contrary to the Constitution. Critics claim that "Substantive Due Process" is an oxymoron and that there is no way a reasonable person with a sixth grade grasp of grammar could read the "Due Process" Clause to assure anything but procedural rights. They say that when the Court uses judicial review to enforce these pseudo-Constitutional rights they are stealing the legitimate law-making power from the state legislatures. Supporters of Substantive Due Process, on the other hand, point to its long history and its dynamic ability to defend basic human rights from infringement by the government. They argue that Substantive Due Process provides comprehensive nation-wide protection for all our most cherished rights, which might otherwise be at the mercy of state governments. They argue that the doctrine is a simple recognition that no procedure can be just if it is being used to unjustly deprive a person of his basic human liberties and that the Due Process Clause was intentionally written in broad terms to give the Court flexibility in interpreting it. Critics respond by saying that just because something is a basic human right does not make it a "Constitutional" right. Constitutional rights, by definition are enshrined in the Constitution. Most Justices on the current Court support the theory to some extent or another, but there are grave differences as to how freely the Court should be willing to assert the Fundamental Rights theory that originally spawned the right to privacy. [NOTE: While there actually are two slightly different "Due Process" clauses in the U.S. Constitution, one in the Fifth Amendment, applying to the federal government, and the second in the Fourteenth Amendment, applying to the states, it is the 14th Amendments Due Process Clause which is really important here, because it applies to the states. The Supreme Court has generally interpreted them to be identical in meaning. While substantive due process applies to both clauses, because it is the state law that is most relevant here, this treatment we will be speaking to the 14th Amendment clause in particular. It should be noted that there is a history of substantive due process in American federal and state jurisprudence well before the adoption of the Fourteenth Amendment in 1868.]

Section 1. Substantive Due Process and Econmic Liberties Lochner v. New York Brief Fact Summary. A New York labor law required employees to work no more than sixty hours in one week.

Synopsis of Rule of Law. The 1897 Labor Law limiting the hours that an employee in a biscuit, bread, or cake bakery or confectionery establishment may work is an abridgement to their liberty of contract and a violation of due process. Facts. The 1897 Labor Law stated that no employee can be required or permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hours in a week or more than ten hours in one day, unless to make work on the last day of the week shorter. And the number of hours worked in a week could not average out to be more than ten hours per day. Issue. Does the due process clause of the Fifth Amendment and Fourteenth Amendment protect liberty of contract and private property against unwarranted government interference? Held. Justice Peckham opinion. This law is an abridgment to the liberty of contract and a violation of due process. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment. No state can deprive any person of life, liberty or property without due process of law. The right to purchase or sell labor is part of that liberty protected. The only way a state may counter this right is to show they are exercising a valid police power with their regulation. Those powers relate to the safety, health, morals and general welfare of the public. The Court rejected the labor law justification of the statute on police power grounds because this was not a valid exercise of police power. First, that power is extended to the protection of public welfare and not the readjustment of bargaining power between employees and employers. The effect of this legislation was to regulate labor conditions and not to protect workers. The effect of such statutes, not just the stated or proclaimed purpose, is determinative in whether this statute is repugnant to the United States Constitution. Second, there is no valid health of safety rationale in this case. Bakers were not endangered like miners were in the Holden v. Hardy case. Mining is a profession that needed regulation, but this is not. The state could accomplish its goals with means that did not interfere with the freedom to contract. Because the police power exercised here is not strong, the Court suspected that there were legislative motives behind the enactment of this law. New York was using its power to upset the free market. Dissent. Justices Holmes, Harlan, White and Day dissenting. J. Holmes: States may regulate life in many ways which might seem injudicious or tyrannical and which may interfere with the liberty to contract. Sunday laws and usury laws are examples. Liberty of a citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, has been interfered with by school laws, the Post Office, every state or city which takes his money in taxes for purposes thought desirable which he may or may not like. The states have interfered with the liberty to contract with the prohibition of sales of stock on margins for future delivery and the eight-hour law for miners. J. Holmes: A Constitution is not intended to embody a particular economic theory. Finding certain opinions natural and familiar or novel ought not to determine whether the statutes conflict with the Constitution. The word liberty in the Fourteenth Amendment is improperly construed when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental traditions, which have been understood by the traditions of our people and law. J. Harlan: If a state is to interfere with the right to contract, it may do so only if the regulation involves a states police power to protect the health of its citizens. The Court should not be concerned with the policy of legislation. The only question is whether the means devised by the state are germane to a valid

end. Discussion. In 1917, without mentioning its opinion in Lochner, the Court upheld a law, which provided for a maximum ten-hour day for factory workers of both genders and regulated overtime pay. Bunting v. Oregon The Meaning and Implications of Lochner 4. Extension of Lochner: p386 to 387 Looker was used to stop many labor laws and state regulation of formation of contracts. This view if natural law enforced in court was basilly rthe judges applying their personal opions lke jackassses and preventing an socail evoulution of laws. By elvationg the thory of natral law oto someinthg that could be enforces under Due Prcess, they over step their bounds as stwereds of the sumpree judicary. Lochkner was also not applied because of the fear that it would lead to a line of question if any legleative action was legal. The questio of federliem and sue process is done through another means. Nebbia v. New York Brief Fact Summary. New Yorks Milk Control Boards price control regulation survived a Constitutional attack because it was not found to be arbitrary, discriminatory, or demonstrably irrelevant to the policy adopted by the legislature. Synopsis of Rule of Law. Price controls that are arbitrary, discriminatory, or demonstrably irrelevant to the policies of the legislature, are unconstitutional because they are unnecessary and unwarranted interferences with individual liberty. Facts. The New York legislature established a Milk Control Board that was vested with the power to fix minimum and maximum retail prices for milk sold within the state. Appellant, Mr. Nebbia, an owner of a New York grocery store, was convicted of selling milk for prices in excess of the price set by the Board. Issue. Whether the Constitution prohibits a state from fixing the selling price of milk? Held. No. Judgment affirmed. The production and distribution of milk is a paramount industry of the state and largely affects the health and prosperity of its people. Property rights and contract rights are not absolute in nature and may be subject to limitations. Since the price controls were not arbitrary, discriminatory, or demonstrably irrelevant to the policy adopted by the legislature to promote the general welfare, it was consistent with the Constitution. Dissent. This statute not only interferes arbitrarily with the rights of the little grocer to conduct his business, but it also takes away the liberty of twelve million consumers to buy a necessity of life in an open market. Discussion. This decision marked a significant shift from the Lochner era by reducing the judicial role in scrutinizing the means employed in economic regulations both in its announced standard that the means selected shall have a real and substantial relation to the object sought to be attained and in its examination of the background of the legislation The Demise of Lochner after te New Deal

1. Judicail Refererence to the means end realtionship: While the means end test in Lochner was still upheld the level of judiray review that would be aplllied had greatly diminsihed. Now the Judiciary assums on the face that the means end that the legilstor is applying is assumed to be correct and nessary as long as it is within the bound listed above. 2. Judicial deference to legislative ends: West Coast Hotel, Co. v. Parrish Brief Fact Summary. Washington instituted a state wage minimum for women and minors. The Appellant, West Coast Hotel (Appellant), paid the Appellee, Parrish (Appellee), less than this minimum. Synopsis of Rule of Law. Wage and hour laws generally do not violate the Due Process Clause of the United States Constitution (Constitution). Facts. The Appellee was a maid who worked for less than the state minimum of $14.50 per 48hour week. She brought suit to recover the difference in pay from the Appellant. Issue. Is the fixing of minimum wages for women and minors constitutional? Held. Yes. This case overrules Adkins v. Childrens Hospital.The exploitation of a class of workers who are at a disadvantaged bargaining position is in the best interest of the health of the worker and economic health of the community. Discussion. The Supreme Court of the United States (Supreme Court) reverts to reasoning that women are in an inferior position and need to be protected from those who might try to take advantage of the situation. Furthermore, the state is justified in adopting such legislation to protect the rest of the community from the burden of supporting economically disadvantaged workers. It is important to note that the Depression colored the Supreme Courts analysis. 3. The impact of Nebbia and West Cost Hotel: Switich in time tha saved nine around this time

United States v. Carolene Products Co

Brief Fact Summary. Congress passed a law, which prohibited shipping milk containing any fat or oil other than milk fat in interstate commerce. Synopsis of Rule of Law. The Court upheld a federal prohibition on the interstate shipment of filled milk, because it is a decision that should be made by Congress, not by courts. Facts. This was an indictment for shipping in interstate commerce packages of milnut a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream. The Filled Milk Act of Congress prohibited the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk fat so as to resemble milk or cream. Issue. Does the act, which prohibits the shipment in interstate commerce of filled milk infringe the Fifth Amendment? Held. Justice Stone opinion. There was a strong public interest motive for the legislation. Twenty years of evidence has shown the danger to the public health from the general consumption of foods that have been stripped of elements essential to the maintenance of health. After extensive investigation, Congress concluded that the use of

filled milk as a substitute for pure milk is generally injurious to health. This product was indistinguishable from pure mil, thus making fraudulent distribution easy and protection of the consumer difficult. Legislative finds the action taken as a constitutional exertion of the legislative power justified. If the statute was valid on its face, it could be invalid by proof of facts tending to show that the statutes effect is without support in reason. It is evident from all the considerations presented to Congress that the issue is at least debatable whether commerce in filled milk should be left unregulated, restricted or wholly prohibited. The decision was for Congress, not for a jury or court to make. Discussion. Thirty-four years later, the successor company to Carolene Products Company successfully attacked the constitutionality of this Act as applied on the ground that the facts, which justified the decision at the time, ceased to exist. The Court agreed and the act was struck down as a violation of due process. That act had no rational means for the achievement of the announced objectives. Rember Foor Note Four on page 391 Focuses on what types of cases will reqiure more than a mere rational review to pass the court and for other will assuse that the potical prcess wull correst matter without judcual review. Mininum Review of Economic Legislation p392 394 Williamsion v. Lee Optical Brief Fact Summary. An Oklahoma law that prevented persons who were not licensed optometrists or ophthalmologists from fitting lenses for eyeglasses was unsuccessfully challenged under the Due Process Clause because it prevented opticians (artisans qualified to grind lenses, fill prescriptions and fit frames) from doing much of the work that they used to do. The law also banned advertising eyeglasses frames. Synopsis of Rule of Law. A state law must be reasonably and rationally related to the health and welfare of the public to fall under a states Police Powers. It must also not be an arbitrary or discriminatory law. Facts. An Oklahoma law prevented persons who were not licensed optometrists or ophthalmologists from fitting lenses for eyeglasses. Non-licensed individuals were also prohibited from duplicating optical instruments without written prescriptions from licensed ophthalmologists. The Lee Optical Company challenged the law. The District Court struck down the law holding that the law was violative of the Due Process Clause because [A]lthough [the legislature] was dealing with a matter of public interest, the particular means chosen are neither reasonably necessary nor reasonably related to the end sought to be achieved. Issue. Whether the Oklahoma law violates the Due Process Clause of the Constitution. Held. No. Judgment reversed. The Oklahoma law may exact a needless, wasteful requirement, but it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. It is enough that there is an evil at hand for correction and that this particular measure is a rational way to correct it. The day is gone when the Court uses the Due Process Clause to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. The provision banning advertisements of frames does not violate the substantive due process because a state may treat all who deal with the human eye as members of a profession who should use no merchandizing methods for obtaining customers.

Discussion. The unanimous Court withdraws from review of economic legislation thereby limiting the right of individuals to practice their profession. Railway Express Agency v. New York Brief Fact Summary. The Appellant, Railway Express Agency (Appellant), brought suit against the Appellee, the State of New York (Appellee). The Appellant argued that a statute prohibiting advertising on vehicles, except for notices upon business delivery vehicles engaged in the regular work of the owner, are unconstitutional for violating the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. The Equal Protection Clause does not seek to protect so called discrimination in determining whether allowing advertising on vehicles and not allowing advertising on other vehicles is unconstitutional. Facts. The Appellant operates about 1,900 trucks in New York City and sells space on the exterior of the trucks for advertising. The advertising is for the most part unconnected with its own buisnes. The Appellant was fined for violating a state statute, which prohibits advertisements on the side of vehicles, except when the advestising is connected to the owner of the vehicles business. The statutes purpose was to protect the safety of pedestrians and other vehicle drivers by eliminating distractions on the streets. The judgment of conviction was upheld in the Court of Special Sessions as well as the Court of Appeals. The Appellant argued that this distinction between advertising on vehicles violates the Equal Protection Cluase of the Fourteenth Amendment as the statute draws lines that are not justified by the aim and purpose of the regulation, which is to lessen distractions caused by advertsing. Issue. Whether the statute violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution by allowing advertising of products on a vehicle sold by the owner of the vehicle, versus general advertising on a vehicle, unrelated to products sold by the owner of the vehicle. Held. Affirmed. The Equal Protection Clause of the Fourteenth Amendment is not violated by this statute that prohibits advertising on vehicles except when the advertising is connected to the owner of the vehicles business. Concurrence. Where individuals contribute to an evil or danger in the same way and the same degree, may those who do so for hire be prohibited, while those who do so for their own commercial ends, but not for hire be allowed to continue? The answer is that the hiring may be put in a class by himself and may be dealt with differently than those who act on their own, as there is a real difference between doing in self interest and doing for hire. It is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price. Discussion. The Equal Protection Clause of the Fourteenth Amendment of the Constitution is invoked where a law treats similarity situated people differently. If the law is found to treat similarly situated people differently, then it must be determined what standard of review will be used. In this case, the Supreme Court did not think this was an Equal Protection Issue. But, they found if this were an Equal Protection issue, it would be upheld under a rational basis review. Rational basis scrutiny was used because it was a classification based on economic welfare. If rational basis scrutiny is applied, the plaintiff has to show the measure being challenged is not rationally related to any legitimate interest. Practically, any police power regulation, which furthers a health, safety or welfare purpose will be considered legitimate. In this case since the statutes purpose was to further the

safety of the public, the statute will be upheld. U.S. Railroad Retirement Bd. v. Fritz Brief Fact Summary. The retirement fund for railroad employees originally provided a windfall for those who were eligible for social security and railroad benefits. But, in 1974, Congress determined that the system would be bankrupt by 1981 if it continued to pay the windfall. Therefore, legislation was enacted to reduce the costs and make the program financially viable. Synopsis of Rule of Law. Congress needs just a rational basis for its social and economic legislation. Facts. The original railroad retirement fund allowed workers who had worked for the railroad at some point in their careers to receive a pension, plus social security, plus a pension available from another employer. This created a windfall payment to retired railroad workers. In 1974, Congress became concerned that the system would be bankrupt if payments continued in this manner. So, it enacted the Railroad Retirement Act of 1974 that classified all railroad workers based on years of service and retirement status. Some of these individuals were allowed to continue to receive windfall payments, while others were limited to the lesser amount of the retirement fund or social security. Issue. Was the classification of railroad workers by Congress arbitrary and irrational resulting in a violation of the Equal Protection Clause of the United States Constitution (Constitution)? Held. No. Congress could properly determine that those who had acquired entitlement to the retirement benefits while still employed in the railroad industry had a greater equitable claim to those benefits than those who became eligible only once they qualified for social security benefits. The current connection test is not arbitrary and has been used before. Dissent. Agrees that the proper test is the rational basis test, but insists that the actual original reason for the classification must be presented. It is improper to simply accept the reasons now provided by government attorneys Discussion. The majority shows that extreme deference is given to the legislature when analyzing social or economic acts. Any classification is presumed valid as long as there is some plausible reason for the act. The legislature never has to state the reasoning for a law under the rational basis test.

EQUALITY AND EQUAL PROTECTION DOCTRINE Racial Classifications & the State

From Plessy to Brown Plessy v. Ferguson (1896) Brown v. Bd. of Educ. (1954) Assignment: CB 500-14 Equal Protection )ackground on page 500-501 Section 1: Race Discrimination The Unconstuality of Race Discrinination 1. Early Interpataion of the 14th Amdement: Rember the Slaughter Houses cases where the 14th was viwed to just be limited to apply to race issues Saunders v. West Virgina: Court overturned convictin by jury that excluded blacks on basis of state law. Court stted that the 14th was ment to to deal with race cases. 2. Seperate but Equal: Rember to look at p 502 to knoow the diffrences between this and civil right cases. Plessey v. Ferguson Brief Fact Summary. A Louisiana statute required railroad companies to provide separate, but equal accommodations for its Black and White passengers. The Plaintiff, Plessy (Plaintiff), was prosecuted under the statute after he refused to leave the section of a train reserved for whites. Synopsis of Rule of Law. A law, which authorizes or requires the separation of the two races on public conveyances, is consistent with the Fourteenth Amendment of the United States Constitution (Constitution) unless the law is unreasonable. Facts. A Louisiana statute required railroad companies to provide separate, but equal accommodations for its Black and White passengers. An exception was made for nurses attending to the children of the other race. Plaintiff, who was seven-eighths white, was prosecuted under the statute after he refused to leave the section of a train reserved for whites. The alleged purpose of the statute was to preserve public peace and good order and to promote the comfort of the people. Issue. Was the statute requiring separate, but equal accommodations on railroad transportation consistent with the Equal Protection Clause of the Fourteenth Amendment of the Constitution? Held. Yes. The State Supreme Court is affirmed. Justice Henry Brown (J. Brown) stated that although the Fourteenth Amendment of the Constitution was designed to enforce the equality between the races, it was not intended to abolish distinctions based on color, or to enforce a commingling of the races in a way unsatisfactory to either. Laws requiring the separation of the races do not imply the inferiority of either. If the law stamps the colored race with a badge of inferiority, it is because the colored race chooses to put that construction upon it. Therefore, the statute constitutes a valid exercise of the States police powers. The Fourteenth Amendment of the Constitution does, however, require that the exercise of a States police powers be reasonable. Laws enacted in good faith, for the promotion of the public good and not for the annoyance or oppression of another race are reasonable. As such, the statute was reasonable. Dissent. Justice John Harlan (J. Harlan) said that everyone knows that the purpose of the statute was to

exclude the colored people from coaches occupied by whites. The Constitution is color-blind. It neither knows nor tolerates classes among citizens. Discussion. This case marks the beginning of the separate but equal doctrine. It is later overturned by Brown v. Board of Education. The court noted that te 14th Amd did not apply to cosial rights. The police power can only be used on a reabale rational which is defined by socital custums and beliefs. @. Segregation in Public Education: Brown v. Board of Education Brief Fact Summary. Black children were denied admission to schools attended by white children under laws that permitted or required segregation by race. The children sued. Synopsis of Rule of Law. Separate but equal educational facilities are inherently unequal. Facts. The Plaintiffs, various black children (Plaintiffs), were denied admission to schools attended by white children under laws that permitted or required segregation by race. Plaintiffs sued, seeking admission to public schools in their communities on a nonsegregated basis. Issue. Do separate but equal laws in the area of public education deprive black children of the equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution (Constitution)? Held. Yes. Chief Justice Earl Warren (J. Warren) stated that even if the tangible factors of segregated schools are equal, to separate black children from others of similar age and qualifications solely on the basis of race, generates a feeling of inferiority with respect to their status in the community and may affect their hearts and minds in a way unlikely to ever be undone. Discussion. The Supreme Court of the United States (Supreme Court) is relying on the same rationale to invalidate the segregation laws here that it did in Sweatt v. Painter (ordering the admission of a black student to the University of Texas Law School, despite the fact that a parallel black facility was available). The rationale is that its the intangible factors that make segregation laws in the area of public education inherently unequal. Whether stigma or the perception of stigma alone is sufficient injury to invalidate a law supported by a valid, neutral purpose is an open question. The Meaning and Implication of Brown 1. Extending degesgratoin within federal government: Bolling v. Sharpe Brief Fact Summary. The Petitioners, Negro minors (Petitioners), allege the segregation in the public schools of the District of Columbia deprives them of Due Process of law under the Fifth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. Racial segregation in public schools is a denial of the due process of law guaranteed by the Fifth Amendment of the Constitution.

