Constitutional Law Outline – WORK IN PROGRESS


Table of Contents


Federalism.. 2

The Second Amendment 2

The Commerce Clause. 3

The aggregation principle. 9

The “rational basis” idea. 10

“Facial” versus “as-applied” challenges. 23

The Tenth Amendment 25

Dormant Commerce Clause. 53

Separation of powers. 67

The political question doctrine. 75

The Equal Protection Clause. 78

Levels of scrutiny. 79

Under-inclusiveness versus over-inclusiveness. 80

Gender discrimination. 85

Affirmative action. 91

Substantive due process. 96

The state action doctrine. 111




The Second Amendment


Does Congress have the power to ban machine guns?  It depends on how you interpret the Second Amendment.  Some say it applies to individuals, while others say it only applies to militias.  Just who takes these opposing points of view?  There are interest groups with strongly held political views and they don’t all agree.


Foley thinks there would be a way to read Miller in a way that’s not so sweeping as the way Chemerinsky wants to read it.  The gun in Miller was a sawed-off shotgun, not just any gun.  The Court said that you have no right to own a gun that no real military could own.  That’s actually a partial acceptance of the view that the meaning of the Second Amendment is controlled by its militia function, but Foley says it’s not as sweeping as Chemerinsky claims.  Maybe another kind of weapon that does have a military function could be the basis of an individual rights claim.  You could claim that you have an individual right to own a weapon that has a militia function.


One Circuit said that there’s no individual right to own a machine gun, but Foley sees this as an extension of the Miller precedent, not necessarily as following that precedent.


As lawyers trying to find out the answer to the question of whether the government has the power to ban machine guns, we look to judicial precedent.  Miller is the most important precedent because it’s the most recent case to come out of the United States Supreme Court.


Assume for the basis of argument that the Miller precedent does not exist.  The Miller case is old, and there has been an effort both inside and outside the judicial system to overturn Miller.   In fact, the current Department of Justice has informed the United States Supreme Court that the current government believes that Miller is wrong.  The Supreme Court has neither accepted nor rejected this argument, but there is the sense that the Supreme Court might someday revisit this issue as a case of “first impression” as if Miller didn’t exist at all.  That would be a rejection of stare decisis.  Let’s suppose this happens.


The United States government in all its agencies is represented in litigation by the Solicitor General, who works within the Department of Justice.  There is a long history of the relationship between the Supreme Court as the representative of the judicial branch and the Solicitor General as the representative of the executive branch.  By tradition, the Supreme Court has seen the Solicitor General as a member of the Supreme Court bar and thus having a close relationship with the United States Supreme Court.


What’s the relationship of law to politics?  This is a big question we’ll need to consider.  Is figuring out what the law is exclusively a political judgment, or is it independent of political judgments?  Even if you think the judges are purely or partly political, you can’t behave in court as if you think so.  You might have to tell your client that, but you can’t say it in court.


“Being a good lawyer means being able to operate on different levels or planes with respect to the same issue and take entirely different perspectives on the same issue.”  There is both an “internal” perspective and an “external” perspective.  When we adopt the “internal” perspective, we play the game.  We get into mode.  We use the language of the law and cite precedent.  We do legal reasoning that’s independent of political judgment.  You kind of “put on your lawyer hat”.


The “external” perspective is more of a critical appraisal of the situation.  You look at the legal system from the outside and ask whether the judges are doing law or whether they’re just doing politics.  This is the perspective where you get cynical and ask “what’s really going on”.


The machine gun case


If I have a strong subjective view of an issue, I can kind of bend words around to make them mean what I want them to mean.  Everyone is going to have a subjective political view of these issues.  But if I’m a Supreme Court Justice and I can read the Second Amendment to support any subjective view I want, is that how I ought to carry on business as a Justice?


Begin with the stark contrast between originalism and nonoriginalism.  Do these categories correlate with objectivity/subjectivity or modern values/traditional values?  Not necessarily.  Even judges who reject original intent as a guiding light would say that they’re not entitled to impose their own personal and subjective values on their interpretation.  Whatever the judges find, they must be objective, if only in a different way (looking at the will of the people or the Constitution as a whole, for example).


The President, when deciding to sign or veto a law, can legitimately say that because he was elected by the people he has been empowered to exercise his own independent judgment of what is right or wrong.  If the people don’t like the President’s judgments, they can vote him out of office.


A matter of interpretation


How do we figure out the meaning of the Constitution, then?  We have these two completely different ways of going about doing it, and it’s up to me to make the choice of how to interpret it (original intent versus contemporary values).


We have an unclear document.  It would be a lot easier to deal with if we had clear directions for dealing with it.  But we don’t have a clear method or rule to follow in dealing with the document.  This is a radical lack of clarity!


The Commerce Clause


United States v. Lopez Lopez is a revolutionary decision in American jurisprudence!

Congress passed a statute (the “Gun-Free School Zones Act of 1990”) providing for federal criminal sanctions against people who went into a “school zone” with a gun.  The defendant was caught with a gun on school premises and was charged under the federal law.  The defendant challenged the statute as unconstitutional.  In particular, he argued that banning guns from schools wasn’t one of the powers enumerated to the federal legislature in Article I of the Constitution.  The district court didn’t buy the argument, saying that the power of the statute was allowed under the Commerce Clause. The defendant ultimately was convicted.  He appealed his conviction to the Fifth Circuit, which overturned the conviction, saying that the statute went beyond the bounds of the Commerce Clause.  The United States appealed to the Supreme Court.


Is Congress given the power by the Constitution to regulate guns in schools under the Commerce Clause?  The Constitution has been interpreted by the Supreme Court such that Congress has three broad areas of power under the Commerce Clause: (1) to “regulate the use of channels of interstate commerce”, (2) “to regulate and protect the instrumentalities” or “persons or things” in interstate commerce even if they only relate to “intrastate activities”, and (3) to regulate activities “having a substantial relation to interstate commerce”.


The majority finds that if the Gun-Free School Zone statute has a constitutional basis, it must be in the third area of power.  So the question is whether the statute regulates activities that are related to interstate commerce.  The Court sets down new precedent in declaring that such activities must “substantially affect” interstate commerce and not just “affect” it.


The Court finds that the statute has nothing to do with commerce.  There is also no requirement in the statute that the offense punished has some relationship to commerce.  Even if there was that requirement, it would have to be proven in each case beyond a reasonable doubt that there was sufficient connection between the offense and the regulation of interstate commerce.


The Court rejects the government’s argument that firearms in schools are actually substantially related to interstate commerce.  The Court reasons that if guns in schools are related, then pretty much anything can be related, including stuff like marriage, divorce, child custody, and “direct regulation of education”.  The Court figures that the Framers couldn’t have possibly meant for the Commerce Clause power to be this broad.


Lopez was convicted of violating the Gun-Free School Zone Act.  You can’t carry a gun within 1000 feet of a school zone.  This statute was enacted by the U.S. Congress.  Why is it significant that Congress passed this law versus, say, the Texas legislature?  Well, what we’re concerned about is congressional power as opposed to the power of state legislatures.


How did the court get the Supreme Court?  The Fifth Circuit vacated the conviction.  There was no dispute about whether he had a gun.  He was caught red-handed and there is no question whether he violated the law.  The appeal was thus not on the basis of any reasonable doubt of fact or anything like that.


How do you know if you’re in a school zone under this law?  A school zone is within 1,000 feet of a school.  Why is this important?  Someone’s violating the law.  As a person living in the state of Texas, would they know whether they were in violation of this law?  Do people go around carrying tape measures all the time?  But there was no factual dispute.  Lopez doesn’t claim he was 1,003 feet from the school.


What’s the basis for the appeal if there’s no factual dispute?  The only claim Lopez has on appeal is that the law is unconstitutional because it’s beyond the scope of the enumerated powers of Congress.  Lopez wins in the Fifth Circuit and the Supreme Court agrees to review the case.


What does the Supreme Court say after granting cert?  The Supreme Court decides that the law was unconstitutional.  The Supreme Court says: “No, Congress, you lack this power.”


But why?  What does the phrase “piling inference on inference” explain the holding of the case?  Possessing a gun in itself is not directly related to interstate commerce.  But you could argue that having a gun could cause violent crime which could cause increased insurance rates and so on.  The argument is in the nature of A leads to B leads to C leads to D and D is related to interstate commerce.


Let’s look at Article I, § 8 which is the big list of powers of Congress.  It’s a big list, but it’s a finite list.  Don’t forget the last power, which is a biggie: making laws that are “necessary and proper” to execute the listed powers.  Keep the “Necessary and Proper Clause” in mind here.


Whenever there’s a challenge to a federal statute, the government only has to show there’s one power to support the law.  In order for Lopez to prevail, he must show that Congress doesn’t have the power to pass this law under any of the enumerated powers.  That’s a tough standard!


This is important not only for questions of congressional power, but also for any questions about who has what powers and who has the burden of proof to show that something is within the power of a part of the government.


Why doesn’t Lopez try to win this appeal on Second Amendment grounds instead of Commerce Clause grounds?  The Supreme Court hadn’t invalidated a statute on the basis of the Commerce Clause in a heck of a long time.  There also hadn’t been a Second Amendment case in the Supreme Court for a heck of a long time.  Was this a tactical move?  Was the Court more willing to move on the Commerce Clause than on the Second Amendment?


Lopez has been around for almost a decade and people are pretty comfortable with it.  But when Foley took this class 20 years ago, Foley learned from his professor that any attempt to argue that something was out of the scope of the Commerce Clause was a sure loser under the Court’s jurisprudence.  In other words, Congress could pretty much do whatever it wanted and find some link to the Commerce Clause.  Foley’s professor turned out to be completely wrong!  So keep in mind that the law can change!  Congress can’t just do whatever it wants anymore.  If that was the accepted wisdom, why the heck would Lopez’s lawyer have tried this appeal on Commerce Clause grounds?


If you don’t make the Second Amendment argument in trial court you lose it on appeal.  But that just means that the attorneys should have brought up both defenses.


By 1992, when Lopez gets caught red-handed, he’s got bad precedent under the Second Amendment (Miller from 1939) because he’s not a member of a militia and he gets caught with a gun near a school.  But moreover, most people in 1992 would say he didn’t have a very good Commerce Clause argument either.


Presumably Congress passed this law because they were concerned about guns in schools.  Congress thus thought this issue was of national importance and couldn’t be left to the states.  The Supreme Court says that Congress lacks the authority to address this issue of national concern, no matter how important it is!  This is a big deal!


Did some of the justices have a bone to pick?  Was there an ideological deal here?  Foley says that’s not what’s going on here.  The United States government lost this case in the Court of Appeals, which found that the statute was unconstitutional under the Commerce Clause.  The Court of Appeals did this in the face of the widespread belief otherwise.  The Solicitor General of the United States wanted this reviewed, and the Supreme Court couldn’t leave the last word in the lower court since an act of Congress was being struck down.


Two types of constitutional questions


Whenever you’re dealing with an act of Congress, or really any action by the federal government in general, you have to think about two different types of constitutional questions that could arise.


The “power” question


Does Congress have the authority to enact this law?  Is it within the scope of authority granted to Congress by the Constitution?  Congress cannot act unless it has been given authority (or power) by the Constitution to act.  You must find a place for Congress to act.  You only have to find one, but you do have to find that one basis for authority.  This is sometimes called the doctrine of enumerated powers.  If some things are enumerated, it means that some things are not enumerated.  Congress doesn’t have unlimited powers.  The list includes the “Necessary and Proper Clause”.

The list of Congress’s enumerated powers started out with exactly the powers listed in Article I, § 8.  But now there are additional powers granted to Congress added by amendments.  Check out § 5 of the Fourteenth Amendment: Congress can now enforce the provisions of the amendment.  It’s a new power that gets added to the list!  There are lots of other little provisions like this that add on.  But you need to find the power you want among those listed.

The “rights” question


Even if something is within the scope of the enumerated powers, it may violate a rights provision of the Constitution, like one of the provisions of the Bill of Rights.  Something can be inside the scope of a power provision, but Congress could still be prohibited from doing that thing if it would abridge a right out of the Bill of Rights.  Say Congress passed a law that said it would be unlawful for pornography to be trafficked in interstate commerce.  Those are things in interstate commerce.  This is within the scope of the Commerce Clause power.  However, it may violate the First Amendment free speech right.


State versus federal powers


With respect to the Federal Constitution, the distinction between “power” questions and “rights” question only applies to acts of the Federal Government.  The Federal Constitution doesn’t purport to define the limits of state power.  States are assumed to have general police powers.  States can do whatever they want, unless it conflicts with a specific right granted by the Constitution.  With respect to state laws, we will deal only with “rights questions.  Analytically, the “power” question always comes first.  It’s a threshold question.  The Constitution affirmatively says what Congress can do, specifically says what Congress can’t do, and finally says what states can’t do.


Consequences of Lopez


If this law is no good, what other laws are no good?  What about the Endangered Species Act?  What gives Congress the power to pass such a law?  We’ll find that people revert to the Commerce Clause when they want to assert that Congress has the authority to do something.  What do endangered species have to do with commerce, and isn’t that a similar question to “what do guns near schools have to do with commerce”?  How does this case relate to the Commerce Clause at all?


How could Congress possibly think that this law that they’ve enacted saying you can’t possess a gun within 1,000 feet of a school is related to interstate or international commerce or commerce with Indian tribes?  Congress might not have anticipated any problems.  They may have assumed they wouldn’t have to “jump through this hoop” anymore.  Historically, the doctrine of enumerated powers had kind of fallen by the wayside.  Congress saw the commerce power as so large that more or less anything goes.  How could Congress have gotten to think that way in the first place? 


There has been a lot of case law that has spoken about the scope of the Commerce Clause.  The Court itself gives us a history lesson in the opinion.  Chemerinsky will give us a slightly different interpretation.


Some things are pretty uncontroversial.  A key truth to the history of the Commerce Clause is that the Court had said that the scope of Congress’s power isn’t just things moving across state lines, but also anything located within a single state that might affect commerce that moves across state lines.  In other words, there may be things that are purely intrastate, and thus are not themselves part of interstate commerce, but nonetheless may “affect” (or “substantially affect”) interstate commerce, and thus be within the scope of the commerce power.  We’re going to let Congress regulate interstate commerce itself, and we’re also going to let Congress regulate things confined to a single state that substantially affect interstate commerce.


Breyer, in his dissent, says he will use three principles of Commerce Clause interpretation to answer the question before the Court.  (1) Congress may regulate local (intrastate) activities so long as they “significantly affect” interstate commerce.  (2) When determining whether an activity has a “significant effect”, a court should consider the “cumulative effect of all similar instances” of the activity.  (3) Courts must judge the connection between an activity and interstate commerce “at one remove”.  In other words, courts should uphold actions of Congress for which there is a “rational basis” under the Commerce Clause.


Breyer says the question boils down to Congress could have had a rational basis for finding a substantial connection between gun related school violence and interstate commerce.


Breyer’s approach is to document lots and lots of independent studies and congressional findings that indicate that (1) the problem of guns in schools is serious and widespread, (2) guns in schools have a “negative effect on classroom learning”, and (3) education has a substantial impact on interstate commerce.


Breyer claims that holding this statute constitutional would not expand the powers of Congress under the Commerce Clause, but instead would apply existing law to changing circumstances.


Breyer claims that the majority’s approach has three legal problems:  (1) The Court has upheld statutes that have less of a relationship to interstate commerce than the one under consideration.  (2) The Court makes an improper distinction between commercial and non-commercial activities that doesn’t adequately distinguish previous cases where the Court has upheld statutes.  In particular, the Court has upheld civil rights statutes in cases where Breyer claims the conduct involved was even less “commercial” than the conduct here.  (3) The Court will create upheaval in an area of law that was previously well-settled: it will call into question the extent of the power of Congress to enact all of the federal criminal statutes on the books.  Breyer suggests that the majority’s opinion offends stare decisis.


Breyer does not see the “parade of horribles” of the majority coming to pass.


Three justices join Breyer in his dissent.  Breyer was just one vote shy of the majority.  This was a 5-4 decision.  This was one of those razor-thin majorities.


How did Breyer analyze the Commerce Clause issue in this case?  He seems to argue for and use the rational basis test.  Why is this different from the majority’s understanding of the case?  What’s the scope of the disagreement between the dissent and the majority?  Do they apply the same principles but get to different results, or do they actually disagree on basic principles?


So Breyer makes a “rational basis” inquiry.  The majority does something different.[1]


Is Breyer almost proposing a procedural test rather than a substantive test of the limits of the Commerce Clause?


Part of what Breyer seems to be saying is that we should consider the issue in a practical way instead of a technical way.  How much of a connection is there between guns in schools and economic problems?


But this isn’t the rational basis distinction: Breyer says we’re not reviewing whether or not X is true, but rather whether or not Congress had a rational basis for thinking that X is true.  The X in this case is “guns in schools substantially affect interstate commerce”.


How close a connection does there have to be in order for there to be a “substantial effect”?  (1) Is there a substantial effect on interstate commerce?  Both the majority and dissent believe this question must be asked.  Just what is it that’s supposed to have a substantial effect on interstate commerce?  Breyer wants to aggregate the effects of all acts of guns in schools.  (2) Does this class of activity have a significant effect on interstate commerce?  This is what Breyer wants to know, but the majority doesn’t take it this way.


Wickard v. Filburn Wickard is very important!  This is the case of an Ohio farmer growing his own wheat for his own use.  He was allegedly in violation of a statute limiting the amount of wheat he could grow on his farm.  He grew too much!  He claimed that he wasn’t selling the wheat in his state or any other state.  So he argued that the federal government must not be regulating his “commerce” when all he is doing is growing wheat at home and using it at home.  The Court, in that case, said that if you take the one farmer together with other similar farmers there will be a substantial effect on interstate commerce.


The Court says that Wickard is as far as the Court has ever gone before, and they more or less say that they’re not going to let congressional Commerce Clause power to go much farther. 


How does consuming home-grown wheat affect interstate wheat?  The idea of the statute was to decrease the supply to increase the price and help the farmers.  If you grow your own wheat, you don’t have to buy it on the open market, and thus you’ve reduced the demand for wheat and in turn the price will go down.


So under Wickard, the government has the power to prohibit people from home-growing tomatoes or whatever other crop they’d like.


But notice what the statute in question in Wickard does: it doesn’t regulate any activity that we could properly call interstate.  Instead, it regulates a purely intrastate activity.


The majority says that we’ve gone that far and won’t go farther.  Breyer says that we’ve already gone that far, and the “guns in schools” statute doesn’t go that far.


The aggregation principle


The majority acknowledges that Wickard adopted the aggregation principle.  But does the majority believe that this applies to guns near schools?  Do they apply this principle and get a “no” answer?  Or do they claim that the aggregation principle only applies to cases like Wickard but not to Lopez?


The majority opinion says “we accept the aggregation principle with respect to local activity that is economic in nature.”  If the local activity has an economic character to it, you can aggregate that to see if all similar local activity has an impact on interstate commerce.  If the local activity is not itself economic, the Court isn’t sure if they’ll extend the aggregation principle.


How is growing tomatoes at home, for example, an inherently economic activity?  Is raising kids at home an inherently commercial or economic activity?  Where do we draw the line between (local) economic and non-economic activity?  The majority opinion labels “growing wheat at home” as an economic activity.  That allows for aggregation.  However, possessing a gun near a school is not economic in nature.


Breyer asks: “How can we tell that having a gun near a school is non-economic in nature?”  Lopez didn’t make the gun.  He either had to buy it, steal it or get it as a gift.  If he bought it, that’s economic.  If he stole it, that’s kind of economic.  If it was given as a gift, someone else bought it, and that’s arguably economic.  How do we draw the distinction?  What makes something economic?


What about child-rearing?  If growing wheat at home is economic, isn’t child-rearing economic too?  It means the child care provider is out of the labor force and also isn’t hiring a nanny or someone else to take care of the kids.


Breyer says it doesn’t matter whether a gun is economic in itself.  It doesn’t matter if wheat is economic in itself.  The issue is whether those guns near schools have an economic effect.  Breyer believes that they do: guns near schools leads to violence near schools.  That leads to bad schools and bad educational quality, which in turn drains our economy.


Breyer believes that you always aggregate.  The majority believes you only aggregate when you’re dealing with “something economic”.


The majority cares about whether or not the local activity that Congress is attempting to regulate is itself economic in nature or not.  The majority doesn’t explicitly repudiate the aggregation principle with respect to non-economic activity, but you can argue that they do this implicitly.


There’s a lot going on here!  Even though we had relatively few pages to read, they are very difficult conceptually.  But it’s our job to understand it!  Don’t worry if you’re confused today.  Realize that there’s a lot going on here.  It’s not transparent and we have to really work to figure out what’s really going on here.


The “rational basis” idea


We looked at two questions that define the substantive test as to how you know whether or not you have congressional power under the Commerce Clause.  The “substantial effect” test is usually where the action is.  In order to know whether there’s a “substantial effect”, you have to ask whether the local activity in question is “economic” in nature.


But there’s a third question: Breyer says that all the past precedents show that when the case comes to court, the issue isn’t simply “is there an effect?”.  That’s the question for Congress to answer.  Breyer wants to claim that the court’s own view on the substantial effect question doesn’t matter.  The court is only supposed to make sure that Congress was rational or reasonable, that is, that Congress had a rational basis for finding a substantial effect.  Breyer thus claims that the court should be making a somewhat different inquiry than the majority wants to make.


Yesterday was great!  Foley likes when people come up after class to ask questions!  There’s a lot going on here, and we can’t get it all in within an hour.


There was a formative period under Chief Justice Marshall, who issued the McCulloch v. Maryland decision.  That’s a landmark decision that created a framework for talking about congressional power as a whole.  Also, Marshall’s reasoning interpreted the Constitution in general, rather than any particular phrase or section.  He didn’t look at the word “necessary” or the word “proper” and determine what those words mean.  Instead, he looked at the Constitution in general.  Why do we have a Constitution?  What function does the Constitution have?  These questions gave him the guidelines for his understanding of, in particular, the Necessary and Proper Clause.


He had a choice: he could have interpreted the Necessary and Proper Clause much more narrowly and restrictively and found that the creation of the Bank of the United States was outside of Congress’s power.  He didn’t choose the narrow path, he chose the broad path.  This case is important today because we must be aware that the concept of general reasoning is available to the Court, if it so chooses, as a methodology to think about constitutional problems when they arise for the first time.


The Court doesn’t always take this approach, though.  The Court will sometimes take a more “word-specific” approach.


Marshall also issued the first opinion that interpreted the Commerce Clause: Gibbons v. Ogden.


Here are four key decisions that set the stage prior to Lopez.


Schecter Poultry – This case was decided in 1935.  It’s the “sick chicken” case.  This case occurred at the time of the New Deal.  The country is in the midst of the Depression.  The unemployment rate is 25%.  Congress and President Roosevelt are trying to deal with what they see as an unprecedented economic calamity.  Congress passes a lot of New Deal legislation.


One key piece of legislation was the National Industrial Recovery Act, which regulated the wages and hours of workers in many different industries.


The Supreme Court unanimously held that regulating the wages and hours of workers in a factory in Brooklyn is beyond Congress’s commerce power.  The new law was invalidated.  The Supreme Court ruled that even though the chickens moved in the stream of commerce, the workers only worked in Brooklyn and thus their wages and hours were a matter solely for the state of New York to deal with.  Note that this law applied to every slaughterhouse everywhere.


Why did the people in Philadelphia in 1787 scrap the Articles of Confederation and give the U.S. Congress more power with this Commerce Clause?  Compare this to NAFTA or the current Summit of the Americas.  Prior to the adoption of the Commerce Clause, the states of the United States were engaged in protectionist measures against each other.  The Commerce Clause, at least in one view, was originally a free trade measure among the states.  It was meant to fight “economic Balkanization”.  In contemporary terms, we can compare this to the European Union.


The framers of the Constitution wanted to create a free-trade agreement between the original thirteen states.  That’s all the Commerce Clause was originally designed to do.


Now fast forward to 1935.  If you were to ask James Madison, who came up with the Commerce Clause, about a shop in Brooklyn, he would say “that’s not what we meant!”  He would say that they were only concerned with free trade between New York and, say, New Jersey.


In addition, the Commerce Clause allows Congress to regulate foreign trade.


The point is that nothing that we talk about today would make any sense to the framers of the Constitution.  “Congress has the power to regulate WHAT??!!”  They wouldn’t even be able to understand our conversation.


What’s going to be difficult to think about is when we get to the point where we can start having a conversation like we did yesterday.


James Madison did not believe that Congress had the power to create a national bank.  He had a much narrower understanding of the Commerce Clause than we do.  In fact, he had a narrower understanding than Marshall did in McCulloch.


Our sense of the Constitution is radically different from the conception of the people who originally wrote the document.


Carter Coal – This case is one year later.  We’re still in the Depression.  Congress and Roosevelt adopt a new law that regulates the coal industry in particular.  They believe that coal is particularly important to the national economy.  It’s important for running the railroads and making steel.  Congress says: “We won’t do poultry, but let’s do coal.”


They plan to regulate the wages and hours of coal workers because that affects the price of coal.  But by a 5-4 decision, the Supreme Court says that Congress can’t do that!  They reason that a coal mine is not interstate in nature because each mine is located in only one state.  Therefore, the wages that a mine worker gets for working in that particular mine is a local issue of the state where the mine is located.  Each state controls the conditions within the mines within that state.  The Court believes that it matters neither that the coal will enter the stream of interstate commerce, nor that Carter Coal does business in many different states.  The subsequent entry of the coal into interstate commerce doesn’t matter.  But notice that now we’re starting to get a split.


Jones & Laughlin – This case comes up in 1937.  This case involves the National Labor Relations Board.  Congress comes up with a new law to govern working conditions: hours, wages, and so on in many different industries.  The statute looks a lot like the NIRA above, but the case looks more like Carter Coal.


The issue is: Can Congress regulate the rules of the employees of this company when they work in the mines or in particular factories?  If you considered Schecter Poultry and Carter Coal as precedent, you might think the conclusion is obvious and the law can’t stand.


But in a reversal, the Supreme Court by a 5-4 margin allows the law to stand as applied.  The Supreme Court argued that steel is essential to the health of the national economy, and thus steel worker strikes would cripple interstate commerce.  This is exactly the reverse of the reasoning in Carter Coal, that is, it’s the reasoning of the dissenter.  The same argument from the dissent in the previous case becomes the prevailing argument in this case.


Why does the transformation happen here?  Roosevelt was going to pack the court.  But note that there are no changes in appointments to the court between 1935 and 1937.  The exact same nine individuals who decided Schecter Poultry unanimously and then decided Carter Coal decided Jones & Laughlin entirely differently.


Roosevelt and Congress are losing cases.  He won’t accept what the Supreme Court says.  Also note that 1936 is an election year.  Roosevelt runs a campaign essentially against the “old farts” on the Supreme Court.  He claims they’re totally out of touch with reality and that it’s really their fault that the Depression hasn’t abated.  It was a pure political power move (I think).


Roosevelt announced after a landslide victory that he’s going to pack the Court (that’s not what he called it, of course).  He was going to destroy the Supreme Court as an institutional of American government as it had heretofore existed because it was getting in the way.  The President was going to more or less sweep the Supreme Court into the “dustbin of history” because they were getting in the way!


The Supreme Court justices read the newspaper and they pay attention to what’s going on.  They realize that they can’t win this fight!  They act to save their institution!  Ain’t this exciting?


Justice Roberts switched sides!  It seems like what he did was switched his vote to save the institution.  That worked!  That was enough to shut Roosevelt up.  The Senate stopped holding hearings on the court-packing plan.  “This is power politics!  This is reality!”


This was a huge transformation in the understanding of the Commerce Clause.  It didn’t happen by way of a constitutional amendment.  Roosevelt considered this but rejected it.  Roosevelt felt that the only way you could trust the Court was by packing the court.  Thus, a whole new way of understanding the Commerce Clause emerged.


Wickard v. Filburn – We have some more appointments, but we have more or less the consolidation of Roosevelt’s power.  The ethos is: Congress can do pretty much whatever it wants in the name of protecting the economy.  It is instructive to compare Schecter Poultry and Wickard.  The tomatoes or wheat being grown at home are agricultural and local in the way that chickens are also agricultural and local.  Seven years after Schecter Poultry, they go from saying “no you can’t regulate it” to “yes you can”!


These cases are not consistent doctrinally.  They represent two radically different ways of understanding the Commerce Clause.


Now fast-forward to right before Lopez: between Wickard in 1942 and Lopez in 1995, the prevailing ethos is that Congress can do whatever it wanted in an era of believing in Big Government and the power of the federal government.


President Johnson talked about the Great Society.  One of the critical aspects of the Great Society was the Civil Rights Act and the idea that Congress would have the authority to protect civil rights.  The Act was justified under the Commerce Clause.  Think of Ollie’s Barbeque, a really local restaurant in Alabama.  Congress says there can’t be any discrimination there because restaurants are a form of commercial activity that receives its products through the stream of interstate commerce!  By the 1960’s, Congress can do that because there’s a whole change in the understanding of the Commerce Clause.  We will give Congress broad latitude to do what they think is in the national interest.


This changes dramatically when we get to Lopez.


Next week, we have three classes, and each class we’ll be reading a different Court of Appeals case out of the Ninth Circuit that grapple with Lopez and Morrison.  We’ll see the same question of the scope of the Commerce Clause not from the perspective from the U.S. Supreme Court that’s making the decisions and creating the relevant law, but from the position of subsidiary judges in the legal system who themselves are trying to figure out what Lopez and Morrison mean.


We may see the doctrine of avoidance in this class and in Legislation.  Courts like to avoid constitutional questions when they can.  They will tend to interpret statutes narrowly to make them constitutional instead of declaring them unconstitutional altogether.  Consider, for example, United States v. Jones in which the federal arson act was interpreted not to apply to a residence.


When you’re an attorney, you should ask yourself: Can I win this case on statutory grounds instead of constitutional grounds?  These issues won’t be as neatly divided as they are in the first-year law school curriculum.


Imagine yourself in the position of a judge having to decide new kinds of cases as they come along.  There are lots of federal laws that have been on the books for a while that may now be in question.


Then imagine yourself being a lawyer.  Why imagine this second?  To be a good lawyer both as an advocate and as an advisor to your client, you must be able to imagine what the case looks like from the bench.  What’s going on in the judge’s head?  What’s on the judge’s mind?  What questions will the judge ask?


So each day next week will seem similar.  We will study three cases with three different factual patterns, but they all involve the same problem.


United States v. Morrison Brzonkala was allegedly raped by the defendants.  She sued the defendants in federal court under 42 U.S.C. § 13981.  The defendants responded by claiming that the statute was unconstitutional.  The district court agreed and dismissed the complaint.  Brzonkala appealed.  The Fourth Circuit affirmed en banc, and Brzonkala appealed to the U.S. Supreme Court.


Did Congress have constitutional authority to enact § 13981 under the Commerce Clause?  Congress has the power to regulate economic activities that are substantially related to interstate commerce.


The Court says that Lopez supplies the proper framework to analyze whether the statute in question is within the proper reach of Congress’s Commerce Clause power.


First, the Court claims that the non-economic nature of the conduct in question in Lopez was important to the decision to find the statute unconstitutional.  Next, the Court says that a statute is more likely to pass muster if the conduct prohibited is explicitly limited to that which “substantially affects interstate commerce”.  The Court notes that the statute in Lopez lacked specific congressional findings supporting the connection between the statute and interstate commerce.  Finally, the Court notes the “attenuated” nature of the connection between gun possession and interstate commerce.


Applying this rubric to the Violence Against Women Act, the Court finds that if this act can stand, Congress would pretty much be allowed to regulate anything.  It doesn’t apparently help that the legislative record includes extensive findings relating violence against women and interstate commerce.


Breyer says the economic/non-economic distinction is too difficult to make and doesn’t get applied consistently anyway.  Breyer also thinks the economic/non-economic question should focus on the “effects” and not the “causes”.


The dissent says that the mountain of facts gathered by Congress in support of the connection between violence against women and interstate commerce distinguishes this case from Lopez.


What are the facts?  A woman had been raped.  She sued the perpetrators under the federal Violence Against Women Act.


How does the case get to the Supreme Court?  Would this case look any different to the U.S. Supreme Court if the plaintiff had decided not to name the university as a defendant?  No, but why not?  It’s not necessary for there to be multiple defendants for the constitutional question to exist.  The university is irrelevant, in a sense, to the federal litigation.


It seems like the Court is trying to show some sympathy to the plaintiff even as they dismissed her complaint.  “We’re not awful ogres, we’re just doing our job interpreting the Constitution.”


VAWA purports to create a federal tort remedy, but Morrison argues that Congress has no authority to create such a remedy.  The United States steps in, saying: “Hey!  That’s my statute!  Don’t touch my statute!”  There were actually two different cases in the U.S. Supreme Court that get consolidated: United States v. Morrison and Brzonkala v. Morrison.  Both petitions are granted and considered together for the purposes of oral argument and disposition.


There’s a lot of talk about criminal law in the opinion, but this is not a criminal case.  Part of the debate is whether the Court will allow federal tort law to exist beside or on top of state tort law.


The constitutional question of Morrison


Does Congress have the power under the Commerce Clause to make gender-motivated violence that occurs within a single state both a federal crime and a federal tort subject to a civil damage remedy?


Chemerinsky thinks Morrison is even more revolutionary and a bigger deal than Lopez.  That’s what Souter thinks too.  Basically, this is the deal: in the VAWA, Congress actually thought long and hard about the Commerce Clause question itself and wrote lots of findings.  Congress explained in great detail what it saw as the link between gender-motivated violence and its effect on interstate commerce.  For example, when women get hurt, they can’t go to work and absenteeism has an effect on productivity.  They document the economic dimension of gender-motivated violence.


This is different than the Gun-Free School Zones Act.  That statute was written in a pretty sloppy fashion!  Congress was complacent with the broad powers that had been granted to them by the Supreme Court under the Commerce Clause since 1937.


Some observers thought Lopez would be a narrow decision that would simply require the procedural requirement of findings supporting a connection between commerce and whatever Congress is legislating about.  Morrison shows that findings aren’t enough.


Foley’s take


The majority in both Lopez and Morrison are asking and answering a different question than Breyer asks and wants to answer in the dissents.  Breyer says in both these cases you can’t dispute the fact that the activity in front of the Court, if taken in the aggregate, has an effect on the economy.  But the majority doesn’t disagree!  They don’t say Breyer is wrong to say that you can make that connection as a factual matter.  They just say that even though you can make that connection factually, it won’t be a legally dispositive connection.


It’s the same thing in Morrison.  The majority doesn’t dispute the findings of fact provided by Congress: domestic violence could have a huge impact on our national economy as well as being a social and moral problem.  But that’s not going to be dispositive as far as the constitutional question of Congress’s power under the Commerce Clause.


Foley thinks that from the framework of the majority, once it decides Lopez and once it gets over the hurdle that the existence of findings or their absence isn’t a big deal, then Morrison follows quickly from the Lopez precedent.


The majority says in Lopez that no matter how bad it is to have guns near schools, it’s a local problem that state law must regulate.  But if “guns near schools” isn’t a power Congress can address, then rape isn’t going to be a power of Congress either.  It will have to be an issue of state criminal or tort law.  It’s non-economic.  The framers of the Constitution saw these as state issues.


How do we know the scope of what the Court is deciding?


A lot of people wrote amicus briefs for this case and a lot of people thought Justice O’Connor would be sympathetic to gender violence concerns and would be willing to uphold this law even though she wasn’t willing to uphold the gun law.  It didn’t work because in her understanding this was just the same issue as the gun issue.  She wasn’t going to expand federal jurisdiction in either situation.


Both Lopez and Morrison say: if we allow federal law to enter these domains, then we destroy the notion of a dual system of government.  If we allow the federal government to do this, then we can allow the federal government to do anything.  This is the same motivation behind the majority opinion in both cases.


When we left off, we were talking about how in Morrison, many folks were organized in a concerted way to try to win O’Connor’s “swing vote” on the theory that since the issue involved gender violence she would be more personally involved than she might have been in terms of gun violence in schools.  There were tons of amicus briefs, including the states themselves, arguing that Congress should have the power to regulate violence against women.


One more point: for O’Connor as well as the other justices in the majority, it boiled down to the fact that the counsel for the U.S. government could not answer a particular question.  This was a great oral arguer, Seth Waxman.  The question was: “If we uphold this statute, this Violence Against Women Act, is there any limitations on Congress’s commerce power?”  In other words, if we uphold this statute, can we imagine some other statute that would be beyond Congress’s Commerce Clause power, or would upholding this statute grant unlimited power?  O’Connor tried to get Waxman to come up with a statute that would be unconstitutional, but he couldn’t!


There’s a debate in both cases between Rehnquist in the majority and Breyer in the minority on this exact issue.  Rehnquist says there must be a statute that falls outside of Congress’s power.  If we can’t find a theoretical example that goes farther than the statute at hand, then this statute must go too far.


Foley finds the transcripts of oral argument before the U.S. Supreme Court very enlightening.  If you’re confused about what’s really going on in a case, read the transcripts of oral argument.  That’s where “the rubber meets the road”.  The critical questions that the justices are thinking about come to the fore.  If you want to know what the justices are thinking about and what’s going to be on their minds, read the oral argument in similar cases.  That’s a great way to prepare for your own case before the Supreme Court (keep your fingers crossed).


Foley will try to raise questions in class that are like the ones that the Justices would raise at oral argument.


United States v. McCoy – McCoy was charged with violation of a federal child pornography law and pleaded guilty conditional upon her right to appeal on constitutional grounds.  McCoy appealed to the Ninth Circuit Court of Appeals, arguing that the statute under which she was charged exceeded the constitutional authority of Congress under the Commerce Clause.


Is the section of the statute that forbids possession of child pornography “made with materials transported in interstate commerce” constitutional under the Commerce Clause?  To determine whether a statute is constitutional under the Commerce Clause, the four-part test of Morrison must be applied: (1) Is the prohibited activity of a commercial or economic nature?  (2) Is the connection between the prohibited activity and interstate commerce too attenuated to allow the exercise of the Commerce Clause power?  (3) Does the statute contain an “express jurisdictional element” intended to satisfy Commerce Clause requirements?  (4) Do congressional findings exist to support a connection between the prohibited conduct and interstate commerce?


The majority notes that its decision does not affect the ability of the state of California to punish McCoy under state law.


The majority starts by finding that Morrison controls in the current case and sets out a four-part test to find out whether the Commerce Clause power was exceeded.


Following the first factor, the majority finds the fact that McCoy’s behavior was non-commercial and non-economic to be especially important to their conclusion.  The court distinguishes this case from Wickard, saying basically that since McCoy was not a customer in the interstate child pornography business, the photograph she was responsible for would not affect that business in any way.


The court finds that there is not a highly attenuated relationship between McCoy’s behavior and interstate commerce, but rather no relationship whatsoever.


The court notes that the statute in question does contain an express jurisdictional element, but the court says that this is not dispositive.  This goes against what some other Circuits have claimed in decisions pre-dating Morrison.


Finally, the court finds that the legislative history does not support the constitutional application of the statute to non-commercial activities.  The court notes that the congressional findings mention “multimillion dollar [child pornography] industries”, suggesting that the statute is mostly intended to combat child pornography in terms of commercial activity.  The court also finds that the legislative history contains previously expressed concerns over the constitutionality of the statute.


The dissent argues against the technique of narrowly construing the statute to make a particular section unconstitutional while apparently leaving the remainder unaffected.  Instead, the dissent says that the court needs to either find the statute constitutional on its face or unconstitutional on its face.  Moreover, the dissent would give more deference to Congress in their implicit finding that purely non-commercial, intrastate possession of child pornography substantially affects interstate commerce.  The dissent says this a political question and not a legal question.


The statute that is being challenged is 18 U.S.C. § 2252 (a)(4)(B).  Why does Ms. McCoy get prosecuted under this statute?  There is a picture of the mother and daughter partially nude, though not engaged in any sexually explicit conduct.


The photograph wasn’t moved in interstate commerce.  The photo never left the state of California.  What was it that moved in interstate commerce?  It was the camera and the film that was used to take the picture came from either New York or abroad.  The statute requires that the material either move in interstate commerce (which didn’t occur) or else was produced using materials from interstate commerce.


McCoy possessed one “other matter” as described in the statute.  She’s indicted under the statute.  What happens to her?  She conditionally pleads guilty.  That might have been a mistake on her lawyer’s part.  Her husband doesn’t plead guilty, and a jury acquits.


But McCoy pleads guilty but reserves the right to appeal the dismissal of her motion to dismiss the indictment.  What does it mean that her guilty plea is conditional?  Does she dispute that she was in this picture and possessed the picture?  Does she dispute that the photograph was made using materials from out of state?  No.  She doesn’t dispute the facts, she disputes the law.  She’s raising a constitutional objection to the statute.


She says that she’s guilty, but she’s preserving an issue for appeal.  She says that she did violate the law, but that the law is unconstitutional.  She doesn’t dispute the statute under the First Amendment or based on some kind of parental rights.  She disputes the statute based on the Commerce Clause.


It’s very unlikely in the normal course of events for the Supreme Court to raise issues sua sponte.  You can usually assume that they won’t bring up issues unless the parties bring it up in their briefs.


One of the things Foley cares about is precision.  Focus precisely on what language is most important to use what we’re trying to talk about.


How would we define the Commerce Clause question in this case?  First off, we’re probably in the realm of the “substantial effects” test.  But note that this case is different from Lopez and Morrison.  This statute has a “jurisdictional hook”, and we might speculate whether we can use that to get into the “channels of interstate commerce” prong.


What’s the constitutional question about Congress’s power?  What’s the new issue?  Does Congress have the power under the Commerce Clause to criminalize possession of a picture that (1) is sexually explicit, (2) was made using a camera and film that moved in interstate commerce, (3) is of a parent and child and (4) has never been shown outside the home?  Whoa!  That’s specific!


The dissent and the majority dispute the use of the aggregation theory of Wickard.  They don’t even really agree on what question they’re answering!  They have different conceptions of the facts and the statute and the relationship between the two.


What’s the difference between the question the majority thinks they’re addressing and the question the dissent thinks they’re addressing?  The dissent is saying: “We’re going to ask whether Congress has the power to criminalize possession of child pornography whatever the particular circumstances are.”  For example, it may be a person who has one picture or 20,000.  It could be someone who intends to sell the pictures across state lines or not.  But the dissent doesn’t want to subdivide this up.  The dissent wants to ask whether Congress has the power to regulate the whole category as one big category.


The majority says, on the other hand, that you must ask whether Congress has power over certain subcategories of these pictures, and not the whole category.  How does the majority define the relevant subcategory?  How narrow do they get?


Notice that this Ninth Circuit opinion discusses an opinion out of the Fifth Circuit called Kallestad.  The facts of that case were very different.  The defendant advertised in a local newspaper for women to come to his house to be models.  He photographed underage women who he wasn’t related to.  The allegation was that he treated the product of those photography sessions as the functional equivalent of pornographic pictures that he might have purchased in interstate commerce.  It just so happens that he produced them himself.  You can clearly compare this argument to Wickard.


The majority thinks that any possession of a picture for home use that’s not going to be sold in the channels of interstate commerce is the issue.  Foley thinks you could narrow it to the family context, where a parent is taking a picture of a child.  If you want to subdivide the category the way the majority wants to, you can do so in different ways.  The way you subdivide it will be relevant for how you define the constitutional question.


Why is this getting prosecuted?  The dissent doesn’t think it’s so terribly serious that he would have prosecuted her if it was up to him.  But that’s not the judge’s job.


What are the essential elements of the majority’s reasoning for their conclusion that this is beyond Congress’s power?  We have a four-part test under Morrison.


Is it commercial?  The court says no.  On the other hand, McCoy had to go to the film lab, and she had to buy the camera through interstate commerce.  Isn’t child pornography commercial in nature, or at least a lot of it?  Filburn didn’t intend to sell his wheat.  Why is that commercial but this photo isn’t?


Is the connection to interstate commerce attenuated?  The court finds that it’s clear that she’s not in the business of producing child pornography.  But the wheat in Wickard wasn’t going to be moved into the stream of interstate commerce either.  Why is that wheat commercial and connected to interstate commerce?


For the majority opinion, the critical distinction is that wheat is a fungible good while child pornography is not.  The point is that the mother doesn’t possess the picture as a substitute for other child pornography.  This possession at home of this picture does not relate to the interstate child pornography market at all.  This is the critical distinction.


We’ll spend a little time tomorrow on the “jurisdictional hook” question.  Why can’t the government win based on the fact that the camera and film moved in interstate commerce?  Then we’ll go on to Stewart.


Foley hires a research assistant or assistants each summer.  We can send applications if we’re interested.  The application is a copy of our resume, a cover letter if we’d like, and first semester grades.  We can do this by e-mail or we can put something in his mailbox or stick something under his door.


If you remember anything this semester, Foley would rather we remember “The Rachel Story” than anything about the Commerce Clause.


The jurisdictional hook


Why isn’t the existence of a jurisdictional hook in the statute in question dispositive here?


The argument might be made (according to Foley) that the presence of the jurisdictional element makes the discussion in Lopez and Morrison irrelevant.  What Congress wants here is to regulate the camera and film in interstate commerce.  Congress wants to regulate the camera and film such that they’re not used to make child pornography.  It’s clear that Congress can regulate the camera and film in a lot of other ways if these items are going to move in interstate commerce.  So why can’t the government also say that we don’t want these items doing something obnoxious?  Couldn’t the government say that you can take whatever pictures you want, but just not with something that’s moved in interstate commerce?


The U.S. Supreme Court hasn’t taken this case, but what might they do if they did?  What’s the strongest argument for McCoy in claiming that there is no Commerce Clause power to forbid her conduct?


(Side question: how long does it take from the time an appeals court decision is handed down to know that the Supreme Court is going to review it?)


Isn’t the production of the picture tied to interstate commerce in a way that the conduct in Lopez and Morrison was not?


Think of O’Connor’s question to Seth Waxman: “Show me a statute that flunks the Commerce Clause if this one is okay.”  In order to uphold this law as applied to these facts, would I, as a Supreme Court Justice, have to say that the Commerce Clause power is completely unlimited?


Foley says we genuinely have no idea how the U.S. Supreme Court would decide this case, and if we think we do, that’s probably a danger sign.  All we have right now is the guidance of Lopez and Morrison.


What Foley thinks will motivate O’Connor or Kennedy would be something along the following lines: How important is it that we allow Congress to have this power?  Is this something we should let Congress do?  On the other hand, how important is it that we deny Congress this power in order to preserve some state autonomy in our “dual system”.  What cuts in favor of having Congress and the federal government win power in this case is that the Supreme Court has already noted a stopping point.  The very existence of Lopez and Morrison show that there is a limit, and therefore the Supreme Court can allow Congress to deal with a national problem without worrying about their power going too far.


One of the reasons that this case is important is that the picture is not fungible with other pictures the way wheat is fungible.  But Foley claims this is a commodity case instead of an activity case.  So the Supreme Court might find that Congress can have authority to regulate this commodity.


Another argument that could be made on behalf of McCoy is the “traditional state domain” argument.  The Court talks about education, family law, and family relations as areas that we traditionally look to state law to decide.  When Congress writes a new law in that area, we have the danger of having Congress usurping that authority.  We let Congress rule when they’re in their domain, but we should not expand Congress’s power into areas that especially intrude on state sovereignty.


Because McCoy involves a parent-child relationship, it helps to make the argument that the issue belongs to state law.  If McCoy has been a bad parent, maybe California law should tell us what should be done with her.  Maybe we don’t want Congress to set up a nationwide standard for what it means to be a good parent.  We don’t want the states deprived of their ability to administer family law differently in each state.  We like having each state go its own way on cultural issues and social values and mores.  This is how Foley would set out the argument in order to make it attractive to O’Connor or Kennedy.


The key idea is that the argument is a functional argument.  We could try to measure “substantial effects”, but ultimately, the justices are in the driver’s seat.  What will move them is not a formalistic and technical argument, but an argument about function and purpose.  The justices, according to Foley, want to hear a reason why we should give Congress the power we give them.


This series of assignments all relate to federalism.  But we’re going to switch gears on Monday and Tuesday to looking at the Tenth Amendment as a limit on federal power and protection of state power.


When we read the Tenth Amendment cases, we should start by thinking about what the relationship is between the Commerce Clause and the Tenth Amendment.  Chemerinsky discusses this, and we’ll also discuss this in class.  (What powers are given to Congress by the Commerce Clause?  What powers are taken away from Congress by the Tenth Amendment?)


Now that we’ve read a few of these cases, Foley wants to know if we’re starting to get more comfortable with what’s going on.


“Facial” versus “as-applied” challenges


There’s a conflict between “facial” challenges and “as-applied” challenges that comes up in each case.  The normal rule is that you start with an “as-applied” challenge.  That means that there a particular person in court who says: “This law is unconstitutional as applied to me.”  It could be a civil or criminal defendant.


On the other hand, in Raich for example, you can sue in anticipation of having a law used against you.  If you’re the petitioner or defendant, you may not care about how the law is applied to anybody else except yourself.


You’re not normally allowed to go to court and say: “The law can be validly applied to me, but it can’t be applied validly from someone else who is different than me.  Therefore, I want the Court to declare the law unconstitutional on the whole so I win even though I couldn’t have won on a claim as applied just to me.”  You can’t piggyback on someone else’s constitutional rights.


This is a facial challenge in its most basic form.  Normally, these are no good.


“What about third-party standing?”  There’s a complicated body of law called “standing law”.  It comes up a lot in practice.  It means that in a narrow set of circumstances when your constitutional rights aren’t at stake you can litigate on behalf of someone else’s constitutional rights.


For the sake of example, the First Amendment freedom of speech principle is one area where facial challenges and third-party standing are allowed.  This is allowed because we want a very robust protection of freedom of speech.  In pornography cases, for example, the court will often say with respect to non-protected extra gross pornography that the “smut peddler” can bring a facial challenge based on the notion that the law in question is written so broadly that it bans materials that shouldn’t be banned.


But this is the exception rather than the rule.  This distinction really confuses judges, courts, and lawyers.  They’re not sure when they have a facial challenge in front of them.  Judges have a hard time with this!  If we’re confused, that’s okay, because they are too!  Part of the reason is that the idea of “facial versus as-applied challenges” isn’t in the Constitution.


Foley thinks the challenge in McCoy was not a debate over facial challenges and as-applied challenges.  Foley says that McCoy is really asserting an as-applied challenge and that she is not using third-party standing.


Which of the cases we’ve gone over so far are the most vulnerable to being overturned by the Supreme Court?


The farmer in Wickard was in the agriculture business.  He was a self-employed farmer.  What’s the difference between Farmer Filburn, who was a commercial farmer who also happened to grow extra wheat for his own consumption and the hypothetical we talked about with tomatoes?  Do we think that Filburn is more “commercial” as a person because he’s a commercial farmer?  Wheat is fungible.  The wheat is a lot more fungible than McCoy’s picture.  What about the machine guns?


Raich v. Ashcroft Raich uses marijuana for medicinal purposes.  The marijuana she uses is homegrown.  This is permitted under California law, but not under the federal Controlled Substances Act.  Raich sued for injunctive and declaratory relief, claiming that the CSA was unconstitutional as applied to her conduct.  The district court denied Raich’s motion for a preliminary injunction, and Raich appealed.


Is the CSA a constitutional use of Congress’s Commerce Clause power when applied to Raich’s conduct?


The court finds that the activity regulated is not commercial or economic in nature.  There is no jurisdictional hook that connects the CSA to the Commerce Clause.  There are congressional findings that set out the connection between controlled substances and interstate commerce, but the court says these are not dispositive and not pertinent to the particular situation at issue here.


The dissent claims that it is impossible to distinguish the cultivation and use of marijuana in this case from the cultivation and use of wheat in Wickard.


There’s no “drug clause” of the Constitution!  The government doesn’t have the basic power to say that there are certain powers they like and don’t like.  The only thing that gives Congress the authority to outlaw drugs is to tie it to interstate commerce.


The government will argue that they have to power to keep drugs from crossing state lines.  In turn, if we let California have marijuana in their own state, we can’t keep it within that state as a practical matter.  The same argument is made for guns: if guns are made in North Carolina, they will find their way to the streets of New York.


Come up with as many arguments as you can for each side!


Foley says: The Ninth Circuit has a poor reputation in the U.S. Supreme Court right now.  It is considered ideological and aggressive.  That’s probably not true of all three opinions, but the Raich one would probably be considered the most result-oriented.  It appeared that the judges had an idea of the result they wanted and they used the doctrine of Lopez and Morrison as an instrumentality to get to the result they wanted.


These Ninth Circuit cases are cutting edge!  The only way we’re going to find out what current Commerce Clause law really is would be if the Supreme Court takes on one of these cases.


The Tenth Amendment


Reno v. Condon – Congress passed the Driver’s Privacy Protection Act of 1994 to keep state DMVs from selling drivers’ personal information without their consent.  The practices of the South Carolina DMV went against the Act.  South Carolina Attorney General Condon filed suit against the government, claiming the law was unconstitutional under the Tenth and Eleventh Amendments.  The District Court agreed with the state and granted it summary judgment, enjoining the federal government from applying the law.  The Court of Appeals upheld the District Court’s decision.  The federal government appealed to the U.S. Supreme Court.


Does the Tenth Amendment forbid the federal government from regulating the activities of state Departments of Motor Vehicles?  The Tenth Amendment says that the federal government cannot force the states to enact policies or regulations that would impact the state’s citizens.  Congress can, however, regulate the activities of the states themselves.


The Court first assumes that the statute is constitutional unless proven otherwise.  Then the Court accepts the federal government’s argument that the DPPA is a constitutional exercise of Congress’s Commerce Clause power.


The Court then finds that the statute does not violate the Tenth Amendment.  The Court accepts that following the rules of the DPPA will require time and effort, but finds that this is not dispositive.  There are many other federal regulations that require time and effort for compliance which are constitutional under the Tenth Amendment


In this case, the Court started off its analysis with Commerce Clause, finding that there was no Commerce Clause problem.  Why was this law a valid exercise of the Commerce Clause power?  What federal law is being challenged?  It’s the DPPA.  What does the law do?  It restricts the state’s ability to sell personal information about drivers to businesses and other individuals.  The DMVs of each state collect personal information from all drivers.  They used to turn around and sell that information to telemarketers and other unsavory people.


But how is this connected to interstate commerce?  For example, Ohio might sell its driver license information to a telemarketer in Wyoming.  Or they could sell their list to a company in Ohio that also does business in another state.  So the driver license information, though it starts out locally, it becomes a thing in interstate commerce once it gets sold, and thus it is subject to regulation by Congress.


We spent a lot of time on the “substantial effects” test and Wickard and Lopez and Morrison.  Why didn’t they go through an elaborate test like the ones we saw earlier?  The Court’s impression is that this isn’t intrastate stuff.  The information is a good that can and does travel between states.  So there’s no need to get to the “substantial effects” inquiry.


In the Commerce Clause cases, the Court talked about three different things Congress can regulate: “channels” and “instrumentalities” of interstate commerce and things that are intrastate but have a “substantial effect” on interstate commerce.  So how does the information being sold in this case fit into that rubric?  The Court thinks of this as a direct regulation on interstate commerce.


Did this statute have a Commerce Clause hook?  Not exactly.  It also seems like the federal government doesn’t discriminate between information that never leaves the state and the information that goes into interstate commerce.


Recall the “Child Labor Case”.  The law in question was challenged on the basis of the Tenth Amendment, and the Supreme Court invalidated the law at the time.  Later, this decision was overruled.  Now we believe that Congress can regulate goods that crossed state lines, even if the reason they are being regulated is purely intrastate.


Foley thinks that the Court didn’t intend to make a big deal about the Commerce Clause in Condon, but it gives us a clue about what the Court will uphold on Commerce Clause grounds.  So don’t miss the Commerce Clause significance of this case!  Don’t take received wisdom!  (Emanuel put Reno v. Condon in the Commerce Clause section, actually.)


The Court more or less decided: “Hey!  We want to give Congress this power, and we think it’s of the kind that Congress should address!  We think they should do so because it’s truly an interstate problem, unlike guns and rape.”  The Court sends a message from all nine justices: This is a power we’ll give to Congress.  But why did Justice Thomas agree?  Hmmm…maybe it had something to do with the fact that privacy rights are at stake.


Would it be permissible for Congress to say: “States must destroy DMV records after ten years”?  Congress mustn’t provide overly detailed regulation of state agencies.  States are supposed to be autonomous entities.


One thing that helped this law be constitutional was the fact that it applied both to states and private individuals (though in actuality, these bits were in different parts of the statute).  If the law was directly exclusively at state governments, it might be more likely to violate the Tenth Amendment.


Congress must not force state governments to adopt particular laws or regulations.  Congress can’t order states around with respect to their sovereign capacity.  Lawmaking is one such sovereign capacity.


But what’s the connection between Commerce Clause analysis and Tenth Amendment analysis?


What if Congress required Ohio to move its capital to Cincinnati?  Could we argue that this is permissible under the Commerce Clause?  What about under the Tenth Amendment?


If you moved the capital to Cincinnati, you might get more interstate commerce between Ohio, Indiana and Kentucky.  You could argue that the placement of a state’s capital has an effect on potential or actual interstate commerce.  So we may well conclude that this would be within Congress’s Commerce Clause power.


But such an action would violate a core attribute of state sovereignty.  That’s how the justices think about the Tenth Amendment.  They say that 13 free and independent states fought the revolution separately, and then agreed to an alliance such that they gave up some of their sovereignty, but not all.


The thing to think about the Tenth Amendment is that it’s a question about protecting rights.  The Tenth Amendment does not confer power.  The Commerce Clause confers power.  The Commerce Clause giveth, and the Tenth Amendment taketh away.  The Tenth Amendment guarantees states’ rights just like many of the other amendments protect individual rights.


Reno v. Condon says it makes a difference whether Congress tells states they must do something, as opposed to telling the states that they can’t do something.  Step back and think about this from a common-sense standpoint: This Supreme Court would never allow the federal government to interfere with a state’s choice of where to place its capital within its borders.  The value of preserving the “dignity” of the state of Ohio as a sovereign state would be intruded upon too far no matter how it’s done.


In Con Law, doctrine works in service of fundamental values, not the other way around.  The Court is motivated by the underlying reasons that we have these constitutional principles.  If the Court sees that it has created a doctrinal rule that says there is a big difference between affirmative mandates and negative prohibitions, and they find that this isn’t compatible with some basic idea like state sovereignty, then they’ll change the doctrine to get to where they want to be.


A number of people are trying to articulate the rule or principle that results from the Tenth Amendment cases.  What’s the test?  In Lopez, we had a test.  Here, the test isn’t jumping out at us.  One of the difficulties is whether we can even articulate the test the Court is using to evaluate Tenth Amendment questions.  We should try to come up with a couple of candidates for what the current test is for Tenth Amendment questions.


Active reading in law is important!  Think as you read!  Ask questions as you read!  It’s different than other kinds of reading.  Computer-screen reading may not be as active as reading and note-taking on a page.  Foley says to read more than once!


Tenth Amendment flip-flops


This is one of the reasons that the Tenth Amendment is so difficult.  The Court has been really inconsistent over time, even in recent years.  The current view of the Tenth Amendment is that it’s an entirely separate question, analytically distinct from the “power” question.  But that hasn’t always been the Court’s view.  The Court has flipped and flopped, back and forth again.  We’ll focus on the era from 1968 (Wirtz) to the present.  There were several cases involving the Fair Labor Standards Act, which was passed pursuant to the Commerce Clause.  After the New Deal, the Court said that Congress could regulate wages and hours and all that kind of stuff in all sorts of industries.  Congress was given general authority to do things like set the minimum wage for people who work at McDonald’s.


Congress passed a minimum wage law that is generally applicable to all sorts of kinds of workers.  They extended the same law to people who work for state and local agencies.  There are a few exceptions, but most people who work for state or local governments must earn a certain minimum wage.  Congress says that these workers’ wages and salaries affect the interstate labor market.


In Maryland v. Wirtz, Maryland said that Congress may have Commerce Clause power over workers in the state, but that Congress can’t regulate state workers.  The Court disagreed, saying that there is no separate question.  If Congress has the Commerce Clause power, then the Tenth Amendment is satisfied.  The Court basically said it was two ways to ask the same question.  The Tenth Amendment was declared to be redundant to the Commerce Clause.


But then, in National League of Cities in 1976, they said exactly the opposite thing and overruled Maryland v. Wirtz.  It was exactly the same question!  The issue was the wages and salaries of state employees, but the Court came to the opposite conclusion.


But then, in Garcia v. San Antonio MTA in 1985, the Court reversed again!  The Court said that the federal government could regulate the salaries of private bus drivers, like Greyhound drivers, and that the federal government could also set minimum wages for public bus drivers.


But then, in New York v. United States, Garcia was not explicitly overruled.  There’s no doubt that the decisions were inconsistent.  The New York case related to the transport of radioactive waste.  As a practical matter, this case overruled Garcia.  The Court was embarrassed to admit it.  Also, the New York case covered an environmental law, not a labor law.  So Garcia is out the window, and we’re in a new era of the separate inquiry.


But we don’t yet know the “contours” of this separate inquiry.  The Court didn’t say that we were going to resurrect the analysis of National League of Cities.  Instead, they set up the “anti-commandeering principle.”  They said that what was problematic about the laws in New York or Printz was that Congress has inappropriately “commandeered” state governments.  In New York, Congress was said to unlawfully commandeer state legislatures and tell them what to do.  In Printz, state and local law enforcement officials were forced to perform regulatory tasks by the federal government.


So the issue in the labor law cases was whether the federal government can force states and state agencies to pay their workers a certain minimum wage.  Twice the Court said yes, and once the Court said no.  But this isn’t about “commandeering”.


When Garcia was decided in 1985 and Rehnquist is on the losing side, he writes a dissent basically saying “We’ll be back!  You haven’t heard the last of us!”  Foley says that this suggests that the “anti-commandeering” principle is not the end of the road.  Foley thinks they’re keen to get another fact pattern just like Garcia so that they can explicitly overrule it.  Then we won’t be quite as sure what the Tenth Amendment means.  But this hasn’t happened yet, so we’re in a state of flux.


So there are a few different possible Tenth Amendment principles (the following quotes from a Foley handout):


  1. Congress can regulate the states in the same way that it regulates private entities, but it cannot regulate states in any way that is being distinctive to a state (except by requiring state judges to follow federal law).
  2. Congress cannot “commandeer” state officials as agents of the federal government.
  3. Congress may regulate the states directly, in ways that are unique to being a state, but cannot do so in a way that forces a state to regulate its own citizens differently that the state itself would choose.
  4. Congress may prohibit the states from doing things, but not require them to do things.
  5. Congress cannot force states to undertake specific actions vis-à-vis their own citizens that are inconsistent with a state’s status as a sovereign.
  6. Congress may not regulate state governments in ways that are inconsistent with a state’s status or dignity as a sovereign government, including regulations that force states to undertake specific actions concerning their own citizens that a state does not wish to undertake.


Whatever a majority of the Supreme Court justices say in an opinion is given very heavy weight in the entire legal system.


The Court can rely on its dicta, ignore its dicta, or repudiate its dicta.  It can even overrule itself.  So relying on the dicta of a Supreme Court opinion when you’re going to argue before that Court is shakier than if you rely on Supreme Court dicta in lower court.


If the Court makes two statements, and the first statement by itself is enough to get to the final conclusion, then the second statement is dicta and only the first statement is the holding.  On the other hand, if the Court only used one statement to support its conclusion, but you could think of a narrower statement that would have been enough to get to the conclusion, then it’s more contested whether the statement they made was the holding or dicta.


Printz v. United States – A provision of the Brady Act required chief law enforcement officers of state and local governments to perform handgun buyer background checks on an interim basis until the national background check system was developed.  Two sheriffs sue to stop the provision from being enforced in separate district courts.  The two district courts both found that the provision in question was unconstitutional but could be severed from the rest of the Act.  The Ninth Circuit reversed, saying that none of the Act’s provisions were unconstitutional.  The sheriffs appealed.


Are the interim provision of the Brady Act unconstitutional on Tenth Amendment or other grounds?  Congress cannot constitutionally compel state executive branch officials to administer a federal regulatory program.


Scalia says that the Court’s past decisions show that though Congress can command state judges, it cannot command the states’ executive authorities.  Scalia based his decision at least in part on New York and suggests the provisions are unconstitutional based on the Tenth Amendment.  However, Scalia never mentions the Tenth Amendment explicitly except when responding to the dissent.


O’Connor brings up the Tenth Amendment explicitly.  O’Connor points out that it is possible to for localities to voluntarily continue participating in the interim background check plan if they choose to do so.


Stevens distinguishes New York.  He asks what the practical effects might be in an emergency if Congress could not conscript local officials into service.  Stevens also looks at legislative history.


Stevens takes a different view of the Tenth Amendment.  Stevens says that the federal government can impose duties on ordinary citizens, so, he reasons, why can’t say impose even greater duties on state officers?  Stevens reaffirms the view that both the Constitution and federal statutes are the Supreme Law of the Land.


Breyer takes a comparative approach, saying that the way we do things isn’t the only possible way for things to work.


This is a particularly dense case.  No matter who you think is right in this case, there seem to be plausible arguments on both sides.  It’s not a very deferential opinion to Congress.


What are these three cases telling us?  They’re not necessarily the same formulations of the rule.


It looks like we have four categories:



Generally applicable

Specifically directed


OK (at least in Condon)


Affirmative duties


NO (at least in Printz)


For tomorrow, think about the example in Printz of having to report missing children.  Reno v. Condon also involves information (driver privacy).  Can we distinguish cases where Congress orders states to do or not do certain things with respect to information?  O’Connor’s concurrence suggests that the ruling in Printz is not limited to regulations on information.  We’ll also focus on the issue of terrorism tomorrow.


Foley has been talking about the hypothetical of a large-scale terrorist attack.  Say Congress, in an effort to put in to place some advance planning in the event of a terrorist attack, says that there will be a combined rapid-response team consisting largely of local law enforcement officers who will be under the direction of the Department of Homeland Security.  In order to implement a decent rapid response team, we need to rely on local EMS and police.