Facts. The Petitioners, were denied admission to a public school in the District of Columbia based solely on their race. The Petitioners filed suit in the District Court seeking aid in admission. The District court dismissed the complaint. The Supreme Court of the United States (Supreme Court) granted certiorari before the judgment of the Court of Appeals because of the importance of the constitutional question presented. The District of Columbia is governed by federal law, not state law therefore the 14amendment of the Constitution does not govern the District of Columbia. Instead the Petitioners argue that segregation of public school children violates the Due Process Clause of the Fifth Amendment.

Issue. Whether the Due Process Clause of the Fifth Amendment of the Constitution is violated by the segregation of public school children in the District of Columbia?
Held. Yes, the racial segregation in the public schools of the District of Columbia is a denial of the Due Process Clause of the Fifth Amendment. Discussion. The District of Columbia is governed by federal law rather than state law. Thus, the Equal Protection Clause of the Fourteenth amendment is not applicable. The Supreme Court found in this case that segregation of public school children is also unconstitutional based on federal laws because personal liberties protected by the Due Process Clause of the Fifth Amendment were violated.

Brown v. Board of Education of Topeka Citation. 349 U.S. 294 (1955). Brief Fact Summary. After its decision in Brown v. Board of Education of Topeka, the Supreme Court of the United States (Supreme Court) determines that the lower courts in which the cases originated were the proper venue for determining how to best implement racial desegregation. Synopsis of Rule of Law. The lower courts in which the cases of Brown v. Board of Education of Topeka first originated are the proper venue for determining how to best implement racial desegregation in light of varied school problems and different local conditions. Facts. The Supreme Court, after ruling that racial segregation in public schools violates the Equal Protection Clause of the Fourteenth Amendment, determined that the lower courts in which the cases of Brown v. Board of Education of Topeka first originated would be the proper venue in determining how to implement racial desegregation. The Supreme Court acknowledged that these lower courts should structure this desegregation because of varied local school problems and local conditions. The Supreme Court stated the lower courts would be guided by equitable principles, recognizing the need for elimination of obstacles in making the transition to desegregation. Issue. How to implement the racial desegregation in public education in light of the decision in Brown v. Board of Education of Topeka.
Held. Remanded. The lower courts, which originally heard these cases, will determine how to implement racial desegregation in public schools with all deliberate speed. Discussion. In light of the ruling of Brown v. Board of Education of Topeka, declaring segregation in public schools unconstitutional, the Supreme Court remanded the cases back to the lower courts to implement racial desegregation with all deliberate speed.

Other factors to consider within Borwn on pages 508 to 609 Impleenting BorwnLook to Pages 510 to 514

Modern Doctrine Loving v. Virginia (1967) Korematsu v. United States (1944) Washington v. Davis (1976) Arlington Heights v. Metropolitan Housing Corp. (1977) Assignment: CB 514-31 Eliminating other Vestiages of Segergation 1, McLaughlin v. Flordia: Statute making unmarried couples of different races illegel under te 14th amd b/c te distinction was bsed on race and interfered with a basic right that was garuented by equal protection. 2. Loving v. Virgina Antimegistation sttatutes Brief Fact Summary. The state of Virginia enacted laws making it a felony for a white person to intermarry with a black person or the reverse. The constitutionality of the statutes was called into question. Synopsis of Rule of Law. Restricting the freedom to marry solely on the basis of race violates the central meaning of the Equal Protection Clause. Facts. The state of Virginia enacted laws making it a felony for a white person to intermarry with a black person or a black person to intermarry with a white person. The Supreme Court of Appeals of Virginia held that the statutes served the legitimate state purpose of preserving the racial integrity of its citizens. The State argued that because its miscegenation statutes punished both white and black participants in an interracial marriage equally, they cannot be said to constitute invidious discrimination based on race and, therefore, the statutes commanded mere rational basis review. Issue. Was rational basis the proper standard of review by which to evaluate the constitutionality of the statutes? Were the Virginia miscegenation statutes constitutional under the Equal Protection Clause? Held. No and No. The mere fact that a statute is one of equal application does not mean that the statute is exempt from strict scrutiny review. The statutes were clearly drawn upon race-based distinctions. The legality of certain behavior turned on the races of the people engaging in it. Equal Protection requires, at least, that classifications based on race be subject to the most rigid scrutiny. The Equal Protection Clause of the United States Constitution (Constitution) prohibits classifications drawn by any statute that constitutes arbitrary and invidious discrimination. The fact that Virginia bans only interracial marriages involving whites is proof that the miscegenation statutes exist for noot purposes independent of those based on arbitrary and invidious racial discrimination. Concurrence. Justice Potter Stewart (J. Stewart) argued it is not possible for a state law to be valid, which makes the criminality of an act depend upon the race of the actor.

Discussion. The key to this case is articulated in J. Stewarts concurrence. The miscegenation statute was improper because it made the legal consequences of an action turn on the races of the persons participating in it. 3. Interracial marrigage and Child cousty (Palmore v. Sidot) Brief Fact Summary. Respondent petitioned the court for a modification of a previous child custody judgment based on changed conditions after the Caucasian mother married an African-American man. The trial court awarded custody to the respondent. Synopsis of Rule of Law. The Fourteenth Amendment does not permit the consideration of potential effects do to racial prejudice against mixed-race families in child custody determinations. Facts. Petitioner Linda Palmore and respondent Anthony Sidoti, both Caucasians, were divorced in 1980 in Florida, with the mother being awarded custody of their daughter. In 1981 the father filed a petition to modify the prior judgment because of changed conditions, based on the childs mother cohabitating with a Negro, Clarence Palmore, Jr., whom she married two months earlier. The father also made several allegations that the mother had not properly cared for the child. The court noted no issue as to either partys devotion to the child, adequacy of housing facilities, or respectability of the new spouse of either parent. The court counselor made an earlier report in another case involving the social consequences of an interracial marriage. The court found likewise in this case the wife had chosen for herself and for her child a life-style unacceptable to her father and to society. The court found the best interests of the child would be served by awarding custody to the fath er, because of the environmental pressures that would be placed on the child that are not of the childs own choice. Issue. Did the court err by divesting a natural mother of the custody of her infant child because of her remarriage to a person of a different race? Held. The effects of racial prejudice cannot justify a racial classification removing an infant child from the custody of its natural mother who was found to be an appropriate person to have such custody. The court based its decision solely on the issue of race, without a focus on the parental qualifications of the natural mother or her present husband. This raises important federal concerns arising from the Constitutions commitment to eradicating discrimination based on race. The court stated the childs welfare was the controlling factor, but made no effort to place its holding on any ground other than race. A core purpose of the Fourteenth Amendment was to do away with all governmentally-imposed discrimination based on race. To pass constitutional muster, racial classifications must be justified by a compelling governmental interest. The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest under the Equal Protection Clause. It would ignore reality to suggest that racial prejudices do not exist, but the possible injury they might inflict are not permissible considerations for removal of an infant child from the custody of its natural mother. The law cannot give private biases effect, either directly or indirectly. Discussion. The Court acknowledged the potential social stigmatization of growing up in a mixed-race family, but found that such considerations are not permissible considerations under Fourth Amendment law. Look to the above case on page 517 to se what it takes to pass the strict scrunity tes

4. Is there a permisable use of racial criteita Jhonson v. California Facts of the Case California prisoner Garrison Johnson alleged in federal district court that the California Department of Corrections used race to assign temporary cell mates for new prisoners. Johnson alleged this violated the U.S. Constitution's equal protection clause. The district court and a federal appellate court ruled against Johnson. The appellate court pointed to the U.S. Supreme Court's 1987 decision in Turner v. Safley, which said a relaxed standard - as opposed to a "strict scrutiny" standard - should be used to determine whether prison regulations are constitutional. The prison's policies were "reasonably related to the administrators' concern for racial violence and thus must be upheld," the appellate court wrote. Question Is a state's practice of temporary racial segregation of state prisoners subject to strict scrutiny? Conclusion Decision: 6 votes for Johnson, 2 vote(s) against Legal provision: Equal Protection Yes. In a 5-3 opinion delivered by Justice Sandra Day O'Connor, the Court held that prison racialsegregation policies are subject to strict scrutiny. The Court rejected the claim that because the policy was "neutral" - because all prisoners were "equally" segregated - the policy was not subject to strict scrutiny. Racial classifications must receive strict scrutiny even when they may be said to affect the races equally. The Court remanded the case so that the Ninth Circuit could use strict scrutiny to review the policy. Justices John Paul Stevens, Clarence Thomas, and Antonin Scalia dissented. Facial Discrimination against Racial Minorites 1.Strict Scrunity of Pacially discriminatory laws Koremato v. Unted Stated Japanese entermet that allows race to be used in issues where there is a public nessesity) Brief Fact Summary. During World War II, a military commander ordered all persons of Japanese descent to evacuate the West Coast. The Petitioner, Korematsu (Petitioner), a United States citizen of Japanese descent, was convicted for failing to comply with the order. Synopsis of Rule of Law. Legal restrictions that curtail the civil rights of a single racial group are subject to the most rigid scrutiny. But, pressing public necessity may sometimes justify such restrictions. Facts. President of the United States Franklin Roosevelt (President Roosevelt) issued an executive order authorizing military commanders to prescribe military areas from which any or all persons may be excluded. Thereupon, a military commander ordered all persons of Japanese descent, whether or not they were United States citizens, to leave their homes on the West Coast and to report to Assembly Centers. The Petitioner, a United States citizen of unchallenged loyalty, but of Japanese descent, was convicted under a federal law making it an offense to fail to comply with such military orders. Issue. Was it within the power of Congress and the Executive to exclude persons of Japanese ancestry from the West Coast at the time that they were excluded? Held. Yes. At the time the exclusion was ordered, it was justified. Justice Hugo Black stated that although the exclusion order imposed hardships upon a large number of

American citizens, hardships are part of war. When, under conditions of warfare, our shores are threatened by hostile forces, the power to protect them must be commensurate with the threatened danger. Dissent. Justice Frank Murphy (J. Murphy) argued that the exclusion at issue here goes over the brink of constitutional power and falls into the abyss of racism. Although we must extend great deference to the judgments of the military, it is essential that there be definite limits to military discretion. Moreover, the military order is not reasonably related to the dangers it seeks to prevent. Justice Robert Jackson (J. Jackson) stated he would not distort the United States Constitution (Constitution) to approve everything the military may deem expedient. Discussion. Ironically, this case establishes the strict scrutiny standard of review, thereby leading to the invalidation of much race-based discrimination in the future. 2. Scope of Racial Classification: bas been applied to other minortes also p521 Racalliy Discriminaot Pupose and Effect A law can be found to requier strict scrutiny even if on its face its seems nuratl because in application it ahas a rcially discriminaotry effect. Vick Wo v. Hopkins
1.

Facts Yick Wo was imprisoned for operating a laundry in a wooden building in violation of a San Francisco statute. That statute vested in the board of supervisors the discretion to grant or withhold licenses to operate laundries in wooden buildings. Yick Wo had operated the laundry in the same building for 22 years and fire wardens and safety inspectors had inspected the premises and found them safe. The board denied licenses to all Chinese-American applicants but denied only one of 80 non-Chinese Americans. Yick Wo was fined ten dollars and was imprisoned for failing to pay. Yick Wo sued the Supreme Court of California for a writ of habeas corpus and the Court found that the board of supervisors had acted within the scope of its authority and denied the petition. The Supreme Court of the United States granted certiorari.

Issues
1. May a city enforce an ordinance in a racially discriminatory manner? 2. Does a law or ordinance granting a person or entity absolute discretion to grant or deny permission to carry on a lawful business violate the Fourteenth Amendment to the U.S. Constitution?

Holding and Rule (Matthews)

1. No. A city may not enforce ordinances in a racially discriminatory manner. 2. Yes. A law or ordinance granting a person or entity absolute discretion to grant or deny permission to carry on a lawful business violates the Fourteenth Amendment to the U.S. Constitution.

If the statute were discriminatory on its face the court would have applied strict scrutiny. In this case however the statute was not discriminatory on its face and the court looked to rational basis. The statute was ostensibly intended to reduce the risk of fire; however the court also noted that only Chinese laundries were affected by the statute. The court concluded that the statute was intended to reduce Chinese laundries rather than the risk of fire and ruled that the statute was invalid under the Due Process Clause of the Fourteenth Amendment.

Disposition
For Yick Wo. 2, Racially Discrinimatory purpose underlying factial nuetral law: look to page 522 to 523 Washington v. Davis Brief Fact Summary. A higher percentage of black applicants than white applicants failed a qualifying test administered by the District of Columbia Police Department. Some of the unsuccessful black applicants claimed these effects constituted unconstitutional discrimination against them. Synopsis of Rule of Law. Proof of a disproportionate impact is not enough, standing alone, to ground a finding that a law amounts to unconstitutional discrimination. Facts. The District of Columbia Police Department administered a test to applicants for positions as police officers. The test measured verbal ability, vocabulary, and reading comprehension. A higher percentage of the black applicants than the white applicants failed the test. Respondents, unsuccessful black applicants, claimed the test constituted a violation of equal protection, because it had the effect of disproportionately disqualifying blacks for police service. Respondents did not allege discriminatory purpose on the part of the government. The District Court ruled against the Respondents. Issue. Was proof of the disproportionate effects of the qualifying exam sufficient to ground a finding that the exam unconstitutionally discriminated against the respondents? Held. No. The Court of Appeals, reversing the District Court, is reversed. Justice Byron White (J. White) said our cases have not embraced the proposition that a law can be a violation of equal protection on the basis of its effect, without regard for governmental intent. Disproportionate impact is not irrelevant, but it alone does not trigger the rule that racial classifications are subject to the strict scrutiny standard of review. The police forces efforts to recruit black police officers are evidence that the police department did not intentionally discriminate on the basis of race. The exam is rationally related to the legitimate government purpose of ensuring that police officers have acquired a particular level of verbal skill. Concurrence. Justice John Paul Stevens (J. Steven) said that frequently the most probative evidence of intent will be a showing of what actually happened. A Constitutional issue does not arise, however, every time some disproportionate impact is shown. Discussion. After this case, a court confronted with a law that has a disproportionate effect on a racial minority, must first determine if the law is race specific. If it is, either because the law is facially discriminatory or because the law was motivated by a racial discriminatory purpose, the law will probably be invalidated under the strict scrutiny standard of review. If the law is non-race specific, the court will apply the rational basis standard of review, regardless of the laws impact on racial minorities.