So let’s say Congress passes a law saying that in the time of an emergency, Tom Ridge or whoever can require local officers to do certain things.  Is that permissible under the Tenth Amendment as interpreted in Printz?  Say it’s a real big emergency.  We would need a rapid response at the direction of the federal government.  We don’t have federal personnel on the ground at all times, and we don’t want them, either.  We don’t want a federal standing army on U.S. soil.  We send American troops abroad as necessary, but the idea of a standing U.S. army on U.S. soil is somewhat anathema to us.  We rely on state and local governments to keep the peace.  Part of the idea of the federal system of government is keeping some power out of the hands of the central government and leaving it in the hands of local governments to promote freedom.


Would it be consistent with the goal of promoting freedom if the only way to protect against terrorism would be to have a federal force that replicates local government functions?  Is that what this decision says?  The Court says that we are not using a balancing test in this area of constitutional law.  We are creating a categorical prohibition of enlisting state officers to perform federal functions.  There is no exception to the principle for emergencies!  Do we still take the Court at its word, given that the opinion was written before 9/11?


Most of constitutional law has balancing aspects.  Even free speech rights are balanced against compelling governmental interests.


It seems unlikely, however, that a state would object to participating in a new program the federal government would adopt to deal with terrorism.  The states pretty much all agree.  On the other hand, there may not be complete agreement as to the details.  For example, not everyone is so hot on all part of the PATRIOT Act.  What if a particular state wants to go against a particular detail of Congress’s implementation of the plan?


Congress might try to induce the states through the Spending Clause.  Congress can’t mandate the kind of background checks in Printz, but maybe they can dangle some money in front of the states to induce them to stick to the program.


What if Congress says the only way we can trace terrorist suspects would be if local law enforcement officers submit monthly reports to the Department of Homeland Security?  Would it be different if local police departments were forced to gather information?  The only difference between this and Printz is the “emergency” aspect.


So do we believe the Court when they say that there is no emergency exception to the rule?  Would the Court cut the federal government more slack today after 9/11 than they did in 1997?  Foley suggests we need to do a reality check.  But don’t always trust Foley as a predictor of Supreme Court outcomes!


What about Congress’s war powers?  Could Congress declare martial law?  If they did, would the Tenth Amendment get suspended?


Here is the key dispute between the majority and the dissent in Printz: We’ll always need cooperation and coordination between federal, state, and local governments.  If there is some dispute about how best to do this, who gets the final say?  Is it Congress as the elected representatives of the American people (subject to the presidential veto)?  Or is it the Supreme Court acting on behalf of state and local governments?


The states are well-represented before Congress.  It’s not like the Congress turns a deaf ear to the concerns of the states qua states.  The dissent says that there are ways to make accommodations politically.  If Congress passes a law that intrudes on the sovereignty of a state, presumably it has done so for what it believes is a good reason.  So shall the Supreme Court allow Congress to make that judgment, or will the Supreme Court instead say that the ultimate authority lies with the governors of the states?


Are the members of the Supreme Court going to render a decision that would destroy the country?  Say the government had a credible argument that under the Constitution, as written, we can’t adequately handle terrorist threats.  Would the Supreme Court say that the Constitution doesn’t allow us to defend ourselves?  Would the answer be different if the stakes are higher?


The Constitution doesn’t have a provision that allows the President or Congress to suspend the Constitution.  We always operate under the Constitution and the rule of law.  In other countries, people can suspend the operation of the Constitution for a while when they say there is an emergency.


In exercising its authority, the Court will always have a dose of realism when it interprets the Constitution.  We live under the Constitution, the Court will interpret the Constitution, but Foley says it will do so with a dose of realism.


This year, the Court has already granted cert in some terrorism cases.  These cases don’t raise federalism issues.


The Supreme Court doesn’t have any power to enforce its own judgments.  It relies on the executive branch to carry them out.  The Court is quite sensitive to this point.  Printz isn’t a national security case.


Foley says that because we’re in flux, the best principle might be this: “Congress may not regulate state governments in ways that are inconsistent with a state’s status or dignity as a sovereign government, including regulations that force states to undertake specific actions concerning their own citizens that a state does not wish to undertake.”  Congress can’t be the big bully and push the states around.  This “animating idea” is bigger, according to Foley, than any of the detailed rules the Court has set out to this point.  The reason why Condon was unanimous was that the Court didn’t see an affront to the dignity of South Carolina that they couldn’t sell driver’s license information.  In Printz, we’re talking about what police chiefs are going to do in their jobs.  Police power is the most basic sovereign power.  Forcing local cops around seems to the Court like an affront to the dignity of the states as sovereigns.  The Court says that we’re not doing balancing, but they might try to “smuggle in” some balancing notions.  There may be some “hidden” balancing even if there isn’t any up-front balancing.


Apply this to the terrorism example: The sovereignty of each state may be dependent upon the existence of the union.  If the federal government is ordering states around to protect the union, that may not be as bad as ordering them around for some domestic policy interests.


The object of the Fourteenth Amendment was to constrain state power in certain ways.  States can’t suddenly assert the Tenth Amendment as an objection to an equal protection claim.  The states have no right to take away equal protection.


New York and Printz are not compelled by the text of the Tenth Amendment.  The majorities in these cases are really being motivated by an idea about federalism and the two-level structure of our government.  That idea is always going to be on the minds of the justices that care about the idea.  In any constitutional case, you must be sensitive to this idea.  Federalism is always on (some of) the justices’ minds!  On the other hand, some of the justices, like Breyer and Stevens, don’t like federalism!


Next week, we’ll get to Sabri.  In fact, we’ll basically spend all next week on it.  We’ll start with the lower court opinion.  Foley wants us to know that Section II of the Court of Appeals decision is on statutory construction while Section III is on constitutional analysis.  So just skim Section II.  On Monday, we’ll only talk about the constitutional issues.


South Dakota v. Dole – Congress tried to use their spending power to get state governments to raise the drinking age to 21.  Congress passed a law that withheld a certain percentage of federal funds to any state with a drinking age lower than 21.  South Dakota had a drinking age of 19 for “low beer”.  South Dakota sues to force the federal government to pay the full amount of federal highway funds.  The district court and appellate court both found for the federal government.  South Dakota appeals.


Does Congress have the power under Article I and the Twenty-First Amendment to “encourage” South Dakota to raise their drinking age?  (1) Congress’s use of the spending power must be in pursuit of the “general welfare”.  (2) If Congress conditions the States’ receipt of federal funds, it must do so unambiguously.  (3) Congress can’t place conditions on funding if those conditions are not related to “particular national projects or programs”.  (4) Congress cannot use its spending power to induce states to perform actions that are unconstitutional.


The Court says that South Dakota doesn’t challenge the statute in question under any of the first three limitations above.  South Dakota only challenges the condition of federal funds on the basis that it’s an unconstitutional regulation of liquor sales under the Twenty-First Amendment.  The Court basically says that the standard for determining whether the Constitution places limits on conditional funding are not as strict as the standards for determining what Congress can do directly.  The Court finds it dispositive that South Dakota has the power to keep their law the same, even though it’s at some cost.


O’Connor disagrees that the condition is closely related to the purpose for which the funds are expended.  O’Connor says that underage drinking is not sufficiently closely related to interstate highway construction.


O’Connor also thinks that the law is an exercise of regulatory power rather than spending power.  O’Connor thinks that the Twenty-First Amendment gives this power solely to the states.


The judgment of the Court of Appeals is affirmed and the action of Congress is found to be constitutional.


What’s it about?  Congress let the Secretary of Transportation knock off 5% of federal highway funds to states with drinking ages less than 21.


An aside: One of Foley’s primary goals in using the Socratic Method in class is practicing talking about the law.  One thing we’re doing as we practice is focusing in on the most important things in each case.  That’s something you’ll need to do in your future lawyerly life.


So what are the key details about the federal law?  It will withhold money from the states unless they raise their drinking ages.


Suppose Congress hadn’t done this through spending, but instead simply made a law that said “Nobody can purchase an alcoholic beverage if they’re under the age of 21.”  Would that be within the Commerce Clause?  Sure, probably.  But it would violate the Twenty-First Amendment.  If we only had the Commerce Clause, then there would be no problem.  We’re talking about the sale of alcoholic beverages, and this activity is sufficiently commercial that even intrastate alcohol sales can be regulated.  But the Twenty-First Amendment removes some things from Commerce Clause authority that would otherwise be within Commerce Clause authority.  The Supreme Court assumes that Congress could not enact a direct regulation of the national drinking age under the Commerce Clause.  If it was within the Commerce Clause authority, then there wouldn’t have to be any separate Spending Clause analysis.  You only need to list your law under one of the enumerated powers.  If there was Commerce Clause power, you might plausibly have a Tenth Amendment problem.


But because we assume it couldn’t be done under the Commerce Clause, we need to try it out under the Spending Clause.  That’s what the Court does.


Note that Congress can spend with respect to matters that are beyond any other power.  For example, with education in Lopez, education is said to be something that especially belongs to the states.  But the spending power is different!  The federal government can dole out money for education to the states and condition it upon the teaching of a particular curriculum, even if they can’t directly mandate such a curriculum.  The Spending Clause has a broader scope than the Commerce Clause, but it’s not necessary more powerful than the Commerce Clause.


Also, the Tenth Amendment doesn’t give Congress any powers.  In fact, a minority of the Justices think this Amendment is irrelevant.  The majority believes that it is a states’ rights provision that doesn’t give Congress any powers, but only takes away powers.  The Tenth Amendment is analytically different from either the Spending Clause or the Commerce Clause.  The latter are “power” provisions; the former is a “rights” provision.


The Supreme Court says that if South Dakota doesn’t want to lower the drinking age, they can “Just Say No!” and give up the 5% of the highway budget they get from the federal government.  Thus, it is claimed, there is no intrusion on state sovereignty.


So let’s focus on the Spending Clause.  The Court announces a four-point test for Spending Clause cases: (1) The conditions must be in pursuit of the general welfare.  Congress will get a lot of latitude in making this judgment.  Some cases suggest that the Court will give Congress a pass on this question every time.  (2) The conditions Congress places on grants must be related to the purpose of the money itself.  If the money comes with “strings attached”, there might be a connection between the money and the “strings”.  (3) The conditional nature of the grants must be unambiguous.  The statute must clearly spell out to the states what their choice is.  What are the strings being attached to the money?  It can’t be a “gotcha” where the money comes first and the conditions come afterwards.  (4) Congress can’t induce the states to perform any action that would itself be unconstitutional.  The Twenty-First Amendment would be an independent bar to direct regulation, but it’s not an independent bar with respect to the spending power.  That’s because the states have a choice!  The Twenty-First Amendment says that the states have a choice of how to regulate alcohol.  Why isn’t the quid pro quo that’s being offered (money for drinking age) outside the scope of the Twenty-First Amendment?  The Court basically says that in the domain of just spending money and offering choices rather than making decrees, the Court will act like the Twenty-First Amendment is not a bar as far as the Spending Clause goes.  This is kind of by fiat and could have gone the other way.  The court says that the federal government can’t give money to the states if the states agree to give up something that the states are not entitled to give up.


If you read between the lines, the Court suggests that South Dakota didn’t do a good job presenting their case.  At oral argument, South Dakota conceded that they weren’t making the Spending Clause argument.  Justice O’Connor thinks the argument that they didn’t make was a good argument and doesn’t want to give it up!


Foley says that states’ governments have historically been poorly represented in the Supreme Court.  That’s changing for the better (says Former Solicitor General Foley).


The relatedness prong


What’s the difference between what the majority and the dissent say about this prong?  This is a tricky one!  Why did O’Connor have a different view of relatedness than the majority?


The money was related to highway construction and repair.  The strings were related to drinking age.  The perception of young adults is that they are more likely to engage in drunk driving than other people.  The majority thinks that the strings and money are legitimately connected.


O’Connor’s dissent


Justice O’Connor wanted to look at relatedness in a little more depth.  What does O’Connor mean when she says that the money must be spent on highway safety itself?  O’Connor says there will be drunk drivers causing accidents in other age groups, plus young drivers who will drive safely.  O’Connor says the law is thus both over- and under-inclusive.  This concept becomes very important when we get to Equal Protection law.


But when a condition is related to the spending versus unrelated to the spending?  O’Connor says that conditions are acceptable, and regulations are not.  Why is the age limit a regulation and not a condition of the spending?  O’Connor’s key concept is that relatedness means: “Here’s the money, you can spend it for X, Y, and Z, but not A, B, and C.”  It’s conditions on how the money is spent.  As opposed to: “Here is some money, and in exchange for the money you must agree to obey the following rules.”  She would only allow the money to be conditional based on how it’s spent.


O’Connor says a condition is regulatory when the restraint goes beyond that wad of money itself.  In order to get such money, you must agree to spend any money you get in a certain way.  O’Connor believes this is outside of the Spending Clause.  This crosses her line of permissibility because it’s a constraint not on the money itself, but actually on the behavior of the recipient of the money.  “Constraint on money yes, constraint on people no.”


This case is from 1987 and the composition of the Court has changed considerable.  Does O’Connor now have more allies than she did in 1987?  She was all alone then.  But maybe she could get Thomas and Kennedy.  She didn’t get Scalia or Rehnquist’s votes, but that might just be because South Dakota argued the case poorly.


Sometimes you can differentiate one case from another by saying “I’m presenting a different argument than in the case you decided before.”  Really good lawyers will read the briefs and the transcripts.  If they see an argument missing from the earlier case, then they can come to court and say the case needs another look because there’s a whole new argument.


An aside about deference – a common thread


To clarify a point from last time: The scope of the Spending Clause is broader, according to the Court, than the Commerce Clause.  The Court perceives Congress as having more room to maneuver under the Spending Clause than under the Commerce Clause.  For example, Lopez says we can’t have a nationally mandated primary school curriculum justified by the Commerce Clause power.


The Court will not second-guess Congress about whether a certain economic policy will be effective, as long as the policy is enacted under one of the enumerated powers.  In Wickard, the regulation of Filburn’s wheat might not have been necessary to get us out of the Depression, but the Court gave Congress deference as to the means Congress chose to stoke interstate commerce.


The idea of deference is very important throughout this semester with respect to every subject we’ll study.  Every case we’ll see this semester is, in a sense, about deference.  Every case includes a constitutional challenge to what the government wants to do.  In many cases, statutes (legislative power) will be challenged, while in some other cases, executive power will be challenged.  Whenever the Court is begin asked to invalidate an exercise of governmental power on the grounds that such exercise is unconstitutional, the Court, implicitly or explicitly, asks the question: “How much deference should our part of the government give another governmental authority to do what it feels is right?”


If Congress has passed a law, presumably Congress believed itself to be acting constitutionally.  Congress isn’t in the business of violating its own oath.  Every time the Supreme Court overrides an act of Congress, it overrides the judgment of the members of that body.  It is, in a sense, an indictment of the integrity of another branch of government.  So the Court always thinks to itself: “How much latitude should we give Congress on this issue?”


Deference cuts through all the topics we’ll cover in this class.  It also relates to the “standard of review” the Court should apply when adjudicating the particular constitutional claim in front of it.  The higher the standard of review, the more scrutiny the Court gives the relevant government agencies involved.  A rigorous standard of review is used, for example, in freedom of speech claims.  A lower standard of review or scrutiny gives the government more deference.  So in each topic we study, we’ll ask what standard of review will apply with respect to each case.


Foley says that the Court is struggling with the standard of review issue in the area of federalism.  Breyer’s dissent in Lopez says that the “rational basis test” applies to Commerce Clause analysis.  The “rational basis test” is a very relaxed standard of scrutiny.  That means Congress gets a big benefit of the doubt.  Breyer thought the Court shouldn’t make a judgment about whether guns near schools would lead to damage to the interstate economy, but rather the Court should review whether Congress could rationally think that guns near schools could conceivably lead to damage to interstate commerce.  Breyer would say as long as such a connection is conceivable, Congress is entitled to make it and have it upheld.


Note that the Court didn’t really respond to Breyer on that point.  The majority focused on the fact that Breyer couldn’t come up with a law that would go over the line if the statute under consideration was upheld.  That leads us to ask whether the level of review in Commerce Clause cases has been raised.  Foley says that Lopez and Morrison have not clearly set out just what standard of review the Court is applying.


We saw last week in South Dakota v. Dole references to the “rational basis test” as part of the inquiry in a Spending Clause case.  That was the test for applying the “general welfare” prong.  The majority and dissent parted ways on the “relatedness” prong.  Justice O’Connor was unwilling to apply such a loose standard of review as allowed by the majority.


Note that you could applying different amounts of deference, or, in other words, different standards of review with regard to different parts of a test.  The Court can let the standard of scrutiny “float” up and down, even within the same case.  So pay attention to what level of scrutiny is being used.


United States v. Sabri Sabri was charged under 18 U.S.C. § 666 for bribing an agency that receives federal funds.  Sabri moved to dismiss the indictment, claiming that § 666 was facially unconstitutional because it lacked a “jurisdictional hook” between the federal funds and the conduct.  The district court accepted the argument and dismissed the indictment.  The federal government appealed to the Eighth Circuit.


Did Congress have the power to enact § 666 under the Spending Clause or some other enumerated power?  All statutes passed by Congress must fall within one of its enumerated powers in order to be constitutional.


The majority starts by saying that § 666 is not a condition on the receipt of federal funds and cannot be sustained on that basis.  The court notes that § 666 does not address itself to the conduct of the recipient of federal funds, but rather to the conduct of third parties.


However, the court does find that § 666 is constitutional under a combination of the Necessary and Proper Clause and the Spending Clause.  The statute doesn’t seem to hold up under the Spending Clause alone, so the court looks elsewhere in the Constitution.  The court cites authority for the proposition that the Necessary and Proper Clause, among other things, allows Congress to pass laws that help it disburse federal funds.  The court sees the Necessary and Proper Clause as an affirmation that Congress can use a wide range of means to achieve constitutionally enumerated ends.


The court says that the issue therefore boils down to whether § 666 is an appropriate means to achieve a constitutional end under the Spending Clause.  There are two questions to be answered: (1) Can Congress enact criminal legislation under the Necessary and Proper Clause?  (2) Is the enactment of § 666 rationally related to the desired end?


The majority has no problem finding support for their conclusion that the federal government has the power to pass federal criminal laws to help enforce its constitutional powers.  The majority further claims that § 666 is rationally related to its goal of protecting the integrity of federal funds and not so broad as to regulate purely state or local criminal conduct. 


Judge Bye, dissenting, says the law may be applied to offenders whose conduct has no connection to federal interests, and thus the law oversteps the bounds of federal constitutional authority.  Bye says that “necessary” and “proper” are separate requirements.  Bye finds that some of the authority that would be given to Congress if § 666 was upheld is not “proper”.  Bye makes a big deal out of the fact that at oral argument the government disavowed the Necessary and Proper Clause as a basis for upholding § 666.




Is the statute facially unconstitutional?  The most important issue according to the government is stare decisis.  They say that the Supreme Court has already considered the basis of the defendant’s motion to dismiss and has already rejected it.  The district court’s order is purported to conflict with the holding of United States v. Salinas.


In that case, the Supreme Court rejected the argument that § 666 was not allowed under the Spending Clause without the requirement that government show an effect on federal funds.  The government claims that the only way to distinguish the petitioner’s argument in Salinas and the defendant’s argument here is that while the petitioner in Salinas was asking for the statute to be declared unconstitutional as applied to him in particular, Sabri wants the district court to declare the statute unconstitutional as applied to everyone, including, the government points out, Salinas.  But, the government says, the Supreme Court has already found that the statute is constitution as applied to Salinas.  The government claims that the Supreme Court’s ruling in Salinas committed that Court as well as lower courts to applying § 666 on an as-applied basis.


The government cites some sources for the belief that § 666 is constitutional under the Spending Clause.


One of the judges asks why § 666 cannot be justified under the Necessary and Proper Clause.  The United States attorney says that the fear is that the Necessary and Proper Clause would “prove too much” and potentially run afoul of the Tenth Amendment.  “You’re rejecting a lifeline.”  “No, your honor!”


A judge asks whether forcing Sabri to make an as-applied challenge at the close of the evidence would shift the burden of proving a federal “nexus” or connection from the government to the defendant (who would have to show a lack of a connection). 


Another judge points out that even if the district court is affirmed, the defendant doesn’t get to walk, but rather will have to face the music in Minnesota state court.  The United States attorney says that part of the motivation of Congress in enacting § 666 was that local official might not be trusted if they were involved in the bribery.


“I’d like to save the remainder of my time, if I could.”  “You have no time remaining.”  “I’ll save it anyway.”




The appellee claims that § 666 is the only statute they can find that is purportedly allowed under Congress’s Spending Clause power.  He claims that Congress doesn’t have the power to pass federal criminal statutes under that Clause.  One of the judges says that even though the Constitution doesn’t explicitly authorize statutes like this, there is a strong federal interest in protecting federally funded programs.


The appellee says that the purported authorization of § 666 and other potential federal criminal statutes under the Spending Clause plus the Necessary and Proper Clause would result in a general police power and therefore no limit on what criminal conduct the federal government could regulate, so long as it could claim it was protecting the “general welfare”.


The appellee disputes that the section of Salinas cited by the government is really the holding of that case.  The appellee says that the constitutional question was not part of the petition for certiorari and that the issue was not briefed by the parties.


The judge asks about the so-called “cross-cutting conditions” on federal grants like anti-discrimination provisions.  Could § 666 be considered an “anti-corruption” condition?  The appellee kind of dodges the issue.


Sabri was a developer in Minnesota.  He was indicted for allegedly bribing a city council member.  Who indicted him?  He was indicted by a federal prosecutor.  What federal law is Sabri alleged to have violated 18 U.S.C. § 666.  Are there some funky words in the statute?  What does it mean to “corruptly” give something?  It can be “anything of value”.  It can be given to “any person”.  The statute applies not only to state and local government but also Indian tribes.  The statute doesn’t specifically target state officials.  The statute actually also includes non-governmental organizations that receive federal funds.  The statute seems pretty broad!  The size of the bribe could be much lower than the threshold value.  The threshold seems to deal with not the size of the bribe, but the size of the business or transaction that the wrongdoer is seeking to influence.


So the statute’s words seem to say that giving anything of value to any person with the intent of influencing a state agent or agency will be bribery.  The statute seems very broad!  Is Congress trying to grab too much authority?


Congress has written this statute and yet Congress has limited scope of authority.  Congress has the commerce power.  Could this statute be justified under that power?  Congress is spending money.  Could this statute be justified under the Spending Clause?


Does the challenge in this case have to be a facial challenge?  Could Sabri have brought an as-applied challenge instead?  How is Sabri using the term “facial challenge”?


Why is it that the analysis of South Dakota v. Dole does not apply to this case?  Why does this case raise altogether new issues?


We’ll talk about the disagreement of the majority and dissent in regard to the scope of the Necessary and Proper Clause.  As the dissent reads this statute, the federal government could jail someone for bribing a meat inspector even though the city might only get money for its parks.  Is this a correct reading of the statute?


We talked at length about the statute, 18 U.S.C. § 666 yesterday.  Now, let’s focus on the constitutional argument that Sabri is making as to why the statute is unconstitutional.  What part of the Constitution does Sabri cite in support of his point?


Sabri claims that the statute is facially unconstitutional.  How come?  Is it a matter of relatedness between the bribe and federal spending?  Is there an inadequate “jurisdictional hook” in the statute?


What was the “jurisdictional hook” issue in Lopez?  It’s not the “substantial effect” test.  The question is whether the statute addresses, for example, “interstate commerce” and only allows prosecution if the conduct is related to that power of Congress.


§ 666 does not have a jurisdictional hook of that type.  There is a requirement that the bribe be received by a government or organization that receives a minimum of $10,000 in federal funds.  Why isn’t the $10,000 part of the statute a jurisdictional hook?  It’s not a Commerce Clause hook, but that’s not the constitutional peg on which we’re trying to hang this statute.  Could it be that we have a jurisdictional hook but that the hook is insufficient?


We could say that Congress attempted a jurisdictional hook here.  Congress didn’t say that we’re going to punish all acts of bribery against state and local officials.  They limited the statute to agencies that receive a minimum amount of federal funds.  But there may be an insufficient connection between the bribe and the federal interest that’s being protected.


The existence of a jurisdictional hook is a type of connection or nexus.  This case insists that an element of the crime is the fact that an agency received $10,000 in federal funds.  That creates a connection between the conduct to be criminalized and the Spending Clause.  But this connection might not be good enough.


A jurisdictional hook is an element of the statute that is explicitly tied to the source of federal authority.  The presence or absence of a jurisdictional hook is important to the courts’ reasoning, but it’s only one factor to be analyzed.


What is the Court going to do?  Foley thinks the federal government has four safe votes.  But if cert was granted, it means there are at least four justices interested in reviewing the case.


“Facial” challenges


Why does Sabri insist he’s bringing a “facial” challenge?  Sabri wants to challenge the statute “on its face”, that is, as written.  He claims that the statute, as written, is improper.  This concept is in contrast to an “as-applied” challenge.  In such a challenge, you claim that the statute isn’t faulty on its face, but it is defective as applied to a certain situation (i.e. my situation).


Sabri doesn’t go with an as-applied challenge because it would be a sure loser for him.  How come?  Well, the facts don’t look good for Sabri.


Also, note that this case is coming up on a motion to dismiss an indictment rather than to overturn a conviction.  The district court granted the motion to dismiss the indictment, which is why Sabri never got to trial.  The whole question of “facial” versus “as-applied” challenges has nothing to do with Sabri’s guilt or innocence as it would be proved to a jury.  The bribe is merely “alleged”, but for the purposes of this challenge we could accept the facts as given.


But why would an “as-applied” challenge fail?  The Court will ask similar questions in the cases of both “facial” and “as-applied” challenges.  For example: Is this statute always constitutional, in each and every instance that it could apply?  That’s one extreme.  On the other hand, is there a single instance in which the government could constitutionally bring charges?  There’s the other extreme, and the two extremes define a range in the middle.


Sabri was said to benefit from the federal funds in connection to the bribe that he was giving.  Sabri was trying to get a community development grant, and the grants came from the federal government!  Sabri was trying to get $800,000 in federal funds!  He was going to kick back $80,000 to a councilmember in order to get help getting that cash!


Sabri wants his development project to receive a portion of the federal funds, and his bribe is an effort to try to obtain those funds.  The statute doesn’t require that kind of connection, but given that connection it seems like the prosecution is okay in this case.  Sabri can’t get the indictment dismissed in its entirety if he brings an as-applied challenge.  Sabri’s fact pattern has the kind of nexus that he argues the statute must have in order to be constitutional.  That’s why an as-applied challenge would fail.


Sabri doesn’t claim that his conduct can’t constitutionally be punished by Congress.  Sabri instead claims that the statute Congress wrote to get after him was a badly written statute.


Salinas is referenced in the briefs and the opinion.  That case involved money which the federal government had been giving out to state and local agencies under a prison program.  The court said that the statute applied to that fact pattern and that it was constitutional to apply it in that context.


It seems clear that it is legitimate for Congress to try to stop people from bribing state and local officials to try to get at federal funds.


So it turns out that at least some applications of this statute are valid and permissible.  This statute is not 100% unconstitutional.  It is not necessarily 100% constitutional, but it could also be somewhere in between.


There is a doctrine that says if the statute would be valid as applied to you, then you don’t have standing to sue to protect third party rights.  Sabri tries to get around this by saying that even though he could be punished under a better written statute, there are some people who can’t get punished at all because of the way the statute is written.


Sabri is asking the court to say that just because the statute is written defectively, that makes the statute itself invalid in all its applications, because every time the government punishes under that statute, it punishes in a situation where it doesn’t have to ask about the “nexus”.  Sabri thus argues that every prosecution under this statute is tainted and invalid.


Donuts and challenges


Say you’re looking at a donut.  Say the whole donut is the scope of what Congress indisputably could punish under its Art. I, § 8 powers.  Sabri’s own conduct would fall within the “hole”.  Pretend that the donut itself includes a set of cases covered by the statute which nonetheless are not covered by Congress power.  In other words, the points on the donut represent the cases were an as-applied challenge would win.



So for a given law, the Court is more likely to uphold it if most prosecutions that could be brought under the law are constitutional than if most such prosecutions would be unconstitutional, even if in this particular case it would be okay.


On the other hand, if a statute would usually be unconstitutional but it wouldn’t be in the present case, we might not want to let a particular rascal off the hook when other people will soon come before the Court who have really been wronged.


If the “onion ring” on the right gets so skinny that it disappears, it means that the statute is coterminal with the extent of congressional authority.  Every prosecution would be okay.  Sabri must show that there is at least some kind of donut or onion ring in existence.


Thus, there are two questions Sabri has to answer:


  1. Is § 666 ever unconstitutional?
  2. Should Sabri be allowed to kill the statute and get off the hook even though his own misconduct could properly (constitutionally) be punished?  Why should Sabri be able to win with respect to the “donut” when he’s in the “hole”?
    1. Furthermore, what percentage of the statute’s coverage is constitutional versus unconstitutional?
    2. How high does the percentage need to get in order to let the rascal Sabri off the hook on the basis of a facial challenge even though he would fail on an as-applied challenge?


The bigger the “donut” in relationship to the “hole”, the more sympathetic the Court will tend to be.


Recall the special rules and doctrines of the First Amendment.  If you’re in the hole, you have to prove that the statute in question is substantially overbroad.  The Court has never quantified this, though.  But you need more of a “fat donut” than an “onion ring” to prevail on an as applied.


One example of an application of the “substantial overbreadth” doctrine was the challenge to the electioneering communications “60-day rule” in McConnell.


So it ends up somewhat unclear why Sabri thinks he’s entitled to a facial challenge.  If you want more information on facial versus as-applied challenges, check out Edward B. Foley, “Narrow Tailoring” is Not the Opposite of “Overbreadth”, 2 Election Law Journal 457, 472-475 (2003).


Facial challenges are often frowned upon.  Judges don’t like criminal defendants to win when they could be legitimately punished.  The misdeed that Congress punished is properly punishable by Congress, so to let a criminal off the hook just because Congress was a little sloppy is unappealing.  But because we care so much about First Amendment rights, we don’t want people to self-censor even though they’re “in the donut”, saying stuff that Congress can’t touch.  So we’ll sometimes let people in the “hole” win for the sake of other folks.


Alternatives to § 666


How do we define the proper scope of congressional power in this area?  How can we pin down just how big the “inner circle”?


The way to mentally test the proper scope of congressional authority is to imagine both narrower and broader laws that Congress might have adopted rather than the one it actually adopted in § 666.  Then we think about whether one of these hypothetical alternative statutes would have been a good place to try the line.


Sabri demands that the law be written such that the only thing it covers is punishment of bribes made with the intent to get at federal funds.  Sabri wants to claim that that’s as far as Congress is entitled to go.  Congress appears to have gone a lot further than this.


The government, on the other hand, says that that’s not broad enough.  The government is not only concerned about having federal funds get into the hands of the briber.  The government is also worried that if it gives money for a purpose to a state or local agency, and that agency has an employee who accepts a bribe, a lot of other money will get dissipated and thus hurt the agency and in turn hurt the federal government’s program.


The federal government wants to say that we ought to have some kind of broader powers than merely punishing a briber trying to get federal funds.


What about punishing someone who bribes an administrator of a program that gets federal funds?  Consider the meat inspector/parks example again.


What about punishing someone who bribes someone who works for a government department or non-governmental organization that gets federal funds?  The difference between this and the actual statute is that it deals with government departments rather than entire governments.  Part of the problem with § 666 is that it covers, for example, the entire state of California.  California has a huge bureaucracy!  If any employee of the state of California anywhere takes a bribe, then it would seem like we can argue it’s necessary and proper to punish that employee.


But what about even broader laws?  It’s not just bribes that put federal funds at risk.  What if we also punish fraud or financial deceit?  What about punishing any dishonest act or statement?


The amicus brief suggests that it’s not much more far fetched that the government could punish adultery offered in connection with recipients of federal funds.


Sabri’s attorney will be asked at oral argument: “If this statute isn’t okay, what statute is okay?”  The Court wants to put the lawyer on a slippery slope and really see where the line should be drawn.


Examples are good!  They put concrete images in the mind of the deciding judge.  Cases are won or lost on concrete images and examples.


Is Congress entitled to be worried about the Minneapolis council member’s conduct because it’s concerned about the $23 million it has given the city?


Does Congress have a valid interest under its spending power and the Necessary and Proper Clause to be concerned about the eminent domain bribe and the 10% kickback bribe?


Sabri distinguished from Dole


Sabri, although a Spending Clause case, does not involve the analysis we looked at in South Dakota v. Dole.  How come?  Well, the Dole analysis is for something totally different.  Why does that analysis involve a separate problem?


In this case, the federal government is contracting with the city of Minneapolis.  The federal government doesn’t just hand out money with no strings.  You actually have to use the money to revitalize neighborhoods, and that means a certain thing in terms of zoning, health and safety, and so on.  Minneapolis is certainly obligated to do something in return for getting the federal funds.  But that’s not what this case is about.  Why?


It’s has to do with the third party!  This criminal statute regulates the conduct of third parties, and not the recipients of the money.  This law is directed against Sabri and others in his position.  The law is not directed against the city of Minneapolis as the recipients of the funds.  This is different than Dole: The state of South Dakota itself was having restrictions imposed on it.  It wasn’t 19 year old potential drinkers who were directly regulated.


One of the goals of this course is to translate what we know into the most specific legal language.


Notwithstanding the difference between the cases, can we make an argument from Dole that will help in this case?  You could try to make an argument from O’Connor’s dissent.


Does this statute go beyond the scope of protecting federal funds?  Is it regulatory in a sense that will bother Justice O’Connor?  Well, in some sense, of course it’s regulatory.  We want to regulate people who engage in bribery.  But we’re not just invoking the Spending Clause, but also the Necessary and Proper Clause.  We could argue that the statute is necessary and proper for enforcing the spending power.


How else can we use the “ethos” of Dole?  The main argument is that this law, because it’s so broad and attenuated, it must flunk the Necessary and Proper Clause as not really necessary under any definition of that term.  In fact, one of the amicus briefs for Sabri argues that “necessary” really means “necessary” and not just convenient!


Maybe there is a way to use Dole as a secondary battle for Sabri.  We have our necessary and proper points.  But let’s think of the case from the perspective of the state governments whose interests the Constitution is trying to protect by limiting federal power.  From that point of view, if Congress has the ability to use the Necessary and Proper Clause in the way that the government is arguing here, then there will be federal regulation that kind of piggybacks on all the spending in which Congress engages.


This is worse!  These are hidden conditions!  At least in Dole, the conditions were up-front.  Is this a “gotcha” situation?


We expect state and local law to punish state and local officials.  But if we allow this new power to tag along, then whenever Congress spends more than $10,000, you add this “hidden condition”.  So this isn’t a direct Dole argument, nor is it a direct Lopez argument.  But it appeals to the fundamental federalism values expressed in those cases.


Dole was a quid pro quo.  Could Congress have said: “We’re not going to ask South Dakota to agree to a minimum drinking age of 21.  Instead, we’re going to give them some money to build some roads and laws that say that they must build the roads safely.  Then, two years later, after road construction starts, we’ll impose as a matter of general federal regulatory law a drinking age of 21.


Briefs are written both to persuade and to show a judge how they could write an opinion to rule for the side they want to rule for.


You could use a case that includes the Necessary and Proper Clause plus something else to argue for the Spending Clause plus the Necessary and Proper Clause.


The Solicitor General’s office writes extremely good briefs.  The briefs are good models for our own briefs.  They know what they’re doing and they know who their audience is and how to structure an argument for their audience.


The petitioner’s brief is written by someone who is less sophisticated as to practice before the Supreme Court.  Foley thinks it is too generic and talks about federalism and federalism values in terms that are too general.  It doesn’t talk enough about the factual points of the case.


Foley would start by saying: “This law causes people to be subject to federal criminal law even when there is absolutely no connection between the bribe they offer and a threat to federal funds.”  We may be concerned about corrupt government employees, but there’s no concern that there will be crossover between one huge bureaucracy and another.  That would be Foley’s central point.  This argument is buried in the government’s brief.


The amicus brief kind of falls between the two in Foley’s mind.  The brief provides information to the justices that they would want to know (especially Scalia and Thomas who are interested in original intent).  He thinks it works well as an amicus brief, but it wouldn’t work as the brief for a party.  The amicus brief doesn’t hold back in suggesting that the Court overrule some of its old decisions.  It’s unlikely that you’re going to win by having the Court overturn a 200 year old case.  But many of the justices like really old history and stuff.


We’re not trying to reach a definitive conclusion about Sabri.  The thing to pay attention to is what I think the strongest argument is on each side of the case.  If I were Sabri’s lawyer, what would I put down at the beginning of the brief?  What might swing O’Connor or Kennedy?  Or if I’m the government trying to uphold this law, what are the top arguments I would want to make in response?  I would probably want to argue, among other things, that we can uphold this statute without subverting our core idea of dual sovereignty.


Pharmaceutical Research and Mfrs. of America v. Walsh – Congress enacted a cost-saving measure requiring drug companies to pay rebates to States participating in Medicaid.  Ten years later, the state of Maine enacted a measure to try to save its uninsured citizens more money.  Drug manufacturers challenged the constitutionality of the state program, saying that it is preempted by the federal Medicaid statute.  They also claimed that the state was unconstitutionally regulating out-of-state commerce, which only Congress is allowed to do under the Constitution.  The district court granted a preliminary injunction to the drug companies prior to considering any factual issues.  The state of Maine appealed to the Court of Appeals, which reversed.  Then the drug companies appealed to the U.S. Supreme Court.


(1) Is the Maine statute preempted by the federal statute?  (2) Is the Maine statute unconstitutional under the “dormant” or “negative” Commerce Clause?


The hardest case all semester!  This is a very conceptually difficult case.  But the Supreme Court thought the same thing.  This case failed to produce a majority opinion!


They split up the opinion!  The Court agrees on the facts in Parts I-III.  Stevens gets four votes for Parts IV and VII.  He gets three votes for Part V.


It is theorized that these split opinions have happened less often as the same nine justices have sat on the Court for more time.  The Court might vote for a certain judgment, but they may have trouble joining each others’ drafts.  Over time, the opinion writers become more adept at writing opinions that will draw a majority.


But when there’s such a split decision as this, we know it was a difficult case.  It may be that when we get some turnover on the Court we’ll get more fragmentation in opinions.


It is very, very important to pay attention to when you have majority opinions of the Court as opposed to plurality opinions of the Court.  Even though Justice Stevens may win the vote count on the judgment, he doesn’t speak for the Court except where it’s noted.  You must be aware of that.  You need to make sure that you have an authoritative statement of the U.S. Supreme Court.


The Marks doctrine says that when you have a plurality situation, you have multiple opinions supporting the judgment.  The opinion that lower courts and lawyers should look to is the opinion which articulates the narrowest ground for that judgment.


The Stevens opinion got the most votes among those supporting the judgment in this case.  That’s why Stevens is allowed to “announce the opinion of the Court”.


When you write briefs, the very last line of your brief should be “For the foregoing reasons, we ask this Court to affirm (or reverse).”  You always must give the bottom line.


So what are the facts?  What’s going on here?


What is the Medicaid statute?  It’s a federal statute that uses federal money to provide additional funds for needy people who would otherwise not be able to get medical care.


The states can set up a prescription drug benefit as part of the program.


What’s the Maine Rx statute?  Maine adopts a program that’s not just for the neediest folks who are covered by Medicaid, but also other folks.


The district court grants the injunction, while the Court of Appeals reverses, and the Supreme Court justices disagree.  There is a lack of factual clarity because the case is at the level of summary judgment in procedure.


It seems as though even though all Maine residents are covered by Maine Rx, it’s a bit tricky.  If you’re a Maine citizen and have private health insurance (a comparable or superior plan) then you wouldn’t get your drug benefit from Maine Rx itself.  What Maine Rx is designed to do is provide prescription drug coverage to uninsured Maine citizens.  The people who would be helped would be those who were too rich to qualify for Medicaid, but not rich enough to get their own private insurance.


How does the state’s provision of a benefit under Maine Rx affect the Medicaid program?  If the Maine Rx program would be entirely free-standing, with no potential effect on Medicaid, then there wouldn’t be a challenge.  But the drug companies charge that Maine Rx interferes with Medicaid.  What do they mean by interference?


It’s dense material.  Let’s “unpack”.


Suppose Maine hadn’t adopted Maine Rx.  Medicaid had been around a long time, including in the state of Maine.  How would Medicaid have worked in the state of Maine in the absence of Maine Rx?  Only poor people would have been able to get discounted drugs under Medicaid.  So the discounted drugs provision and the rebate is present both in Medicaid and in Maine Rx.


From the drug companies’ point of view, they have to take a hit in terms of the prices that they charge.


What about this prior authorization bit?  Would that exist in the Medicaid program alone, putting aside the Maine Rx program?  Prior authorization was part of Medicaid itself.  What does that mean?  For certain types of drugs, authorization would have to be obtained from a state agency.  They would check if there was a cheaper equivalent drug out there so that the funding agency won’t take as big of a hit.


HMOs do this often.  A doctor says: “There’s this great new drug and I want to prescribe it for you.”  The HMO says, for example: “Try Advil first, maybe you don’t need the fancy drugs.”  The insurance mechanism intervenes in the doctor-patient relationship.  The doctor must tell the insurance company why the particular fancy, expensive drug is necessary.


Medicaid has prior authorization built-in.  Medicaid insisted that the states adopted a prior authorization mechanism.


If prior authorization was a feature of the Medicaid program itself, why is the prior authorization so important when we’re thinking about the relationship of the new program, Maine Rx, to Medicaid?  What is the importance of the “interference” theory?


The key concept here is that Maine Rx imposed prior authorization on any drug company that refused to participate in the rebate plan for the folks who weren’t in Medicaid, but in another category.  Maine imposed a Medicaid consequence for failure to participate in a non-Medicaid program.  “You’ve got to lower prices for these folks who are falling between the cracks!  If you don’t, then we’ll take the drugs you refuse to give lower prices for and automatically put them in the prior authorization category for Medicaid use!


Note what we’re not talking about: prior authorization for the people isn’t the only thing at stake.  Prior authorization is going to become required for people who are already eligible for Medicaid.  The “cross-cutting” nature of the punishment becomes the problem.


The penalty for not participating in Maine Rx would have been a Medicaid penalty.  There is a “stick” related to the federal program.


How did the drug companies make a legal claim out of the interference point?  What’s the Maine Rx program doing to the federal program?


The drug companies are claiming that there is interference by the Maine Rx program with Medicaid.  They claim there is a conflict between the state law and the federal law.


Where does the ability of federal law to trump state law come from?  It comes from the Supremacy Clause.  An act of Congress is supreme if it’s constitutional.  Inconsistent state law must give way by virtue of the Supremacy Clause.  What makes this a constitutional law case is the Supremacy Clause.


Medicaid is a federal statute.  There is no constitutional challenge to Medicaid in this case.  The drug companies aren’t saying that federal Medicaid law is unconstitutional.  In fact, they are relying on federal Medicaid law.  They don’t say that Medicaid is beyond the scope of federal power.


So if we assume Congress had the power to enact Medicaid, then if Maine Rx is inconsistent with that federal law, then the state law must go.  The Supremacy Clause says that when there is a conflict, federal law wins.


The key point is that the constitutional proposition about the Supremacy Clause is straightforward.  All the work of lawyering in preemption cases is figuring out: “Do we have a conflict between federal law and state law?  If there is a conflict, preemption will occur.  So if you want to keep a state law, you must argue that it doesn’t really conflict with any federal law.


How does the Supreme Court try to find out if we have inconsistency?


Think about the relationship between the Supremacy Clause to the dormant (or negative) Commerce Clause.  The drug companies make two claims: they make (1) a preemption claim, and also (2) a negative Commerce Clause claim.  They say even if there is no inconsistency, the state law must be struck down because it somehow interferes with interstate commerce.


When we left off yesterday, we said that constitutional law can’t tell us when a federal statute preempts state law, because the Constitution only tells us that when there’s a conflict, there is the effect of preemption.  But how do we know if there’s a conflict?  Where do we look, if not in the Constitution, to find out if there’s a conflict, and thus if there is preemption?


We could look at the text of the statute or legislative history.  If the statute expressly states that it is meant to preempt state law, then you’ve got a good case for preemption.  That’s express preemption.  That’s one of Chemerinsky’s categories.  Congress has the power to preempt state laws that it doesn’t like as long as it is acting within its sphere of authority.  So the first thing to do is to look for that congressional indication that they want to preempt, and see if they’ve done so.


But there’s an even bigger point: preemption is ultimately a matter of federal statutory law, not federal constitutional law!  We ought to be learning about preemption in Legislation!  The answer to finding out whether there is preemption in a given case will be found in the text of the statute in question.  But we’re studying it here, so there.


In this area of “Constitutional Law”, we’re trying to figure out what Congress wants, not what the original Constitution wants.  So this is a bit different!


Preemption is not a question of constitutional law!!!  The constitutional part is quick, easy, and automatic.  If we know what Congress wants, and Congress wants to preempt, then we have preemption.  That’s it!  This class is mostly about interpreting the Constitution, but the nitty-gritty of preemption is not at all about figuring out what the Constitution wants.


But then the question is: just how closely do we stick to the text?  Should we look at legislative history?


The Constitution says that state laws that are contrary to federal law are null and void and must give way.  But that’s the only guidance we get in this matter.


Did the Medicaid statute expressly preempt the Maine Rx program?  No, there was no express preemption provision.  Medicaid could have expressly preempted state laws.  But they didn’t.  That creates a natural presumption against preemption.  If Congress doesn’t use a power that it could you, you might suppose that they didn’t use that power for a reason.


How does the Supreme Court as a judicial body understand what Congress is doing or not doing?  How does the Supreme Court interpret signals from Congress?  Maybe there are some overarching separation of powers principles involved.  That’s what the Legislation class is about, though!  So Foley says that we should go ask Brudney!


First, there is express preemption.  There are three kinds of implied preemption: (1) field preemption, (2) conflict preemption (physical impossibility), and (3) interference or obstacle preemption (state law interfering with federal objectives).


It’s possible for the drug companies to comply with Maine Rx in a way such that they are still in compliance with the federal Medicaid program.  Therefore, there was not conflict preemption in that case.


This is an example where states have actually been invited into the regulatory scheme.  Thus, we can’t have field preemption either.


Therefore, the only possibility is that the state law doesn’t conform to the federal law.  The state law is called an “obstacle” to the federal law.  Is the state law such that Congress wouldn’t want it to exist?  Congress didn’t say so explicitly.  But is Maine Rx such an obstacle that Congress wouldn’t want this obstacle or this interference?  The only way to answer this question is to study the intent of Congress.


How should the Court figure out whether Maine Rx is an obstacle to Medicaid?


The drug companies claim that Maine Rx interferes with and is an obstacle to the long-extant federal Medicaid program.  How do we figure out whether the drug companies are right or wrong?  What’s the method?


Chemerinsky proposes one method.  If there is a claim of obstacle preemption, you must know (1) what the federal objective is, and (2) what the purpose of the state law is.


When you have a claim involving obstacle preemption, you have to know the facts.  You must know what’s really going on.  We need a good deal of substantive knowledge about how the state law works.  We also need information about the purposes of the federal law.  Then we can ask whether what’s happening under the state law is in conflict with the federal law.


Is it consistent with the federal Medicaid program for Maine Rx to use the prior authorization provisions in the way that they do?  Can we use the prior authorization provision as leverage against the drug companies?


What are the purposes and objectives of Medicaid?  Is it out of sync with Medicaid to use it in the way Maine Rx does?  These are not constitutional questions.  The answers will come from studying and thinking about Medicaid and thinking about what Medicaid needs and wants and why it exists.


If five members of the Supreme Court reach the judgment that it is inconsistent with having Medicaid the way Congress structured it to have Medicaid “hijacked” for this ancillary use, then we have a judgment that the Congress that wanted Medicaid doesn’t want this hijacking!  Then preemption follows…BAM!


But it’s still possible to comply with the hijacking without violating Medicaid.  That’s why this is not a case of conflict preemption.  It’s not a physical impossibility situation.


Ever since the beginning of the country, the Supreme Court has been absolutely uniform in stating that if Congress is acting within its authority, state laws that conflict with what Congress is doing are preempted.  This can’t happen unless Congress has the power in the first place.


The Maine Rx program is not necessarily an obstacle to the operation of Medicaid.  There isn’t enough evidence in the record for the district court to strike down Maine Rx as an obstacle that is inconsistent with the purposes of Medicaid.


Imagine if the Maine legislature had said that a Medicaid punishment will be imposed in order to extort more or less a tax from drug companies.  The district court thus alleges that the state could have used Medicaid to achieve non-Medicaid objectives.


The Supreme Court, when you add up the plurality, they say that the actual program is less extreme than the hypothetical example.  It could be that Maine Rx’s purpose in helping the people “in the gap” is consistent with the purpose of Medicaid.  For example, if the people in the gap don’t get benefits and get sick, they might become poor and sick enough to go on Medicaid and cost that program more money.


There’s also a federal agency involved: the Department of Health and Human Services.  This department has been given the authority to review state Medicaid plans and procedures.  That department has not ruled out Maine’s program.  If the department didn’t like the Maine Rx program, they probably would have issued a ruling against it.


(1) You gotta know the facts on the ground.  (2) You gotta look at constitutional purposes and objectives.


Dormant Commerce Clause


What is it?  “It’s the Commerce Clause that doesn’t really exist, but it has to.”  State laws can affect other states.  The drug companies say that Maine is setting up a burden on interstate commerce that affects out-of-state business.  The Constitution says that Congress has the power to regulate interstate commerce.  It doesn’t say that states don’t have that power.  It only gives power to Congress.


One of the justices says: “The Negative Commerce Clause is called that because it doesn’t exist.”  How do we get from the idea that Congress has the right to regulate interstate commerce to the idea that states don’t have the right to regulate interstate commerce?  If we add the Commerce Clause plus preemption, you get the Dormant Commerce Clause!  “You springboard off the preemption doctrine!”


What’s the relationship between the preemption doctrine and the Commerce Clause?  “We talked yesterday about implicit preemption.  One type is obstacle preemption.  If a state law preempts a federal purpose, the federal government has the right to preempt that law.  If a state law preempts interstate commerce, then the federal government has the right to preempt that law.”


The Dormant Commerce Clause is a form of implied preemption.  It all comes back to the same congressional power.  Congress is in the driver’s seat here.  It’s Congress’s power to regulate interstate commerce.  Congress does that by enacting laws.  When those laws expressly preempt state law, state law must give way because it is, by definition, interfering with Congress when Congress is using its Commerce Clause power.  There are a zillion ERISA preemption cases, for example.


With implied preemption, we look at implications of a particular statute.  In the present case, it’s the Medicaid law.  Does the Medicaid law suggest that the Maine Rx law has to disappear?  It doesn’t directly say so.


Maybe you could have implied preemption with multiple federal statutes.  Say Congress has enacted two or three laws on a subject.  Or Congress could have so many laws about one subject that the states may be understood to be unable to touch that subject.  That could be field preemption.


How could you have implied preemption without a federal statute on point?  The idea is that Congress wouldn’t want really bad interference with interstate commerce.  Congress wouldn’t want state laws that are protectionist in nature.  Congress fears economic Balkanization and a return to the turmoil of the Articles of Confederation.  We will presume that Congress wouldn’t want states to pass such laws even if Congress hasn’t said anything about it.  As a matter of policy, we want a “free trade” zone among the United States.  We’ll presume that Congress doesn’t want restrictions on that free trade unless and until Congress says otherwise.


Does that mean Congress is entitled to say to the Supreme Court that they shouldn’t have invalidated a particular state law under the Dormant Commerce Clause?  What if Congress goes really state-protectionisty?


On the Dormant Commerce Clause question in Maine Rx, the court was unanimous in saying that there was no Dormant Commerce Clause question.  But suppose they bought the drug companies’ argument and proclaimed the program to be an improper burden on out-of-state companies.  It would be the obligation of Congress to come back and say that they like Maine Rx.  They would have to come back and explicitly give Maine the authority to adopt this law even though the U.S. Supreme Court has ruled it unconstitutional on Dormant Commerce Clause grounds.  Can Congress overrule that kind of decision of the Supreme Court?


Congress could amend Medicaid and say: “NO MAINE RX!”  That would revise the Supreme Court decision.  But the opposite is also true.  If the dissent in the Maine Rx case had prevailed and the Court had affirmed the preliminary injunction, if Congress had not liked that, Congress could have overruled that judgment and said they didn’t like the fact that the court overruled implicit preemption, and then they can do it!


What’s the difference between overruling and relegislating?  If Congress doesn’t like what the Supreme Court says about its own product (Acts of Congress), then Congress can say: “You folks blew it!  We’ll amend and fix the Act!”


It also could be the case that the Supreme Court was correct in understanding what Congress originally had in mind when it first wrote the law, but when Congress subsequently understood the implication of its action, Congress may come back and say: “Yeah, that’s technically what we said, but we don’t like that result.  We’re changing our mind!”


The Dormant Commerce Clause is a form of preemption.  The same supremacy clause is at work in preemption as in the Dormant Commerce Clause.


Think back to Lopez and Morrison.  If Congress doesn’t like these cases, can Congress say they don’t like what the Supreme Court did and write new statutes to undo these cases?  NO.  They would have to amend the Constitution!!!


Can Congress undo a Dormant Commerce Clause decision?  Yes, because they have that power under the regular old Commerce Clause!  If the Supreme Court says there’s a violation of the Dormant Commerce Clause, then Congress can simply exercise its power and reverse the decision!  That’s because Congress is exercising its own power!


So is this a constitutional issue per se?  Notice that the Dormant Commerce Clause is unlike any other form of Constitutional Law!  These Dormant Commerce Clause decisions by the Supreme Court are revisable by acts of Congress!  They don’t need constitutional amendments!


So, don’t tell any federal judges this, but the Dormant Commerce Clause isn’t really Constitutional Law.  It’s not an interpretation of the Commerce Clause.  It’s an interpretation of a not-yet-existent act of Congress.  Congress can revise that interpretation just like it can revise preemption decisions or any other statutory interpretation.


If you have a case in which there is a state law and a federal law that are operating in the same domain, the first thing you have to ask is: Can Congress do this?  Is it within one of their enumerated powers?


Can there be a situation where a state law gets invalided under the Dormant Commerce Clause, but Congress couldn’t enact its own law because it would be outside of the scope of Lopez and Morrison?  No.  If you say that a state law violates the Dormant Commerce Clause, that necessarily means that Congress has the power to act in that area.


Congress can only preempt in areas where it has authority.


For tomorrow, we’ll read Chemerinsky on the Privileges and Immunities Clause of Art. 4, § 2 in relation to the “milk case”.  The key point is the notion of “revisability” which applies to the Dormant Commerce Clause does not apply to the Privileges and Immunities Clause.  Although the Dormant Commerce Clause deals with the subject of discrimination against people out of state, Congress has control.  The Privileges and Immunities Clause also deals with discrimination against people out of state.  It’s a slice of discrimination that Congress is not entitled to revise.  Conceptually, the Privileges and Immunities Clause works differently than the Dormant Commerce Clause even though the subject matter often overlaps.


Tomorrow, we will also look at the chart that I put way up at the top of this page.


When you’re out in the real world, always think about preemption and the Dormant Commerce Clause together.  Always ask yourself first, is there a federal statute operating in this territory?  It’s easier to bring a preemption claim than a Dormant Commerce Clause claim.  Even if I don’t have a federal statute on point that there’s implied preemption about, then I have the Dormant Commerce Clause in my “back pocket”.  Both doctrines can operate in the same case.  Tomorrow, we’ll analyze the specific Dormant Commerce Clause claim that the drug manufacturers brought and why it failed.


Hillside Dairy Inc. v. Lyons – Out-of-state milk producers challenged an amendment to a California milk regulation program involving pricing and pooling.  The petitioners claimed that California was not authorized by Congress to restrict interstate commerce in the way they had.  However, California urged that 7 U.S.C. §7254 authorized such restrictions. The petitioners also claimed that the amendment unlawfully discriminated against them simply for being from out-of-state, which is unconstitutional under the Privileges and Immunities Clause.  California officials argue that they were merely eliminating a loophole that created an unfair advantage for out-of-state producers.  The district court dismissed the suit and the Ninth Circuit upheld the dismissal.  The producers appealed to the U.S. Supreme Court.


(1) Are the California regulations an unconstitutional restriction on interstate commerce in violation of the Negative Commerce Clause?  (2) Do the regulations unconstitutionally discriminate against out-of-state producers in violation of the Privileges and Immunities Clause?  States can only pass laws that burden interstate commerce if they are authorized to do so by Congress.  A regulation may violate the Privileges and Immunities Clause even if it doesn’t explicitly mention out-of-state citizens on its face.


The exemption carved out by Congress is found to only relate to composition and labeling but not pricing and pooling.  Therefore, Congress has not acted to permit California to pass those particular laws.


Thus California’s milk regulations are neither exempt from Commerce Clause scrutiny, nor are they exempt from a Privileges and Immunities Clause challenge just because the state statute doesn’t mention out-of-state residents explicitly.


This is the latest word out of the Supreme Court!  It’s relatively short.  It’s a narrow decision.  It’s almost unanimous except for a dissent in part by Thomas.  It’s an example of where the Court looks at an act of Congress and says that it makes certain state laws permissible (milk content and labeling), but they won’t construe that act of Congress to immunize discriminatory state pricing laws from a Dormant Commerce Clause challenge.  The Court will immunize some state rules, but not others.


This is an example of Congress would draft language to protect a state law.  They cut out an exemption that is just for the state of California.  The Ninth Circuit blew it when they said that the laws allow discrimination in terms of pricing.  The Supreme Court says that we don’t construe the statute as protecting state law that far.  Congress is in control, and the Supreme Court just has to figure out what Congress wants.


But, there’s a separate Privileges and Immunities Clause claim in the case.  Congress does not have the last word on this Clause.  That claim goes forward on its merits regardless of what Congress says or wants.  There’s a holding about whether it matters that the state law isn’t written explicitly in terms of discriminating against out-of-state citizens.  The Court says no matter what has been said in the past, “the absence of an express statement in the California laws and regulations identifying out-of-state citizenship as a basis for disparate treatment is not a sufficient basis for rejecting this claim.”  123 S.Ct. 2142 at 2147 (2003).


There are a couple of general points to be made.  Discrimination, when you’re talking out in-state versus out-of-state citizens, involves three different constitutional provisions: (1) Dormant Commerce Clause – discrimination against out-of-state citizens is presumed as a violation.  (2) Privileges and Immunities Clause, and (3) Equal Protection Clause of the Fourteenth Amendment.


You do all three analyses whenever you’re confronted with a question of cross-state discrimination.  You can’t answer the question until you’ve thought about all three provisions.


The Equal Protection Clause, like the Privileges and Immunities Clause, is a right that belongs to individual people.  Congress can’t override it.  The only one they can override is the Dormant Commerce Clause; they can’t override the other two.


There is more than one Privileges and Immunities Clause.  There is a Privileges and Immunities Clause of the Fourteenth Amendment as opposed to the Privileges and Immunities Clause of Article 4, Section 2.  They function differently!


Can Ohio say that only Ohio citizens are eligible to be governor of the state of Ohio?  Yes, of course!  We don’t need to read the Constitution to discover that.  But if we just read the text of the Privileges and Immunities Clause of Article 4, Section 2 we wouldn’t necessarily know that.  That’s because being governor is not a privilege or immunity under the meaning of this clause.  Some forms of discrimination are okay, and some are not okay.  Common sense, as much as anything, will help us determine what’s okay and what’s not.


For example, Ohio cannot say that only Ohio citizens can practice law in Ohio.  These distinctions don’t come out of the text of the Constitution itself.  Next week, we’ll talk about the difference between discriminatory benefits and discriminatory penalties.  For example, isn’t it discrimination to offer lower law school tuition to in-state students than out-of-state students?  Just because you have discrimination doesn’t mean its invalid under any of these three clauses.


The Privileges and Immunities Clause of the Fourteenth Amendment is not primarily designed to stop discrimination, unlike the Privileges and Immunities Clause of Article 4, Section 2.


Congress has not specifically passed a law authorizing Maine Rx.  How can we tell whether we have a Dormant Commerce Clause problem?  What claims are the drug companies making?  The companies suggest that Maine’s regulations go outside of the state and regulate the behavior outside the state of Maine.


What behavior does the drug companies claim is being regulated outside of the state?  They make an extraterritoriality claim.  They claim that Maine is setting the price of drugs in, for example, Ohio.  They claim that the Maine law is just like the statement: “The price to buy Celebrex at in New Jersey shall be $1 a pill.”  The companies claim that they’re trying to set prices outside of their own state.  Maine is not entitled to set prices for transactions that occur outside of Maine.  It’s none of Maine’s business what the price of a commercial transaction is in any other state.


If the companies were right, they would win.  But the Court unanimously rejects this idea.  They say that Maine is not dictating the price of drugs in other states.  Why are the drug companies incorrect?


A syllogism is a proposition of logic consisting of two premises: a major premise and a minor premise.  The major premise is more general, while the minor premise is more specific.  For example, major premise: “All persons are mammals.”  Minor premise: “Socrates is a person.”  Conclusion: “Socrates is a mammal.”  If both premises are valid, then the conclusion necessarily follows as a matter of logical reasoning.  It’s very good to be able to walk into a courtroom and be able to say: “This is true, that is true, put them together and we win.”  Identify syllogistic reasoning when you see it.  The way to destroy syllogistic reasoning is to show that one of the premises is invalid.  When you see a syllogism, ask which premise you can attack.  You can’t attack the deductive conclusion given the two premises given that they’re structured in that form.  You can also string syllogisms together.  Your conclusion to one syllogism could be either the major or minor premise of yet another syllogism.


What’s going on here is the drug companies say: “No state can control prices outside a state.  Maine is controlling out-of-state prices in this case.  Therefore, Maine can’t do it.”  The Court says: “We accept the major premise, but not the minor premise, therefore we reject your conclusion.”  But how do we figure out why the minor premise is no good?  It ends up as a matter of economic analysis.


Major premises tend to be more doctrinal, while minor premises tend to be more facts of reality.


In almost all Dormant Commerce Clause cases, you should hire an economist because you’re not going to understand everything (or will you?).  Sometimes the key point in a case isn’t in a major premise but rather a minor premise (a point of fact).


What’s the economic truth that’s going on here?


The drug companies say that the in-state price is being controlled.  If pharmacies can only charge a certain amount from the consumer, they won’t be willing to pay as much to the wholesaler, and thus there will be a limit to what the wholesaler is willing to pay to the manufacturer.  And there is no drug manufacturer in the state of Maine.  The transaction between the drug manufacturer and the wholesaler is necessarily out-of-state.  That’s the extraterritorial dictation under the drug companies’ theory.


Why doesn’t the Court say that the squeeze don’t matter because it’s not a legal insistence that the drug be a certain price?  It puts a squeeze on you as a manufacturer, but the idea is that you can eat some of the cost out of your profit.  There is no necessarily one-to-one correlation between the retail discounted price and the wholesale discounted price.  Maybe the manufacturer can squeeze the wholesalers!


The Court therefore says that they don’t think the state of Maine is dictating out-of-state prices at the wholesale level.


The burden of the program goes onto out-of-state business.  It is designed to benefit in-state consumers at the expense of out-of-state businesses.  Why isn’t that discrimination even if it isn’t necessarily extraterritorial control?  The law would operate exactly the same way if every drug manufacturer moved to the state of Maine.  That shows that this is not a protectionist measure per se.  It’s not discrimination against out-of-staters, but rather discrimination arguably against businesses.


Let’s compare this to the West Lynn Creamery situation.


In Exxon v. Maryland, if you don’t own a refinery in Maryland, you wouldn’t be allowed to own a gas station in Maryland.  No refinery can own a gas station.  If there happened to be refineries in Maryland, then it couldn’t own a gas station.  But there weren’t refineries in Maryland.  That’s why Maryland’s law doesn’t fail under the Dormant Commerce Clause.  But Walmart, Kroger, K-Mart, or anyone else could come in and perform the same function as the oil companies, so the benefit of living in one big happy national economy was not cut off.


To what extent should bad motive on the part of the state legislature that enacts the law cause the state law to flunk the Dormant Commerce Clause analysis?


Kassel v. Consolidated Freightways Corp. Iowa only allowed trucks on their interstate highways to be a maximum of 60 feet long when other states in the area allowed double trucks that were 65 feet long.  The trucking company sued in Iowa federal district court for an injunction to stop Iowa from enforcing the restriction.  They claimed it was an unconstitutional restriction on interstate commerce under the Dormant Commerce Clause.  Iowa claimed that it was a safety measure and should be given deference by the courts.  The district court struck down the law, and the Court of Appeals affirmed.  Iowa appealed to the U.S. Supreme Court.


Does the Iowa statute prohibiting 65-foot trucks unconstitutionally burden interstate commerce?  NO MAJORITY RULE!  A plurality proposes doing a factual balancing test between safety and the burden on interstate commerce.  Brennan and Marshall want to do a balancing test based on the regulatory purpose of the statute in question.  The dissenters want to give Iowa more deference.


The plurality and the concurring opinion agree on the judgment but not how to get there.


The plurality says that whether the statute may stand depends on whether the safety argument is non-trivial and isn’t overwhelmed by countervailing interstate commerce policy considerations.  They point to facts from the trial which show that the statute might actually go against safety, but that the burden on interstate commerce would be really high.  They make a big deal out of the “border cities exemption”, whereby longer trucks are allowed in cities that are right on the state border.  They use this to suggest that safety couldn’t be as big a deal as they say, or else they would ban longer trucks everywhere.


Brennan and Marshall kind of take a shortcut.  They say that it doesn’t matter whether there are legitimate safety considerations in fact, it only matters that the stated goal of the governor was protectionist.


The dissent basically wants to give a bunch of deference to the states, and they note that the plurality kind of spins the facts in the favor of the trucking company.


The lower court decisions are upheld.