The Meaning and Implication of Washington v. Davis Village of Arlington Heights v. Metropolitan Housing Development Cor

Brief Fact Summary. The Metropolitan Housing Development Corporation (Respondent) applied to the Village of Arlington Heights (Petitioner) for rezoning of a 15 acre parcel from single-family residential to multi-family residential, intending to build federally subsidized low to moderate income housing. The request was denied and Respondent sued for injunctive and declaratory relief, claiming that the effect of the denial of rezoning was discriminatory in nature and thus violative of the Fourteenth Amendment and the Fair Housing Act of 1968, 42 U.S.C. Section:3601, et. seq. Synopsis of Rule of Law. Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. Facts. Respondent applied to Petitioner for rezoning of a 15 acre parcel from single-family residential to multi-family residential, intending to build federally subsidized low to moderate income housing. The request was denied and Respondent sued for injunctive and declaratory relief, claiming that the effect of the denial of rezoning was discriminatory in nature and thus violative of the Fourteenth Amendment and the Fair Housing Act of 1968, 42 U.S.C. Section:3601, et. seq. Arlington Heights is a suburb of Chicago, which is predominately white (the 1970 census showed that only 27 of the citys 64,000 residents were black). The city is mostly zoned for single-family detached housing. The Clerics of St. Viator (the Order) owns an 80-acre parcel of land surrounded by single-family housing. In 1970, the Order decided to devote some of its land to low and moderate income housing, and found that the most expedient way to accomplish this goal was to work through a nonprofit developer experienced in federal housing subsidies under Section:236 of the National Housing Act, 12 U.S.C. Section:1715z-1. The sale was contingent on Respondents securing of zoning clearances from the Petitioner and Section:236 housing assistance from the government. Respondent hired an architect and began the project, which was to be known as Lincoln Green, and was to include 20 two-story buildings with a total of 190 units. Respondent filed a petition for rezoning with the Village Plan Commission along with materials regarding the proposal, including the requirement under Section:236 that an affirmative marketing plan be designed to assure that a subsidized development is racially integrated. The Commission held three public hearings after which it recommended to the Petitioners Board of Trustees that the application of Respondent be denied due to the fact that the Commission felt that low income housing would be unsuitable in the proposed location. The Board of Trustees then denied the rezoning application. Then, Respondent f iled suit against the Petitioner, seeking injunctive and declaratory relief. The federal district court found for the Petitioner, but the court of appeals reversed and found for Respondent. The Petitioner appealed. Issue. Was the denial of the rezoning application unconstitutionally or statutorily discriminatory? Held. The Court found that the Respondents failed to meet their burden of proving that discriminatory purpose was a motivating factor in the Petitioners decision, but the court of appeals did not decide whether the Respondents have stated a claim under the Fair Housing Act. Reversed and Remanded. The Court cited its prior decision in Washington v. Davis, 426 U.S.. 229 (1976), which stood for the rule that official action will not be held unconstitutional solely because it results in a racially disproportionate

impact. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause of the Fourteenth Amendment. Determining whether discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence as may be available. The impact of the official decision may provide an important starting point. In this case the Court found that the decision to deny rezoning was based on a desire by the Petitioner to maintain the area as single-family residential housing, and not for discriminatory motive. The burden of proof is on the plaintiff in these cases to prove that discriminatory purpose was a motivating factor in the decision. The case was remanded to determine whether the Respondents had stated a claim of discrimination under the Fair Housing Act statute. Discussion. In cases without some evidence of racially discriminatory intent, the mere fact that the decision of a governmental agency affects race will not be enough to show a violation of the Fourteenth Amendments Due Process Clause. 2. Proving discrimintory purpse after Arlington Heights. Rogers v. Lodge Brief Fact Summary. The Appellants, Rogers and seven other black citizens from Burke County, Georgia (Appellants) challenged the constitutionality of an at-large voting scheme that violated the United States Constitution (Constitution) despite the schemes racial neutrality. Synopsis of Rule of Law. Racially-neutral voting schemes do not necessary pass constitutional muster when there is a showing that the scheme actual perpetuates racial discrimination. Facts. A 1980 Census for Burke County, Georgia revealed that 53.6% of the population was comprised of black citizens and that black citizens comprised of 38% of the voting population. Whites within Burke County constitute a slight majority of the voting population. Burke County is governed by the Board of Commissioners consisting of five members who are elected at large to concurrent four-year terms by all those qualified to vote within Burke County. To be nominated, a candidate must receive a majority of the vote in the first primary or general election. Voters are allowed only one vote. No black has ever been elected to the Burke County Board of Commissioners. The Appellants challenged the constitutionality of the at-large voting scheme in federal district court on behalf of all black citizens in Burke County. The district court held that the even though the voting scheme was found to be racially neutral when adopted, [it] [was] being maintained for invidious purposes in violat ion of the Appellants Fourteenth and Fifteenth Amendment Rights. The Court of Appeals affirmed the District Courts judgment holding that the voting scheme was maintained for discriminatory purposes. The judgment of the Court of Appeals is affirmed. Issue. Whether the at-large system of elections in Burke County, Georgia violates the Fourteenth Amendment rights of Burke Countys black citizens despite being racially neutral in its application. Held. Justice Byron White (J. White). Yes. The at-large voting scheme, although racially neutral, was maintained for invidious or discriminatory purposes. The judgment of the Court of Appeals is affirmed. Dissent. Justice Lewis Powell (J. Powell). The Supreme Court of the United States affirmation of the District Court and the Court of Appeals finding that the Burke County electoral voting scheme maintained a discriminatory purpose, despite its racially-neutrality, was based on insufficient factors

pursuant to Mobile v. Bolden, 446 U.S. 55 (1980). The factors espoused by the lower courts are too attenuated as a matter of law to support an inference of discriminatory intent . . . Discussion. Voting schemes cannot hide under the veil of racial-neutrality when it maintains a raciallydiscriminatory intent Affirmative Action Regents of Univ. of California v. Bakke (1978) Adarand Constructors, Inc. v. Pena (1995) Grutter v. Bollinger (2003) Gratz v. Bollinger (2003) Assignment: CB 531-66 Affirmative Action and Race Preference Regents of the University of California v. Bakke Brief Fact Summary. The Respondent, Bakke (Respondent), a white applicant to the University of California, Davis Medical School, sued the University, alleging his denial of admission on racial grounds was a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. Although race may be a factor in determining admission to public educational institutions, it may not be a sole determining factor. Facts. The University of California, Davis Medical School reserved 16 spots out of the 100 in any given class for disadvantaged minorities. The Respondent, when compared to students admitted under the special admissions program, had more favorable objective indicia of performance, while his race was the only distinguishing characteristic. The Respondent sued, alleging that the special admissions program denied him equal protection of laws under the Fourteenth Amendment of the Constitution. Issue. Is the special admissions program of the University of California constitutional? Can race be considered as a factor in the admissions process? Held. The special admissions program is unconstitutional, but race may be considered as a factor in the admissions process. Justice Lewis Powell (J. Powell), writing for the court, says that the Supreme Court of the United States (Supreme Court) should not pay attention to past discrimination in reviewing the policies of the University, as this is tantamount to allowing political trends to dictate constitutional principles. J. Powell determines that accepting a minimum number of minorities simply to reduce the traditional deficit of such individuals in the medical profession is facially unconstitutional, as it gives preference to an individual on the basis of race alone. The major determination of the Supreme Court is whether or not racial preference may be used to promote diversity of the student body. J. Powell argues that setting aside a specified number of minority slots is not congruent to the purported goal minority students in themselves do not guarantee a diversity of viewpoints in the educational environment. Dissent.

Justices William Brennan (J. Brennan), Byron White (J. Brennan), Thurgood Marshall (J. Marshall), and Harry Blackmun (J. Blackmun) dissent, believing the special admissions program to be constitutional. In particular, the Justices argue that the racial classification in the present case is remedial, serves an important government objective and also substantially related to that objective and thus insulated from the Fourteenth Amendments general prohibition of such classifications. J. Marshall writes separately in support of J. Brennan, J. White, J. Marshall, and J. Blackmun. Justice John Paul Stevens (J. Stevens) dissents, citing that Title VI of the Civil Rights Act of 1964 prohibits the denial of any individual on the basis of race from participation in any program receiving federal funding. J. Stevens argues that prohibiting white students from participation in the special admissions program is a direct violation of Title VI. Concurrence. J. Brennan, J. White, J. Marshall, and J. Blackmun concur so much as the Supreme Courts opinion allows race to be considered as a factor in the admissions process. However, the Justices believe that in this particular example, race should be allowed as a single determining factor. J. Stevens concurs to the extent that the special admissions program is impermissible. However, J. Stevens holds that the constitutional issue is not reached, because the federal statutory ground (Title VI) prohibits the activity directly. Discussion. J. Powells basic problem with the special admissions program is this: there are 84 places open for white applicants and 100 positions open for minority applicants. This differential treatment solely on racial grounds is unconstitutional, according to J. Powell. It is important to note that in Bakke, the Court did not technically hold the special admissions program unconstitutional. J. Stevens and the three other Justices joining his opinion do not reach the constitutional issue because of the federal statute. Race Preference in Employment and Cpontracting 1. Race prefeerence in Piblic Employment Wygant v. Jackson Facts of the Case Under the collective bargaining agreement between the Jackson Board of Education (Board) and a teachers' union, teachers with the most seniority would not be laid off. It was also agreed not to lay off a percentage of minority personnel that exceeded the percentage of minority personnel employed at the time of a layoff. When the schools laid off some nonminority teachers, while retaining other minority teachers with less seniority, Wendy Wygant, a displaced nonminority teacher, challenged the layoff in district court. Holding that the Board could grant racial preferences without grounding them on prior discrimination findings and that the preferences did not violate the Equal Protection Clause, since they remedied discrimination by providing "role models" for minority students, the District Court upheld the layoff provision's constitutionality. When the appeals court affirmed, the Supreme Court granted Wygant certiorari. Question Did the collective bargaining agreement provision for race-based layoffs violate the Fourteenth Amendment's Equal Protection Clause Conclusion Decision: 5 votes for Wygant, 4 vote(s) against Legal provision: Equal Protection

Yes. In a 5-to-4 decision, the Court argued that Wygant's layoff stemmed from race and, therefore, violated the Equal Protection Clause. The Court noted that the government, when embarking on affirmative action, had two duties: first, to justify racial classification with a compelling state interest and second, to demonstrate that its chosen means were narrowly tailored to its purpose. Regarding the first, the Court rejected the lower court's argument that racial preferences were justified because the percentage of minority students exceeded the percentage of minority teachers. At best, this argument implied a separate but equal system, which the Court rejected in Brown v. Board of Education. Instead, racial preferences had to be based on prior discrimination. Second, the Court rejected the school's discrimination remedy: layoff preferences incorrectly addressed injurious prior discriminatory hiring practices since "denial of a future employment opportunity [was] not as intrusive as loss of an existing job." Richmond v. J.A. Croson Brief Fact Summary. Richmond, Virginia created a set-aside program which required that a percentage of subcontracts for construction projects be reserved for minorities. Synopsis of Rule of Law. Affirmative action programs can only be maintained by a showing that the programs aim is to eliminate effects of past discrimination. Facts. In1983, the Richmond City Council, in the state of Virginia, adopted the minority Business Utilization Plan (the Plan), which required government supported construction contractors to set-aside 30% of its subcontracts to one or more Minority Business Enterprises (MBEs). MBEs were defined as [a] business at least fifty-one (51) percent of which is owned and controlled . . . by minority group members. Under the Plan, minority group members were defined as [c]itizens of the United States who are Black, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts. The purpose of the Plan was to promot[e] wider participation by minority business enterprises in the construction of public projects. The Appellant, J.A. Croson Company (Appellant), challenged the Plan on the grounds that it violated the United States Constitution (Constitution) because there had been no specific finding that the Plans purpose was supported by past discriminatory practices in the construction indust ry of Richmond, Virginia. The District Court upheld the Plan, but, the Court of Appeals reversed the decision holding that the set-aside program violat[ed] both prongs of strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment . . . . The judgment of the Court of Appeals was affirmed. Issue. Whether a state may enact an affirmative action plan without support that the race-based measure ameliorates the effects of past discrimination on the opportunities enjoyed by members of minority groups in our society . Held. Justice Sandra Day OConnor (J. OConnor). No. Without a showing that a race-based initiative was created to remedy past racial discrimination and that it supports a compelling governmental interest, the race-based initiative is unconstitutional and cannot withstand strict-scrutiny. The judgment is affirmed. All classifications based on race must be supported by a compelling government interest and withstand strict-scrutiny. The Supreme Court of the United States (Supreme Court) finds that the Plan failed to consider race-neutral measures that would encourage more minority participation in the construction program. Also, the 30% quota allowed by the Plan was not narrowly tailored to any goal, except perhaps outright racial balancing.

The race-based measure of Richmond, Virginias construction set-aside program makes only a generalized assertion that there has been past discrimination in . . . [the construction industry and] provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. Dissent. Justice Thurgood Marshall (J. Marshall). Richmonds Plan would be declared constitutional under the intermediate level of scrutiny. The Supreme Court should have applied the intermediate level rather than the strict scrutiny standard. Preventing initiatives, such as the set-aside program, for lack of a showing of past discrimination in the area only perpetuates racial discrimination because it suggests that racial discrimination no longer exists. Concurrence. The concurring opinions of the Court are as follows: Justice John Paul Stevens (J. Stevens). The premise of remedying past wrongs should not be the sole requirement for allowing racial classifications. The judicial system, not the legislative process, is best equipped to identify past discrimination and to create ameliorative remedies. Justice Anthony Kennedy (J. Kennedy). The Fourteenth Amendment ought not be interpreted to reduce a States authority [eradicate racial discrimination] . . . unless, of course, there is a conflict with federal law or a state remedy is itself a violation of equal protection. Justice Antonin Scalia (J. Scalia). All racial discrimination is unconstitutional. There is only one instance when a State may act by race to undo the effects of past discrimination: where that is necessary to eliminate their own maintenance of a system of unlawful racial classification. Discussion. Regardless of its application to racial minorities or to other racial groups, race-based classifications require the highest level of scrutiny in all cases.
Adarand Constructors Inc v. Pena Brief Fact Summary. Adarand Constructors, a low-bidding subcontractor denied a contract on a federal highway project, sued the Secretary of Transportation, alleging that the federal governments incentives to hire minority subcontractors denied him equal protection of the laws. Synopsis of Rule of Law. Race classification by the federal government is subject to strict scrutiny. Facts. Adarand Constructors had submitted the low bid on a subcontract for a federal highway project. Mountain Gravel, the prime contractor, would receive additional federal funds for awarding subcontracts to businesses owned by socially and economically disadvantaged individuals. Mountain Gravel awarded the contract to a higher bidder on this basis. The governments policy included a presumption that minority-owned businesses were socially and economically disadvantaged. Issue. Does the Fifth Amendments guarantee of equal protection require the federal governments racial classifications to withstand strict scrutiny? Held. Yes. Court of Appeals ruling reversed and remanded. Justice Sandra Day OConnor (J. OConnor), writing for the majority, extends the Fourteenth Amendment requirement to the states in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), to the federal government through the Fifth Amendment. Namely, strict scrutiny is applied to all race-based classification, regardless of benign or remedial motive. Dissent. Justice John Paul Stevens (J. Stevens) reiterates his belief that benign or remedial racial classifications should be subject to a lesser level of review. Given that the federal statute was intended to remedy past discrimination, J. Stevens argues that it should be subject to the rational basis test. Concurrence. Justice Antonin Scalia (J. Scalia) argues again that there can never be a compelling

government interest to justify a racial classification. Discussion. Adarand extends strict scrutiny to racial classifications at the federal level. Again, J. OConnor, leaves the door open for some remedial legislation to pass muster under strict scrutiny.

Affirmative Action After Croson and Adarand Grutter v. Bollinger Facts of the Case

In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was denied admission. The Law School admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student body." The District Court concluded that the Law School's stated interest in achieving diversity in the student body was not a compelling one and enjoined its use of race in the admissions process. In reversing, the Court of Appeals held that Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), constituted a binding precedent establishing diversity as a compelling governmental interest sufficient under strict scrutiny review to justify the use of racial preferences in admissions. The appellate court also rejected the district court's finding that the Law School's "critical mass" was the functional equivalent of a quota. Question Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964? Conclusion Decision: 5 votes for Bollinger, 4 vote(s) against Legal provision: Equal Protection No. In a 5-4 opinion delivered by Justice Sandra Day O'Connor, the Court held that the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. The Court reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race. Justice O'Connor wrote, "in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race- conscious admissions program does not unduly harm nonminority applicants."
bGratz v. Bollinger Facts of the Case

In 1995, Jennifer Gratz applied to the University of Michigan's College of Literature, Science and the Arts with an adjusted GPA of 3.8 and ACT score of 25. In 1997, Patrick Hamacher applied to the University with an adjusted GPA of 3.0, and an ACT score of 28. Both were denied admission and attended other schools. The University admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student body." In addition, the University has a policy to admit virtually all qualified applicants who are members of one of three select racial minority groups - African Americans, Hispanics, and Native Americans - that are considered to be

"underrepresented" on the campus. Concluding that diversity was a compelling interest, the District Court held that the admissions policies for years 1995-1998 were not narrowly tailored, but that the policies in effect in 1999 and 2000 were narrowly tailored. After the decision in Grutter, Gratz and Hamacher petitioned the U.S. Supreme Court pursuant to Rule 11 for a writ of certiorari before judgment, which was granted. Question Does the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964? Conclusion Decision: 6 votes for Gratz, 3 vote(s) against Legal provision: Equal Protection Yes. In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the University of Michigan's use of racial preferences in undergraduate admissions violates both the Equal Protection Clause and Title VI. While rejecting the argument that diversity cannot constitute a compelling state interest, the Court reasoned that the automatic distribution of 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race was not narrowly tailored and did not provide the individualized consideration Justice Powell contemplated in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Chief Justice Rehnquist wrote, "because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause."
The Meaning and Implications o Gratz and Grutter Fefer to pages 560-561 for other considerations

School Desegregation Revisited Parents Involved in Community Schools v. Seattle School District (2007) Assignment: CB 566-76 Parents Invloved Facts of the Case The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became oversubscribed when too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. If the racial demographics of any school's student body deviated by more than a predetermined number of percentage points from those of Seattle's total student population (approximately 40% white and 60% non- white), the racial tiebreaker went into effect. At a particular school either whites or non-whites could be favored for admission depending on which race would bring the racial balance closer to the goal. A non-profit group, Parents Involved in Community Schools (Parents), sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. A federal District Court dismissed the suit, upholding the tiebreaker. On appeal, a three-judge panel the U.S. Court of Appeals for the Ninth Circuit reversed.