This case doesn’t state a current rule of law.  There is no majority!  But the current court is much more hostile to Dormant Commerce Clause claims than the court was twenty or so years ago.  There is much less sympathy among the current court, or among the “federalist judges”, for saying a state law is invalid for violating the Dormant Commerce Clause.  We don’t know what the justices would have done today under the facts of Kassel, but they might have been less sympathetic to Consolidated.  So this is not a statement of current law.


The Iowa law set regulations for what trucks can go through the state.  Double trucks that are 65 feet long can’t travel in Iowa.  55 foot long single trucks and 60 foot long doubles are allowed.  There are some exceptions to this general rule.  One exception is the fact that there are cities close to the edge of Iowa that can adopt the rule of the neighboring states.  All neighboring states all 65 foot doubles.  Iowa truck manufacturers can also get a permit to ship longer trucks or other vehicles out-of-state.  There is also an exception for some farming equipment.


But let’s assume the rule is absolute.  What is the nature of the claim that the trucking company is bringing to try to have that Iowa law struck down on Dormant Commerce Clause grounds?  They argue that the law burdens interstate commerce.


Does it discriminate against interstate commerce?  No, because nobody, including Iowa companies, can drive 65 foot doubles on Iowa roads.  Consider the analogy to speed limits.  In Michigan, the speed limit is 75.  Could we make the same argument if we were talking about a lower speed limit in Iowa than in neighboring states?  Iowa residents would have to follow the speed limit too.


How would the truckers’ “burden” argument be translated to the speed limit rule?  The truckers would say: “Hey!  This unique speed limit law slows us down!  We’re trying to get across the country with some goods.  All the other states allow us to go 75 mph so we go quicker.  When we get to Iowa, they slow us down and make us only go 65 mph!  That costs more!  It’s a burden on interstate commerce!  We can’t get across the country as fast if we can’t go 75 mph.  It can’t be that big a safety deal if all the neighboring states allow a 75 mph speed limit.  Iowa’s law is an aberration!”


Note that the nature of this argument is different that discrimination.  There is no argument about protecting local industry from out of state industry.  They don’t argue that people out-of-state get a better deal than those who live in-state.  The argument is that we have a national economy that depends on the movement of goods from coast to coast.  If individual states have their own idiosyncratic laws, that will be a burden on the movement of goods through our interstate transportation system.


But why do they have to make the point that the 65 mph speed limit doesn’t have a safety purpose?  It’s because states have the right to regulate their own highways in a non-discriminatory manner.  States have the right to have speed limits, traffic signs, and so on.  The federal government may create overarching rules with preemptive effect, but in the absence of congressional legislation, states have the right to regulate the use of their own highways.


Presumably, the trucking companies wouldn’t have a prayer of winning the speed limit case.


The plurality opinion basically says that there is no safety difference between a 65 foot double and either a 55 foot single or a 60 foot double.  They think the measure doesn’t make sense as a matter of safety, whereas a different speed limit would have a better case for a legitimate safety measure.  So the facts would be different if we were comparing 65 to 75 mph versus 60 to 65 feet.


Plus, it’s not like everyone agrees on the correct balance between safety and other social interests.  There’s a difference between different policy judgments between states and the lack of a difference at all.


The real reason why Foley thinks the plurality would see the speed limit law differently than the feet-length law has to do both with the safety side and the burden side of the balance.  The plurality finds that the burden on interstate commerce is much greater with respect to the “feet limitation” than with respect to the “speed limitation”.  How come?  A speed limit just slows you down a little bit.  But if you have the 60 foot limit, you would have to either bypass the entire state or split the double into two singles.


For those justices who believe in the undue burden inquiry, not all laws will flunk the undue burden test.  The tough thing to figure out is: Which “local burdens” are “undue burdens”?  It all depends on the cost-benefit analysis in context.


UNDUE BURDEN INQUIRY???  How many justices believe?


Brennan will strike down the law based on discrimination, due to the improper motivation in the legislative history.  Brennan and Rehnquist debate the use of legislative history.  Brennan says you can only look to what they actually thought, but Rehnquist says you must credit what lawyers argue after the fact.


Also, Rehnquist and the plurality argue about the use of the “undue burden test”.  Would Rehnquist actually find as a matter of fact that the 65 foot doubles are less safe than the 60 foot doubles?  No.  Rehnquist would leave it up to Congress.  Rehnquist doesn’t believe that it’s the judiciary’s job to decide which kind of truck is safer.  He doesn’t think it’s a factual issue for the trial court to be ruling on.  The only question for the Court, according to Rehnquist, is whether this factual judgment of the Iowa legislature was plausible.  That’s how the deference argument works.  Rehnquist says it’s not his job to decide the factual issue.  Instead, it’s the legislature’s job.


He supplements this basic point with the point about states from all around the country.  Iowa is surrounded by states that allow longer trucks.  That’s their right, but they don’t have to.  But Iowa isn’t the only state that bans 65 foot trucks.  If you really wanted to go from New York to California, you would have to switch around your trucks several times.  Rehnquist believes that states should do what they want, and Iowa should not be held prisoner by the decisions of the surrounding states.  Only Congress has the ability to preempt to promote interstate commerce.  Each state must draw the line somewhere.  Back in the 1960’s when Iowa adopted the law, most states only allowed 60 foot trucks.


Both opinions are pretty convincing.  But the essential point is the deference point.  Congress can say otherwise, but in the absence of congressional action, Rehnquist would let Iowa do what they want.


The plurality uses the veto of the governor as a small fact in the balancing test.  It helps to show that there’s not much of a safety benefit because the governor didn’t think there was.  On the other hand, Brennan makes the governor’s veto and its protectionist nature into a critical fact.  He claims that the balancing test is unnecessary.  The veto message and exceptions written in the rule prove, according to Brennan, that Iowa has a bad motive which is to hurt out-of-state trucking companies to benefit only Iowa residents.  Helping people in-state while hurting people out of state is, according to Brennan, a classic Dormant Commerce Clause problem.


In response, Rehnquist says that this evidence is “too new”.  The law was valid when written, and there is no obligation for Iowa to update it.  The key point for Rehnquist is that we won’t strike down laws because of some bad mental state that some legislator or the governor had in mind.  That’s because they could have passed the same law with a pure heart.  Courts can’t invalidate laws because of a bad motive.  Legislators could just go back the next day and reenact the same law while strenuously trying to think happy thoughts.


The important thing is the “triangulation”.  Always remember that discrimination is the most important issue under the Dormant Commerce Clause.  Ask yourself if you can make a discrimination argument.  Then ask whether your argument depends on evidence of motive, or whether you can base it on the text of the statute itself or how it works in real life.  However, because the law remains unclear, we can’t ignore the debate over the undue burden test.  When we have a debate in an undue burden case, the most important things to look at are the real world facts that balance the burden with the benefit (e.g. safety).  What is the non-discriminatory justification for the rule under attack?


Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me. – What about the question of why it’s constitutional for OSU to charge more for out-of-state students than in-state students?


Let’s compare two colleges in the state of Maine.  One college in Maine caters to local students only.  Call it “Local College”.  National University” has mostly out-of-state students.  Could the state of Maine decide that they will give scholarships to folks who attend “Local College”?  Are the scholarships school-specific or student-specific?  Let’s say that every student who attends Local College gets the scholarship, but nobody who attends National University gets the scholarship.  Does this discriminate against out-of-state students?  Is there a Commerce Clause problem here?  What if Local College was a state school, whereas National University was a private school?  Would we come to a different result?


Does the Dormant Commerce Clause say you can’t discriminate against out-of-state kids with respect to scholarships?  More generally, when is it permissible for a state to create benefits for its own citizens that aren’t available to citizens from other states?


Is it a form of discrimination to offer scholarships to Ohio students but not to, for example, Nevada students?  Sure, but it wouldn’t run into a constitutional problem.  But why not?


Foley says that the Court doesn’t use the same Dormant Commerce Clause analysis when it analyzes a scholarship program compared to a tax exemption program.  Even though both programs are discriminatory, handing out money will be treated differently than administering a tax exemption.


Discrimination in the granting of subsidies has different rules because it’s just handing out cash.  But from economics, we discover that this has exactly the same economic effect as handing out a tax exemption.


We will let states be preferential to their own residents if it’s in the form of a subsidy, but not if it’s in the form of a tax exemption.


A state cannot impose a tax on goods coming into the state from some other state, but it can subsidize local goods by that same amount.


The way the Court would think of the in-state/out-of-state tuition differential is that it would say that the lower tuition given to in-state students is a subsidy or something akin to a scholarship.  Formalism seems to be triumphant!


Rule #1 about the Dormant Commerce Clause: The Supreme Court has probably decided 200-300 Dormant Commerce Clause cases in the 20th century.  There is a huge amount of precedent involving this clause.  You can’t reconcile them all.  You can’t make them into a body of uniform law such that all of the pieces go together and make sense.  Some of the pieces of the “jigsaw puzzle” aren’t going to fit.  What do we do?  If you’re a lawyer, find the precedents that support your side and distinguish the precedents that go against you.  Think about the issues that motivate different judges in deciding these cases.


The Court will force Maine to use a pure subsidy.  If they fail to do so, their statute will be struck down.


The majority doesn’t see this as an easy case.  Since it’s not an easy case, we’re nervous whenever a state government seems to prefer locals to out-of-staters.  They can get away with it when the program is facially neutral.  But in this case, we actually have facial discrimination in taxation.  Therefore, we don’t have to put it in a separate “subsidy” box.  We’re nervous that this is preferential treatment.  Going to camp in Maine carries an economic benefit.  The state of Maine makes it cheaper to get the benefit of going to pretty camps in Maine if you happen to be from Maine in the first place than if you happened to be from some other state.


“Differential taxation” is considered different from a pure subsidy.  Realize that the line between a subsidy and tax exemption is a very slippery and murky line.


You can hand stuff out to your own folks, but you can’t impose burdens and barriers on other folks.


If you have a real case in practice, hire an economist!


States are trying, in general, to hide their protectionism.  One of the early stages of the lawyering process in one of these cases is to expose the hidden protectionism.  In the real world, there is plenty of time to unearth all the relevant facts.


One exception is the subsidy exception.


The question of the market participation exception is whether the state is acting like a regulator, or whether the state is entering the marketplace as if it were just a business.  If the state enters the marketplace as a business, then its activities that favor in-state businesses are exempt from Dormant Commerce Clause analysis.  The state isn’t using its sovereign power to engage in protectionism.  Instead, the state is simply operating as a company.


For example, Ohio State could be seen as an attempt by the state to enter the education market.


Conservation Force, Inc. v. Manning – The Arizona rule is a 10% limit and it is facially discriminatory.  It’s not a subsidy.  It’s a classic example of state coercion where there is a different rule for out-of-state hunters than in-state hunters.  The state won in the district court, but the Court of Appeals reversed and remanded.  They found that they district court was ridiculous for not finding a Commerce Clause issue.


How can the Arizona government win under strict scrutiny?  What plausible justification does it have for saying that our citizens can hunt elk and deer but citizens from other states can’t?  What is the legitimate interest that Arizona asserts?  Arizona says that they are worried about depleting their elk and deer population.  They are afraid that if they have too much elk and deer hunting, they will disappear.  They want to conserve the species.


But is there a non-discriminatory way for the state of Arizona to protect this interest?  The state has the burden of showing that there are no alternatives.  It’s great if Arizona wants to protect their deer and elk.  But can’t they do it without discrimination against out-of-staters?  Sure they could!  They could issue permits for such-and-such number of elk, and give them out without respect to what state you’re from.  They could set limits that don’t discriminate!


We want to prevent Balkanization!  The whole concept of interstate commerce is that we’re one big country.  States try to do this stuff all the time and they need to get beaten down by the federal government!  In general, you’re not allowed to give your own resources just for your own citizens.  There is one free trade zone in America unless and until Congress adopts rules to the contrary.


Foley thinks the “remand” idea in this case is “for the birds”.  Foley thinks that this opinion doesn’t add up.  Foley is worried because it says you can only get accredited for being a safe hunter by going to one particular school.


It’s hard to win strict scrutiny cases.  One case where the state did win was the Maine v. Taylor case, AKA the “Maine minnow” case.  Maine argued that they were very concerned about the ecology of their local waters.  The bait is going to be incorporated into the local ecosystem.  If there are diseases in the bait from other states, they won’t just make other people sick eating them, but will actually “destroy the fabric of Maine’s ecology”!  The Court said that this was a legitimate justification!  There is an ecological danger that when you import species into the territory it can wreck havoc environmentally.


Is getting a license to hunt a subsidy?  Is not giving a license a tax?


Heald v. Engler – A lot of intellectual resources have gone into attacking these rules that exist in all the states: the importation of alcohol and the “three-tier” system (retail, wholesale, manufacturers).  In some states, there can be direct sale to consumers of alcohol.  But there is no direct sale to consumers from out-of-state wineries.  Wineries want to sell wine on the Internet.  They want to cut out the “middlemen”.  The states are saying that they can’t do that.  A lot of lawyering has gone into making arguments on both sides of the issue.  A three-judge panel in the Sixth Circuit says, unanimously: “You can’t do it!”  But a three-judge panel in the Second Circuit says, also unanimously, and before the same alcohol attorneys: “You can do it!”


No matter what judges you get, you have to make your arguments and hope for the best.


The key to wine case is that if it were any commodity that wasn’t covered under the Twenty-First Amendment, there would be no question of a violation of the Dormant Commerce Clause.  The state of Ohio cannot allow widgets to be sold directly to consumers only by in-state widget manufacturers.


If all we had to think about was the Dormant Commerce Clause and not the Twenty-First Amendment, there would be no problem and this would be an easy case.  This statute is not justifiable in the absence of the Twenty-First Amendment.  It would clearly overextend the state’s authority to regulate interstate commerce.  If there wasn’t a Twenty-First Amendment, the states could regulate alcohol as far as health and safety go as long as the regulations don’t favor local producers.  For example, you could ban all direct shipment without regard to where the producer is based.  But any such regulation must be evenhanded.


The only tricky issue is whether the Twenty-First Amendment exempts the states from normal compliance with the Dormant Commerce Clause.  This is an unanswered question that the Supreme Court has waffled on in the past.  In the early years, the Supreme Court seemed willing to give the states a lot of latitude, but in more recent years the Court scrutinized state laws in the area more closely.


It seems like the Supreme Court will soon have to enter this field again, given that the Second Circuit and the Seventh Circuit are going one way while the Sixth Circuit is going another way, we have the classic Circuit split, which cries out for Supreme Court review.


In the Sixth Circuit, they’re saying that the Twenty-First Amendment gives the states safe harbor if they really have a good health or safety interest in regulating alcohol.  In that case, they might not be subjected to strict scrutiny.  But the court doesn’t see that here, because they don’t perceive any health or safety justification for the discrimination occurring here.


The Second Circuit goes completely the other way.  They start with the notion that the state is operating within the Twenty-First Amendment, and it must be proved that they are not acting within the Twenty-First Amendment.


Doran v. Massachusetts Turnpike Authority – Initially, Massachusetts says they will do this just for their own residents and not for those from other states, but then they change their mind.  The only way the plaintiffs can win is by suggesting that the state had a bad motive initially.  This is more or less an easy case.


Alliant Energy Corp. v. Bie – Is this an easy case?  There are three different challenges being brought in this case.  Utilities have been historically considered “natural monopolies”.  The idea is that only one company in each state can successfully install electricity.


There are three kinds of laws in this case.  First and foremost, there’s a law that says that the licensee must be a Wisconsin company.  The company that actually runs the power plant must be a Wisconsin-incorporated company.


The next rule is that any holding company that owns a company that has a license also must be a Wisconsin company.


Finally, there’s a takeover rule and other provisions.


The first rule is found to violate the Dormant Commerce Clause, but the other two are not.


What if a company wanted to operate a hospital in the state of Ohio, but it was an out-of-state business.  Ohio gets nervous about having an out-of-state business run a hospital in the state of Ohio.  Maybe there is a law against having for-profit companies running hospitals.


Ohio can force people to take the Ohio bar.


Human beings have a hard time getting incorporated.  If we live in Kentucky, we would have to move to Ohio.  Becoming an Ohio company isn’t that big a deal.  There is no obligation that the shareholders live in the state.


Foley doesn’t care whether he’s right or we’re right.  What matters is that we’ve taken the time to see factually what’s going on.  We have made arguments using those facts.


All this week, we’ll talk about Padilla in some sense.  We’ll dance around, but won’t read, the Youngstown Sheet case.  Chemerinsky will talk about it.  The concurring opinion of Justice Jackson is considered even more important than the majority opinion of Justice Hugo Black.


We also saw references to two old cases from WWII and the Civil War: Ex Parte Quirin and Ex Parte Milligan.  We’ll read both of those later this week.  Don’t read the account of the oral arguments for the latter.  They go on forever.


Next week is also on the Separation of Powers Doctrine.


Shape up or ship out!  Don’t play games!


Separation of powers


Padilla v. Rumsfeld – This is the case of the century!  The Supreme Court has granted cert.  They will decide the case by July 4th this year.  Does the president have the power to detain citizens?  Or does the Constitution guarantee citizens certain inalienable rights?  Does the Constitution forbid the government from engaging in unlimited detention?


The Supreme Court has also granted cert in the Hamdi case and the Guantanamo Bay cases.


Hamdi is also an American citizen.  He was captured in Afghanistan allegedly fighting alongside the Taliban.  He was caught in the zone of combat with an AK-47 in his hand.  He was captured abroad, not on U.S. soil, and he was captured in a context where the government alleges that he was in a combat posture as a member of the Taliban militia, if not an enlisted member of their army.  That case went up through the Fourth Circuit Court of Appeals, which held that the president has the authority to detain Hamdi.  Hamdi is in custody at the same place that Padilla is in South Carolina.  The Fourth Circuit said that the president had authority under the Constitution and also was granted authority based on the Join Resolution of Congress after September 11.


Hamdi raised many of the same issues as Padilla.  It is claimed that the president doesn’t have the authority to detain citizens indefinitely and that Congress hasn’t given the president this authority.


What are the circumstances under which Padilla was captured?  Padilla was coming back from overseas.  He was arrested by the FBI pursuant to a material witness warrant that had been issued by a judge.  Padilla had been in Pakistan.  Why does the government think he was in Pakistan?  The government has reason to suspect that he has ties with al Qaeda.  Why is it important to find out if there was a judicial finding of fact?  What evidence does the court have that Padilla has al Qaeda ties?


We haven’t taken Evidence, but we have taken Criminal Law.  If this were a criminal trial, has the government presented any evidence against Padilla?  There is a declaration by Michael Mobbs.  He isn’t a witness before the court.  He didn’t sign an affidavit.  What about the hearsay rule?  You’re not allowed to testify to what someone else said.  You can only testify to what you know.  From a legal standpoint, there’s nothing here that counts as evidence that Padilla has ties to al Qaeda or was involved in a plot to detonate a dirty bomb.  The court can’t make any findings of fact because no facts have been presented.  The government asserts that they need not provide any such evidence, but need only assert that the president has made this determination.


There are sealed and unsealed declarations.  The sealed declaration asserts that there is evidence, but that evidence hasn’t been presented judicially.  Even the sealed version just says that people in the Justice Department have evidence.  That evidence has not been presented in court.  That doesn’t necessarily mean anything, but it’s just a fact about how the litigation is proceeding.  This is a lot different from an ordinary criminal trial context.  In that context, you couldn’t lock Padilla up indefinitely until he is convicted.  Everything Padilla is accused of doing is a crime and he could have been prosecuted in an ordinary criminal proceeding.


The government doesn’t want a criminal trial in this context.  They don’t want to have to expose who their secret witnesses are.  So: Can the government lock someone up who they think is a bad guy without a criminal trial if they don’t want to have one?


Consider the Oklahoma City bombing.  Suppose that was the work of a larger conspiracy than just Timothy McVeigh involving, for example, a militia-type organization.  The government captures McVeigh but wants to prosecute the people he’s working for.  If the government thinks that McVeigh is guilty, they must put him on trial!


Padilla’s lawyer said that Padilla can’t be moved from the criminal system to the military justice system because Padilla is a United States citizen.  In response, the Department of Defense says that the president does have the authority to impose such a transfer based on the president’s own determination that Padilla is an enemy combatant.  We might ask whether, on the president’s theory of the case, he would have to do anything more than assert that Padilla is an enemy combatant.  But that’s not what he did; he attached the declaration of Undersecretary Mobbs.


There wasn’t really a trial here.  Maybe we want to prevent overseas agents from having their cover blown.  But also, there are lots of evidentiary problems.  The “evidence” in the military papers has nothing to do with “evidence as advocacy”, but only with “evidence as fact”.


The District Court and dissenting judge in this case believe that although the president has some inherent authority to detain Padilla indefinitely, there is some judicial oversight over this.  The District Court and dissent don’t believe that this is a probably criminal trial.  There may be a small fact-finding role to take place: a “some evidence” standard.


President Bush asserts that there is no judicial fact finding role at all.  The extent to which the Mobbs declaration gets tested in court is important, but also rests on some basic legal questions that will soon be decided.


Has Congress given the president the authority to detain Padilla indefinitely?  We will apply the Justice Jackson analysis to this set of facts.


Justice Jackson in Youngstown Sheet


What are the three categories that Justice Jackson identifies in his concurring opinion in Youngstown Sheet?  (1) When Congress has said that the president can exercise a certain power, either expressly or implicitly, then there is a strong presumption that the president has that power.  (“Yes!”)  (2) When Congress has been completely silent or they are ambiguous, there’s kind of a grey area.  (“Maybe!”)  (3) At the other end of the scale, when the president acts against the wishes of Congress (explicitly or implicitly), the president’s powers are at a minimum (“No!”) and are limited to the powers enumerated in the Constitution.  In other words, the president has the power only when the act passed by Congress is unconstitutional.


Dames & Moore v. Regan – One important thing of this case is that the Court chose to follow the guidance of these categories.  However, the Court notes that this is really a spectrum rather than three discrete categories.


It is very important to be able to go back and forth being categorization analysis and spectrum analysis.  Sometimes it’s useful to put things into analytic “boxes” that are clear and well-defined.  But at other times, it’s important for the legal system to soften those lines.  There may be examples of “Yes” and “No” that aren’t polar opposites and not perfectly clear.


In Padilla, which Jackson box does the case fall into?  The Second Circuit said that the president lacks the inherent constitutional authority to detain citizens on American soil outside the zone of combat.  Also, they think that the Non-Detention Act places the case in the “No” box and that the Joint Resolution doesn’t take it out of that box.


“Category 1”, the “Yes” category, is the one where Congress says: “Go, President, Go!”  The district court thought that the Joint Resolution put the case in this box.


So what does the government say?  On the one hand, they talk about the inherent constitutional powers of the executive branch.  If that argument is made, it would be conceding that we’re in the “No” category.  But then they argue that Article II trumps Congress in certain areas or in certain situations.  They also could argue that Bush was detaining Padilla pursuant to the Joint Resolution.  Or they can argue that the Non-Detention Act only applies to the Attorney General and not the president.


The best category for the president to be in is “Category 1”…the “Yes” category!  How do we get there?  The Joint Resolution is an Act of Congress!


How will the Supreme Court structure the argument?  Under the Jackson analysis, the first thing you’re supposed to do is look at what Congress has said: look at the statutes!  That’s not what this court does first.


But could the president have detained Padilla even if Congress hasn’t authorized it?


We find that the statute authorizes the president to use all “necessary and appropriate force” against all sorts of people.  But how can he use force against Padilla in particular?


(What if Congress just passed a new resolution that specifically included Padilla and others in his same position?)


According to the president, how does Padilla fit into the language of the Joint Resolution?  They claim that Padilla is part of al Qaeda!  Thus, since he’s allowed to use appropriate force against that organization, they reason that he can use force against a member of that organization.  The president argues that he is entitled to detain al Qaeda agents.


The key point is: what is the relationship between Padilla and al Qaeda?  The case says that the government doesn’t allege that Padilla is a member of al Qaeda.  If this was the case, the Second Circuit would see this case entirely differently.  But the Second Circuit says that Padilla is only associated with al Qaeda.


Run through the statutory analysis with Hamdi in mind.  The statutes don’t make a distinction between the Hamdi situation and the Padilla situation.


Ex parte Quirin – Why doesn’t this case control in Padilla?  Is this case distinguishable?  Padilla isn’t a member of al Qaeda.  But Haupt, the American citizen in Quirin, was a uniformed, paid solider of the German army.  That’s a factual distinction between Padilla and Haupt.  Also, there is a question of whether or not there is congressional authorization for the detention of Padilla.  The Court in Quirin says that there definitely is congressional authorization for subjecting Haupt to the military tribunal.


If there is congressional authorization, what does that mean for Justice Jackson’s Youngstown Sheet analysis?  That means they’ll go into the “Yes!”/“Category 1” box.  Jackson hadn’t invented the three part analysis at the time this case was decided, but if we extrapolate backward to Quirin, the court says that Congress, through its Acts including promulgating the articles of war for the U.S. military, has authorized detentions and trials in these circumstances.  But does the Constitution as a whole bar Congress and the president from trying an American citizen by a military entity as opposed to being tried by a civilian court?

What is the essence of the reasoning in Quirin?  Why does the Court allow an American citizen to be subject to military jurisdiction when the citizen is captured in Chicago wearing civilian clothes?  In some sense, the citizen is connected to the German army, but when captured in Chicago by the FBI, he’s not wearing a German uniform.  He’s just roaming the streets of Chicago acting like a regular U.S. citizen.  What’s the Court’s rationale for allowing him to be subjected to military jurisdiction?


Haupt was found to be an unlawful combatant under the Geneva Convention or Hague Convention.  What if Haupt had been a lawful combatant of the German army?  Would he be entitled to a criminal trial in a U.S. District Court?  No, he would have prisoner of war status and would be subject to military jurisdiction, but of a different type than the jurisdiction he was submitted to in this case.  POWs were simply treated differently.  The procedures for POWs would be more in the nature of courts-martial.  You get more rules of evidence and better access to counsel, among other things, in a court martial.


If Haupt had not been a soldier or had any other status in the German army, but had instead been a native-born American Nazi sympathizer without orders from the German government, and he had decided to blow up buildings in the United States, then under the reasoning of Quirin, could he have been subjected to the same military tribunal that he was in the present case?  Does Quirin establish the authority of Congress and the president to subject American Nazis to military tribunals as opposed to civil prosecution for treason?  How could we determine whether Haupt was an unlawful combatant?


The Court says that even if you’re an American citizen, you may be an enemy belligerent if you associate yourself with the military arm of an enemy government and use its aid to enter the country to try to commit hostile acts.  For example, Haupt used a German submarine to enter the country on the sly.


Quirin holds that Congress and the president can do this under these sorts of facts.  You can point to those facts as limiting facts, but they don’t really tell us how to decide the next case.  The facts only tell us how to resolve that particular set of facts.


Quirin purports not to disturb the holding of Milligan.  Milligan stands for a situation where Congress and the president are not allowed to subject citizens to military tribunals.  Padilla falls between the cracks between Quirin and Milligan.  Into which category should it go?


Did Haupt renounce his U.S. citizenship?  The Court declines to decide this.  They find that it doesn’t matter whether or not Haupt is a U.S. citizen; instead, they believe that it only matters that he entered the country under cover of night in a German uniform to try to blow stuff up in the U.S.


Part of what’s being litigated in Hamdi and Padilla is that the government claims that it doesn’t matter whether the individuals are U.S. citizens or not.  In Hamdi, they argue that Hamdi did renounce his U.S. citizenship when he took up arms with the Taliban against the U.S.  But Padilla’s connection to al Qaeda seems more tenuous than the connection between Hamdi and the Taliban on the one hand, and Haupt and the German army on the other hand.


The other important point is the fact that al Qaeda is not a nation.  When you take up the uniform of a foreign nation at war with the U.S., that could be a renunciation of citizenship.  But what about taking up arms with a non-state terrorist organization?


The United States government wants to win this case on presidential authority whether or not Padilla is a U.S. citizen: they don’t want their power to detain to turn on U.S. citizenship.  If it does, they will try to argue that Padilla is not a citizen.


But why doesn’t Quirin provide the president with all the authority he needs to detain Padilla?  The defense wants to argue that Quirin is distinguishable, as noted above.


Does it make a difference that Padilla was caught at the airport instead of at home?  Milligan was captured at home, while Haupt was captured on the streets of Chicago.  What if you were caught at your place of employment?


Quirin tells us that the president can choose military tribunals over criminal proceedings.  When an American citizen is acting in conjunction with a foreign military entity under certain circumstances, this option is available.  But the precedent is unclear.


The problem of Padilla seems to be the fact that we’re not dealing with cooperation with the military of another country.


An outline of Padilla


Remember that there are two basic questions in Constitutional Law: the “power question” and the “rights question”.  When we did the Commerce Clause, we were dealing exclusively with power questions with respect to congressional power.  Now we’re dealing more with presidential power.  What is the source of authority for this part of the federal government to act?  The power question is always a first stage question.  The Jackson analysis has to do with the power question as well.  You could analogize the Jackson analysis to the Lopez test: it’s a methodological inquiry courts use to figure out the answer to the power question.

However, Padilla includes a second stage “rights question” as well.  In cases like Printz, you had to ask both the “power question” and then the “rights question”.  Or on the other hand, regulations on guns might be allowed as a congressional power under the Commerce Clause, but it might be prohibited as an abridgement of rights under the Second Amendment.


Padilla deals with both questions.  For the first part of the week, we were analyzing the power issue using the Jackson analysis from Youngstown Sheet.  Now we will analyze the rights issue.


Congress can only get authority from the Constitution, while the president can get power from Congress or from the Constitution itself (Article II).


But then you have to ask if there are rights in the Bill of Rights that limit these powers.  Quirin and Milligan are mostly focused on this “stage two” question.


Always bear in mind: power questions first and rights questions second.


There are three separate ways to say that the president might have the ability to detain Padilla indefinitely.  These follow the Jackson analysis.


Note that if we say the president doesn’t have constitutional authority, we never have to deal with the Fifth Amendment.


There are some rights-bearing clauses within the original Constitution, like the Privileges and Immunities Clause of Article 4, Section 2.  Also, Article I §§ 9 and 10 say that neither Congress nor the state can pass ex post facto legislation or bills of attainder.


You never have to address the question of violation of a constitutional right if the government lacks the power in the first place.


Even if the president has the authority to detain Padilla, that authority might still be limited in some respects.  For example, he might have to provide evidence supporting the detention.


Under international law, administering a “truth serum” like sodium pentothal is considered torture.  But aren’t there costs and benefits?


Be sure to understand the difference between power and rights.  But once you’re comfortable with that, you should let yourself get a little bit fuzzier with it.  When the Supreme Court thinks about the power question, they’ll have the rights question in the back of their minds.


One argument that may prove persuasive to some members of the Court as a reason for saying that with respect to this twilight zone case the president lacks that kind of inherent power is to say: We’re worried about the Fifth Amendment implications if we grant this power.  That not to say that they’ll get to stage two, but they’ll say “no” at stage one because they are worried about stage two.


Ex parte Milligan – How do the facts of this case and the holding of this case bear on Padilla?  Can you distinguish the two cases?  In Milligan, we had a clear congressional statute that said that someone in Milligan’s position should not be subjected to a military trial.  They said that any Americans detained by the Union army had to be subjected to the ordinary criminal process if certain conditions are met.  The specification provided by Congress of how to deal with these people did not include military tribunals.  Therefore, we’re in category three.  This is a key point in the separate concurrence in this case.  The concurrence would use that as the sole ground for releasing Milligan from military detention.  They would have settled the case solely on the stage one power inquiry.  “When Congress has said no, then the president doesn’t have a power that overcomes that.”


On the other hand, the majority opinion went on to say that Congress couldn’t have authorized such military tribunals even if they wanted to.  The Court kind of overkills the subject.  You can’t ever put an American on trial in a military tribunal as long as courts are open and functioning.


In re Cheney – This case, in many ways, is a perfect juxtaposition to Nixon.  We’ll explore differences between the two cases.


This is a difficult case because of the terminology involved and the complex rules of suing the government.  It’s hard to sue the government!  That might be good or it might be bad, but being a plaintiff in a lawsuit when the defendant is a government agency or government official raises many procedural questions.  The course to take in order to best understand this is Administrative Law.  If there’s any one course that you take as an upper level student, Foley encourages us to take this one course.  He says that it’s the hardest area of law to teach yourself in practice.  It may not be on the bar, but if you don’t learn it in school, you’ll have a hard time picking it up later.  It’s a difficult class because it’s not a traditional subject matter.  You’re not so much learning a subject matter as you’re learning a methodology or mode of analysis.  This case gives us a flavor for just how difficult it is.


The plaintiffs in this case are the Sierra Club and Judicial Watch.  They are suing Vice President Cheney and others.  Why?  They accuse Cheney and others of violating FACA.


Isn’t the concept of an advisory committee that you have people outside the government giving the government advice?  Wouldn’t you want to bring in outside experts to clue you in on important topics?  But if there are non-governmental personnel involved with these meetings, the records of the meetings must be open to the public.  The Administration claims that these meetings did not include any outsiders, and therefore the records should not be made public.  Cheney claims that under the law they do not have to make the proceedings of the committee public.


The plaintiffs claim that there were outside officials who had a hand in the drafting of the policy put out by the committee.  But…so what?  They issued a report, and you can read that report.  Isn’t that the important thing?  Shouldn’t the public only be concerned whether the policy is good or bad?  What’s the counterargument?