Under the Supreme Court's precedents on racial classification in higher education, Grutter v. Bollinger and Gratz v. Bollinger, race-based classifications must be directed toward a "compelling government interest" and must be "narrowly tailored" to that interest. Applying these precedents to K-12 education, the Circuit Court found that the tiebreaker scheme was not narrowly tailored. The District then petitioned for an "en banc" ruling by a panel of 11 Ninth Circuit judges. The en banc panel came to the opposite conclusion and upheld the tiebreaker. The majority ruled that the District had a compelling interest in maintaining racial diversity. Applying a test from Grutter, the Circuit Court also ruled that the tiebreaker plan was narrowly tailored, because 1) the District did not employ quotas, 2) the District had considered race-neutral alternatives, 3) the plan caused no undue harm to races, and 4) the plan had an ending point. Question 1) Do the decisions in Grutter v. Bollinger and Gratz v. Bollinger apply to public high school students? 2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools? 3) Does a school district that normally permits a student to attend the high school of her choice violate the Equal Protection Clause by denying the student admission to her chosen school because of her race Conclusion Decision: 5 votes for Parents Involved in Community Schools, 4 vote(s) against Legal provision: Equal Protection No, no, and yes. By a 5-4 vote, the Court applied a "strict scrutiny" framework and found the District's racial tiebreaker plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Chief Justice John Roberts wrote in the plurality opinion that "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The Court acknowledged that it had previously held that racial diversity can be a compelling government interest in university admissions, but it ruled that "[t]he present cases are not governed by Grutter." Unlike the cases pertaining to higher education, the District's plan involved no individualized consideration of students, and it employed a very limited notion of diversity ("white" and "non-white"). The District's goal of preventing racial imbalance did not meet the Court's standards for a constitutionally legitimate use of race: "Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by relabeling it 'racial diversity.'" The plans also lacked the narrow tailoring that is necessary for race-conscious programs. The Court held that the District's tiebreaker plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity. The District also failed to show that its objectives could not have been met with non-race-conscious means. In a separate opinion concurring in the judgment, Justice Kennedy agreed that the District's use of race was unconstitutional but stressed that public schools may sometimes consider race to ensure equal educational opportunity. Sex, Gender & the State Craig v. Boren (1976) United States v. Virginia (1996) Personnel Administration of Mass. v. Feeney (1979) Assignment: CB 586-620

Sex, Gender & the State Craig v. Boren (1976) United States v. Virginia (1996) Personnel Administration of Mass. v. Feeney (1979) Assignment: CB 586-620 Section 2: Other Arguabl Suspect Classifications Background on page 586 to 587 Sex Discrimination 1. Consatuinal sources of sex equalitty: US constatuiion is the only one that does expliclty make a stametment of eaulityy of the sexese S.C made it clear that the 14th Amdment was not ment to apply to sex based discrimination if itt is explicit Bradwell v. State Synopsis of Rule of Law. Separate spheres ideology allowed Illinois to prohibit women from practicing law. Womens admission to the bar is not protected by the Fourteenth Amendment is a matter reserved to the states. Facts. Mrs. Myra Bradwell was denied an application to practice law in the Illinois Supreme Court. Her petition included the requisite certificate attesting to her good character and qualifications. The United States Supreme Court affirmed. Issue. Does the Fourteenth Amendment to the United States Constitution provide that one of the privileges and immunities of women as citizens is to engage in any profession? Held. The admission to the bar is a matter reserved to the states and Bradwells right to practice law is not protected by the Fourteenth Amendment. Concurrence. Justice Bradley. The Illinois Supreme Court requires a certificate from the court of some county of his good moral character, and is otherwise left to the discretion of the court. The court found itself bound by two limitations: to promote the proper administration of justice not to admit any class of persons not intended by the legislature to be admitted, even though not expressly excluded by statute. Historically the right to engage in every profession has not been one of the established fundamental privilege and immunities of the sex. The law has always recognized a wide difference in the respective spheres and destinies of man and woman. The harmony of interests and views that belong to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from her husband. Historically women had no legal existence, and were incapable of making binding contracts without her husbands consent. This played heavily in the Supreme Court of Illinois decision. The paramount destiny of women is to fulfill the noble and benign offices of wife and mother. Discussion. The purpose of this concurring opinion is to demonstrate a classic statement of separate spheres ideology. Minor v. Happersett : 14th did not extend to esure that woman could vote through privilge and immunit

(Other factors on page 588) .2. Deference to laws mainting sheperate spheres:US Gov and Politics Case Briefs .3.

Goesaert v. Cleary

Object 1

Goesaert v. Cleary, (1948) (A classic example of where the SC has/does stand on woman

eality_ 2. Facts: A Michigan state law provided that no women could obtain a bartenders license unless she was the wife or daughter of the male owner. 3. Procedural Posture: Challenged under equal protection. 4. Issue: Whether the law violates equal protection; i.e. whether n have a constitutionally protected right to choose to bea bartender. 5. Holding: No. 6. Reasoning: [Frankfurter] Michigan could ban all women from being bartenders if it wished. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards. Since there may be a reasonable and valid desire in the legislature to protect female bartenders, the court can not second-guess the legislature and decide that the real purpose here was for male bartenders to monopolize the industry. 3. Hiegtened Scrunity uinder rationality review: Reed v. Reed Brief Fact Summary. The Petitioner, Ms. Reed the mother of a deceased child (Petitioner), alleges a statute that prefers males over females in the administration of an estate to which they both have equal claims, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. Classifications based on gender must be substantially related to an important government interest in order to be upheld per the Equal Protection Clause of the Fourteenth Amendment of the Constitution. ] acts. The Petitioner filed suit alleging a statute that prefers males over females in the administration of an estate that the Petitioner and the Respondent, Mr. Reed (Respondent) have equal claim, violates the Equal Protection Clause of the Fourteenth Amendment. Based solely on this statute the Respondent, the father of the deceased child, is declared the administrator of the childs estate.

Issue. Whether a statute that includes a gender based provision, preferring males over females to administer an estate, violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution. Held. Reversed. This gender-based classification violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution. Discussion. Classifications based solely on gender are subject to scrutiny under the Equal Protection clause. The standard of review is that the statute must be reasonable and must rest upon some ground having a fair and substantial relation to the object of the legislation. The Court statted that they would not officaly elvate sex based dirrence higher than rational review but in a way did in the language 3. The Faluire to adopt strict scurinity . Fronterio v. Richardson Brief Fact Summary. A female Air Force Lieutenant sought increased benefits on the basis of her husband as a dependent, which were refused by the armed services policy of only allowing men to claim wives presumptively as dependents. Synopsis of Rule of Law. Gender-based classifications, like racial classifications, must pass strict scrutiny. Facts. By statute, a serviceman may claim his wife as a dependent for purposes of qualifying for increased quarters, medical and dental benefits, and other increased support. However, a servicewoman may claim her husband as a dependant only if he is dependent on her for more than half of his support. The Petitioner, Frontiero (Petitioner), alleges that this policy denies her the equal protection of laws afforded by the Fifth Amendment of the United States Constitution (Constitution). Issue. Does the statute offering different spousal benefits for servicemen on the basis of gender violate the Fifth Amendments guarantee of equal protection? Held. Yes. Reversed and remanded. Justice William Brennan (J. Brennan) notes that women have a past history of discrimination against them in the United States and thus a requirement of strict scrutiny for gender-based classifications is appropriate. The government offered no concrete evidence suggesting that there is any actual administrative time or cost saving by this classification. Even so, J. Brennan notes that, [W]hen we enter the real of strict judicial scrutiny, there can be no doubt that administrative convenience is not a shibboleth. Concurrence. Justice Lewis Powell (J. Powell) concurs in the judgment, but disagrees that sex-based classifications are always suspect and subject to strict scrutiny. Discussion. J. Brennan argues that gender-based classifications are always subject to strict scrutiny. J. Powell stops short of this, arguing that such a ruling would have far-reaching implications with respect to inherent differences between the sexes.

Woman v. Hogan Must so exceidinly persuasive justification for sex based disccrintinatin to pass scrunity) Brief Fact Summary. The Respondent, Hogan (Respondent), was denied admission to Mississippi University for Womens (MUW) nursing program solely on the basis of gender. He now alleges this is a denial of equal protection. Synopsis of Rule of Law. A state may not preclude one gender or the other from participating in a unique educational environment solely on the basis of gender. Facts. MUW is the only single-sex collegiate institution maintained by the State of Mississippi. The Respondent was otherwise qualified for admission to the schools nursing program, but he was denied admission on the basis of being male. Issue. Does the operation of a female only nursing school by a State violate Equal Protection? Held. Yes. Appeals Court ruling affirmed. Applying intermediate scrutiny, Justice Sandra Day OConnor (J. OConnor) notes that the State of Mississippi has not advanced an important state interest for operating a single sex nursing school. In particular, she notes that women did not lack opportunities to be trained as nurses in Mississippi without the presence of MUW. J. OConnor also argues that the means to achieving even an important governmental objective (although she found none) are absent, as MUW allows male auditors in the nursing classes. If men are already in the classroom, the state is not technically operating a single-sex nursing program. Dissent. Justice Lewis Powell (J. Powell) argues that the Respondent has not suffered a cognizable injury, as there were state-operated nursing programs that accepted men elsewhere in the state and there is no right to attend a state-run university close to ones hometown. Discussion. The majority focuses on whether Mississippi may discriminate against men in admission to nursing programs. However, there are two powerful arguments brought up by the dissent. The first is the lack of injury argument without injury a case is not ripe, and the constitutional issue may not be reached. There is also the argument that as there is no unique educational opportunity here (there are nursing programs accepting men in the State college system), the state is not denying opportunities to men. Craig v. Boren Brief Fact Summary. Oklahoma State maintained different drinking ages between men and women for the consumption of 3.2% alcohol beer. The Appellant, Craig (Appellant), now alleges that this difference violates the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. Gender-based classifications must satisfy intermediate scrutiny requirements to pass constitutional muster. Facts. The State of Oklahoma prohibited the sale of nonintoxicating 3.2% alcohol beer to men under

the age of 21 and women under the age of 18. Suit was brought against the State, alleging the law violated the Equal Protection clause of the Fourteenth Amendment of the Constitution. Issue. Does the Oklahoma statute violate the Equal Protection clause of the Fourteenth Amendment of the Constitution? Held. Yes. Appeals Court ruling reversed and remanded. Justice William Brennan (J. Brennan) argues that case precedent dictates that an intermediate level of scrutiny should be applied in analyzing the statute. Specifically, the gender-based classification must serve an important government objective and be substantially related to the achievement of such objective. The District Court unequivocally found that the objective to be served by the statute is increased traffic safety. J. Brennan is not persuaded by the Appellees, Craig and others (Appellees), statistics that the statute closely serves the stated objective. As such, it is not constitutional. Dissent. Justice William Rehnquist (J. Rehnquist) dissents on two levels. He believes that rational basis analysis is the appropriate level of scrutiny for gender-based classification. Furthermore, he believes that the intermediate scrutiny applied by the Supreme Court of the United States (Supreme Court) is so diaphanous and elastic as to encourage judicial prejudice. Discussion. Craig v. Boren establishes intermediate scrutiny as the appropriate level of review for genderbased classification. Intermediate scrutiny is distinguished from strict scrutiny at both the objective and means levels. Important government objectives (intermediate) v. compelling government objectives (strict) and substantially related (intermediate) v. narrowly tailored (strict). Sex Discrinination After Craig v. Boern 1. TO pass intermedite scurnity, there must be a showing that there is an exceddingly persuvive justification for the classiification. The durden is ment when the govermant/instatuion shows that the calssification servers impotant govermental objective and and that the discrinatory means employed are substanitally related to the achivemnt of those objectives. The test is stright foreard but must be considered and amzalyed wirthin each fact patteren. 2. All Male miltary schools: United States v. Virgina Brief Fact Summary. Virginia Military Institute (VMI) was the only single-sexed school in Virginia. VMI used a highly adversarial method to train (male) leaders of the future. There was no equal educational opportunity to that of VMI in the State for women. Synopsis of Rule of Law. Gender-based classifications of the government can be defended only by exceedingly persuasive justifications. The State must show that its classification serves important governmental objectives and that the means employed are substantially related to those objectives. The justification must be genuine, not hypothesized. And it must not rely on overbroad generalizations about the differences between males and females Facts. VMI was the sole single-sexed school among Virginias 15 public institutions. VMIs mission is to produce citizen soldiers, (male) leaders of the future. VMI achieves its mission through its adversative method, which is characterized by physical rigor, mental stress, absolute equality of treatment, absence of privacy, etc. At trial, the District Court acknowledged that women were missing out on a unique educational opportunity, but upheld the schools policy on the rationale that admitting women could not be done without compromising the schools adversative method. Pursuant to a decision by the Court of Appeals, the State established the Virginia Womens Institute for Leadership (VWIL) for women. VWIL offered fewer courses than

VMI and was run without the adversative method. Issue. Did VMI represent a violation of the Fourteenth Amendments Equal Protection Clause? Held. Yes. The Fourth Circuits initial judgment is affirmed. Justice Ruth Bader Ginsburg (J. Ginsburg) stated that Virginia has shown no exceedingly persuasive justification for excluding all women. Benign justifications offered in defense of absolute exclusions will not be accepted automatically. The notion that admitting women would downgrade VMIs stature and destroy the schools adversity system was hardly proved. Generalizations about the way women are or what is appropriate for them will no longer serve to justify denying opportunity to those whose talents and capabilities make them exceptions to the average description. Moreover, VWIL does not qualify as VMIs substitute. VWIs student body, faculty, course offerings and facilities do not match VMIs. Dissent. Justice Antonin Scalia (J. Scalia) said the virtue of a democratic system is that it enables people over time to be persuaded that the things they took for granted are not so and to change their laws accordingly. That system is destroyed if such types of decisions are removed from the democratic process and written into our United States Constitution (Constitution). Concurrence. Chief Justice William Rehnquist (J. Rehnquist) argued that while he agreed with the Supreme Courts conclusion, he disagreed with its analysis. The Supreme Court says here for the first time the state must show an exceedingly persuasive justification for gender-based classifications, thereby introducing uncertainty regarding the appropriate test. In addition, VWIL only fails as a remedy because it is of inferior quality to VMI. Discussion. This case calls into question what differences between men and women are real, i.e., legitimate basis upon which to draw distinctions, for constitutional purposes 3. Pregnacy Calssification:

Geduldig v. Aiello
Brief Fact Summary. California operated a disability insurance system that paid benefits to employees of private employers when workers compensation did not cover certain disabilities that prevented those employees from working. However, many pregnancy related disabilities were excluded from coverage because of expenses to the program. Synopsis of Rule of Law. Underinclusive legislation is appropriate under the Equal Protection Clause, so long as the line drawn by the State is rationally supportable. Facts. California operated a disability insurance system that supplemented workers compensation, in that it provided for payments for disabilities not covered by workers compensation. The list of disabilities paid for by the State of California was not exhaustive. Among those disabilities not paid for were certain pregnancy related conditions. Suit was brought challenging the system as an unconstitutional genderbased classification. Issue. Does the exclusion of the pregnancy-related conditions violate the Fourteenth Amendments Equal Protection Clause? Held. No. Appeals Court ruling affirmed.

The list of conditions covered by the disability insurance system is not exclusive. Furthermore, there are conditions not covered by the system that affect both men and women. The excluded conditions do not affect women alone. The savings given the program by the exclusion of such conditions benefit both men and women. That is, inclusion of the excluded conditions would result in lesser amounts of funding for all other conditions. Dissent. Justice William Brennan (J. Brennan) argues that by disallowing payments related to pregnancy, the State inevitably discriminates against women. Discussion. The majority reaches its conclusions through viewing the problem as one of underinclusive legislation, while the dissent focuses on the inevitable connection of the unfunded conditions with a single sex. 3.Bender Specif staturt rapee laew: Micheial M. v. Superior '' Brief Fact Summary. The Petitioner, Michael M. (Petitioner), was charged with statutory rape in California and now alleges that the States statute discriminates unconstitutionally against men only. Synopsis of Rule of Law. A state may provide for punishment only for males to equalize deterrents to teenage pregnancy. Facts. The Petitioner, at the time of the complaint, was a 17-year-old male who had sexual intercourse with a 16-year-old female. Because Californias statute only criminalized such behavior in males, the female involved was not charged with any crime. The Petitioner now alleges that this disparity in the statutory rape laws is in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Issue. Does the California statutory rape statute violate principles of Equal Protection? Held. No. Appeals Court ruling affirmed. Justice William Rehnquist (J. Rehnquist) does not specifically refer to the application of intermediate scrutiny. However, J. Rehnquist gives great deference to the fact that the States alleged objective was to deter teenage pregnancies. The majority states that a state may attack the stated objective directly by prohibiting the conduct only of males. The reasoning behind this assertion is that females already have significant deterrence to abstain from the behavior, namely pregnancy itself and its attendant difficulties. Dissent. Justice William Brennan (J. Brennan) applies intermediate scrutiny to achieve the opposite result from the majority. J. Brennan concedes that preventing teenage pregnancy is an important objective. However, J. Brennan argues that California still bears the burden of demonstrating that the gender-based statute is more effective at decreasing teenage pregnancies than a gender-neutral statute. More importantly, the State cannot show that a gender-neutral statute would be less effective than the genderbased statute. Justice John Paul Stevens (J. Stevens) dissents, arguing that since both parties are equally guilty of the conduct, it is perversely partial for the State to only punish a single party. Discussion. It is hard to square the majoritys decision with the holding in Orr v. Orr, 440 U.S. 268

(1979), that says where compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies, the State cannot classify by gender. It is difficult to understand why this should be so in a remedial statute, but not a criminal statute. 4. Eclusion of woman in the draft: Rostrer v. Goldberg Facts of the Case After the Soviet Union invaded Afghanistan in early 1980, President Jimmy Carter reactivated the draft registration process. Congress agreed with Carter's decision, but did not enact his recommendation that the Military Selective Service Act (MSSA) be amended to include the registration of females. A number of men challenged the constitutionality of the MSSA, and the challenge was sustained by a district court. Question Did the MSSA's gender distinctions violate the Due Process Clause of the Fifth Amendment? Conclusion Decision: 6 votes for Rostker, 3 vote(s) against Legal provision: Selective Service, Military Selective Service, or Universal Military Service and Training Acts In a 6-to-3 decision, the Court held that Congress's decision to exempt women from registration "was not the 'accidental by-product of a traditional way of thinking about females'" and did not violate the Due Process Clause. The Court found that men and women, because of combat restrictions on women, were not "similarly situated" for the purposes of draft registration. The Court also upheld Congress's judgment that the administrative and military problems that would be created by drafting women for noncombat roles were sufficient to justify the Military Selective Service Act.