The Sierra Club wants to know who was at the meetings, what was said, and who is really influencing the Administration’s policy.  Does this energy policy favor “big oil”?  Wasn’t “big oil” elected to the White House, Foley asks?  What’s really going on?  Why do the organizations want these names?  They want to know if Ken “Enron” Lay was at the meeting.  Why would we want to know that?  There are a couple of reasons.


  1. It would be politically embarrassing to have an Enron person advising energy policy.
  2. More importantly, Enron was Bush’s single largest campaign contributor in the 2000 campaign.  That’s where the real allegation of corruption comes in: Did Enron’s campaign contributions inappropriately buy the company a seat at the table?  Was there a quid pro quo?  Could this lawsuit prove a quid pro quo?


The lawsuits might expose what was said at the meeting and who was there.  But it’s unlikely that any discussions during the meetings would actually reference campaign contributions.  All that these lawsuits could reveal would be that campaign contributors were participating in the committee.  But that’s all you can get!  Is that a reason to not let the lawsuit go forward?


Contrast this with Nixon’s tapes.  John Dean claimed that he was in the Oval Office when there was a conspiracy to cover up Watergate.  The tapes could prove whether there was a crime or not.  The connections were very close!


The Sierra Club and Judicial Watch don’t allege any particular crime.  Even if the predicate allegation is that Lay was at the meeting and that he was a campaign contributor, they can’t show that airing these records would prove a crime of any kinds.


Presidents are entitled to meet with CEOs of corporations.  FACA covers advisory committees.  Is FACA constitutional?  Every time the president decides to ask American citizens for advice, he has to jump through certain hoops.  Is that something that Congress can force the president to do?  Is this, in itself, a Separation of Powers issue?


Do we have an equivalent parallel in this case to Nixon?  Will this case feel like Watergate to the Supreme Court?  Is this an evil president who we have to stop from subverting the system of government?  According to Foley, this case isn’t going to feel like Watergate.  Foley believes that this will be dispositive.  The Court will find doctrine that will support this conclusion.  Foley thinks the Court will find it inappropriate to subject the Vice President and cabinet-level officials to be subject to document requests like the one at issue in this case.


Even if there is a real risk that Ken Lay improperly influenced the Bush Administration, the FACA law wasn’t designed to prevent such influence.  If you want to prove that something was done improperly as far as campaign contributions, you’ll have to narrow your target.  To win a case under the terms of FACA, you don’t have to prove anything about campaign contributions, because it doesn’t matter who was meeting with the president and it doesn’t matter whether they gave money or not.


This large has the potential to be hugely broad.  Sierra Club and Judicial Watch have proffered no evidence that Ken Lay was at the meeting.  They just think he was there.  Yet, on the face of the statute, high level government officials could be exposed to a very expensive and time-consuming process.  Foley thinks that the Court will not let Congress do that with this law and will send them back to the drawing board.


The political question doctrine


The entire universe of constitutional questions include those questions subject to the Marbury power and those that the Court doesn’t control.  The political question doctrine includes all those constitutional interpretation questions that the Court will refuse to answer because it doesn’t think it can.  Marbury and the political question doctrine are the opposite of each other.


The Tenth Amendment used to fall under the political question doctrine.  Now it’s back under Marbury.  Why isn’t Padilla a case where the political question doctrine should apply?  Foreign affairs is an area where the political question doctrine is frequently invoked.  But this doctrine was never mentioned in Padilla!  How come?  Is it a power issue?  In Padilla, the court was deciding both a power question and a rights question.  Neither one was considered a political question that didn’t belong to the court.


Foley thinks that questions will be decided if they involve the rights of individual people.  The answer to certain power questions affects actual litigants and not just the relationship between different branches of government.  The court will be more likely to think about a question as a political question when the only parties in the dispute are branches of government themselves.


First, something about Monday’s assignment.  It’s probably the single most important assignment of the semester in terms of analytic or conceptual framework.  We’ll be talking about the basic concept of equal protection for the Equal Protection Clause.  There are ideas of laws being over- or under-inclusive, and we have a reading from Chemerinsky on those concepts.  If there’s one assignment to devote extra energy to, it’s this one.


How do we read Beazer in relationship to Chemerinsky?  Pay more attention to Chemerinsky.  On Monday, we want to get the analytic framework.  We’re only look at Beazer as an application of the analytic framework.  Beazer will later be compared to Cleburne.


The New York Times has an article by Greenhouse about the public release of Justice Blackmun’s papers from his time on the court.  That’s Foley’s justice!


To what degree do justices change their own minds?  The justices feel the weight and pressure of the arguments on both sides of an issue.  They can get tipped to one side of an issue only to get tipped back to the other side later on.  Justices can change their minds well into the deliberation of the case.


What about these lawsuits at the time of the Vietnam War?  People filed lawsuits saying that the war was illegal and unconstitutional because it was undeclared.  The court would not judge this issue because they felt that it was a political question.  In fact, this is the quintessential political question doctrine situation.


But what if someone was being sent to prison for resisting the draft for an undeclared war?  Wouldn’t there be personal consequences to that individual?  Would it still be a political question?  Why would the Supreme Court say that they’re not going to decide what the Constitution means even though they’re being asked to do so by individuals who may end up in jail?  It’s not enough to say that it is relevant whether the Court has in front of it an issue of rights or an issue of powers.  The Court is less willing to get involved in a turf battle between branches.  The presence of a rights question is not dispositive in deciding whether the Court will tackle the question.  That’s just one factor.  Another factor is whether the Court feels that another branch of government has more expertise on the subject at hand.


Another famous political question case was the “Pentagon Papers” case.  The New York Times published some documents about the Vietnam War.  The government went to court to stop the newspaper from publishing the papers, arguing that it would be a serious breach of national security.  The government invoked the political question doctrine in this case.  They said that the documents were classified and should not be released.  Instead, the Court decided to protect the freedom of the press.  In that case, they felt that the Court must interpret the Constitution to allow the New York Times to publish the information.


How do we explain the difference between the two types of cases?  The Court may not feel that they have military expertise, but they do feel like the guardians of fundamental personal liberties.  What they won’t decide in the war powers context is whether the war itself is permissible or impermissible.  They won’t get into the question of whether the president can send troops overseas without congressional authorization.


It’s hard to figure out when they will intervene; we have no definitive rule.


Isn’t everything in some sense a political question?  One of the biggest debates over whether the Court should invoke the political question doctrine has come up in the case of gerrymandering/redistricting.  There have always been claims that the ways those boundaries get drawn violate equal protection.  Is this a political question?  Or is it the Court’s role to protect against discrimination?  The court could go either way on this.


As a practical matter, when you have constitutional litigation, you must ask yourself whether the court could possibly decide to invoke the political question doctrine in this case, even if it hasn’t done so previously.  Is there a possibly that the political question doctrine could be in play, even though on the surface of the precedents you wouldn’t normally think that it was in play.  Any constitutional question could be considered a political question, but most of them are not.


What about the case of Judge Nixon?  The Court said that it could decide when it’s proper to use the impeachment power or not and decide what the phrase “high crimes and misdemeanors” means, but they feel that this is a case they shouldn’t decide because decisions about the impeachment power belong exclusively to Congress.


The Court is going to think in practical terms.  “What would this mean for the country if we, the Court, decided this question?”  Should drawing district lines be subject to judicial management?   The issue of remedies is important.  Sometimes you lose sight of the consequence when you look at the question to be decided.  But the courts, as practical institutions, will be thinking: what’s the remedial consequence of deciding this constitutional question?


Are there remedies less extreme than invoking the political question doctrine?  Can courts address an issue but impose some limitations on their own remedial authority?  What about equitable jurisdiction?  Equitable remedies, like injunctions and orders, are thought to be somewhat discretionary on the part of the court issuing them.  A court could address a question on the merits but delay or limit their remedy.  Always think about the remedy issue.  How burdensome does the court think the remedy will be?  The Court can soften the implications of its decisions by manipulating its remedial power.


In Cheney, what was sought was a writ of mandamus.  Should we give this remedy?


Virtually every law professor in the country when Bush v. Gore was going on thought that the Court would find a way to duck the issue.  But they actually granted cert twice.  They can manipulate their own agenda and their own docket when they want to.  They will make strategic judgments as to the grant or denial of cert.


The Equal Protection Clause


Let’s get the basics first because there are a lot of details and complications.  Only intentional discrimination by the government or its agents violates the Equal Protection Clause of the Fourteenth Amendment.  The Equal Protection Clause of the Fourteenth Amendment applies to state and local governments.  There is no Equal Protection Clause applicable to the federal government, so the Supreme Court invented one.  The Due Process Clause of the Fifth Amendment had an equal protection component added by the Court.  The Clause does not apply to private actors, including public corporations.  Under some circumstances, conduct by private entities can be imputed to be government conduct.  We’ll come back to this later, but don’t worry about it for now.  With respect to statutory discrimination laws, it may be possible to win even without the presence of intentional discrimination.  A practice that has a discriminatory result may be found to be counter to, for example, Title VII of the Civil Rights Act.  But disparate impact does not, by itself, establish a discriminatory motive.  This is important in constitutional law because you can’t merely allege an equal protection violation by demonstrating disparate impact.  You must show that the government intends to discriminate.  Not all forms of intentional discrimination violate the Constitution.  The challenge is to find out just which kinds are unconstitutional.  There are two forms of discrimination by the government that, if wrongful, can serve as the basis for showing an equal protection violation: facial discrimination and discriminatory motive.  Facial discrimination is when a statute or rule on its face discriminates against a certain group of persons.  The Equal Protection Clause applies to all forms of improper discrimination.  This is different from, for example, the Fifteenth Amendment, which says that states cannot restrict voting rights on the basis of race.  Note that there is some facial discrimination that is absolutely not unconstitutional: “No one under the age of 18 can vote.”  Or, “no one who is blind can get an airplane pilot’s license.”  Just because you find discrimination in a government policy doesn’t mean that it’s constitutional.  The key question is whether the discrimination is justified or unjustified.  On the other hand, government agents may be motivated by an animus against a certain group.  For example, imagine a government official will not declare anyone who is gay “morally fit” to practice law.  We could call this a discriminatory animus or discriminatory motive that gets you within the equal protection analysis.  Or consider police officers who desire to pull over black drivers for speeding more often than white drivers.  But what if the police officers are unaware of why they’re doing what they’re doing?  What if they have a subconscious bias?  What if, on the other hand, they are applying objective criteria with the result being a discriminatory impact?


Levels of scrutiny


There are three levels of scrutiny that the Court employs to evaluate intentional discrimination (either facial discrimination or discriminatory motive): (1) strict scrutiny, (2) intermediate scrutiny, and (3) low-level scrutiny.


This should remind us of Justice Jackson’s three categories.  These too are artificial boxes.  Some justices want to blur the lines and look at a spectrum of scrutiny instead of discrete boxes.  But for the sake of simplicity to start out, let’s assume that there exist these three well-defined boxes.


What approach will the Court take with respect to a particular kind of discrimination?  How hard are they going to be on the government initially?  Some discriminations are wrong and unjustified, while others are justified and permissible.  But what is our initial presumption?


The choice of the level of scrutiny is a predictor of whether the discrimination will be found to be proper.


For example, racial discrimination falls into the category of strict scrutiny.  Other forms of discrimination don’t get that kind of presumption of hostility.  For example, when the government discriminates between optometrists, opticians, and ophthalmologists, it seems reasonable to think there is a valid reason.  Someone attacking such a rule, though it is discriminatory, will face an initial presumption against them.  Each choice of the level of scrutiny is an indicator of the judicial mindset as to the type of discrimination at hand.


If you’re in the zone of strict scrutiny, the discriminatory law must serve a compelling interest and the law must be necessary.  For example, in California, they have had a long-standing practice of segregating prisoners on the basis of race for the first 60 days until the prison officials determine how dangerous and violent the prisoners are.  This is a practice that would usually demand strict scrutiny.  However, there is a doctrine that says that discrimination in prison will be treated differently and possibly considered with the rational basis test instead of strict scrutiny.  Maybe segregating prisoners could be rationally related to the goal of preventing prison violence.  But on the other hand, it may not be necessary.  Thus, the test chosen may be entirely dispositive as to whether the practice violates the Equal Protection Clause or not.


Notice the totally different definition of necessary here than in the Necessary and Proper Clause.  “Necessary” is much more like “rational” in the Necessary and Proper Clause than here.  In equal protection jurisprudence, necessary really means necessary.


So how does this play out in real life?  The Court doesn’t always follow its own doctrine!  Consider Korematsu v. United States, where the Court claimed that the internment of Japanese-Americans during World War II demanded strict scrutiny.  In practice, the Court seemed to only use the rational basis test.


If the government defends a discriminatory classification in more than one way, you must analyze each interest under the appropriate level of scrutiny.  Is the classification appropriately related to each of the asserted interests?  The government wins if it can defend its classification under any interest.  The government wins if it can assert an interest that meets the relevant test and show that the law is sufficiently related to that interest.  Thus, there is a kind of asymmetry here that works in the government’s favor.  What about aggregation of interests?  That’s a tough question.


Also, the government can be defeated one of two ways: either by showing that the interest isn’t good enough, or the connection between the means and ends isn’t good enough.


Under-inclusiveness versus over-inclusiveness


Let’s say the government wants to stop unsafe driving.  People who are legally blind do not fit the definition of safe drivers.  If the government only banned legally blind people from driving, that would be “woefully” under-inclusive.  If you want to go after unsafe drivers, picking out blind drivers in particular is unfair.  Why not go after drunk drivers?  Why not go after speeding drivers?


As an example of over-inclusiveness, what if the government passed a law saying that no one over the age of 80 can drive?  This might be over-inclusive, because unsafe drivers only form some proposition of older drivers.  Not all older drivers are unsafe!  So targeting all old people and saying they can’t drive just because you are concerned about some of them who are unsafe represents a case of over-inclusiveness.


You can also have laws that are under- and over-inclusive at the same time.

What if the regulated category is “people driving over the speed limit”?  You might get some safe drivers going over the speed limit (e.g. at 66 mph), plus you might miss some unsafe drivers who are going under the speed limit (e.g. swerving wildly between lanes at 45 mph or crawling at 5 mph in the middle of the highway).


In reality, most laws are over-inclusive and under-inclusive to some extent.  The government will always regulate with some degree of imperfection.


How good is the fit between the group actually regulated and the group meant to be regulated?  If the fit is “pretty good”, the law in question is more likely to be upheld.  Foley thinks that Korematsu is an example of a “loose fit”.  Strict scrutiny normally requires an extremely tight fit to pass muster under the Equal Protection Clause.  In that case, the group the government wanted to regulate was “disloyal Americans”.  Instead, the government actually regulated all Japanese-Americans.  But there were many people who were disloyal to the country in World War II, but weren’t Japanese-Americans.  That particular law was somewhat under-inclusive, but hugely over-inclusive.


“No fit” is an extreme where there is no connection at all between the categories.  The purest way to understand the rational basis test is that the case the government would lose would be in this case of “no fit at all”.  If there was a total disconnect between the law the government adopts and the goal in adopting the law, that would be totally irrational and would fail the rational basis test.


Note that virtually all laws will pass the rational basis test because there is almost always some overlap between what the law is doing and what the law is trying to accomplish.  But the Court isn’t always complete pure with respect to this test.


New York City Transit Authority v. Beazer – Let’s use the methodologies of over- and under-inclusiveness to evaluate the claims in this case.


What’s the equal protection claim against the Transit Authority?  What is the discrimination that allegedly violates the Equal Protection Clause?  They say that it’s not fair to bar methadone users from working for them.  The rule doesn’t label people as methadone users who do or don’t pose a risk.  It treats all methadone users, and all users of narcotics the same.


How is this rule over-inclusive?  It includes methadone users who pose no safety threat at all.  That’s the point.  Within the category of methadone users, there will be some safe employees and some unsafe employees.  The considerations motivating the Transit Authority seems different depending on just what kind of jobs their workers are going to do.


How is this rule under-inclusive?  The Transit Authority is trying to prevent unsafe workers from harming the public.  But there might be other kinds of people other than narcotics users who might not be fit to operate trains and buses safely.


Methadone users are recovering drug addicts.  If you’re a stable methadone user, you’re coping with a prior heroin addiction.  It is stipulated that after a year of methadone treatment, you’re at no more risk of relapse than the general public.  However, there will be other people subject to employment by the Transit Authority who could be considered a safety risk.  For example, how about alcoholics?  The rule doesn’t apply to them, and there’s no separate rule that does apply to them.


This combination of over- and under-inclusiveness shows that there really is discrimination!  But is it wrongful?  There’s a mismatch between the rule adopted and the government’s professed safety concerns.  There’s a bad fit between the ends and the means.


Why isn’t this discrimination unconstitutional?  The Court says that the rational basis test applies.  Why is that?


The Constitution doesn’t mention strict scrutiny!  The Constitution doesn’t mention the rational basis test!  The Constitution doesn’t even mention race or gender!  So where do we get our categories?  Is the Court just doing this by fiat?  What’s the reasoning behind forming up these categories and lining them up the way they are?  The Court makes the distinction between immutable characteristic versus things that you can change within your lifetime.  These characteristics can be things you’re born with or things you’ve acquired but can no longer change.  But does a rule that prevents blind people from getting drivers’ licenses or pilots’ licenses require strict scrutiny, since blindness is an immutable characteristic.


The thing about race is that it’s not just an immutable characteristic, but something that the courts have generally found to be a wrongful basis for discrimination.  In the Court’s judgment, on the other hand, discrimination with respect to disability (for example), is not as frequently motivated by prejudice as is racial discrimination.


One of the most difficult things to grapple with when it comes to the Equal Protection Clause and its case law is just how amorphous the standard is.  There are just a few words in the Constitution that historically have been interpreted as the Court has seen fit.  Consider the opposite conclusion in Brown v. Board of Education as opposed to Plessy v. Ferguson.  Both cases were decided on the exact same Equal Protection Clause!  It is quite possible that the Supreme Court may, in the future, change its understanding of equal protection in many different ways.


The “boxes” we have talked about have changed.  Not long ago, the Court thought that gender discrimination only deserved the rational basis test.  Now, the Court places gender discrimination in at least the “medium scrutiny” box.


Why does the Transit Authority treat recovering narcotic addicts differently than, for example, recovering alcoholics?  Isn’t this clearly discrimination?  You can distinguish: using heroin is illegal, while using alcohol isn’t for adults.


The Court doesn’t see this discrimination as improper prejudice.  Therefore, they do not require anything higher than the rational basis test.


The Court in this case says that this may be wrong, but we’re not the ones to stop it.  If society thinks it’s wrong to treat methadone users differently from recovering alcoholics, then new laws should be passed to change the system.


Consider the claim of discrimination against opticians in Oklahoma.  The court decided that this is more or less a political question.  As long as there is a plausible health and safety question, the discrimination can go on.


Why is the court saying that these are the kinds of discrimination that we will not use our judicial power to overrule?


The Equal Protection Clause only applies when the government is discriminating.  Also, in the voting rights cases, the discrimination is among individuals with respect to voting rights.


The “Fundamental Rights” or “Fundamental Interests” strand of equal protection jurisprudence has to do with individual rights.


When we study substantive due process, we’ll compare it to equal protection.  The question there isn’t about equality of treatment, but rather of an expressly individual right.


We now know that the rational basis test is going to apply.  But how can his rule that is just a misfit survive even under the lower level or rational basis review?  All the Transit Authority has to say is that there is a slight safety risk in allowing methadone users to work.


If there is litigation under the rational basis test, the government must defend what it’s doing under that test.  It must explain some connection, even if it is a loose connection.  They can make up the policy after the fact and get the benefit of the doubt!  The Rational Basis Test requires the court to show extreme deference to the legislature.


Before the Roosevelt era, the Court was using the Equal Protection Clause to protect big business and to micromanage American economic policy.  As part of the revolution of the New Deal, the Court said it would bend over backwards to uphold laws that further policy.


From time to time, lower courts will mess this up.  Not every episode of governmental discrimination violates the Equal Protection Clause.  We don’t care very much about, for example, different taxes on slot machines on riverboats versus slot machines at racetracks.


What if we knew there was an upcoming terrorist attack involving men of a particular ethnic group on planes?  Would it be constitutional under the Equal Protection Clause for the government to conduct special surveillance procedures with respect to people of a particular ethnic group?  Is this facial discrimination?  If this is a policy, that’s facial discrimination.  Does this policy, on its face, authorize conduct with a discriminatory motive?


The Court should apply strict scrutiny because this is discrimination based on race, religion, or national origin.  What’s the next step?  We need to look at the government’s asserted reason for engaging in this discrimination to see if it’s a compelling reason.  There is certainly some degree of over-inclusion or under-inclusion.  Padilla was not of the same ethnic background as al Qaeda.  That’s under-inclusive.  So picking out Arab-Americans at the airport will be over-inclusive.  But is this too over- or under-inclusive given the necessity that the government asserts?


There are some follow-ups to do in terms of race discrimination.  We don’t need to have detailed knowledge of the reading.  We don’t need cases memorized or anything like that.


Some degree of racial profiling is constitutional in a law enforcement context when you’re combating terrorism.


What if there was an imminent threat of inner-city riots?  We’ve had these before.  What if the local city police department believes that locals are going to engage in mass protests that will result in significant violence?  In face, they suspect that the leaders will encourage this.  Is that situation different from the terrorist hypothetical?  Can race be used as an instrument of law enforcement?  What about the deal about American citizens?  Strict scrutiny is the standard about serving a compelling interest.  Would using race as a factor in terms of issuing wiretaps be necessary to serve a compelling interest?  Would avoiding a riot or a domestic disturbance be compelling compared to the terrorism situation, or does this not rise to the level of “compelling”?  Maybe it’s different if it’s international terrorism.


How could we possibly know what the right answer to this question is???  We can’t find the answer in a book!  Just think of the nature of the question!  How can anyone ever know just what is a compelling interest?  The Constitution says nothing about this.  The Equal Protection Clause has no tools to tell us what counts as a compelling interest.  How do you know when you’ve crossed the line from “important” to “compelling”?  The judges must answer the question and the lawyers will have to make the arguments, but there is no answer to be found “out there”.


The Court sometimes lowers the level of scrutiny in a military context, usually when it has to do with military employment practices and military bases.  But merely mentioning the military doesn’t lower the level of scrutiny in terms of doctrine.


The Court is going to be more careful of how it treats the military than how it treats other institutions, including local police departments.


How do you prove that something is a compelling interest?  It’s going to be a factual proof, even if it’s complicated.  The necessity prong is also factual (the connection between the means and ends).


Some degree of racial profiling is constitutional in a law enforcement context when you’re combating terrorism.


What if there was an imminent threat of inner-city riots?  We’ve had these before.  What if the local city police department believes that locals are going to engage in mass protests that will result in significant violence?  In face, they suspect that the leaders will encourage this.  Is that situation different from the terrorist hypothetical?  Can race be used as an instrument of law enforcement?  What about the deal about American citizens?  Strict scrutiny is the standard about serving a compelling interest.  Would using race as a factor in terms of issuing wiretaps be necessary to serve a compelling interest?  Would avoiding a riot or a domestic disturbance be compelling compared to the terrorism situation, or does this not rise to the level of “compelling”?  Maybe it’s different if it’s international terrorism.


How could we possibly know what the right answer to this question is???  We can’t find the answer in a book!  Just think of the nature of the question!  How can anyone ever know just what is a compelling interest?  The Constitution says nothing about this.  The Equal Protection Clause has no tools to tell us what counts as a compelling interest.  How do you know when you’ve crossed the line from “important” to “compelling”?  The judges must answer the question and the lawyers will have to make the arguments, but there is no answer to be found “out there”.


The Court sometimes lowers the level of scrutiny in a military context, usually when it has to do with military employment practices and military bases.  But merely mentioning the military doesn’t lower the level of scrutiny in terms of doctrine.


The Court is going to be more careful of how it treats the military than how it treats other institutions, including local police departments.


Justice Stevens couldn’t bring himself to permit flag desecration even though his jurisprudence would lead him to allow it.


How do you prove that something is a compelling interest?  It’s going to be a factual proof, even if it’s complicated.  The necessity prong is also factual (the connection between the means and ends).


Gender discrimination


United States v. Virginia – Which is older: VMI or the Equal Protection Clause?  VMI actually predated the Equal Protection Clause.  The Equal Protection Clause came after the Civil War.  VMI came before the Civil War.  So the folks in Congress wrote the Fourteenth Amendment and sent it to the states for ratification.  Virginia originally refused to ratify the Fourteenth Amendment, but they were coerced into doing so by making it a precondition for getting back into the Union.  So let’s say it’s 1875 or so and the same lawsuit is broad as in this case, challenging the legitimacy of VMI as a male-only institution.  At that time, what would have happened?  It would have most certainly been dismissed!


The Court has adopted intermediate scrutiny for gender discrimination in part because race discrimination, for which there is strict scrutiny, was more on the mind of the drafters of the Fourteenth Amendment.  But if the drafters of the Fourteenth Amendment didn’t even think they were addressing gender discrimination, why should gender discrimination get elevated scrutiny at all?  There have certainly been social changes between then and now.


How could the level of scrutiny change under the Fourteenth Amendment?  The Fourteenth Amendment hasn’t been reratified or readopted since 1868.  Can this be understood in terms of legality?  There is a proposal to amendment the Constitution with the Equal Rights Amendment.  We felt that the Constitution didn’t provide for gender equality.  Many felt that the Nineteenth Amendment didn’t go far enough.  But the ERA didn’t get ratified, and even had opposition from women.  So how can the Court justify its result in finding that the Equal Protection Clause is different in 1976 than in 1868?  The Constitution isn’t necessarily perfect, and there may be a lot that we don’t personally like about it.  But legality says that we abide by it anyway.  Just who should be allowed to say what the Constitution is?


Maybe we could say that the Court can say what the Equal Protection Clause means until the people choose to amend it.  What did the Equal Protection Clause mean originally?  Some historical evidence suggests that it was limited to certain basic rights like the right to make contracts or be a witness in a trial or to own property.


Arguably, the people who wrote the Fourteenth Amendment thought that discrimination on any basis with regard to those particular civil rights would violate the amendment.  But did they understand the Fourteenth Amendment to affect the existence of VMI, or the University of Virginia (which was all-male at the time)?  If the Equal Protection Clause meant one thing when it was adopted and means something different now, then when did its meaning change, and by what legal process did its meaning change?


Does Congress have the power to say that there may not be any single-sex colleges in America?  If so, why should the Court be able to usurp that power?  Isn’t Congress much more able to respond to social change?  The Court is just supposed to enforce the law as it exists.  Arguably, you can’t enforce rights that aren’t there.


The Bush Administration has proposed that the states should be allowed to engage in single-sex education.

What is the significance of legislation being proposed in Congress but failing to be adopted?  Are there some proposals that are so great that their failure is evidence of a flaw in the system?  Or do we totally trust the system?  If everyone in the United States agreed to what the laws should be, there would be no reason for debate at all.  Maybe the country wasn’t ready for a national gender policy.


Is there a disconnect between Constitutional Law and social policy?  Here are two questions: (1) How do we figure out the meaning of the Fourteenth Amendment and the Equal Protection Clause given that it was adopted in 1868 and it hasn’t been changed or amended since?  Can its meaning transform over time (c.f. Brown v. Board of Education)?  (2) How can we understand these changes and know when they have occurred?  Is it wholly up to the Supreme Court to decide when these changes will occur?  Or is the Supreme Court not the agent of change but rather a reflection of social change?


Even if we accept the idea that the meaning of the Fourteenth Amendment changes over time, we’ll have to figure out just what it means.  Say the VMI case is correctly decided.  If we take it as a given, we need to figure out whether single-sex classroom options in K-12 are allowed under the holding of VMI.  We take certain things as given.  For example, segregation on the basis of race is presumptively unconstitutional.  Perhaps segregation on the basis of gender should be presumptively unconstitutional too.


But maybe there are acceptable forms of gender discrimination: we have separate men’s and women’s sports.  We tolerate separate but equal in this area under Title IX.  But we can’t have separate teams based on race.


The big fear at the time of the ERA was that it would supposedly eliminate single-sex bathrooms.  We actually did formerly have single-race bathrooms in the South.  So bathrooms were on people’s minds in the 1970s, according to Foley.


Then how do we understand the relationship of social transformation to legal transformation?  We don’t know yet, but I guess we will tomorrow.


Two things: What about gay marriage?  What’s the status under the Fourteenth Amendment and the Equal Protection Clause of laws like the Ohio DOMA?  This is a HOT TOPIC!  Does the text of the Equal Protection Clause say anything about gay marriage?  If the text of the Constitution doesn’t resolve this question, where should a judge look?  Should the judge look at original intent?  What about the fact that statutes against interracial marriage are now unconstitutional?  Does that change the meaning or understanding of the Equal Protection Clause?  If the Court can abandon original intent with respect to some issues, then why can’t the Court abandon original intent with respect to other issues, like gay marriage?


Second: People who believe that the Court should not be guided by narrowly understood original intent argue that you shouldn’t look to what the authors of the Fourteenth Amendment thought about any specific problem.  Instead, you should look to the fact that the drafters wanted to add a general principle to the Constitution.  If there is a gap between contemporary understanding of that general idea and the original and specific understanding of the idea, the Court should adopt the general principle.  Recall that at the time of the adoption of the Fourteenth Amendment, the galleries in Congress were segregated.  It is clear that the authors of the Fourteenth Amendment didn’t mean to render segregation unconstitutional.  But maybe they misdrafted the amendment in some sense and did more than they specifically intended to do.


If the Court has one conception of the general idea but it is at odds with what a large segment of the people believe, then what should the Court do?  Should the Court follow its own understanding of equality and equal protection, or should it be guided by the views of the American people in general?


How does the Court apply intermediate scrutiny in this case?  Why is it that Virginia loses under intermediate scrutiny?  Why is Virginia incapable of justifying the existence of VMI under this test?


Virginia tries to argue that VMI is just one school of many, and there are lots of other schools that aren’t single-sex.  They want to say that it would support diversity to have one school that isn’t coed.  Why does the Court feel that this diversity interest doesn’t work to argue for the existence of VMI?  Why is the existence of VMI an inappropriate means of advancing the interest of diversity?


Why doesn’t VMI further diversity?  VMI is a male-only institution.  They don’t allow women.  Say you’re a woman and you want to go to VMI.  There’s no other place that you could go!  The Court says that this is male preference, not diversity.  Virginia also set up a female counterpart to VMI at Mary Baldwin, and the Court found that it wasn’t close enough.


The lesson of this case is that the Court is extremely suspicious of any attempt to respond to a history of segregation with a creation of an alternative rather than integration.


Nguyen v. Immigration and Naturalization Service – This was a closely divided decision, 5-4.  Basically, this case involved a rule that if you’re born overseas and your mother is an American citizen, then the child gets American citizenship.  But if the father is an American citizen, it’s not automatic.  This is facial gender discrimination in the law.  It’s argued that paternity can be proved.  But the majority finds that the law isn’t meant to be exclusionary.  To the majority, the law didn’t have the same feel as the law in the VMI case.  The Court gives the federal government more leeway over immigration law than it gave the state of Virginia over domestic policy.


What about the policy of citizen soldiers?


Suppose there is a school district in Ohio that thinks it would be better educational practice to have a single-sex option for middle school girls especially in regard to math class.  What if this is challenged by boys who want a boys-only math class?


City of Cleburne, Texas v. Cleburne Living Center


Here is the comparison to Beazer:



Mentally retarded

Recovering drug addicts








There was a proposed home for the mentally retarded in the city.  The city required a special permit to have such a home in this particular neighborhood.  The city doesn’t want that home there, and they invoke a certain city ordinance.  How does this case get to the Supreme Court?  What’s the federal constitutional issue?  The key point of an equal protection analysis is to find the alleged discrimination.  There is a special permit required for a home for the mentally retarded, but not for certain other groups.  Like what?  Well, the same house could be used for a frat or sorority or nursing home.  You could have a lot of stuff there, but not mentally retarded people.


What is the basic holding of the Court with respect to this claim?  They decide that the mentally retarded shouldn’t be a quasi-suspect classification, however, they find that in this case in particular the denial of the permit doesn’t have a rational basis and thus is unconstitutional.


There are two parts to the inquiry: (1) What level of scrutiny applies?  The Court doesn’t apply strict scrutiny.  The Court only applies the rational basis test.  (2) In this particular case, the discrimination is no good.


The language of suspect and quasi-suspect classification is a pet peeve of Foley.  It’s the classification in the law that is considered suspicious or suspect when you have heightened or intermediate scrutiny.  We’re not saying that mentally retarded people are “suspect”.  It’s sort of an inelegant, colloquial shorthand.  For Foley’s purposes, don’t use the term “suspect class”.  Use the term “suspect classification”.


Cleburne came out when Foley was in law school.  This case seems to get bigger and bigger over time in terms of setting out the basic framework for how the Supreme Court thinks about equal protection: when it’s going to use heightened scrutiny or not, and how it applies low-level scrutiny.  Interestingly, this law flunks the rational basis test.  So this is an important case, though not the last word on equal protection.  This is a biggie.