4. Discrimination against unmarraired fathers Caban v. Mohammrf

Procedure: Appellant father sought review of a judgment by the Court of Appeals of New York, which affirmed a judgment granting appellees, a mother and stepfather, adoption of appellant's children. Appellant challenged the constitutionality of N.Y. Dom. Rel. Law 111 under which the children were adopted without his consent. Facts: H and W lived together but were never married While they lived together, they had two children H was identified as the father and contributed to the support ofthe family In 1973, W took the two children and moved in with another man whom she married in 1974 H was able to see his children weekly as H lived above Ws mother In September of 1974, the grandmother took the children with her to Puerto Rico as W and HI were going to join them as soon as they saved enough money to start a business Eventually, H went to Puerto Rico and was given visitation with the children by the grandmother but he took them back to New York W then attempted to get the children by the use ofthe police Eventually the court gave the children back to W and give H and his new wife visitation In 1976, W and HI filed a petition to adopt the children H and his wife cross-petitioned for adoption The court granted the petition of W to adopt and thus cut off H's parental rights and obligations The New York Supreme Court affirmed The Supreme Court granted certiorari

Issue: Is a statute that requires maternal consent for adoption of illegitimate children constitutional as applied to a man who lived with the children for five years as their acknowledged father, who contributed to their support, and who has continued to maintain his relationship with them even after their mother has married another man? Rule: A state law cannot take away the parental rights of a putative father to his children without his consent unless he can show mat the termination of his parental rights are not in the best interests ofthe child. The mere existence of a biological connection between a child and a putative father does not confer due process protection on the putative jfather's parental interests. A statute may not treat unmarried parents differently based on their gender. Holding: No. The law provides mothers of illegitimate children with a total veto over their adoption, but gives fathers the right to prevent adoption by showing unfitness of the prospective adopting parent. Thus, it treats unmarried men and women differently according to their sex. Gender-based distinctions "must serve governmental objectives and must be substantially related to the achievement of those objectives" if they are to survive equal protection scrutiny. While mothers of illegitimate children often may be "closer" to them than their fathers are, this case proves that that generalization is not always true, especially when the children are older. Ngyuen v. Inc. Facts of the Case In 1969, Tuan Ahn Nguyen was born in Saigon, Vietnam to Joseph Boulais and a Vietnamese citizen. At age six, Nguyen became a lawful permanent United States resident. At age 22, Nguyen pleaded guilty in a Texas state court to two counts of sexual assault on a child. Subsequently, the Immigration and and Naturalization Service initiated deportation proceedings against Nguyen. After the Immigration Judge ordered Nguyen, Boulais obtained an order of parentage from a state court. Dismissing Nguyen's appeal, the Board of Immigration of Appeals rejected Nguyen's citizenship claim because he had not complied with 8 USC section 1409(a)'s requirements for one born out of wedlock and abroad to a citizen father and a noncitizen mother. On appeal, the Court of Appeals rejected Nguyen and Boulais argument that section 1409(a) violates equal protection by providing different rules for attainment of citizenship by children born abroad and out of wedlock depending upon whether the one parent with American citizenship is the mother or the father. Question Is 8 USC section 1409(a)'s statutory distinction, which imposes different requirements for a child's acquisition of citizenship depending upon whether the citizen parent is the mother or the father, consistent with the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment? Argument Tuan Anh Nguyen v. INS - Oral ArgumentTuan Anh Nguyen v. INS - Opinion Announcement Conclusion Decision: 5 votes for INS, 4 vote(s) against Legal provision: Equal Protection Yes. In a 5-4 opinion delivered by Justice Anthony M. Kennedy, the Court held that "[section 1409(a)] is consistent with the constitutional guarantee of equal protection." "For a gender-based classification to

withstand equal protection scrutiny, it must be established 'at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives,'" wrote Justice Kennedy, "[f]or reasons to follow, we conclude [section 1409(a)] satisfies this standard." Justice Sandra Day O'Connor, with whom Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined, dissented, noted that "[n]o one should mistake the majority's analysis for a careful application of this Court's equal protection jurisprudence concerning sex-based classifications." \Gender Based Purpose and Effect Personnal v. Feeney: exteden washinting v. davis to gender in terms that if a law has dispportionate effect on a gender soes not in itself make the law consatutional. P 813 for the test

Brief Fact Summary. The Respondent, Feeney (Respondent), challenges the Petitioner, Personnel Administration of Massachusettss (Petitioner), rule that provides a hiring preference to military veterans. Synopsis of Rule of Law. A gender neutral statute that adversely impacts one gender does not violate the Equal Protection Clause of the United States Constitution (Constitution) if it does not have a discriminatory purpose and it does not actually classify one gender. Facts. Respondent claims that by having a hiring preference for veterans over non- veterans for civil service positions, the Petitioner is discriminating against women. The District Court found that this practice has a severe impact on job opportunities for women, since most of the veterans are men. Issue. Does the hiring practice that favors veterans violate the Equal Protection Clause of the United States Constitution? Held. No. The benefit of this act was offered to any person who was a veteran. The law is a preference for veterans of either sex over non-veterans of either sex. It was not designed to favor men over women. Discussion. This statute was designed to reward and help veterans reenter society after their service. At the time only 1% of the veterans were women. So, it appeared that this legislation was meant for men only. But, in its application and by definition a veteran is gender neutral. ] 1. Look to ppages 6160620 for Sex Preferences: Affirmative Acti for Womn

Cabining the Availability of Strict & Intermediate Scrutiny Cleburne v. Clevurne Living Center, Inc. (1985) Romer v. Evans (1996) Assignment: CB 624-41

Disability, Age, Provertyt and whre they fall on the scunity line Cleburne v. Cleburne Living Center Brief Fact Summary. The Petitioner, City of Cleburne (Petitioner), denied a special use permit to the Respondent, Cleburne Living Center (Respondent), for the establishment of a group home for the mentally retarded in the community. The Court of Appeals of the Fifth Circuit determined that this group is a quasi-suspect class and that the ordinance violated the Equal Protection Clause of the United States Constitution (Constitution). Synopsis of Rule of Law. Legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose. Facts. The Respondent bought a property from a private owner with the intention of starting a group home for the mentally retarded. It was expected that 13 persons would reside in the house of 4 bedrooms and 2 baths. Petitioner required Respondent to apply for a special use permit and then denied the application. Issue. Is the mentally retarded part of a quasi-suspect class subject to a higher scrutiny under the Equal Protection Clause? Is the special use permit requirement constitutional? Held. No. This is a group that has political clout and has not suffered from prejudice in the past. No. There is no rational basis for requiring this particular group home to have a permit when other similar arrangements are not required to do so. It is clear that the only reason this permit was required was because the mentally retarded were involved. Discussion. The mentally retarded do not qualify as a suspect or quasi-suspect class because the lack of history of discrimination and they are not politically powerless. As a group they have been able to attract the attention of lawmakers on several issues. The Cabining of Supspect Classification 1. Age Classificacation: Marshells Board of Retierment v. Murgia Brief Fact Summary. Massachusetts law requires state police officers to retire upon turning 50 years old. The Respondent, Murgia (Respondent), argues that this compulsory retirement denies him equal protection under the laws. Synopsis of Rule of Law. Age classifications are only subject to rational basis review. Facts. The Respondent was an officer in the uniformed branch of the Massachusetts State Police. Upon his 50th birthday, the Respondent was required to comply with state law and retire, although a physical examination just four months prior had determined the Respondent to be healthy and capable of all his job functions. The Respondent brought suit in United States District Court, alleging that the compulsory retirement law for Massachusetts State Police denied him of equal protection under the law. Issue. May Massachusetts use an age classification to determine compulsory retirement of its police

officers? Held. Yes. Appeals Court ruling reversed. The Supreme Court of the United States (Supreme Court) majority states that although there has been age discrimination in the past and at present, it does not represent the same type of purposeful unequal treatment that has been shown on the basis of race or national origin. As such, the Supreme Court states that rational basis review is the proper level of scrutiny in the current case. Police work can be physically ardRomer v. Evens. uous and the individual officers must be capable of executing their duties fully in the interest of public safety. As individuals grow older, they are no longer as physically able as individuals in their 20s and 30s. Although Massachusetts requires routine physicals annually for all officers over the age of 40, there is no requirement that it base retirement solely on the results of these physicals. There is a rational basis for using a set age as a proxy, and hence, the Supreme Court finds no equal protection violation. Dissent. Justice Thurgood Marshall (J. Marshall) dissents, arguing that the right to work is a fundamental right and hence proper for a heightened level of scrutiny, as well as that the discrimination against the elderly is more widespread and systemic than the Per Curiam opinion admits. Discussion. The central holding of Murgia is that age classifications are subject only to rational basis review. Given the relatively small gain in administrative convenience in the present case (officers approaching 50 are physically examined annually, anyhow), one might argue that the majority is looking at the larger picture of how age classifications are used in this country (for example, drivers licensing, drinking age, voting rights, statutory rape, etc 2. Sexuality Orintation Romenr v. Evens Brief Fact Summary. Colorado voters adopted Amendment two to their State Constitution, precluding the government from adopting measures that would protect homosexuals from discrimination. The state trial court enjoined enforcement of the act. Synopsis of Rule of Law. A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest Facts. Amendment two was added to Colorados state constitution by a statewide referendum. It prohibited the state or local government from adopting measures that would protect homosexuals as a class from discrimination. The Respondents, Evans and others (Respondents), argued that Amendment two did nothing more than deny homosexuals special rights. The stated purpose of the amendment was to prevent the deterioration of the sexual morality favored by most Coloradans. The state trial court permanently enjoined enforcement Amendment two. The Colorado Supreme Court affirmed on the trials courts decision. Issue. Did Amendment two violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution)? Held. Yes. The judgment of the Supreme Court of Colorado is affirmed. Justice Anthony Kennedy stated that Amendment two relegates homosexuals to a solitary class and withdraws from them, but no others, legal protections arising from discrimination. Its reach includes the States public accommodation laws, as well as laws prohibiting discrimination in the housing, insurance and education markets. A law making it more difficult for one group of citizens to seek assistance from the government than another is a denial of the Equal Protection of the laws in the most literal sense (i.e. the means do not fit whatever ends sufficiently to pass rational basis review). Moreover, the means of Amendment two are so broad in relation to its ends (to prevent the deterioration

of sexual morality) that we cannot credit them. The Supreme Court of the United States (Supreme Court) is left with the conclusion that Amendment two constitutes a classification for its own sake. Class legislation is obnoxious to the Fourteenth Amendment. (i.e., the ends are illegitimate). Dissent. Justice Antonin Scalia (J. Scalia) states that the majority in this opinion is essentially saying that one who is accorded equal treatment under the laws, but cannot as readily achieve preferential treatment is one who is not accorded equal treatment and that this line of reasoning is silly. J. Scalia also adds that discrimination of the basis of sexual orientation is subject to rational basis review. He cites Bowers v. Hardwick (upholding the criminal law of a State prohibiting homosexual conduct) for this proposition and says that since Amendment 2 was designed to prevent the gradual decline of sexual morality favored by most Coloradans, Amendment 2 is an appropriate means to a legitimate ends and therefore constitutional. Discussion. At the time this case was decided (Bowers v. Hardwick), making homosexual conduct criminal, was still good law. As such, one would think that Bowers would be sufficient to establish the ends of Amendment two as rational. The Supreme Court has invalidated Amendment two under rational basis review, however. This case, thus, gives rise to the inference that the Supreme Court in fact applies a higher standard of review than rational basis for cases involving discrimination based on sexual orientation The Meaning and Implications of Romer Look to notes on page 636 640 Economic Classifications Assignment: CB 641-54 Minumin Ratinality Review of Economic Regulations Railway Express Agency v. New York Brief Fact Summary. The Appellant, Railway Express Agency (Appellant), brought suit against the Appellee, the State of New York (Appellee). The Appellant argued that a statute prohibiting advertising on vehicles, except for notices upon business delivery vehicles engaged in the regular work of the owner, are unconstitutional for violating the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. The Equal Protection Clause does not seek to protect so called discrimination in determining whether allowing advertising on vehicles and not allowing advertising on other vehicles is unconstitutional. Facts. The Appellant operates about 1,900 trucks in New York City and sells space on the exterior of the trucks for advertising. The advertising is for the most part unconnected with its own buisnes. The Appellant was fined for violating a state statute, which prohibits advertisements on the side of vehicles, except when the advestising is connected to the owner of the vehicles business. The statutes purpose was to protect the safety of pedestrians and other vehicle drivers by eliminating distractions on the streets. The judgment of conviction was upheld in the Court of Special Sessions as well as the Court of Appeals. The Appellant argued that this distinction between advertising on vehicles violates the Equal Protection

Cluase of the Fourteenth Amendment as the statute draws lines that are not justified by the aim and purpose of the regulation, which is to lessen distractions caused by advertsing. Issue. Whether the statute violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution by allowing advertising of products on a vehicle sold by the owner of the vehicle, versus general advertising on a vehicle, unrelated to products sold by the owner of the vehicle. Held. Affirmed. The Equal Protection Clause of the Fourteenth Amendment is not violated by this statute that prohibits advertising on vehicles except when the advertising is connected to the owner of the vehicles business. Concurrence. Where individuals contribute to an evil or danger in the same way and the same degree, may those who do so for hire be prohibited, while those who do so for their own commercial ends, but not for hire be allowed to continue? The answer is that the hiring may be put in a class by himself and may be dealt with differently than those who act on their own, as there is a real difference between doing in self interest and doing for hire. It is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price. Discussion. The Equal Protection Clause of the Fourteenth Amendment of the Constitution is invoked where a law treats similarity situated people differently. If the law is found to treat similarly situated people differently, then it must be determined what standard of review will be used. In this case, the Supreme Court did not think this was an Equal Protection Issue. But, they found if this were an Equal Protection issue, it would be upheld under a rational basis review. Rational basis scrutiny was used because it was a classification based on economic welfare. If rational basis scrutiny is applied, the plaintiff has to show the measure being challenged is not rationally related to any legitimate interest. Practically, any police power regulation, which furthers a health, safety or welfare purpose will be considered legitimate. In this case since the statutes purpose was to further the safety of the public, the statute will be upheld. Judivial Defference to Exobomic Regulations Look to notes on page casebook 41 to 648 U.S> Railroad Retierment Board v. Fritz Brief Fact Summary. The retirement fund for railroad employees originally provided a windfall for those who were eligible for social security and railroad benefits. But, in 1974, Congress determined that the system would be bankrupt by 1981 if it continued to pay the windfall. Therefore, legislation was enacted to reduce the costs and make the program financially viable. Synopsis of Rule of Law. Congress needs just a rational basis for its social and economic legislation. Facts. The original railroad retirement fund allowed workers who had worked for the railroad at some point in their careers to receive a pension, plus social security, plus a pension available from another employer. This created a windfall payment to retired railroad workers. In 1974, Congress became concerned that the system would be bankrupt if payments continued in this manner. So, it enacted the Railroad Retirement Act of 1974 that classified all railroad workers based on years of service and retirement status. Some of these individuals were allowed to continue to receive windfall payments, while others were limited to the lesser amount of the retirement fund or social security. Issue. Was the classification of railroad workers by Congress arbitrary and irrational resulting in a violation of the Equal Protection Clause of the United States Constitution (Constitution)?

Held. No. Congress could properly determine that those who had acquired entitlement to the retirement benefits while still employed in the railroad industry had a greater equitable claim to those benefits than those who became eligible only once they qualified for social security benefits. The current connection test is not arbitrary and has been used before. Dissent. Agrees that the proper test is the rational basis test, but insists that the actual original reason for the classification must be presented. It is improper to simply accept the reasons now provided by government attorneys. Discussion. The majority shows that extreme deference is given to the legislature when analyzing social or economic acts. Any classification is presumed valid as long as there is some plausible reason for the act. The legislature never has to state the reasoning for a law under the rational basis tes SEPARATION OF POWERS: DIVIDING POWER HORIZONTALLY OVERVIEW OF SEPARATION OF POWERS Introduction to Separation of Powers (available on TWEN) JUDICIAL REVIEW The Federalist No. 78 (1788) (Hamilton) (available on TWEN) Marbury v. Madison (1803) Coopers v. Aaron (1958) Assignment: CB 1-30 The Power of Hudicial Review Marbury v. Madision Brief Fact Summary. William Marbury was a justice of the peace appointed by John Adams during his presidency. When Adams left the White House, Marbury did not receive his commission under the new president, James Madison. Synopsis of Rule of Law. If there is a conflict between any law and the U.S. Constitution, it is within the judicial power granted to the Supreme Court to determine whether the law is unconstitutional. This process is called judicial review. Facts. While President of the United States, John Adams (Adams) appointed several justices, including justices of the peace, in the District of Columbia. Adams signed the Commissions for these justices, but the Commissions were not delivered before his term expired. William Marbury (Marbury) was one of the justices of the peace appointed by Adams. When Thomas Jefferson (Jefferson) became President of the United States, he ordered his Secretary of State James Madison (Madison), to withhold these Commissions. Marbury brought suit directly in the Supreme Court, asking for a Writ of Mandamus to compel Madison to deliver the Commissions. Issue. Is Marbury entitled to his Commission, and if so, do the laws provide a remedy? If Marbury is entitled to a remedy, can it be in the form of a Writ of Mandamus from the Supreme Court? Held. Justice John Marshall (J. Marshall) held Marbury was entitled to his Commission when Adams signed the Commissions prior to leaving office. To determine whether Marbury had a remedy, J. Marshall distinguished political acts from acts specifically required by law. J. Marshall ruled the denial of the Commission fell into the latter category and was reviewable by the courts.

The Supreme Court of the United States (Supreme Court) determined Marbury was entitled to a remedy. However, Marbury was not entitled to a remedy in the form of a Writ of Mandamus issued by the Supreme Court. J. Marshall explained that Section: 2 of the United States Constitution (the Constitution) gives original jurisdiction to the Supreme Court only in, [c]ases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party. This holding was contrary to the Judiciary Act of 1789 (the Act), which did authorize the Supreme Court to issue Writs of Mandamus on behalf of any person holding office in the United States. J. Marshall therefore concluded that the part of the Act authorizing the Supreme Court to Writs of Mandamus under these circumstances was unconstitutional and that the Supreme Court did not have the authority to issue a Writ. Discussion. The Supreme Court, rather than Congress, determines whether or not a statute is constitutional through judicial review. This was the first case to establish the Supreme Courts judicial review powers. Sextion 2: Supreme Court Authority to Review State Sourt Judgements Martin v. Hunter Lessee Brief Fact Summary. The state of Virginia granted the same tract of land to the Appellee, Hunter (Appellee), that a federal treaty give to the Appellant, Martin (Appellant). The Supreme Court of the United States (Supreme Court) declared that Appellant was so entitled, but the Virginia Court of Appeals, to which the case was remanded, refused to carryout the Supreme Courts judgment. Synopsis of Rule of Law. The United States Constitution (Constitution) and the laws of the United States made in pursuance thereof shall be the supreme law of the land and the judges in every state shall be bound thereby. Facts. Appellee claimed ownership of a tract of land in the state of Virginia that was given to him by the State pursuant to a land confiscation act. Appellant claimed ownership to the same tract of land, arguing that the Act was in violation of a treaty between the United States and Great Britain. The Virginia Court of Appeals, reversing the trial court, found in favor of Appellee. The Supreme Court took jurisdiction over the case, reversed and remanded the case back to the Virginia Court of Appeals and instructed it to enter judgment for Appellant. On remand the Virginia Court of Appeals declined and argued that the law, section 25 of the Judiciary Act (the Act), pursuant to which the Supreme Court took appellate jurisdiction over the Court of Appeals, was unconstitutional. Issue. Was section 25 of the Act Constitutional? Held. Yes. The appellate power of the United States does extend to cases pending in state courts. Section 25 of the Act is supported by the letter and spirit of the Constitution. The framers obviously contemplated that cases within the Supreme Courts appellate jurisdiction would arise in state courts. Article VI of the Constitution says that [the] Constitution and the laws of the United States . . . made in [p]ursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby. . . . The very nature of state court judges judicial duties indicates that such judges are to decide cases not only in accordance with state law, but also in accordance with the Constitution. It is a mistake to say that the Constitution was to operate only upon the people and not upon the States. Article 1, Section 10 of the Constitution contains a litany of prohibitions the Constitution places upon the States. The need for uniformity of decisions throughout the whole United States also calls for Federal courts to

have appellate jurisdiction over state court decisions. Discussion. Its important to recognize that this case pertains to the power of the federal courts to review decisions by state courts. In Marbury v. Madison, at issue was as a federal courts power to review an act by another branch of the federal government. Vooper v. Aaron Facts: The Governor and the Legislature of Arkansas openly resisted the Supreme Court's decision in Brown v. Board of Education. They refused to obey court orders designed to implement school desegregation. Local officials delayed plans to do away with segregated public facilities. Question Were Arkansas officials bound by federal court orders Decision: 9 votes for Aaron, 0 vote(s) against Legal provision: Equal Protection In a signed, unanimous per curiam opinion, the Court held that the Arkansas officials were bound by federal court orders that rested on the Supreme Court's decision in Brown v. Board of Education. The Court noted that its interpretation of the Fourteenth Amendment in Brown was the supreme law of the land and that it had a "binding effect" on the states. The Court reaffirmed its commitment to desegregation and reiterated that legislatures are not at liberty to annul judgments of the Court. Look to pages 27 tpo 20 for polticail restrains on the supreme court

Section V of the 14th Amendment (AN ADDITIONAL CONGRESSIONAL POWERS) South Carolina v. Katzenbach (1966) Katzenbach v. Morgan (1966) City of Boerne v. Flores (1997) United States v. Morrison (2000) Assignment: CB 726-49 Congressional Protection of Voting Rights South Carolina v. Katzenbach Facts of the Case

The Voting Rights Act of 1965 prevented states from using a "test or device" (such as literacy tests) to deny citizens the right to vote. Federal examiners, under the Attorney General's jurisdiction, were empowered to intervene to investigate election irregularities. Question Did the Act violate the states' rights to implement and control elections? Conclusion Decision: 8 votes for Katzenbach, 1 vote(s) against Legal provision: Voting Rights Act of 1965 The Court upheld the law. Noting that the enforcement clause of the Fifteenth Amendment gave Congress "full remedial powers" to prevent racial discrimination in voting, the Act was a "legitimate response" to the "insidious and pervasive evil" which had denied blacks the right to vote since the Fifteenth Amendment's adoption in 1870. The Constatuail Stauts of a Litercay test Lassiter v. North Ampton Ruling The opinion of the court, delivered by Justice Douglas, held in the that provided the tests were applied equally to all races, were not "merely a device to make racial discrimination easy", and did not "not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed", then it could be an allowable use of the State's power to "determine the conditions under which the right of suffrage may be exercised".[1] Congress subsequently prohibited such tests with the National Voting Rights Act of 1965. Court applied rational review here Section 5 of the Voting Rights Act p728 to 729

Katzenback v. Morgan Brief Fact Summary. A law that ensured Puerto Ricans the right to vote upon successful completion of the sixth grade was upheld as a valid exercise of the powers of the United States Congress by means of Section:5 of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. A federal law ensuring the right to vote upon successful completion of the sixth grade, despite a conflicting state laws voting qualifications, is a valid exercise of the powers of the United States Congress by means of Section:5 of the Fourteenth Amendment of the Constitution because Section:5 is a positive grant of power. Facts. Section 4(e) of the Voting Rights Act of 1965 (the Act) ensures the right to vote to all Puerto Ricans who successfully complete the sixth grade. The Appellees, Morgan and other registered voters in

New York City (Appellees), brought this suit to challenge the constitutionality of Section:4(e) of the Act insofar as it pro tanto prohibits the enforcement of the election laws of New York requiring an ability to read and write English. Issue. Whether such legislation is, as required by Section:5 of the Fourteenth Amendment of the Constitution, appropriate to enforce equal protection? Whether the congressional remedies adopted in Section:4(e) of the Act constitute means which are not prohibited by, but which are consistent with the constitution? Held. Yes. Judgment of the lower court reversed. There can be no doubt that Section:4(e) of the Act may be regarded as an enactment to enforce equal protection. Section 4(e) of the Act may be viewed as a measure to secure for the Puerto Rican community residing in New York, nondiscriminatory treatment by the government, both in the imposition of voting qualifications and the administration of governmental services. Section 4(e) of the Act can be readily seen as plainly adapted to furthering these claims of equal protection. Yes. Section 4(e) of the Act does not restrict or deny the franchise, but in effect extends the franchise to persons who would be denied it by state law. The limitation on relief effected in Section:4(e) of the Act does not constitute a forbidden discrimination since these factors may have been the basis for the decision of Congress to go no farther than it did. Dissent. Section 4(e) of the Act cannot be sustained except at the sacrifice of the fundamentals in the American constitutional system: the separation between the legislative and judicial function and the boundaries between federal and state political authority. Discussion. The majority opinion rested on alternative rationales. First, it held that Section:4(e) of the Act was a measure for the Puerto Rican community residing in New York, ensuring nondiscriminatory treatment by the government. Second, Section:4(e) of the Act eliminates an invidious discrimination in establishing voter qualifications. The Meaning and Aftermath of K v. Morgan 1. Te two rationals in morgan 734 to 5 2. Application of Morcan to other voting rights provisions Orgeon v, Mitchell p735

City of Beornce v. Flores Brief Fact Summary. Congress enactment of the Religious Freedom Restoration Act (RFRA) of 1993 was held by the Supreme Court of the United States (Supreme Court) to be an excessive use of power under Section:5 of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends sought to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. Facts. A decision by local zoning authorities to deny a church a building permit was challenged under the RFRA. The Acts stated purposes are: (1) to restore the compelling interest test and to guarantee its application in all cases where the free exercise of religion is substantially burdened; (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. The Act

forbids the government from substantially burdening a persons exercise of religion unless the government can demonstrate that the burden (1) is in furtherance of a compelling state interest; and (2) is the least restrictive means of furthering that state interest. Specifically, this case calls into question the authority of Congress to enact the RFRA. Issue. Whether the RFRA is a proper exercise of Congress Section:5 power to enforce by appropriate legislation the constitutional guarantee that no state shall deprive any person of life, liberty, or property without the due process of law nor deny any person equal protection of the laws? Held. No. Judgment of the lower court reversed. Congress power under Section:5 extends only to enforcing the provisions of the Fourteenth Amendment. While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. The RFRAs legislative records lacks examples of modern instances of generally applicable laws passed because of religious bigotry. Further, the RFRA cannot be considered remedial, preventive legislation. Rather, it appears to attempt a substantive change in constitutional protections. Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected have a significant likelihood of being unconstitutional. Remedial legislation under Section:5 should be adapted to the wrong which the Fourteenth Amendment of the Constitution was intended to protec t against. The RFRA is not so confined. The stringent test the RFRA demands of state laws reflects a lack of proportionality between the means adopted and the legitimate end to be achieved. Therefore, the RFRA is not a proper exercise of Congress Section:5 power to enforce by appropriate legislation the constitutional guarantee that no state shall deprive any person of life, liberty, or property without the due process of law nor deny any person equal protection of the laws Discussion. This decision disavowed any power on Congress power to confer new substantive rights not derived from prior decisions of the Court interpreting the Fourteenth Amendment. Thus, this case is important because it illustrates that Congress does not have unlimited power to create new substantive rights. Rather, it must look to the Courts interpretations of the Fourteenth Amendment to find such rights.

United States v. Morrison (2000) Brief Fact Summary. The Respondent, Morrison (Respondent), was sued under part of the Violence Against Women Act of 1994 (Act), which penalized crimes of violence motivated by gender. Now Respondent argues this section of the Act is beyond the scope of Congress power to regulate commerce. Synopsis of Rule of Law. Intrastate actions must be economic in nature to be viewed in aggregate by courts reviewing a Commerce Clause case. Facts. Christy Brzonkala enrolled at Virginia Tech in the fall of 1994. Shortly after enrolling, she was allegedly repeatedly sexually assaulted by two varsity football players, including Respondent. After the incident Brzonkala suffered severe emotional distress. She twice participated in academic hearings against Respondent

and later dropped out of the school. She finally brought suit against the two male students, including the Respondent and the university in Federal District Court. Issue. Is Section: 13981 of the Act a constitutional exercise of Congress commerce power? Held. No. Appeals court ruling affirmed. Applying the three-prong test from Lopez, 514 U.S. 549 (1995), the Supreme Court of the United States (Supreme Court) determined that violence against women does not substantially affect interstate commerce. The Supreme Court further defined the aggregate effects test (see Wickard v. Filburn, 317 U.S. 111 (1942)) by noting that intrastate activities must be considered in the aggregate only if the activities themselves are economic in nature. Dissent. Justice David Souter (J. Souter), dissenting, argued that the aggregate effects of sexual assault are economically felt and therefore proper subject for regulation by the commerce power. Concurrence. Justice Clarence Thomas (J. Thomas) concurs, but reiterates his belief that the Supreme Court should develop a new standard for review of Commerce Clause cases. Discussion. United States v. Morrison makes clear that Lopez is not a speed bump in the Supreme Courts Commerce Clause jurisprudence, but rather a new direction altogether. The Supreme Court is more capable of reining in congressional action as not substantially related to interstate commerce.

THE POWER OF THE EXECUTIVE Youngstown Sheet & Tube Co. v. Sawyer (1952) Assignment: CB 248-66 Section 1 Excutive vilation of the Seperatino of Powers Youngstown v. Sawyer rief Fact Summary. In 1952, after the employees of steel companies threatened to strike, the President of the United States Harry Truman (President Truman) ordered the Secretary of Commerce to seize the Nations steel companies. The steel companies sued. Synopsis of Rule of Law. The Presidents power, if any, to issue an order must stem from an act of Congress or the United States Constitution (Constitution). Facts. In 1951, a labor dispute arose between the United States steel companies and their employees. In 1952, the employees union gave notice of a nationwide strike. Thereupon, fearful that such a work stoppage would jeopardize our national defense, President Truman issued an order directing the Secretary of Commerce to take possession of the nations steel mills. After obeying the orders under protest, the steel companies brought suit in District Court. The District Court issued a temporary restraining order against the government, which the Court of Appeals stayed.

Issue. Did President Truman have the authority to order the seizure of the steel mills? Excutive Authory over foergn and miltiary affaris Untes States v, Belmont Facts of the Case In 1933, the United States established formal diplomatic relations with the Soviet Union. This case involved a Russian metal works company which had deposited money in an American bank prior to the Russian Revolution of 1917. The Soviet Union nationalized the company and attempted to reclaim its assets with the help of the United States. The bank refused to cooperate, citing protection of a New York law. Question Did the diplomatic agreements between the two countries compel the bank to release the assets? Conclusion Yes. Even though the diplomatic agreements had not been implemented as formal treaties with Senate approval, they did empower the United States to seek assets on the Soviet Union's behalf. Justice Sutherland argued for a unanimous Court that different kinds of treaties existed which did not require Senate approval, but nonetheless overrode state statutes. "Plainly, the external powers of the United States are to be exercised without regard to state laws or policies," he reasoned. Manes and Moore v. Regan Brief Fact Summary. The Supreme Court of the United States held that the President may nullify attachments and order the transfer of frozen Iranian assets pursuant to Section 1702(a)(1) of the International Emergency Economic Powers Act (IEEPA). Based on the Courts inferences from legislation passed by Congress (IEEPA and the Hostage Act) regarding the Presidents authority to deal with international crises and from the history of congressional acquiescence in executive claims settlement, the President may also suspend claims pursuant to the Executive Order. Synopsis of Rule of Law. Where Congress has a history of acquiescence, as with claims settlement, it thereby implicitly approves of the Presidents actions regarding that specific subject matter about which Congress was silent. Facts. In response to the seizure of American personnel as hostages at the American Embassy in Iran, the President issued various Executive Orders and regulations by which the President nullified attachments and liens on Iranian assets in the United States, directed that theses assets be transferred to Iran, and suspended claims against Iran that may be presented to an International Claims Tribunal. On December 19, 1979, Petitioner, Dames & Moore, filed suit in the United Sates District Court against Defendants, the government of Iran, the Atomic Energy Organization of Iran, and many Iranian banks, alleging that its subsidiary was a party to a contract with the Atomic Energy Organization and that the subsidiarys interest had been assigned to Petitioner. Petitioner alleged it was owed over 3 million dollars. The District Court issued orders of attachment directed against the Defendants property and the property of certain Iranian banks. In a January 20, 1981 Executive Agreement, the President agreed to nullify attachments and ordered the transfer of frozen Iranian assets. On February 24, 1981, the President ratified an earlier Order wherein he suspended all claims which may be presented

to the Tribunal and provided that such claims shall have no legal effect in any action now pending in U.S. courts. Issue. Whether the Presidents acts of nullifying the attachments and ordering the transfer of all frozen assets are specifically authorized by Congress. Whether the President has authority to suspend claims pending in American courts. Held. Yes. Because the Presidents actions in nullifying the attachments and ordering the transfer of assets were taken pursuant to congressional authorization (Section 1702 (a)(1) of IEEPA), it is supported by the strongest of presumptions and widest latitude of judicial interpretation and the burden of persuasion rests heavily on any who might attack it. Yes. Based on the legislation (IEEPA and the Hostage Act) which Congress has enacted in the area of the Presidents authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement, the President was authorized to suspend claims pursuant to the Executive Order Discussion. The majority resorts to drawing inferences from Congress legislation to conclude that the President has authority to suspend claims in American Courts. SUBSTANTIVE DUE PROCESS Incorporation of Fundamental Rights Saenz v. Roe (1999) Duncan v. Louisiana (1968) District of Columbia v. Heller (2008) McDonald v. City of Chicago (2010) Assignment: CB 357-74 & Suppl. to CB 7-13 Saenz v. Roe (1999 Brief Fact Summary. California passed a law that awarded less welfare benefits to residents who lived in California for less than 12 months than it paid other residents. Synopsis of Rule of Law. Under the Privileges and Immunities Clause of the United States Constitution (Constitution), a State must provide the same benefits to new residents as it does to other residents. Facts. California enacted a law limiting the welfare benefits for citizens who lived in California for less than 12 months. The welfare family would be paid the amount they received in their last state of residence. The Respondents, Brenda Roe and Anna Doe (Respondents) recently moved to California and challenged the law on equal protection grounds. The district court preliminarily enjoined implementation of the statute and the court of appeals affirmed. Issue. Does a statute providing lower benefits to families who have lived in California for less than 12 months violate the Privileges and Immunities Clause of the Constitution? Held. Yes, the Supreme Court of the United States (Supreme Court) applies the Constitutions Fourteenth Amendment Privileges and Immunities Clause for nearly the first history. The Supreme Court determined that durational residency requirements violate the right to travel by denying a newly-arrived citizen the same privileges and immunities enjoyed by other citizens in the same state, and are therefore subject to strict scrutiny. The states legitimate interest in saving money provides no justification for its diction to

discriminate among equally eligible citizens. Dissent. Justice William Rehnquist (J. Rehnquist). J. Rehnquist does not like the fact that the Privileges and Immunities Clause of the Constitution has only been applied once before and was overruled five years later. J. Rehnquist felt that California;s law was a good faith residency requirement. Dissent. Justice Clarence Thomas (J. Thomas). J. Thomas thinks the majority applies a meaning to the Privileges and Immunities Clause of the Constitution that the framers did not intend. The Slaughter-House Cases, he contends, drained the Privileges and Immunities Clause of any meaning. J. Thomas fears the Fourteenth Amendment Privileges and Immunities Clause will be a new tool for inventing rights. Discussion. The Fourteenth Amendment of the Constitution reads: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall enforce any law which shall abridge the privileges and immunities of the citizens of the United States. The right to equal benefits is protected throughout the states of the United States. It has been understood that the Privileges and Immunities clause protects the right to travel. The Supreme Court did not think rational basis test or intermediate scrutiny applied here. The right to travel includes a citizens right to be treated equally after residing in a new state. Incoprptation of the Bill of Rights Through the Due Process Clause Palko v. Connecticut Brief Fact Summary. Defendant Palko is tried and convicted of murder for a second time after state appeals previous murder conviction on same events. Synopsis of Rule of Law. The double jeopardy prohibition provision included in the Fifth Amendment is not applied to the states through the Fourteenth Amendment. Facts. Defendant was indicted for murder in the first degree. The jury returned a conviction of murder in the second degree, for which he received a life sentence. Pursuant to state law, the State of Connecticut appealed and the Connecticut Supreme Court of Errors reversed the judgment and ordered a new trial. This court found harmful error to the state as a result of the exclusion of testimony as to a confession by the defendant, the exclusion of cross-examination testimony to impeach the defendant, and faulty jury instructions as to the difference between first and second degree murder. They ordered a second trial at which the jury sentenced the defendant to death. The defendant was granted certiorari to have the second conviction overturned. Issue. Does the entire Fifth Amendment double jeopardy prohibition apply to the states through the Fourteenth Amendment? Held. No. The Supreme Court of the United States affirms the first degree murder conviction and the accompanying death sentence. Two requirements need to be met for a state to appropriately choose to not include the prohibition on double jeopardy, or any other piece of the 5th Amendment, in its law. They do not have to incorporate such a right if it is not of the very essence of a scheme of ordered liberty, and if its abolishment would not violate a principal of justice so rooted in the traditions and conscience of the American people as to be ranked fundamental. Here, the Supreme Court saw the states allowing a second trial on the same facts as