Let’s look at the part of the holding where they say that they aren’t going to apply heightened scrutiny.  Why not?  This is the opposite of what the Fifth Circuit decided.  Brennan, Marshall, and Blackmun would have applied intermediate scrutiny for laws that treat the mentally retarded differently from others.  What is the Court’s reasoning?


They say that mentally retarded people really are different from other people so that there is a rational reason for treating them differently in the law, at least from time to time.  Compare their situation to blind people.  Historically, some laws that have treated the mentally retarded differently have been based on prejudice, but not all such laws have been bad.  On the other hand, most laws that regulate on the basis of race or gender have had an invidious character.  Why not treat mental retardation laws the same as gender discrimination laws as opposed to like laws discriminating between opticians and optometrists?  The Court says that the legislation over time related to the mentally retarded tried to protect them rather than hurt them.  The Court is concerned that to impose heightened review would discourage legislation that would benefit the mentally retarded.


The Court will start with the presumption that these laws are valid.


There are two more points that the Court made.  The Court says that the mentally retarded are adequately represented politically.  The Court seems to care about the political dynamic here.  Whether a group has political power in the legislature is a factor for the Court in deciding whether judicial intervention is necessary.  The Court doesn’t claim that the mentally retarded will be able to exercise power by voting or being in the legislature, but there is a sense that people who are not retarded will take care of their “less fortunate” neighbors and fellow citizens.  This is sort of a “paternalistic” attitude: we can count on ordinary citizens and legislators to act with good will concerns mental retardation issues.


The Court also says that if you must subject laws related to mental retardation to higher scrutiny, they claim you’ll have to bring in lots of other classifications.


Does Cleburne tell us when a new form of intermediate scrutiny might arise?


There are certain state areas where more deference is given to the states or other institutions, like in prisons or in a military context.


The whole other part of this case: we know the rational basis test applies, but the law flunks the test?  How come?  Normally, most laws don’t flunk the rational basis test after the New Deal revolution of 1937.  The rational basis test is kind of a way to bend over backwards to support the government.


How did the city try to justify the denial of the permit?  They try to claim that other citizens are afraid of the mentally retarded.  The Court says no way!  You can’t relegate a whole class of people to a certain area just because people don’t like them.  That’s an illegitimate reason under the Equal Protection Clause!  That’s exactly what the Equal Protection Clause is designed to quash!  You have to evaluate both the ends and the relationship of the means to the ends.  But this goal is terrible in itself!  It’s prejudice!


The city’s lawyers said that it was a problem that the home was across from a junior high school and they thought the students would harass the mentally retarded persons.  The Court says that’s not legitimate either!  The school across the street has 30 mentally retarded students itself!  It also smacks of bigotry.  If the junior high kids are mean, that’s ill will, and the government can’t discriminate on the basis of the ill will of its own citizens.  Imagine if we were talking about race instead of mental retardation!  If one group is really mean to another, you have to crack down on the mean people!


The city’s lawyers said that the home was on a floodplain, and they were concerned about the residents in the case of a flood.  It was a 500 year floodplain.  That means the statistical chance is that a flood will tend to occur once every 500 years!  That’s a very slim explanation.  Very, very slim.  Is this an invalid justification under the rational basis test?  Not really; it’s valid, but it’s not rationally related.  The floodplain argument, as silly as it is, flunks for a different reason.  It’s a safety-related reason, not based on hatred or irrational prejudice in the way the first two are.  If the goal is remotely legitimate, why are the means no good?  The means are no good because the ordinance at issue allows nursing homes, convalescent homes, hospitals, and so on at the same location.  The city supposedly thinks that old people or sick people would have no problem getting away from a flood while the mentally retarded would.  The Court says that to differentiate between the retarded and other folks who suffer from the same sorts of conditions, it is irrational!


The last point that the city made was to say that they were worried about how many people live in one house.  The Court said that you could have an across-the-board rule, or zone for single-family dwellings.  But instead, this city allows stuff like fraternities and sororities, so it’s obviously not concerned about just the numbers of people.


We talked yesterday about the way that the Court, in rejecting the “floodplain” defense of the ordinance, said that this may be a legitimate interest, but the regulation is not plausibly related to the interest.  If they had given super deference, they may have come to a different conclusion.  Some people think that the rational basis test here was “rational basis plus” or “rational basis with bite” or “rational basis with teeth”.  How minimal is the requirement of the rational basis test?  Does there just need to be a quantum of overlap between the ends and means?  Or does there have to be some kind of minimum fit?


Justice Stevens gives us the “sliding scale” idea.  He doesn’t want to think about three boxes (strict scrutiny, intermediate scrutiny, and rational basis).  He wants a range of deference.  But the Court doesn’t embrace the Stevens approach, and claims that it is applying the traditional rational basis approach.  The best understanding is that we have a “turbocharged” version of the rational basis review, but we don’t know when the Court will apply this version as opposed to the regular version.


How would the precedents of Cleburne and Beazer apply to different fact patterns?  The Beazer plaintiffs might succeed in terms of housing, and the Cleburne plaintiffs might fail with respect to jobs.


The major point here is: the judgments that underlie speculations about job discrimination with respect to the mentally retarded would be upheld, while housing discrimination against recovering drug addicts would not be upheld.  The difference in judgment is based on the facts and on policy, not from the Constitution.


Think about the factual differences between cases to try to distinguish them.  It’s more important to be able to argue both sides of cases than to actually come to a conclusion.


Affirmative action


Grutter v. Bollinger – What is the constitutional question in this case?  The plaintiffs claim that Grutter was denied admission to the Law School because of her race.  How does that relate to the Constitution?  What makes denial to law school based on race a problem based on the Constitution?  She claims it violates the Equal Protection Clause to make race a predominant or outcome-determinative factor in whether someone gets admitted or not.


How do we know that race was a factor in whether she was denied admission?  We clearly have facial discrimination.  Race is taken into account in admissions.  But diversity could be based on things other than race.  What role does racial and ethnic diversity play in Michigan’s definition of their policy?  There was a remedial function.  Some groups were considered to have suffered discrimination, and thus they should be helped out as a form of compensation or remediation.  They single out Native Americans, African Americans, and Hispanic Americans.  Be precise in your language.  Different people were said to bring different ideas to class discussion.


Both Michigan and the Supreme Court see the beneficiaries of this policy as not merely the minority students, but all students.  Justice Thomas objects that the policy is designed to benefit mostly Caucasians and Asians and that the individuals who are admitted because of special consideration actually suffer a sort of stigma.


Are there any other reasons to justify these affirmative action programs besides the classroom learning environment?  The Court also considers that fact that the business community and the military support affirmative action.  Why did the business community submit the amicus brief that they did?  They said that we live in an increasingly multicultural society, and so to be well-educated, you must be exposed to diversity.  So we want a good experience in the classroom, and we want students prepared for diversity outside the classroom.


What about the military?  That’s very important, but it’s a little different than what the businesses say.  What’s the national security deal?  The military says that we need a diverse officer corps for national security.  The military argues that there is racial diversity in the world’s hotspots.  The brief that was filed by the former military officers is one of the most significant and powerful amicus briefs ever filed.  In Vietnam, there was a lot of race tension because there were more minorities in the lower ranks and more majority people in the higher ranks.  The military decided that you must have an officer corps that is representative of the nation as a whole.  The racial composition of the officer corps cannot differ too greatly from that of the troops.  The Court makes the point of legitimacy.  The majority talks about the idea of the legitimacy of our government depending on leadership positions being open to all regardless of racial background.  How is this argument different than the “classroom diversity” argument?


Yesterday, we talked about the law schools’ interest in having a diverse student body, both in terms of classroom diversity and the workplace diversity that is thought to follow.


We also discussed the interest of the legitimacy the government.  It is claimed that minority groups won’t see the government as legitimate if they feel like the paths to power aren’t open to them.  We talked about this in the context of the amicus brief from former military officers.  It could apply just as well to other institutions.  The notion here is that the minority communities in America won’t trust the government if it doesn’t include minorities.  This helps explain why the Court feels that the state’s interest is compelling in this case.  They seem to feel that the whole stability of the government is at stake.  The Court feels that we cannot survive as a society unless we make legal education available to everyone.


That’s the first part of the analysis.  That’s the university’s position, and the Court embraces it.  Next, the second part of the analysis: if we accept that diversity is a compelling state interest, why, in the university’s view, is it necessary that the law school use the admissions policy that it did in order to achieve diversity?  Was making race a factor in admissions decisions the best way to do it?  Why does the law school believe itself of being incapable of obtaining a diverse student body if it doesn’t make race a factor in admissions?


The university claims that if they didn’t take race into account, they wouldn’t otherwise get enough people from the various minority groups to form a “critical mass”.  Nobody contests that factually.  If the law school relied only on grades and LSAT scores, then they wouldn’t achieve “critical mass” or sufficient diversity.  The record disclosed that if the law school relied solely on the numbers, minority representation would be only 4% of the student population rather than 12-20%.  Why not abandon using the number altogether?  They don’t want to abandon their elitism, apparently.  They want to be prestigious and selective.  How does that relate to the compelling state interest?  This is part of the dissent’s argument.  What if they used a lottery system?  Then you would have a student body that is representative of the people trying to get admitted.


If the university’s top priority was diversity, they could have open enrollment or a lottery.  But they have a higher priority on being an elite law school.  The Court seems to tell us that the school is allowed to posit these “twin goals” simultaneously.  They don’t just want diversity, they want to have their cake and eat it too.  The only way to do both, they claim, is to use race as an admissions factor.  The combination of the two goals requires and justifies the use of race as an admissions factor.


Beyond asserting that it wants to be a selective, elite law school, what underlying policy goal or social need does the law school assert to justify its selectivity as arising to the level of a compelling state interest?  They don’t really give one!  This is a good point made by Justice Thomas.  The majority seems to say that the law school can’t achieve both of its goals at the same time without making race a factor.  The majority credits this as vital, but doesn’t explain why.  We don’t really know why it is such a compelling interest to have an elite law school as a state law school.  They seem to say that there must be open access to elite law schools because those law schools are the paths to power in this country.  But even if Michigan didn’t have an elite law school, there would still be elite law schools that are private and thus not bound by the Equal Protection Clause (like Harvard, Yale, and Stanford).  But there’s also part of the Civil Rights Act that tracks the requirements of the Equal Protection Clause.  If it were unconstitutional for Michigan to do what it did, it would be illegal by statute under Title VI for Harvard to do what it did.


The Court seems to say that Michigan wants to pursue two goals.  But it isn’t explained why Michigan has these two goals.  It seems to be based on the notion that we will have highly selective law schools in American society, and some of them will be public schools and we need to make sure that there is open access to them.  Let’s stipulate that strict scrutiny applies in this case.  Ginsburg believes that you shouldn’t have strict scrutiny in an affirmative action context, but that’s not the view of the majority.  But under any level of scrutiny, you must look at (1) the goal, and (2) the means and its relationship to the goal.  The use of race as an admissions factor would not be justified based on either of those goals alone.  If the university only wanted to consider diversity, they wouldn’t need to consider race, and if the university only wanted to have selective admissions, they wouldn’t need to consider race either.


Diversity is a laudable goal, but you don’t need to make race a factor in order to have diversity, because you could have a lottery instead.  It’s only the intersection of the goals of diversity and selectivity that justifies the consideration of race in admissions.  But even taking these two goals as compelling, why is it necessary for Michigan to use racial background as an admissions factor to achieve those goals?  There are lots of “soft variables” that have nothing to do with race that would not be considered under strict scrutiny.  You could look at leadership potential, for example.


The argument was made by the plaintiff that you don’t have to consider race as an admissions factor at all for any applicant and maintain selectivity if you use “soft factors” in a sophisticated way.  It is argued that you can achieve all the goals that you want to as long as you don’t rely on actual skin color.  The University of Michigan asserted that it could not achieve its twin goals without using race the way it did.  But the plaintiffs never presented an evidentiary case to challenge this assertion.  The main strategy of the plaintiffs was to dispute diversity as a compelling goal.  They hoped that a majority of the Court would reject the contention that diversity could count as a compelling interest.  Then their second line of attack would be to show by statistics that the way race was used here was tantamount to a quota and too rigid.  But they didn’t take on the other point: assuming the law school is not operating a quota system, but rather a system of “soft factors”, is race a necessary one of those factors?


Boalt Hall has been prohibited from using race as a factor in admissions due to Proposition 209.  Initially, the number of minority students at Boalt Hall plummeted drastically, just like Michigan was predicting here.  When this lawsuit was first litigated, that was the scenario that Boalt Hall was operating on.  However, somehow it turns out that in the last couple of years, Boalt Hall still can’t look at race, but somehow has gotten its minority enrollment back to the levels it was at prior to Proposition 209.  They claim that they use a combination of hard factors and non-racial soft factors.  The plaintiff, in its reply brief, cites Boalt Hall as an example of how to achieve classroom diversity without considering race explicitly.


The Court says that affirmative action programs must have sunset provisions or periodic reviews.


On Monday, we’ll start substantive due process, the “liberty” part of the Fourteenth Amendment.  We now have a handout explaining the history of this doctrine of substantive due process.  Without some history, it’s hard to understand.  We’ll go back-to-back on Monday.  We’ll go from 1 PM to 2:40 PM.  We’ll start with Lochner, then we’ll do Griswold.


We also have a double session on Wednesday.  We’ll have a regular 50 minute class, then a break, then we’ll come back from 3 PM to 3:50 PM for the second session.  Since it’s six classes, we’ll have two different on-call groups: one for Monday and Tuesday and one for Wednesday and Thursday.


Gratz v. Bollinger – The holding is pretty clear: the undergraduate program at Michigan had a different method for admitting students.  There are a lot of complex fact, but basically the admissions program evolved into a “20 point plus” plan.  If you’re a member of one of the three underrepresented minority groups, then you get a bonus.  The holding of the case is that the fixed assignment of 20 points for being of a certain racial background is unconstitutional, even in the context of a plan that assigns points for many other soft factors.  Interestingly, the university offers the same justification as the law school did.  They assert a diversity interest and a selectivity interest.  The majority opinion in Gratz doesn’t dispute that these interests are compelling, as admitted in Grutter, but the 20 point plus factor approach is not narrowly tailored enough to achieve these compelling interests.  Justice O’Connor writes a concurrence which is the most important one.  It helps you line up Grutter and Gratz and how what the law school was doing was permissible but what the undergraduate school was doing was not.


One of the justifications that the undergraduate school supplied was administrative necessity: the undergraduate college got so many applications and it was such a large school relative to the law school that it couldn’t do the kind of file-by-file review that the law school was doing, but instead had to adopt a more structured approach to undergraduate admissions, and therefore it made sense to come up with specified point factors for all of these “soft” considerations.  They argued that they were doing the same thing the law school was doing, but had to use the point system out of necessity because of the volume of their applications.  The Court rejects this claim of necessity: this administrative necessity is not a compelling interest in itself.  It doesn’t count as narrowly tailored.  The Court tells the undergraduate program that they must adopt something like what the law school was doing.  After the case came out, the university announced that they would hire many more undergraduate admissions officers so they could process applications file-by-file.  Their argument turned out to be more about money: it would just cost more to look at applications file-by-file.


How do we understand the constitutional distinction that the Court here is adopting between what is impermissible (the 20 extra points) and on the other hand, the permissibility of the individualized file-by-file review in Grutter?  The law school asserts that what it’s looking for in the context of individualized review is “critical mass”.  The minority argued that “critical mass” converted the purported file-by-file review into effectively a quota system.  The Court rejects that.  The assignment of 20 points is obviously different from what occurred in Bakke, which was a set aside for minority medical students, and the holding in Bakke was that you can’t have that set aside.  In Gratz, you don’t have that set-aside.  20 points may or may not be enough to get you admitted.  If you scored more, or got a higher score from other factors, you would get admitted over a minority applicant who got 20 points but didn’t get a greater number of points than the other applicant.  Michigan argued that it was consistent with Bakke that they didn’t have a set-aside because all applicants were completing against each other.  The Court says that’s no good, that’s unconstitutional, but the goal of seeking “critical mass” is permissible.


20 points for all minority members does not differentiate among the diversity within those groups.  Maybe some African Americans grow up in suburbia and some grow up in the inner city.  Maybe some of them have parents who are doctors or lawyers, and others have parents who didn’t go to college.  O’Connor is concerned about how insufficiently attentive this system is to true diversity.  Socioeconomic diversity and racial diversity aren’t the same kind of diversity.


But then to look at the same question from a different angle, Justice Powell in Bakke did not use the term “critical mass”, and the Harvard plan did not use that term.  The plaintiffs in Grutter say that when the law school searches for “critical mass”, they’re not using race as a “tiebreaker”.  “Critical mass” seems to be different: from the beginning of the admissions process, you’re looking to make sure that the entering class has a certain proportion of entering students of a certain background.  There is some notion of sufficiency.  The plaintiffs say this is a quota.  But the Court in Grutter rejects that argument.  There has been variation from 12% to 20% in minority backgrounds at Michigan.  This range is inconsistent with a quota, according to the Court.


It’s not enough that you have a compelling interest here.  It seems that it’s essential to the success of the law school’s claim in this case that it’s open to the possibility year to year that they fail to reach “critical mass”.  That’s the difference between a quota and a goal, or a quota and a target.  Race cannot be outcome-determinative regardless of other considerations.  Justice O’Connor thus ties the idea of fluctuation to flexibility.  Fluctuation, in her mind, is a product of a process that is sufficiently flexible so race is never entitled to be mechanically or rigidly outcome-determinative.  We’ll look at race as one factor, but if it turns out in our applicant pool in a given year that we’re not able to achieve “critical mass”, then we don’t, and we don’t let that factor override all other factors.


We may all have views on this stuff, but ultimately we need to know what the Court thinks about the issues so we can represent clients in Court.  For example, are the LSATs inherently racist?  But on the other hand, will the current U.S. Supreme Court pay attention to this?  Probably not.


The lawyers from Michigan did a good job, it seems.  They got five votes for the law school program.  It wasn’t obvious beforehand that the votes would be there.  We knew O’Connor would cast the swing vote, but we didn’t know which way it would go.  In this part of the class, much more so than with the Commerce Clause or executive privilege, figuring out the line between a policy argument and a legal argument is really tricky and not clear-cut.


One of the issues that we talked about yesterday, and one of the issues that’s lurking in this case is whether we can trust Boalt Hall and Michigan to be honest about what they’re doing.  We’d like to think we can trust them because they are law schools and law professors, but we should put that on the table.  The majority opinion’s only response is the deference that is given to the university as a university, where the university tells us that they are looking at these reports in no rigid way and they don’t change what they’re doing based on the use of the reports.  That’s not convincing to the dissenters, but that’s what the majority says.


Cleburne was an example of “rational basis with bite”.  In this case, it seems like they’re applying a more relaxed version of strict scrutiny.  It is debatable whether this scrutiny is as strict as it was in other cases.


What about this 25-year sunset thing?  It may be an effort to narrow the ruling in a particular way.  It seems to be O’Connor’s view that even considering diversity is a compelling interest because it goes to the legitimacy of our government, she seems to say that it has a time limit on it.  The use of race cannot be unlimited and open-ended, not withstanding the necessity of the government being legitimate to its citizens.  You would think it would be imperative to have diversity and the means to achieve it no matter what!  25 years is like a generation.  O’Connor thinks we should get over it.


Substantive due process


The cases that we’ll talk about today will most define the current thinking about constitutional law in the United States today.  These are the cases that define the big issues.  These are big deal cases and they can be analyzed on many different levels.


Lochner v. New York – What’s this case about?  New York had a law that said that bakers couldn’t work more than 10 hours a day or 60 hours a week.  Why does that law present a constitutional question?  The Supreme Court said that this law violated the Due Process Clause of the Fourteenth Amendment.  But how does the regulation of the amount of hours that a bakery worker works raise an issue of due process?  The question is whether the state is allowed to interfere with the freedom of contract.  Who asserts the freedom of contract?  It seems that the right was asserted by the owner of the bakery.  The employer wants freedom of contract to hire his employees for more than 60 hours a week or more than 10 hours a day.  Does the Due Process Clause of the Fourteenth Amendment say anything about the freedom of contract?  No way!


How does Lochner assert, and how does the court accept, that this maximum hour law is a violation of the Due Process Clause when the claim is that it’s interfering with freedom of contract?  The Fourteenth Amendment has a Privileges and Immunities Clause, but the Slaughterhouse Cases pretty much shoved this clause aside.  There’s also the Due Process Clause, of course.  The Court says that freedom of contract is a kind of liberty.  They say the New York law limits the liberty of contract.  But does it take away the liberty of contract without due process of law?  Lochner was charged with and convicted of a crime.  This case is being appealed from the Court of Appeals of New York.  He violated a criminal law, and he went through a trial!  Foley suggests…isn’t that due process?  That’s procedural due process.  But that may not be substantive due process.  It’s like the process itself is irrelevant!  We basically read it as: “No state shall deprive a person of liberty…period!”  The notion is that you can’t take away certain liberties or certain people’s liberties.  This is substantive!


There is a separate doctrine in Constitutional Law called “procedural due process”.  That phrase would be redundant if it weren’t for “substantive due process”.  Is this ridiculous?  Why didn’t the Court just admit they were wrong and turn around and overrule their precedent?  There’s stare decisis, but also the Court doesn’t like to admit that it’s wrong.  Also, is there such a sharp dichotomy between procedural and substantive due process?  It may be hard to draw lines between substance and procedure!  Smart lawyers, once the Privileges and Immunities Clause was taken away, did an end run around the Slaughterhouse Cases by coming up with substantive due process and using “rate-making proceedings” to attack the procedures first, and then the substance of the proceedings.  They built up 30 years of precedent to get the Court comfortable enough to issue Lochner.  But there was a lot of history that preceded Lochner.  They had been doing a “fuzzy” version of substantive due process for some years before.


Speaking of the Due Process Clause, we have a separate clause in Article 1, Section 10 of the Constitution which prohibits states from enacting laws that impairs the obligations of contracts (the “Contracts Clause”).  Why didn’t the Court rely on this Clause to come to their conclusion in Lochner?  It turns out that the actual Contracts Clause only applies to contracts that were previously entered into.  (But, I wonder…how can we have bankruptcy laws?)  In any case, that’s not what was going on in Lochner because the prohibition was forward-looking: you can’t enter into a bargain for 61 hours per week ever.  That’s why they couldn’t use this in Lochner.


What were New York’s reasons for enacting this law in the first place?  How can we argue that the law shouldn’t be unconstitutional in the first place?  New York made a public health argument: they argued that they needed to limit bakers’ working hours to protect bread consumers from unhealthy bread.  We want to look at every argument put forth by both sides!  Parse out all the asserted reasons the government gives that the law should survive constitutional scrutiny.  The second health reason was the health of the baker themselves.  They put forth evidence to suggest that the dust from the flour causes lung disease and other ailments of the workers themselves.  Why did the Court reject that argument?  The Court said that in the case of mine workers, it makes sense that coal dust and other dangers constitute serious, pressing, and obvious safety concerns for the workers.  In that case, the Court would let the government interfere with liberty of contract under a strict scrutiny analysis.  But the Court finds a bakery too “run of the mill” to be interfered with.  The Court finds that the New York law is too “paternalistic”.


Lochner deals with sweatshops!  Some people think that law firms are like sweatshops.  What if the state of Ohio passed a law that capped the number of hours that a law firm could hire an associate for?  People could disagree about whether that’s good policy.  Should the Court get involved with this policy debate?  Holmes argued that this is exactly what the Court was doing and that they shouldn’t get involved in the legislative process.


Lochner is going to get repudiated in its entirety.  So why do we still need to study it today?  We need to look at the method the Court uses in reaching its decision.


What other interest did the state of New York assert to justify the law?  This is an early labor law.  This is an era of industrialization and big corporations of the time had a lot of clout and power.  Teddy Roosevelt came into office as a “trust-buster”.  This was also an era of unionization among workers, especially in unskilled occupations.  The state of New York said that working in a bakery is an industry with a disparity of bargaining power such that the employer has much more bargaining power than the employee.  Thus, they argued, the freedom of bargaining power was somewhat illusory.  They basically believed that Adam Smith didn’t apply to the modern industrial economy.  So they attempted to justify the law as a labor law enhancing the economic bargaining power of the workers.


So the Court said that the first two purposes were plausible, but the means of pursuing them were not narrowly tailored enough.  With respect to labor law, the Court said that it was not a legitimate purpose!  The “labor law” goal of trying to level the playing field between employers and employees was called antithetical to the liberty of contract!  The Court says that the labor law justification fails at the “goal” level.  Holmes was famous for saying that labor laws are per se invalid and that the Constitution protects capitalism as such.  Holmes though that the economic system was to be determined by the legislature.  Holmes’s dissent was sort of on a more “philosophical” level.


What was Williamson all about?  The Court upheld an Oklahoma law that said opticians cannot fit lenses.  In the old days, you might want to have your glasses fixed by putting old lenses in a new frame.  You had to get a new prescription to put old lenses in a new frame.  You had to go to the ophthalmologist or optometrist, not the optician.  The optician could have done it just as well, though.  This is an interference with the liberty of contract too!  What was the claim under the Due Process Clause?  Is this substantive due process or procedural due process?  The optician isn’t complaining about a lack of notice, for example.  They’re complaining that you shouldn’t be able to keep them from putting old lenses in new frames, period.


The important thing to understand is: you can’t line these cases up, Williamson and Lochner.  They are inconsistent in terms of reasoning.  All the arguments that the Court accepts in Lochner it then rejects in Williamson in the 1950s.  The Court has the opposite judicial attitude, bending over backwards to sustain a much sillier-looking law than the law in Lochner.  If the New York law gets rejected even as a consumer health measure, this one should be rejected too because the consumer health and safety explanation is very slim.  The Court uses the standard of being “rationally related to a legitimate purpose”.  The judicial mindset is totally different with Williamson than with Lochner.  In reality, the ophthalmologists and optometrists had better lobbyists than the opticians!  This was a way to line the pockets of the ophthalmologists!  The Lochner Court would have definitely struck this down.


The first thing we read this semester was an article about Justice O’Connor.  How come?  She is the swing vote.  Constitutional Law is made by human beings who make mistakes!  The only thing you need to know to explain the shift is the existence of the Depression and FDR’s New Deal and court-packing plan.  FDR thinks that laissez-faire is passé.  He wants labor laws!  He wants demand-side economics!  We want higher paychecks for workers!  We want to constrain the supply of labor in order to increase the price of wages!  The basic point is that the revolution in Constitutional Law under the Commerce Clause transformed Constitutional Law both with respect to federalism issues, and with respect to the Due Process Clause.  Lochner was thrown out the window along with the presumption for liberty of contract!  They don’t even talk about “paternalism”!  We’ll let democratic legislatures decide what sort of economic laws we’re going to have without the interference of substantive due process.  Any time that someone comes into the Court with a law that they claim violates substantive due process, the Court will say: “We don’t want to hear about it!  The government can do it if they want!”


What’s the status of the substantive due process doctrine today?  We’ll talk about it in terms of Griswold and Roe v. Wade, but what about in an economic sense?  So far, the Court hasn’t found the equivalent of Lopez that has reawakened Lochner the way that Lopez reawakened the old-style Commerce Clause thinking.  There have been some hints over the last decade, but nothing like Lopez.  The most important “hint” has been in the area of punitive damages.  In two cases, the Court has invalidated very large punitive damages awards as excessive: BMW v. Gore and another one (State Farm?).  The Court said that as a matter of the Fourteenth Amendment, they were going to impose a ceiling on punitive damages.  That sort of looks like Lochner coming back to life.  Is the problem of excessive punitive damages a substantive problem or a procedural due process problem of poorly-instructed juries?  That’s part of the debate, but we don’t need to worry about it for our purposes.


Over the next decade, these cases may be paving the way for a new case in the next ten years that repudiates the Williamson approach and says that contractual freedom is important and that certain laws are too extreme.  Foley thinks that there aren’t five votes in the Court yet.  People really hate Lochner.  They really, really hate it.  The New Deal has been changing in Commerce Clause law, but it hasn’t been changing as much in substantive due process.


Now, let’s turn to some more modern issues.


Griswold v. Connecticut – What is this about?  What are the facts and what is the constitutional question?  There is a law in Connecticut saying that you’re not allowed to use birth control.  Griswold is Exective Director of Planned Parenthood in Connecticut and helps couples with birth control.  The Connecticut law may be bad, but why is it a problem under the Constitution?  Is there a marital privacy clause in the Constitution?  No way!  It doesn’t exist!  At best, the right to privacy is implied.  But where?  It’s not in the Commerce Clause.


The Court adopts the “penumbra” concept.  Penumbra means “shadow”.  The Court finds a right lurking the shadows of the Bill of Rights.  The right of marital privacy is in the shadow of all the amendments collectively.  But how does that have anything to do with this Connecticut law?  Does the First Amendment apply to the state of Connecticut?  No!  Only to Congress.  The Third Amendment doesn’t apply to Connecticut either.  None of the provisions of the Bill of Rights actually directly apply to the state of Connecticut.   So if we accept the penumbra theory as a theory of the Bill of Rights, it would make sense to say that Congress has no power to pass a law that outlaws birth control.  Did they even have birth control in 1787?  James Madison would have felt that Congress had no business getting involved in such things.  Madison would think it was a state issue.  We can imagine that the Bill of Rights identifies some specific subjects that we’re “reminding” Congress that they’re not allowed to do.  Maybe marital privacy was something that Madison just forgot to include because he could never conceive of Congress interfering in that area.


But how does this affect Connecticut?  The Bill of Rights only applies to the federal government!  What about the Due Process Clause of the Fourteenth Amendment?


When James Madison sent the Bill of Rights to the states, he sent 12 provisions, only 10 of which were adopted.  The First Amendment was actually number three on the list.  Number two on James Madison’s list was adopted about 200 years later: the one about the compensation of congressmen.  James Madison’s number one amendment was a provision that said no state shall interfere with the freedom of speech and some other rights among the Bill of Rights.  The states said that the Federal Constitution shouldn’t tell states what they can and can’t do.  They felt that those rights should be protected by the state constitutions.  The structure of what got adopted in 1791 was a list of rights that Congress and the federal government can’t violate.  Whatever else the Ninth Amendment means, it only says that Congress can’t violate unenumerated rights.  So where else can we look to force the states to not do stuff?


This is the next key important point: the Bill of Rights doesn’t touch the states by its own force.  Nor does the Ninth Amendment touch the states by its own force.  But the Fourteenth Amendment incorporates the Bill of Rights!  The Fourteenth Amendment was designed to constrain and subjugate states!  The point is that the doctrine of substantive due process is used to take all the important rights of the Bill of Rights and funnel them into the Fourteenth Amendment to make them applicable against the states.  Some of the rights of the Bill of Rights are procedural rights.  But freedom of speech or freedom of religion are not procedural rights.  So maybe “penumbra” parts of the Bill of Rights are incorporated through substantive due process too!  But this is substantive due process!  The only reason we can analyze this Connecticut law against contraception is because of the substantive due process doctrine.  There is no specific provision of the Constitution that applies.  It’s a penumbra!  There also was no “freedom of contract” in the Due Process Clause, but Lochner incorporated that as a “liberty”.  Liberty of contraception may be different than the liberty of contract, but it seems to be a similar form of reasoning in this case as in Lochner!


How does the Court decide what rights are “living in the shadows” of the Bill of Rights?  That’s the big big question that we’ll spend our next two weeks on.  What rights are worthy of protection?  The repudiation of Lochner meant that the Court was wrong in thinking that the right of contract was especially important.  The received wisdom has been that the Court fundamentally made a huge mistake in that respect.  The Court “found a right in the shadows”, and it turned out it was wrong.  If the Court is going to be finding new rights in the shadows, we need to find out if the rights they find are the “right rights”.


What is the scope of Griswold?  What does the right of marital privacy entail?  What does it mean?  We’re not going to have police bust into someone’s bedroom and search for contraceptives.  But wouldn’t that also be covered under the Fourth Amendment?  Connecticut has made having birth control a crime.  Suppose that Connecticut found out somehow that a particular married couple is in possession of condoms, for example.  They fill out a warrant saying that they have probable cause to believe that a crime was being committed, namely, the possession of contraceptives.  So they get the warrant.  Would the execution of that warrant be an unreasonable search and seizure in violation of the Fourth Amendment?  Is the Court saying that this is a per se violation of the Fourth Amendment?  They wouldn’t need to rely on the penumbra theory if the Fourth Amendment covered this situation.  But the Fourth Amendment doesn’t apply.  What if the married couple didn’t have birth control, but rather LSD.  They claimed that LSD improved their sex life.  Does the Griswold privacy right protect the use of LSD in the privacy of the marital bedroom?  How do we know whether LSD is in the “penumbra” along with condoms?  Condoms are in the penumbra.  What about Viagra?  LSD doesn’t seem to be in the penumbra, though.  This is what we must think about.  Since the actual Constitution doesn’t tell us any of this, we need to reason it out to figure out what’s going on.


If the government learns that there is LSD in a married couple’s bedroom, that’s an illegal drug that’s not constitutionally protected.  If the police have a warrant to search that home for heroin or LSD or ecstasy, they can do that.  Griswold isn’t about the permissibility of a warrant.  It’s about what married couples can do in their bedroom that cannot be made a crime.  Some things can be made a crime even when they occur in a bedroom, but other things cannot be made a crime (like using condoms).  How do we reason out, in the absence of any constitutional text, what things the government can make a crime versus those things that they cannot make a crime?