not violating fundamental principles of liberty and justice because it was only done to make sure that there was a trial without legal error. Discussion. The Supreme Courts decision here embracing selective incorporation in stating that the Fifth Amendment double jeopardy prohibition was not entirely applicable to state law through the Fourteenth Amendment was overruled in Benton v. Maryland in 1969. That later case held that the double jeopardy prohibition was a fundamental concept in our constitutional heritage, and thus definitely applied to the states through the Fourteenth Amendment. Duncan v. Louisiana Brief Fact Summary. The Appellant, Gary Duncan (Appellant), was convicted of simple battery, a misdemeanor, in a Louisiana district court. Under Louisiana law, jury trials are not granted in misdemeanor cases. The Appellant claimed the states denial of trial by jury violated the United States Constitution (Constitution). Synopsis of Rule of Law. The Fourteenth Amendment of the Constitution guarantees a right of trial by jury in all criminal cases. Facts. In 1966, the Appellant was driving his car when he saw his two younger black cousins on the side of the road with four white boys. The Appellants cousins had recently transferred to another school with reported racial problems. The Appellant stopped the car and got out to approach the six boys. A discussion ensued and the Appellant and his cousins decided to get back into the car and leave. Prior to getting into the car, a white boy testified that the Appellant slapped his elbow. The Appellant stated that he merely touched the boy on the elbow. The Appellant was charged with simple battery and requested a trial by jury. His request was denied. The trial judge concluded the elements of simple battery were proven by the state and found the Appellant guilty of the crime. The Appellant sought review in the Louisiana Supreme Court, claiming the states denial of trial by jury was a violation of the Constitution. The Supreme Court of Louisiana denied review. Issue. Does a state law granting a jury trial only in cases where the penalty is capital punishment or imprisonment at hard labor violate the Constitution? Held. Yes. The Constitution was violated when Appellants demand for jury trial was refused. Justice Byron White (J. White) delivered the opinion of the Supreme Court of the United States (Supreme Court). Trial by jury in criminal cases is fundamental to the American scheme of justice because it works to prevent governmental oppression. Right of trial by jury in serious criminal cases works as a defense against arbitrary law enforcement and qualifies for protection under the Due Process clause of the Fourteenth Amendment of the constitution. There has been debate over whether laymen can determine the facts in civil and criminal proceedings. Critics express a concern that juries are incapable of properly understanding evidence or determining issues of fact. However, juries do understand the evidence and come to sound conclusions in most cases presented to them. We are not suggesting that every criminal trial held before a judge is unfair or that a defendant may never be treated fairly by a judge. The purpose of a right to jury trial is to reduce the possibility of judicial or prosecutorial unfairness. Dissent. Justice John M. Harlan (J. Harlan) and Justice Potter Stewart (J. Stewart) dissenting. There are a

wide range of opinions concerning the desirability of trial by jury. Among the considerations pertaining to local conditions are the size of the criminal caseload, the difficulty in obtaining jurors and other circumstances bearing on the fairness of the trial. Each state should have the right to experiment with criminal procedure in the court system. The Supreme Court, other courts and the political process exist to correct any experiments in criminal procedure that prove fundamentally unfair to individuals. Discussion. Trial by jury is an integral part of the criminal system. It is necessary to protect against unfounded criminal charges and against judges who are too responsive to higher authority. Trial by jury is also a safeguard against overzealous prosecutors. District of Columbia v. Heller (2008) Brief Fact Summary. The District of Columbia has a ban on handguns, and in addition prohibits them from being in the home unless they are disabled. Respondent Heller brings an action claiming that this complete ban violates the 2nd Amendment right to keep and bear arms. Synopsis of Rule of Law. the 2nd Amendment extends a right to all individuals to keep firearms, and although the 2nd Amendment is not absolute, a complete ban on a class of weapons (handguns), even for a lawful purpose, violates the constitution.

Facts. The District of Columbia prohibits the possession of handguns, and no person may carry a handgun without a license. However, the Chief of Police may issue licenses for 1-year periods. In addition, residents are required to keep such firearms unloaded and dissembled or bound by a trigger lock or similar device unless they are located in a place of business or are being used for a lawful recreational activity. Respondent Dick Heller is a special police officer authorized to carry a handgun while on duty, and applied for a registration for a handgun he wanted to keep at home. The district denied such a registration. He filed suit in the Federal District Court of the District of Columbia seeking to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it violated the Second Amendment. Issue. Does the District of Columbias prohibition on the possession of usable handguns in the home violate the 2nd Amendment? Held. A complete ban on handgun possession in the home violates the 2nd Amendment, as does its prohibition against rendering any lawful firearm in the home inoperable for the purpose of immediate self defense. Dissent. (Stevens) The dissent feels that the 2nd Amendment was adopted to protect the right of the people to maintain a militia, and thus there is no right to use arms for non military purposes such as hunting and self defense. The dissent feels that the text of the Amendment, as well as history, contrary to what the majority opinion feels, is protecting the right of a militia to bear arms, and not all citizens. Specifically, the amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia

(Breyer): Justice Breyer feels that the majority is wrong for two reasons, the first being that the second amendment only protects militia-related, not self defense related- interests. In addition, this protection is not absolute, and permits the government to regulate the interests that it serves. Thus, any regulation has to be unreasonable or inappropriate. Justice Breyer concludes that the Districts regulation is a permissible legislative response to a serious problem, and comes to this conclusion based on an interestbalancing approach. Discussion. (Scalia): The 2nd Amendment provides for A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Despite the fact that some would argue that this means the people is a very broad term, the court states that when the Constitution refers to the right of the people this means individual rights, not collective rights, and the court feels that this is unambiguous. In addition, to keep or bear arms literally means to hold in ones possession. Therefore the court takes a very literal, dictionary definition meaning to the amendment and states that the amendment thus means that each individual person has a right to bear a weapon. In addition, looking at history, the court argues that the purpose was to enable the people to create a militia, since that the way tryants had eliminated a militia consisted of all the able-bodied men was not by manning the militia but by taking away the peoples arms and thus enabling the standing army to suppress political opponents. The court states that because this occurred in England, and that this is what the founders sought to prevent, that interpreting the 2nd Amendment to mean that the right to bear arms only applies to the military is inconsistent with history. The court recognizes that the right to bear arms is not absolute, that some restrictions may be placed and that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose meaning there can be some regulations on bearing arms, such as banning felons from owning weapons, the mentally ill, and having registration requirements. However, since this law totally bans handguns in the home, that is not in keeping with the 2nd amendment since it leaves no option open to bear arms. The court examples by stating that the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of arms that is overwhelmingly chose by an American society for that lawful purpose. Lastly, the court feels that Justice Breyers desire to use an interest-balancing approach is not in keeping with other constitutional scrutinies. McDonald v. City of Chicago (2010) Facts Chicago has a very similar law to the DC law struck down in DC v. Heller Issues Is the 2nd Amendment incorporated in the 14th Amendments due process clause? Holdings & Court Order Yes Reasoning (Alito) Because it is established that the 14th Amendment protections of individual rights against state infringement has been analyzed using the Due Process clause, not the Privileges or Immunities Clause, there is no reason to change the Slaughter-House

holding. The 14th Amendment framers and ratifiers intended that the right to keep and bear arms be among the fundamental rights the Amendment protected. The 1866 Civil Rights Acts purpose was to protect the right of all citizens to keep and bear arms. During debate on the Amendment, the right to keep and bear arms was considered a right that should be protected. After the amendment was ratified, almost 2/3 of states had protected the right to keep and bear arms in their constitutions. Unless precedent suggests otherwise, a fundamental right protected in the Bill of Rights applies equally to the federal government and the states. Thus, the 2nd Amendment is incorporated in the Due Process Clause. Scalia, concurring: The Courts approach to rights protections minimally infringes on the democratic process because it acknowledges only the rights created by democratic decisions. Rights that the Court doesnt acknowledge can be adopted or rejected by the people, and will not be revised by the judicial system. Thomas, concurring in part and in judgment: To interpret a provision, that guarantees process before stripping a person of the right to life, liberty, and property, as defining the substance of those rights is a stretch. During the Reconstruction Era, privileges and immunities were established synonyms for rights. Precedent should not preclude using the Privileges and Immunities Clause for interpreting what rights are incorporated in the 14th Amendment. The 2nd Amendment is applicable to the states as it is incorporated through the Privileges and immunities clasue. Stevens, dissenting: The original meaning of the Privileges or Immunities Clause is not as clear as the petitioners suggest, and not sufficiently clear to change over a century of precedent. This Court should be answering the question of whether the Constitution grants a fundamental right enforceable against states for individuals to possess a functional, personal firearm, including a handgun, within the home. Not whether the 2nd Amendment has been incorporated into the 14th Amendment, because it hasnt. First, firearms are ambivalently related to liberty. They can be used to protect homeowners, as well as murder innocent victims. Since the creation of the US, there has been the idea that deadly weapons threaten social order and reasonable restrictions on them are acceptable. Second, the gun possession is a right different from other liberties under the Due Process Clause. The ability to own any particular type of gun is not key to autonomy, dignity, or political equality. Third, many other advanced democracies have policies that suggest the right to possess guns is not necessary to ordered liberty. Many of these countries have more limiting regulations on guns than the US has. Breyer, with Ginsburg and Sotomayor, dissenting: the 2nd Amendment is not incorporated into the 14th Amendment. This Courts precedent requires a right to be fundamental to the American scheme of justice in order to be incorporated

into the 14th Amendment. To rely on history to prove this is both wrong and dangerous, as evidenced by the historical mistakes of this country (such as slavery). Right of Privacy Griswold v. Connecticut (1965) Assignment: CB 427-38 Section 2 Subtsatnive Due Process and Privacy Myer v. Nebreska Brief Fact Summary. Plaintiff was convicted for teaching a child German under a Nebraska statute that outlawed the teaching of foreign languages to students that had not yet completed the eighth grade. Synopsis of Rule of Law. The Fourteenth Amendment prohibits states from creating legislation that restricts liberty interests when the legislation is not reasonably related to an acceptable state objective. Facts. Plaintiff was convicted for teaching a child German under a Nebraska statute that outlawed the teaching of foreign languages to students that had not yet completed the eighth grade. The Supreme Court of Nebraska upheld the conviction. Issue. Does the statute as construed and applied unreasonably infringe on the liberty guaranteed by the Fourteenth Amendment? Held. The statute as applied is unconstitutional because it infringes on the liberty interests of the plaintiff and fails to reasonably relate to any end within the competency of the state. The Fourteenth Amendment encompasses more than merely the freedom from bodily restraint. The state argues that the purpose of the statute is to encourage the English language to be the native tongue of all children raised in the state. Nonetheless, the protection of the Constitution extends to those who speak other languages. Education is a fundamental liberty interest that must be protected, and mere knowledge of the German language cannot be reasonably regarded as harmful. Discussion. Liberty interests may not be interfered with by the states when the interference is arbitrary and not reasonably related to a purpose which the state may permissively regulate.

Pierce v, Society of Sisters Brief Fact Summary. Appellees, two non-public schools, were protected by a preliminary restraining order prohibiting appellants from enforcing an Oregon Act that required parents and guardians to send their children to public school. Appellants appealed the order. Synopsis of Rule of Law. The 14th Amendment provides a liberty interest in a parents or guardians right to decide the mode in which their children are educated. States may not usurp this right when the questioned legislation does not reasonably relate to a viable state interest. Facts. Appellee the Society of Sisters, a corporation with the power to establish and maintain academies or schools and Appellee Hill Military Academy, a private organization conducting an elementary, college preparatory, and military training school, obtained preliminary restraining orders prohibiting appellants from enforcing Oregons Compulsory Education Act. The Act required all parents and guardians to send children between 8 and 16 years to a public school. The appellants appealed the granting of the preliminary restraining orders. Issue. Does the Act unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children under their control? Held. The Act violates the 14th Amendment because it interferes with protected liberty interests and has no reasonable relationship to any purpose within the competency of the state. The Appellees have standing because the result of enforcing the Act would be destruction of the appellees schools. The state has the power to regulate all schools, but parents and guardians have the right and duty to choose the appropriate preparation for their children. Discussion. While the state has the right to insure that children receive a proper education, the 14th Amendment provides parents and guardians with a liberty interest in their choice in the mode in which their children are educated. Skinner v. Oklahoma Brief Fact Summary. The Petitioner, Skinner (Petitioner), was sentenced to involuntary sterilization under Oklahomas Habitual Criminal Sterilization Act (the Act) and now alleges that the Act deprives him of equal protection under the laws. Synopsis of Rule of Law. The right to have offspring is a fundamental right, requiring a compelling state interest to interfere with it.

Facts. Oklahoma defined a habitual criminal as a person who, having been convicted two or more times for crimes amounting to felonies involving moral turpitude either in Oklahoma or another State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in a Oklahoma penal institution. Such habitual criminals could be subject to forced sterilization. The Petitioner had been twice arrested for theft offenses before being arrested and confined for armed robbery. During his third incarceration, the Act was passed and proceedings were instituted against him. Issue. May the State sterilize an individual against his will for being convicted of three felonies involving moral turpitude? Held. No. Supreme Court of Oklahoma ruling reversed. Justice William Douglas (J. Douglas) notes that sterilization of habitual offenders in no way guarantees that new offenders will not be born. Furthermore, there is no guarantee that habitual offenders would spawn offenders themselves. J. Douglas cannot justify the distinction between larceny (involving moral turpitude) and embezzlement (not involving moral turpitude) in the eyes of the statute. This is clear discrimination in J. Douglass view. In terms of fines and imprisonment the crimes are identical to the State. Only when it comes to sterilization do the crimes differ. As such, equal protection is violated. Concurrence. Chief Justice Harlan Stone (J. Stone) concurs in the judgment, but rests his decision on due process grounds, arguing that the invasion of personal liberty is too great. Discussion. Skinner represents the Supreme Court of the United States growing awareness of the right to reproductive autonomy. Unlike later cases that focus on due process and a right to privacy, the majority in Skinner holds that sterilization in the present situation violates equal protection principles.

Griswold v. Connecticut Brief Fact Summary. Appellants were charged with violating a statute preventing the distribution of advice to married couples regarding the prevention of conception. Appellants claimed that the statute violated the 14th Amendment to the United States Constitution. Synopsis of Rule of Law. The right of a married couple to privacy is protected by the Constitution. Facts. Appellant Griswold, Executive Director of the Planned Parenthood League of Connecticut and Appellant Buxton, a licensed physician who served as Medical Director for the League at its Center in New Haven, were arrested and charged with giving information, instruction, and medical advice to married persons on means of preventing conception. Appellants were found guilty as accessories and fined $100

each. Appellants appealed on the theory that the accessory statute as applied violated the 14th Amendment to the United States Constitution. Appellants claimed standing based on their professional relationship with the married people they advised. Issue. Does the Constitution provide for a privacy right for married couples? Held. The First Amendment has a penumbra where privacy is protected from governmental intrusion, which although not expressly included in the Amendment, is necessary to make the express guarantees meaningful. The association of marriage is a privacy right older than the Bill of Rights, and the States effort to control marital activities in this case is unnecessarily broad and therefore impinges on protected Constitutional freedoms. Dissent. Justice Stewart and Justice Black. Although the law is silly, it is not unconstitutional. The citizens of Connecticut should use their rights under the 9th and 10th Amendment to convince their elected representatives to repeal it if the law does not conform to their community standards. Concurrence. Justice Goldberg, the Chief Justice, and Justice Brennan. The right to privacy in marriage is so basic and fundamental that to allow it to be infringed because it is not specifically addressed in the first eight amendments is to give the 9th Amendment no effect. Justice Harlan. The relevant statute violates the Due Process Clause of the 14th Amendment because if violates the basic values implicit in the concept of ordered liberty. Discussion. The right to privacy in marriage is not specifically protected in either the Bill of Rights or the Constitution. Nonetheless, it is a right so firmly rooted in tradition that its protection is mandated by various Constitutional Amendments, including the 1st, 9th and 14th Amendments.

Right to an Abortion Roe v. Wade (1973) Assignment: CB 438-48 Roe v. Wade Brief Fact Summary. Appellant Jane Roe, a pregnant mother who wished to obtain an abortion, sued on behalf of all woman similarly situated in an effort to prevent the enforcement of Texas statutes criminalizing all abortions except those performed to save the life of the mother. Synopsis of Rule of Law. Statutes that make criminal all abortions except when medically advised for the purpose of saving the life of the mother are an unconstitutional invasion of privacy.

Facts. Texas statutes made it a crime to procure or attempt an abortion except when medically advised for the purpose of saving the life of the mother. Appellant Jane Roe sought a declaratory judgment that the statutes were unconstitutional on their face and an injunction to prevent defendant Dallas County District Attorney from enforcing the statutes. Appellant alleged that she was unmarried and pregnant, and that she was unable to receive a legal abortion by a licensed physician because her life was not threatened by the continuation of her pregnancy and that she was unable to afford to travel to another jurisdiction to obtain a legal abortion. Appellant sued on behalf of herself and all other women similarly situated, claiming that the statutes were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Issue. Do the Texas statutes improperly invade a right possessed by the appellant to terminate her pregnancy embodied in the concept of personal liberty contained in the Fourteenth Amendments Due Process Clause, in the personal marital, familial, and sexual privacy protected by the Bill of Rights or its penumbras, or among the rights reserved to the people by the Ninth Amendment? Held. The right to personal privacy includes the abortion decision, but the right is not unqualified and must be considered against important state interests in regulation. The abortion laws in effect in the majority of the States are of relatively recent vintage, deriving from statutory changes generally enacted in the latter half of the 19th century. At common law abortion performed before quickening (the first recognizable movement of the fetus in utero) was not an indictable offense, and it is doubtful that abortion was ever a firmly established common law crime even when it destroyed a quick fetus. Three reasons have been advanced for the historical enactment of criminal abortion laws. The first is that the laws are the product of a Victorian social concern to discourage illicit sexual conduct, but this argument has been taken seriously by neither courts nor commentators. The second reason is that the abortion procedure is hazardous, therefore the States concern is to protect pregnant women. However, modern medical techniques have altered the situation, with abortions being relatively safe particularly in the first trimester. The third reason is the States interest is in protecting the prenatal life. However, this is somewhat negated by the fact that the pregnant woman cannot be prosecuted for the act of abortion. For the stage prior to the approximate end of the first trimester, the abortion decision must be left to the medical judgment of the pregnant womans attending physician, and may not be criminalized by statute. For the stage subsequent to the approximate end of the first trimester, the State may regulate abortion in ways reasonably related to maternal health based upon the States interest in promoting the health of the mother. For the stage subsequent to viability, the State may regulate and even proscribe abortion, except where necessary for the preservation of the mothers life, based upon the States interest in the potential of the potential life of the unborn child. Dissent. Justice Rehnquist. The right to an abortion is not universally accepted, and the right to privacy is thus not inherently involved in this case.

Discussion. The Court finds that an abortion statute that forbids all abortions except in the case of a life saving procedure on behalf of the mother is unconstitutional based upon the right to privacy. However, it does allow for regulation and proscription of abortion when the statute is narrowly tailored to uphold a compelling state interest, such as the health of the mother or the viable fetus. The court declined to address the question of when life begins. Marriage Assignment: CB 464-70 Substantive Due Process and Marriage and Family Relationships Limitations on right to marry, and the extesi of family defintion is iunconsational ` Moore v. East Cleveland Brief Fact Summary. A Cleveland statute made it a crime for a dwelling to contain members of more than one family, and limited the definition of family to a basic nuclear family. Appellant was convicted under the statute when her son, grandson, and a grandson from another child all lived with her. Synopsis of Rule of Law. The right to live as a family unit is protected under the Due Process Clause of the Fourteenth Amendment. Facts. Appellant, Mrs. Inez Moore, lived in an East Cleveland home with her son, her son and her two grandsons. The two grandsons were first cousins rather than brothers, with one of the grandsons moving in with his appellant after his mothers death. Appellant received notice that she was in violation of a Cleveland criminal statute that limits occupants of a dwelling to members of a single family. Appellants family did not meet the definition required for a single family, and she was convicted and sentenced to 5 days in jail and a $25 fine. Issue. Does the Cleveland statute violate the Due Process Clause of the Fourteenth Amendment? The right infringed upon is a liberty interest protected by the Due Process Clause, and the statute does not sufficiently advance legitimate state interests. Therefore, the statute is unconstitutional. Unlike previous precedent upholding limitations on housing units that affected only unrelated individuals, the present statute declares that certain categories of relatives may live together while others may not. This constitutes an intrusive regulation of the family protected by the Due Process Clause. The city justifies the statute as a means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding undue financial burden on the school system. While these are legitimate goals, the statute serves them only marginally because large groups of people can still live together so long as they meet the statutory definition of a single family. The city also tries to distinguish this case from other precedent that has provided for constitutional protection of family rights by suggesting that such rights extend only to the nuclear family. This Court finds that the force and rationale of these precedents are applicable in the present case. Caution, rather than abandonment, is the proper way to move forward when the judicial branch gives enhanced protection to substantive liberties without the guidance of more specific provisions of the Bill

of Rights. Clear lines cannot place the limits on substantive due process, rather an examination of the teachings of history and recognition of the basic values that underlie society should serve as guidance. Dissent. Justice Stewart, Justice Rehnquist. Appellant contends that she has a constitutional right to share her residence with whomever she pleases, but precedent in Belle Terre says otherwise. Although appellants desire to share her dwelling with her extended family involves private family life, the desire cannot be equated with interests previously found to be constitutionally protected. Appellant also cannot claim constitutional rights on equal protection grounds because the citys definition does not offend the Constitution. The pluralities decision extends the limited substantive contours of the Due Process Clause beyond recognition. Concurrence. Justice Brennan, Justice Marshall. This concurrence is separately written to underscore the fact that such family units are important to immigrant, minority, and disenfranchised families as a means of survival. Discussion. This case demonstrates different opinions between the plurality and the dissent on how far to extend the rights protected by substantive due process. Belle Terre v. Boraas Brief Fact Summary. A zoning ordinance had a narrow definition of family, which prevented unrelated college students from living together. Synopsis of Rule of Law. A zoning ordinance, which excludes more than two unrelated people from living together does not violate the United States Constitution. Facts. The village of Belle Terre (Plaintiff) restricts land use to single family dwellings, excluding lodging houses, boarding houses, fraternity houses, or multiple dwelling houses. Family in the ordinance means those related by blood, adoption, or marriage, living and cooking together as a single unit. Two people living together but not related by blood, adoption or marriage will constitute a family. Six college students leased a house, and were not a family under the ordinance. They seek to declare the ordinance unconstitutional. Issue. Is an ordinance which limits the number of unmarried people who can live together unconstitutional? Held. No. The ordinance involves no fundamental right guaranteed by the Constitution. Instead, it deals with economic and social legislation, and will not violate equal protection if the law is reasonable and bears a rational relationship to a permissible state objective. It is permissible for the legislature to draw lines, which limit the number of unmarried people who can constitute a family. The ordinance does not ban association because a family within its guidelines may entertain whomever it likes. A quiet neighborhood is a permissible goal of a legislature. The police power includes zoning an area to promote family values, youth values, and quiet

seclusion. Dissent. The freedom of association is often entwined with the right to privacy. The right to establish a home is an essential part of the Fourteenth Amendment. The choice of household companions involves deeply personal considerations as to the relationships within the home. That decision falls within the protection of the right to privacy. The zoning ordinance creates a classification, which impinges upon fundamental personal rights, so it can only withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest. The means chosen to accomplish the purpose of a quiet neighborhood are both over inclusive and under inclusive. Discussion. How to define a family is not a constitutional right, so as long as a zoning ordinance restricting types of households is rationally related to a permissible state objective, the ordinance will be constitutional. Toxel v. Granville Brief Fact Summary. The paternal grandparents brought a petition requesting visitation of their granddaughters. The mother agreed to some visitation, but did not agree to the extended visitation requested. Mother appealed the courts granting of visitation as unconstitutional. Synopsis of Rule of Law. The courts presumption that it is normally in the best interest of children to spend time with the grandparent failed to provide any protection for Granvilles fundamental constitutional right to make decisions concerning the rearing of her own daughters. Micheal v. Gerald Brief Fact Summary. Carole had an adulterous affair with Michael while married to Gerald. A child was born while Carole and Gerald were together, but was likely Michaels child. Michael and the child by guardian ad litem brought suit to establish paternity and a right to visitation. Synopsis of Rule of Law. An adulterous, natural father does not have a constitutional right to paternity over the marital father.

Facts. In 1976 Carole D. and Gerald D. were married and established a home in California. In 1978, Carole became involved in an adulterous affair with Michael H. She conceived a child, Victoria, in 1980, with Gerald listed as father on the birth certificate. Gerald has always held the child out to be his daughter, but soon after delivery Carole informed Michael she believed he might be the father. In 1981 Gerald moved to New York and Carole, Michael, and Victoria had blood tests revealing a 98.07% probability that Michael was the father. Carole visited with Michael for several months, were he held Victoria out as his daughter. Carole left Michael and took up residence in California with another man. In the summer of 1982 Carole and Victoria visited Gerald in New York, and the three vacationed in Europe. In the fall she returned to California. In November of 1982 Michael filed a filiation action in California to establish his paternity and right to visitation. In 1983 the co urt appointed an attorney and a guardian ad litem to represent Victorias interests. Victoria filed a crosscomplaint asserting that if she had more than one psychological or de facto father, she was entitled to maintain her filial relationship, with all of the attendant rights, duties, and obligations, with both. Carole

filed for summary judgment while she was again living with Gerald in New York. In August of 1983 she returned to California and again became involved with Michael, instructing her attorneys to remove the summary judgment motion. For the next eight months Michael held Victoria out as his daughter. In April 1984, Carole and Michael signed a stipulation that Michael was Victorias father. The next month Carole left Michael, instructing her attorneys to not file the stipulation. Carole reconciled with Gerald and they lived together with two more children being born. In May 1984 Michael and Victoria, through guardian ad litem, sought visitation rights for Michael pendente lite. A court appointed psychologist recommended that Carole retain sole custody, but Michael be allowed continued contact with Victoria pursuant to a restricted visitation schedule. The court concurred. In October of 1984 Gerald moved for summary judgment on the ground that under California law there were no triable issues of fact as to Victorias paternity. The law provides that the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. The presumption may only be rebutted by blood tests, and a motion for such tests must be made within two years of the birth by the husband, or by the wife if the natural father has filed an affidavit acknowledging paternity. In 1985 the Superior Court granted the motion for summary judgment, finding that Carole and Gerald were cohabiting at the time of conception and birth and that Gerald was neither sterile nor impotent. Issue. Does the presumption established by the law infringe upon the due process rights of a man who wishes to establish his paternity of a child born to the wife of another man or infringe upon the constitutional right of the child to maintain a relationship with her natural father? Held. [ Please provide a description of the decision(s) of this case ] Michael contends as a matter of substantive due process that because he has established a parental relationship with Victoria, protection of Gerald and Caroles marital union is an insufficient state interest to support termination of the relationship. However, Michaels interest must be a fundamental liberty to be constitutionally protected. Historically, the marital family has been protected rather than the potential father outside of the marriage. The presumption of legitimacy was fundamental at common law, and could be rebutted only by a husband who was incapable of procreation or had no access to his wife during the relative period. The policy rationales were the aversion to declaring children illegitimate and the peace and tranquility of the States and families. No modern or historical precedent similarly recognizes the power of the natural father to assert parental rights. Michael must establish not that society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights. To provide protection to an adulterous natural father is to deny protection to a marital father. Victorias due process challenge is weaker than Michaels. Her claim that a State must recognize multiple fatherhood has no support in history or tradition. The Court declines to accept Victorias argument that she had no opportunity to rebut the presumption of her legitimacy, because Victoria is not illegitimate. Dissent. If we had looked to tradition with such specificity in past cases, many decisions would have had a different result. The plurality ignores the developing society in which we live. Liberty must include the freedom not to conform. This is not a new interest, in that of a parent and a child in their relationship with one another. The pluralitys decision is striking considering the precedent preventing States from denying important interests to those in situations that do not fit the governments narrow view of the family. Discussion. The dissent accuses the plurality of being too specific in its search of history to support the right claimed by appellant. An omitted concurring opinion agreed in the sense that it objected that the pluralitys historical analysis might foreclose the identification of future liberty interests.

Facts. Tommie Granville and Brad Troxel had two daughters during their relationship, but never married. After the two separated, Brad lived with his parents (the daughters paternal grandparents) and regularly brought his daughters to their home for weekend visitation. He committed suicide, but the Troxel grandparents continued to see the daughters on a regular basis. Several months later Granville informed the Troxels that she wished to limit their visitation to one short visit per month. The Troxels filed a petition for visitation, requesting two weekends overnight visitation per month and two weeks of visitation each summer. Granville asked the court to order one day per month with no overnight stay. The Superior Court ordered visitation of one weekend per month, one week during the summer, and four hours on each of the Troxels birthdays. Granville appealed, during which time she married Kelly Wynn. The Washington Court of Appeals remanded the case, with the Superior Cour t finding that the visitation was in the childrens best interests. Nine months later, Wynn adopted the daughters. The Court of Appeals reversed the order, finding that under statute nonparents lacked standing unless a custody action was pending. The Court did not pass on Granvilles constitutional challenge to the visitation statute. Issue. Does the Washington statute allowing any person to petition for visitation rights at any time infringe on the liberty interest of parents in the care, custody, and control of their children? Held. The statute unconstitutionally infringes on the Due Process Clause of the Fourteenth Amendment. Nationwide, enactment of nonparental visitation statutes have attempted to recognize that children should have the opportunity to benefit from relationships with statutorily specified persons such as grandparents. The cost of this is a substantial burden on the traditional parent-child relationship. The liberty interest of parents in the care, custody and control of their children is perhaps the oldest fundamental liberty interests recognized by this Court. The Washington statute allows any person to petition the court for visitation rights at any time, and the court may grant such visitation rights whenever visitation may serve the best interest of the child. A parents decision that visitation would not be in the childs best interest is accorded no deference, placing the best-interest determination solely in the hands of the judge. No court found that Granville was an unfit parent. There is a presumption that fit parents act in the best interests of their children. So long as the parent is fit, there will normally be no reason fro the State to interject into the private realm of the family to question the ability of that parent to make the best decisions concerning the rearing of that child. The trial court gave no special weight to Granvilles determination of her daughters best interests. The court instead placed the burden on her to disprove that visitation would be in the best interest of her daughters. The court must accord at least some special weight to the parents own determination. There is no allegation that Granville sought to cut of visitation entirely. Many other states proved that courts cannot award visitation to third parties unless a parent has denied visitation to the concerned third party. Based on the finding that the statute is unconstitutional, there is no reason to consider if the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. Dissent. Neither the provision granting any person the right to petition for visitation nor the absence of a provision requiring a threshold finding of harm to the child provides a sufficient basis for holding that the statute is invalid in all its applications. That the Constitution requires a showing of actual or potential harm finds no support in this Courts precedent. At a minimum, besides the interests of the State and the parent, the interests of the child must be considered. A parents rights with respect to her child are limited

by the existence of an actual, developed relationship with a child, tied to some embodiment of family. The State has an interest in protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child. Presumptions notwithstanding, there may be situations where a child has a stronger interest at stake than mere protection from serious harm caused y the termination of visi tation by a person other than the parent. Discussion. The Court found the statute unconstitutional because it was overbroad in that any person could petition for visitation at any time, and also the presumption that a fit parent would act in the best interests of the child was not recognized

Sexual Orientation Bowers v. Hardwick (1986) Lawrence v. Texas (2003) Assignment: CB 470-84eld. Substative Due Process and Sexuality Browers v. Hardwick Brief Fact Summary. A male homosexual was criminally charged for committing consensual sodomy with another male adult in the bedroom of his home. Synopsis of Rule of Law. There is no constitutional right to engage in consensual homosexual sodomy. Facts. The Respondent, Hardwick (Respondent), brought suit in a federal district court challenging the constitutionality of a Georgia statute insofar as it criminalized consensual sodomy. The Respondent asserted that he was a practicing homosexual, that the Georgia statute placed him in imminent danger of arrest and that the statute violated his constitutional rights. The District Court granted a motion to dismiss the case for failure to state a claim. The Eleventh Circuit reversed the decision ruling that the statute violated the Respondents fundamental rights because his homosexual activity was a private and intimate association . . . . The

Eleventh Circuit remanded the decision for trial ruling that the Georgia statute must pass strict scrutiny before it can be upheld. Issue. Whether the act of consensual homosexual sodomy is protected under the fundamental right to privacy. Held. Justice Byron White (J. White). No. The act of consensual sodomy is not protected under the fundamental right to privacy or any right protected under the United States Constitution (Constitution). There is no precedent to support the Respondents claimed constitutional right to commit sodomy. Fundamental liberty interests recognized by the Supreme Court of the United States (Supreme Court) throughout history and through its traditions have in no way set any foundation to include a case such as this under the Constitutional umbrella of protection. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. . . . There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. The judgment of the Eleventh Circuit is reversed. Dissent. The dissenting opinions are as follows: Justice Harry Blackmun (J. Blackmun). [T]he right of an individual to conduct intimate relationships in the intimacy of his or her own home [as seen in this case] seems . . . to be the heart of the Constitutions protection of privacy. Justice John Paul Stevens (J. Stevens). The Court orders the dismissal of respondents complaint even though the States statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the States post hoc explanations for selective application are belied by the States own actions. At the very least, . . . it [is] clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss. Concurrence. The concurring opinions are as follows: Chief Justice Warren Burger (J. Burger). I find nothing in the Constitution depriving a State of the power to enact the statute challenged here. Justice Lewis Powell (J. Powell). Even though the Respondent has no fundamental right to engage in consensual sodomy, he may be protected by the Eight Amendment of the Constitution because the Respondent may be imprisoned for his homosexual acts for up to 20 years for a single private, consensual act of sodomy. Discussion. The Supreme Court does not link this case with other right to privacy cases because even though consensual homosexual sodomy may be committed within the privacy of ones home, [p]roscriptions against that conduct have ancient roots. . . . Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights. Also, the Supreme Court states that sodomy is not immune from being criminalized because it may occur in the home. The Supreme Court has held other acts that may take place within the home, such as illegal possession and/or use of drugs, as criminal.

Lawrence v. Texes (overrulled Bowers) Brief Fact Summary. Police found two men engaged in sexual conduct, in their home, and they were arrested under a Texas statute that prohibited such conduct between two men. Synopsis of Rule of Law. While homosexual conduct is not a fundamental right, intimate sexual relationships between consenting adults are protected by the Fourteenth Amendment. Facts. In Houston, Texas, Harris County Police officers were dispatched to a private home in response to a reported weapons disturbance. They entered (the right to enter does seem to have been questioned) the home where John Geddes resided, and observed Lawrence and another man, Tyron Garner, engaging in a sex act. The men were arrested, held over night and charged with violating a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. Specifically the statute provided A person commits and offense if he engaged in deviate sexual intercourse with another individual of the same sex and goes on to define deviate sexual intercourse as follows: any contact between any part of the genitals of one person and the mouth or anus of another person or the penetration of the genitals or the anus of another person with an object. The two men were then convicted before a Justice of the Pease. Issue. The issue is whether a statute prohibiting specific sex acts violates liberty under the Due Process Clause of the Fourteenth Amendment. Held. Yes, intimate sexual conduct, between consenting adults, is a liberty protected under the Due Process Clause of the Fourteenth Amendment. Dissent. Justice Scalia: He believes that since the court does not find homosexual sodomy to be a fundamental right, and merely describes it as an exercise in liberty, a rational basis scrutiny should be applied, and in doing so, the law would be upheld. In addition, the courts willingness to overturn Bowers rather than use stare decicis, is inconsistent with other case law such as Planned Parenthood, and thus, feels the court should be consistent and stable rather than being manipulative in invoking the doctrine. Since all laws, by definition (as example, prostitution, using heroin, etc) affect liberty, they would all be unconstitutional under this courts ruling. Concurrence. Justice OConnor: She does not join the court in overturning Bowers, but rather, reaches her conclusion based on equal protection, rather than any due process clause. She states that even using a rational basis review we have consistently held that some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate state interests. She comes to this conclusion based on the fact that sodomy is not prohibited between opposite sex partners, thus unfairly targets same sex partners and makes them unequal in the eyes of the law. Since this law brands homosexuals as criminals, it makes it more difficult for them to be treated like everyone else, thus violating equal protection and legally sanctioning discrimination.

Discussion. (Written by Justice Kennedy) The court does not focus on protecting sodomy specifically, but rather, personal relationships. It explains that despite the fact that the statutes in questions purport to only prohibit sex, Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The court found it alarming that the statute in question sought to control a personal relationship, stating that forming personal relationships is one of the liberties we have, and should be able to choose such relationships without fear of being punished or classified as criminals. The court focuses on the fact that the laws should not target relations between consenting adults in private, as this is what liberty hinges on. The court states that adults are entitled to respect for their private lives, and Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. The court ultimately applies a rational basis review, stating that the Texas statute in question furthers no legitimate state interest which can justify an intrusion into a personal and private life of an individual. This case overrules Bowers v Hardwick, which had held that there is no fundamental right to engage in sodomy, or homosexual activities. Bowers was based on the fact that historically sodomy has been outlawed, but this court finds that historically it was only outlawed to protect individuals from sexual predators, and that rationale should not be used when consenting adults are involved, specifically stating "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."