Tomorrow, we’ll think about the relationship between Griswold and the abortion cases.  Consider the “morning-after pill”.  What’s abortion and what is contraception?


For this week, focus the most on Glucksburg v. Washington.  How do we identify which rights get protected as a matter of substantive due process?  Glucksburg is an important case for addressing that methodological issue.  It’s not the only one: Lawrence v. Texas is important too.  In fact, all three readings for the rest of this week are really setting the stage for an extended discussion of Lawrence next week.  We’re using a series of “stepping stones” to Lawrence.  Bowers is important, however, it gets overruled in Lawrence.


We left off talking about Griswold.  Now we will talk about the relationship of contraception to abortion.  To understand that discussion, Foley will give us a bit of history: the history concerning the status of Griswold.  Griswold was the main precedent relied upon in Roe v. Wade when the right to abortion was recognized under the substantive due process doctrine.  Some of the intermediate precedents had expanded the Griswold precedent from married to unmarried couples.  When, in the 1980s, the Reagan Administration and the Department of Justice under Attorney General Meese asked the Supreme Court to overrule Roe, there was a lot of discussion about what is right or wrong in Constitutional Law.  The question came up when President Reagan nominated Robert Bork for the U.S. Supreme Court when Justice Powell retired in 1986.  Bork was known to be an opponent of Roe v. Wade.  The Senate hearings discussed the extent of his opposition.  Sen. Specter in particular asked Bork whether he disagreed with Griswold also.  Bork said that he did disagree, saying that the entire doctrine of substantive due process was illegitimate, whether as articulated in Lochner or in Griswold.  Since neither contraception nor abortion is specified in the Constitution, Bork felt that there shouldn’t be any such rights.  Bork was rejected by the Senate, and then Kennedy was nominated.  He refused to take Bork’s position that substantive due process is wrong always and under all circumstances.  With respect to Griswold v. Connecticut, he clearly embraced the decision and accepted it as correct governing precedent.


The Senate accepted Kennedy even though he didn’t say what he thought about Roe.  Kennedy’s vote is the crucial vote in reaffirming Roe in the Casey decision.  Kennedy changed his mind about overruling Roe and joined a plurality opinion to sustain Roe.  So how do we understand the relationship of the Griswold decision to abortion?  Kennedy changed his mind about this: can the Constitution protect the right to contraception as Griswold holds, yet not protect a right to abortion as Roe holds?  Meese and others argued that the Court was not right to protect a right to abortion even though it was right to protect the right to contraception.


So what’s the difference between contraception and abortion?  Contraception is preventative, while abortion terminates an existing pregnancy.  However, it does prevent a birth.  Griswold prevented any form of birth control, including IUDs.  IUDs are considered a contraceptive in common parlance, but they work by preventing implantation, rather than preventing fertilization.  In some sense, that could be considered abortion rather than contraception depending on how you define things.  Also, the “morning after pill” works up to 72 hours after fertilization.  So some forms of birth control prevent fertilization and some do not.  We will find that viability becomes an important turning point.


Griswold did not decide the question of what should happen when a woman is 12 weeks into a pregnancy.  The Roe and Casey decisions cover a woman who is 12 weeks pregnant, but Griswold did not purport to cover such a factual pattern.  As far as the morning-after pill and IUD go, Griswold explicitly covers at least the IUD, even though it is post-fertilization.  But is RU-486 within Griswold or beyond Griswold?  Is it a Griswold-covered case or a Roe-covered case?  Does it make a difference when you take RU-486?  Where do we draw the line?  Should this be a purely legislative decision?  Is the Court simply making value judgments?


We must address this as a constitutional issue as lawyers.  If we suppose that the Court had overruled Roe in Casey, or if it does so in the future, and thus abortion is no longer protected, then what is the legally correct scope of Griswold?  Most people today, partly because of the history of Bork losing his nomination, say that Griswold has to remain accepted as Constitutional Law.  Purists like Scalia can no longer make it to the Court, and every nominee coming before the Senate must accept Griswold as good law.  Souter ducked the question.  But the political compromise in the Senate is the Griswold must stand.  If Roe were overturned, we would still have to figure out what Griswold would still mean.  One argument made in favor of Griswold and Roe as precedent is that these cases stand for a “zone of personal privacy” with respect to reproductive choices.  As long as these decisions stand, it is argued, the United States will never be like China where you may only have a certain number of children.


Scalia or Bork would say that this might be a wonderful right to protect, and we’re not China because our legislatures would not adopt forced sterilization laws.  However, they would argue that we don’t have protection in the Constitution against forced sterilization because that’s not in the Constitution.  They would say that we could amend the Constitution if we wanted to.  But the Constitution doesn’t dictate a specific answer!


If Griswold meant to protect the use of IUDs, then it must protect contraception/abortion for up to 72 hours after fertilization, according to Foley.  The language of Griswold focuses on privacy in the home, and in the bedroom in particular.  What is the impact of this precedent on the regulation of RU-486?  One of the virtues of RU-486 is that it can be available in an emergency when the need for contraception was not anticipated.


Just as Lochner was overruled, there is the chance for this branch of substantive due process to get overruled too.  But if Roe gets overruled, does the whole modern substantive due process apparatus fall as well?  Or will Griswold stand?  Does the Constitution protect sexual freedom on the one hand, or reproductive freedom on the other?  In the old days, sex and reproduction went together.  But with modern technology, we can have sex without reproduction and reproduction without sex.  Constitutional Law has to try to think through how to deal with these issues.


Stenberg v. Carhart – Why is this case important?  This is a case that could actually come up in practice.  It’s also a hard case to read.  It’s the most recent abortion decision from the Supreme Court.  This is a hot issue.  There’s also a new statute that Congress has enacted that purportedly bans “partial birth abortion”.  Some see this as a direct challenge to Stenberg.  This statute is in trial in three different districts, including Nebraska.  Does Congress have the power to take a second look at Stenberg?  It’s likely that this current litigation will work its way back to the Supreme Court.  It’s sort of a Marbury v. Madison issue, too!


So why did the Nebraska law fail?  It didn’t contain a health exception, but only a life exception.  Also, the Court believed it might affect two different abortion procedures and not just one.  There’s D & E and D & X.  D & E is much more common.  D & X involves taking the fetus out and then destroying it.  D & E basically involves destroying it then taking it out.


The Nebraska law applied both pre- and post-viability.  But you can’t ban all post-viability abortions unless you have a life and health exception.  To the extent that D & X is necessary to protect the health of the mother, it can’t be banned.  To the extent that it’s not necessary to protect the health of the mother, it can be constitutionally regulated or banned.


Basically, if anybody thinks that D & X is ever medically necessary, then you can’t ban it.  The dissent says that most reputable doctors say that D & X is never really necessary, and so states should be able to outlaw it if they want, especially because D & E is another choice.


O’Connor sided with the liberals in this case.  In Casey, she upheld significant provisions of the Pennsylvania law that the liberals wanted out.


What do we make of all of this?  How do we know, under constitutional law, whether the majority or the dissent is right?  Is there an answer on the face of the Constitution?  No way!  The Constitution is silent.  What about the Court’s precedents?  Kennedy and O’Connor part company and both claim that they are the “true follower” of Casey.  Both O’Connor and Kennedy also claimed to be the true adherents to Powell’s opinion in Bakke.  The two middle-of-the-road justices in the current Court both claim the authority to be the moderate “voice of reason” here.  Is it possible for us as lawyers to make a judgment on that debate in terms of which side is being more faithful to the precedent?  Does the precedent provide an answer to the question, or is it sufficiently indeterminate so that both sides can claim to be right?


What is the “undue burden” in Stenberg?  It’s an undue burden on reproductive rights.  One of Scalia’s criticisms is the vague nature of the undue burden test.  Some of the more liberal members don’t like the undue burden test, but made the compromise to get the votes in Casey.  They would prefer the strict scrutiny test.


Washington v. Glucksberg – This is an assisted suicide case.  It’s another sensitive, difficult issue.  Here’s a trick question: what does terminal sedation mean?  If a patient is terminally ill and suffering a lot of pain and needs painkillers, one medical practice is to give increasing doses of painkillers to try to alleviate the pain.  But if the pain is really, really bad and there’s no other form of treatment, in order to give adequate pain medication needed to relieve the pain actually causes the patient to go into a coma (to be sedated).  The only way to take the patient out of the coma would be to withdraw the level of painkiller.  That puts the doctor in a bind.  Addressing pain means the patient must go into a coma.  What doctors will sometimes do in those situations, if it’s according to the patient’s wishes, is that they’ll administer the degree of pain killers necessary to avoid the pain and then cause the coma.  Since that’s irreversible in the sense that the only way to reverse it would be to bring back the pain, then the patient may authorize the doctor to withdraw life support after the coma has been entered into.  So it’s kind of a roundabout way to euthanasia.  Is this the same or different from physician-assisted suicide?  How does that factual question relate to the legal question of the right to physician-assisted suicide and whether there’s no right to terminal sedation?  Can states outlaw terminal sedation if they can outlaw physician-assisted suicide?


With terminal sedation, the patient dies of the original illness (or dehydration) while in physician-assisted suicide death is caused by a drug overdose.  Suicide is not considered acceptable, but refusing treatment is considered acceptable.


It’s hard to read this decision and figure out what the state of the law is in light of this verdict.  This is a 9-0 decision!  But there are lots of different concurrences.  Rehnquist gets five votes, but if you take O’Connor’s concurrence and add it to Breyer’s separate concurrence and the other separate opinions, you’ll see that there are five votes scattered about that go out of their way to address the pain killing and terminal sedation idea.  If you add them up, they seem to say that they are sympathetic to the notion that there would be a constitutional right to receive as much pain medication as you need to avoid pain even if the consequence is that it causes sedation and thus the withdrawal of life support.  However, they would only acknowledge that this right exists for competent patients.


We’re going to look at the Glucksberg-related list.  What if you refuse, while conscious, to be hooked up to artificial respiration?  Do you have a constitutionally protected right to be hooked up in that sense?  Yes!  It’s just the same as refusing food and water.  But where does that constitutional right come from?  If you had to write a brief on this, what would you point to that shows that this right exists?  You could cite to Cruzan.  In that decision, we assumed that the United States Constitution would grant a constitutionally protected right to refuse life-saving hydration and nutrition.  That case might not explicitly reference artificial respiration, but you can certainly draw the parallel.  But there isn’t going to be anything on the face on the Constitution that says that there is any such right.  This is a substantive due process right.  Cruzan is a Supreme Court precedent that acknowledges this right.  But the Supreme Court hedges on Cruzan slightly.  After Glucksberg, though, the assumption is pretty strong.


What gives the Supreme Court the power to say that substantive due process provides for this specific right?  They point to history and tradition.  The Court finds that tradition shows a recognized right to personal physical integrity.  For example, the common law tort of battery shows that it is considered a wrong to touch someone in any way without their position.  Then again, a battery statute could be passed to exclude doctors protecting life.  The Court suggests, however, that this statute may be unconstitutional under substantive due process.  A common law idea that has been around from time immemorial may take on constitutional status!  Wow…


Why should tradition and history be a guide in answering substantive due process questions?  What is important about history and tradition?  Slavery is part of our history and traditions!  Dred Scott was the first substantive due process case!  The Due Process Clause of the Fifth Amendment was used to say that Congress had no right to disallow slavery in the new territories.  A slaveholder claimed that slavery was protected by the Constitution under the Due Process Clause!  So should tradition really be the benchmark for evaluating substantive due process claims???  Maybe it can be argued that the good parts of our country come from innovation rather than looking backwards.


Recall that the Cruzan case represented a situation where the patient was in a coma and she hadn’t given any advance directive.  There was a debate over what her wishes and intentions were.  If you’re unconscious and injured, emergency medical personnel will default to helping you out if they have no information to the contrary.


Scalia would say that if you could find the existence of a tradition at the most specific way you could articulate it, that was the tradition that the Court was bound to follow, even if you could articulate a more general tradition.  The reason to adopt this approach would be to make justices more objective and less dependent on their own preferences.  If they could choose to look at their judgments more broadly, it would be easier to find a tradition that fits your particular preferences.


Justice Brennan says that the right level of tradition shouldn’t be found just in terms of specifics, but in terms of the general idea that the Constitution is supposed to protect liberty and protect minorities against the majority.  Thus, it would be argued, that we should look at the spirit and purpose of the Constitution when searching for tradition.  Therefore, don’t worry about the narrow historical record.


Casey rejects the notion of searching for tradition at the narrow level and instead says that the Court’s cases aren’t consistent with that.  With respect to the right to marry, in Loving v. Virginia, involving interracial marriage, the Court said that if we look at tradition narrowly, American history supported a narrow conception of marriage and allowed the states to punish interracial marriages and make them crimes and that that tradition existed for long periods of time after even the Civil War and the Fourteenth Amendment.  But in Loving, the Court didn’t look at tradition narrowly, but rather it adopted a more expansive view of tradition, allowing a broader understanding of reproductive freedom.


Scalia’s rejoinder on Loving would be to say that it was true that the Court relied in part on substantive due process, but the Court could have relied just on Equal Protection Clause and the fact that racial discrimination is unconstitutional.  Scalia would deny that substantive due process was necessary to reach the decision!  Therefore, he would say that you shouldn’t use that precedent to justify a more expansive interpretation.


The Constitution expresses sets of competing values!  The liberal justices argue that the Constitution is a document that advocates for liberty on its face.  Souter, in particular, argues for a more philosophical and a less history or tradition-oriented approach.  The “exercise of human reason”, it is claimed, can identify objectively right answers to these questions.  The use of human reason can discern when liberty should be protected in a fundamental way.  Justice Harlan talked about the use of “reasoned judgment”.  But the Glucksberg majority rejects this approach.  Several leading American moral philosophers wrote an amicus brief in Glucksberg.  John Rawls, Ronald Dworkin, and some other leading philosophers advocated the view that reason shows that physician-assisted suicide is no different morally than refusing treatment, as in Cruzan.  The majority opinion in Glucksberg emphatically rejects the pure philosophical approach to substantive due process.  They say that it doesn’t matter what the philosophers say, because they can’t use the concept of due process to override the judgment of legislatures.  There is a great tension between the approach the Court takes in Glucksberg versus the approach the Court has taken in the abortion cases so far.


Lawrence v. Texas – What constitutional right does the Court protect in Lawrence?  They say something about “liberty”.  But what liberty in particular?  How do we distinguish under the Constitution between prostitution and what was going on in this case?  There are forms of intimate or close friendship which don’t lead to intimate sexual relationships.  Prostitution is just about sex and money rather than love.  The rhetoric of the majority opinion talks about “defining oneself” and one’s identity.  It’s a kind of romantic opinion in some sense: the Constitution is said to protect romance and not just sex.  Is casual sex outside the scope of Lawrence?  Could there be statutes that mandate a waiting period before you could have sex?


Kennedy says that it’s about people developing their own identity and how they will live their own lives.  Casual sex may not be for everybody, but we say that that’s liberty and you can choose to live the way you want.  But then why don’t we include prostitution?  Not everyone may choose to be a prostitute or engage the services of a prostitute, but if they do, why isn’t it covered?  Why can’t the Constitution be construed to say that there is a theory of consent, and without any specific indications that a particular prostitute is incapable of consent, we will presume that prostitutes and their clients are capable of consent?


Prostitution has been outlawed for a long time.  But so has sodomy.  That fact was used by the Bowers Court.  Now, the Lawrence Court repudiates history and tradition as a guide.  If we we’ll look at tradition sometimes but not other times, we need a principle to tell us when we’ll look at tradition and when we won’t.  How do we know whether we should go down the “tradition road” versus the “non-traditional road”?  “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.”  What else are we supposed to consider?  History and tradition are the ending point in some cases.  We need two more things: (1) we need the principle that will tell us whether to stop at history and tradition for some cases but not others, and (2) once we’re thinking about stuff other than history and tradition, we need to know just what else we’re going to think about!


The opinion talks about recent history in two different ways.  First, it talks about the recent history of decriminalizing sexual acts.  Then, since the 1970s a minority of states has passed a law like the one in Texas that just punishes gay sex but not heterosexual sex.  The old history in America had not been to discriminate against gays as such.  The laws were more generalized “anti-sex-as-fun” laws!  There were sodomy laws since the colonial era, right up to the post-Civil War era and after.  So there has been a trend of liberalization, but also a trend of targeting gay sexual relations in particular for legal condemnation.  Is it so clear that the trend among the states speaks in favor of what the Court is doing here?  This decision doesn’t protect prostitution, but it does protect casual sex that isn’t prostitution.  How do we explain this?  History and tradition don’t seem to do it.  If the state’s interest is morality and that’s not good enough to uphold sodomy laws, then why is that good enough for prostitution?  Maybe the exchange of money is seen as demeaning sex.  Why does Nevada permit prostitution while other states ban it?


Most people historically have thought that marriage is about love and romance and stuff.  But there are also economic analyses of marriage.  It’s not just a social relationship but also an economic relationship!


Why can’t states have the right to declare that gay sex or sodomy is wrong when they can have the right to say that prostitution is wrong?  How do we know what the Constitution says?  The Constitution doesn’t say anything about it, at least not directly.


One of the things that Lawrence talks about is the right of two individuals to engage in intimate relationships at home.  But why two?  Why not three or four?  Where does this come from in terms of tradition or reasoned judgment?  Maybe we can dignify group sex/intimate relations/marriage with constitutional protection.  The Court has held that the Constitution doesn’t protect polygamy, but that case was from the 19th century.  If there are some American citizens who believe polygamy is appropriate, how can we say that the Constitution does not protect polygamy when it protects sodomy?


If the point of Lawrence is that the culture is now more open and doesn’t think that homosexuality is wrong, to what extent do we need the Court interpreting the Constitution to decide these cases?  If that’s the cultural view, then presumably the democratic system will sort it out.  But Texas doesn’t have the same social views as Massachusetts.  Should they be allowed to have different views and different laws in their state?


So what about gay marriage?  Foley says that the majority in Lawrence does not mean to say that the Constitution gives gays the right to marry.  But how can the Court justify that intellectually?


So does the Federal Constitution require a state to extend the right to marry to homosexual couples on the same terms that it grants such rights to heterosexual couples?  The majority isn’t explicitly ready to take such a step.  The opinion suggests sort of the reverse of Grutter’s sunset provision.  Maybe in 25 years, gay marriage will be allowed.  How can this be justified as a legal judgment?  The individuals who are on the Court now would vote to say that the Constitution doesn’t require equality of marriage as a matter of Con Law.


Will the justices not enforce the Constitution because they’re not ready to?  The Court doesn’t claim that the Constitution has evolved between Bowers and this case.  They say that they misunderstood the Constitution back then but they understand it correctly now.  What about the equal protection argument?  Would a law against polygamy create a suspect classification on the basis of “plural marriage”?


This opinion is not understood to grant a right to gay sex inside of marriage.  That’s the correct analysis of Lawrence today.  Is that the correct application of constitutional reasoning?  Is this really constitutional interpretation, or is this just judicial fiat?  Every opinion except for Thomas’s addresses gay marriage.  Are these judges 17 years more “advanced” than the Bowers Court?


This is a criminal law with criminal consequences attached.  Liberty is really at stake.  People could go to jail.  People could be labeled sex offenders.  With respect to the Lawrence majority, if a law is only motivated by a moral purpose with no constitutional standing, it flunks.  As far as O’Connor goes, equal protection applies to civil law.  O’Connor says that it’s a violation of the Equal Protection Clause to deny gay citizens of Texas of intimate relations.  Wouldn’t it be the exact same denial of equality to say that gays can’t marry?  Is the Supreme Court really doing its job of interpreting and enforcing the Constitution?  Did the justices willfully subvert the Constitution?  That seems quite unlikely.  But we seem to like Lawrence.  There hasn’t been an argument that what the Court has done is appropriate.  Some people shed tears of joy when this case came down.  Some people really believed that this was a vindication of how great the Constitution is.


Foley says that the majority is saying that this case is about love and intimacy and people being able to find themselves.  Why not marriage?  The reason of why not is not a reason of Constitutional Law, but rather a pragmatic reason.  What should the justices have said in Lawrence?  Shouldn’t constitutional questions have answers, at least in principle?  When we argue about the Constitution, we act like the Constitution has the right answers, even if we disagree on them.


What do we get out of Griswold?  Here’s one way to understand Griswold and the concept of “unenumerated rights”.  James Madison, when he wrote the list of rights in the Bill of Rights and submitted it to the states, did not include a right of marriage because he thought it was so obvious.  The idea that Congress could take that right away was so far fetched that there was no reason to say anything.  He talked about the things that people were afraid that the American government would do because tyrannical governments like the British government did them.  He also said: “This isn’t a complete list of all the things that tyrannical governments do.  The Ninth Amendment says that there are other rights that should be protected but aren’t listed.”  If you asked James Madison whether the right to marry was fundamental, he would say: “Absolutely.”  Once the right to marry is worthy of constitutional status, then a new aspect (contraception) comes along and you can argue that it must be protected as part of that essential right.  That would be a way to understand Griswold, at least narrowly.  That’s a way to add a constitutional right even thought it’s not mentioned.


It’s harder to make that kind of James Madison argument with respect to homosexuality.  Madison would have said: “Of course we’re not protecting gay marriage.  The right of heterosexual marriage is protected.”  But what about Loving v. Virginia?  Madison would have said that miscegenation laws are okay.  But we could argue that the Equal Protection Clause of the Fourteenth Amendment came along later.  But then Bowers makes sense on its own terms when it refers to American history and tradition.  The kind of move that you can make with respect to race discrimination in Loving is hard to make in terms of gay marriage.  What reasons justify the Court for the two things it does in Lawrence?  It makes a substantive ruling and it overrules precedent.


Equal protection would have been a narrower ground for decision here.  Foley predicted that the majority would go with O’Connor.  The majority went out of their way to embrace the substantive due process issue.  They wanted to go out of their way to show that laws like the Georgia law (against sodomy regardless of sexual orientation) were unconstitutional in addition to laws like the Texas law (only against homosexuals).


Lofton v. Secretary of the Department of Children and Family Services – We’ll keep Lawrence fresh in the back of our minds.  But let’s get the facts of this case out on the table.  What’s going on?  What are the facts, and what is the constitutional question?  A Florida statute prohibited homosexuals from adopting children.  There were some gay couples who wanted to adopt, so they challenged the statute on constitutional grounds.  Were there any exceptions to the prohibition?  No.  It was an across-the-board prohibition.  Under no circumstances whatsoever could a gay person adopt.  We are told that the law only applies to people who are actually “practicing homosexuals”.  If you’re not celibate, and you’re gay, you’re not allowed to adopt.


What about the constitutional issues?  The statute is challenged under due process and equal protection.  It is claimed that the statute violated family integrity and that it also went against the holding of Lawrence.  There are two substantive due process issues.  What’s the difference between the two?  With the family intimacy issue, there is case law from the U.S. Supreme Court under substantive due process that protects certain kinds of family rights.  Some of the cases are very old!  The cases deal with interference into family liberty and autonomy.  Lofton as a foster parent had entered a relationship with the child.  He claims that this law interferes with that relationship.  If that’s the family substantive due process argument, what’s the other one?  They argued that Lawrence created a fundamental right to sexual intimacy.  If you must be celibate in order to adopt, that limits your sexual freedom.  What’s the equal protection claim?  They claim that the means don’t fit the ends.


One additional fact about the claim is that with respect to Lofton, the department of the Florida government that deals with adoption periodically reviewed him and said he was doing a great job.  The agency went beyond that too.  There was a finding by the social workers in the agency that it would have been in the best interest of the child to be adopted by Lofton.  There were factual findings in this case that he would be a good permanent parent for the child.  But the prohibition is categorical and doesn’t allow exceptions case-by-case.  The court says that it doesn’t matter that he is the best parent!


Is this decision consistent with the majority opinion in Lawrence?  Lawrence doesn’t control because it didn’t involve adoption.  It involved the criminal prohibition of sodomy.  The court says that Lawrence is irrelevant.  Lawrence may still be in play in some way.  It’s germane to the discussion even if it’s not the exact same factual pattern.  Is the Eleventh Circuit opinion consistent with the “spirit” or “mindset” of Lawrence?  Lawrence didn’t articulate a fundamental right.  Are the Eleventh Circuit judges doing their job here?  If Justice Kennedy had come to sit and decide this case, would he have written the same opinion with the same tone as the majority here?


The Eleventh Circuit is resistant to Lawrence in a way.  This isn’t what Kennedy would write.  Are the Eleventh Circuit judges doing their job properly?  Lower court judges will often disagree with Supreme Court decisions.  But is it proper for lower court judges to fight the precedent from on high simply because they don’t like it?


Isn’t there a doctrine that says if Congress acquiesces in a Supreme Court understanding of a statute, then that’s that?  The Florida legislature doesn’t have the last word on this as to whether their actions violate the Constitution.  The proper conclusion may be that no federal constitutional right has been violated.  But the legislature won’t have the last word.  The U.S. Supreme Court will have the last word.  Isn’t it the job of the lower court in the absence of the Supreme Court decision to try to anticipate it?   But we believe in precedent.  We don’t have a civil law system like in Germany or France.  Precedent has two functions: it is supposed to bind the court that issues precedents, and it is supposed to also bind lower court judges to follow it unless and until it’s overruled, whether they like it or not.  Lower court judges are not allowed to think of themselves as interpreting the Constitution directly; it’s not just them and the document.  They must ask: “What does the Constitution mean as interpreted by Supreme Court precedent?”


Would other Supreme Court justices from the majority have signed on to the Lofton opinion?  No way!  Breyer, Souter, Stevens, and Ginsburg would find this opinion to be an inaccurate statement of the law that they would not subscribe to.  O’Connor probably wouldn’t sign on to it either.  Does that mean that the Court will grant cert here?  Not necessarily.  The Court doesn’t feel that they have to be principled as far as granting certiorari.  It may be debatable whether Lawrence is principled in that respect.  The Court feels free to be very strategic about granting and denying certiorari.  Congress has granted them very wide powers to look at or not look at cases.  If the Court is just “not ready”, they don’t have to look at a case.  Foley thinks that it’s unlikely that this case will be granted cert because he thinks the Court will let Lawrence sit out there for a while.  But he thinks that the people who wrote Lawrence, if they did grant cert, would not sign on to the Eleventh Circuit opinion.  Scalia, Rehnquist and Thomas would have no problem signing on to it.


Last year the Supreme Court got so mad at the Ninth Circuit that they summarily reversed three Ninth Circuit opinions on death penalty cases.  The judges in the Ninth Circuit openly acknowledge that they won’t follow Supreme Court decisions that they disagree with because they don’t agree with their conscience.  So Foley says that the Eleventh Circuit self-consciously knows that they are difference from the Lawrence majority.


When the U.S. Supreme Court issued the initial school prayer cases and said that prayer in public school was a violation of the Establishment Clause of the First Amendment as incorporated into the Fourteenth Amendment, there were federal judges who said they wouldn’t follow the precedent.  What if you think the U.S. Supreme Court really got it wrong?  What do you do?


One final thought about substantive due process: hopefully this will provide some comfort.  Foley has been studying this for 20 years.  He thought it was fascinating, especially the abortion issue.  He took several classes that related to substantive due process.  He still doesn’t feel like he really understands substantive due process!  He feels like he understands it better than in law school, and he’s published articles on the subject.  Maybe other people can figure it out, but he’s at a point where he feels that it’s an inherently insoluble problem.  Some students have observed that the Court’s methodology in Glucksberg seems inconsistent with its methodology in Lawrence, for example.  Can we tell which way the Court will go in the future?  Foley doesn’t think we can, though Lawrence is the more recent decision.  They seem to choose their approach based on whether they want to grant or deny a right.  Basically, don’t worry if you’re anxious about substantive due process.  Nobody really understands it.  The constitutional meaning of liberty will take on many different viewpoints.  Lawyers will have debates about how to understand the constitutional protection of liberty without any further specificity in the Fourteenth Amendment.


The state action doctrine


These issues apply to the substantive due process concept and the procedural due process concept.  We may get a state action question in practice.  The state action doctrine is that the provisions of the Fourteenth Amendment only apply to state actors (state governments and their subsidiaries, including local governments).  So these provisions only apply to people like the governor, attorney general, or some other state actor.  You can’t sue the Ford Motor Company, for example, for violating substantive due process.  There are provisions of statutory law that apply to the private sector, but in order to prevail on a Fourteenth Amendment claim, you must be suing the government.  That’s also true of any provision of the Bill of Rights as incorporated through the Fourteenth Amendment.


Look at the example of campus speech codes: are “civility codes” an infringement on the freedom of speech?  There was a big debate about this at Stanford.  They talked about free speech as an issue.  But the First Amendment freedom of speech as law does not apply to Stanford University, because it is a private university, not a public university.  On the other hand, OSU is part of the Ohio state government, and we’re bound by the First and Fourteenth Amendments.  Whether a campus civility code is applicable to a state university is a real issue.  On the other hand, it’s merely a moral principle when applied to a private university.  The state action doctrine is very crucial in defining the scope of constitutional rights protected by the Fourteenth Amendment.


If you ever get a state action doctrine question in practice, look it up in Chemerinsky.  The reason there may be questions is that there are exceptions or “wrinkles” to this idea.  Sometimes the conduct of a private entity is still attributable to the government, and thus that private entity is considered a state actor even though it’s technically not the government.  It is useful to think of this as an exception to the general rule that you can’t sue Microsoft, for example, under the Fourteenth Amendment.  The two exceptions are clustered under two categories: (1) the public function exception and (2) the entanglement/entwinement exception.


The public function exception says that private entities, typically corporations, act in a way that you would expect the government to do.  Take as an example a “company town”.  If a company owns a whole town, that company is really acting like the government for that municipality.  Since cities are considered arms of state governments, we’ll say that this privately-owned city can be sued just like the state government for violating the Fourteenth Amendment.  That’s one kind of exception.  There are pressure points put on this doctrine: consider, for example, Easton Town Center.  It’s a mall, but it’s not enclosed.  It’s outdoors.  Would the corporation that owns Easton be considers an arm of the government because it controls the “streets” of Easton and runs security there?  Foley believes that because it isn’t really a town it wouldn’t be considered to be like a city government.  The rule would apply: you can’t sue Easton for violating the Fourteenth Amendment.  If, on the other hand, Easton developed such that it had its own schools, homes, and so on, then it’s possible that it could be found to be performing a public function.  The entanglement exception says that if the government contracts out one of its functions to a private entity, that entity will be considered a state actor only in terms of the action it performs for the government.


The precedents that exist cannot be reconciled into a coherent whole.  The “liberal” position attributes state action to more private entities.  The heyday was during the Warren Court, which was very aggressive in asserting civil rights and trying to eliminate discrimination.  That Court was more inclined to find the existence of state action if facts warranted it and say that a particular private entity is doing what the government “used to do”.  Consider the example of “white flight” to private schools: are these schools really private, or are they taking over the public school system?  There were a series of liberal precedents.  On the other hand, the Rehnquist Court has been much more conservative.  They have rolled back many of the previous Court’s decisions.  So if you find a great case from the Warren Court that seems to support your client’s position, you must take it with a grain of salt, thinking about how the modern Court would regard its earlier decision.


The most recent case involving the state action doctrine was Brentwood Academy, a 5-4 decision that was a “liberal victory”, with O’Connor joining the “liberal wing” of the Court.  The Tennessee Secondary School Athletic Association accredited high school sports programs.  There was litigation between the Academy and the crediting agency.  The argument was that the Athletic Association was taking on a public function and acting in a public capacity.  The Court distinguishes NCAA v. Tarkanian, which was an earlier Rehnquist Court decision.  The bottom line seems to be that most of the schools regulated at the high school level are public schools.  So anybody who is charged with accrediting and regulating high schools is performing a public function, according to the Court.  At the college level, however, there’s much more of a split between public and private schools.  Therefore, the NCAA is taken not to be performing a state function.


What kinds of questions will the Court want to ask at oral argument of the respondents?  What constitutes express authorization by Congress?  That’s an issue from Youngstown Sheet.  The use of force statute doesn’t say anything about detention specifically.  Maybe we have two different statutes that point in opposite directions, and we could construe either one of them to be controlling if we wanted to.  Both statutes can be interpreted to apply, and they conflict.  Maybe we’re in the Youngstown Sheet twilight zone!  Neither side wants to argue that we’re in the “maybe” box.  One side wants “yes”, and one side wants “no”.


The Justice Department wanted extra powers to deal with terrorism in light of 9/11.  The PATRIOT Act is a big law.  The Act expires on its own terms.  It provides the President a lot more ability to investigate foreigners.  How will the PATRIOT Act come into play?  It might put us more in the “twilight zone”.  What if Padilla was a member of al Qaeda?  Would that be enough to give the President authority?  What about Quirin?  That person was a member of the German Army.  It’s different being the German Army versus membership in al Qaeda because Germany is a country with a real army and al Qaeda is not a country.  But if Congress has said that we’re at war with this paramilitary organization, then it would be argued that membership is enough.  There is a lot of back-and-forth that will go on.  This would be a harder case for Padilla if he were a member of al Qaeda.  The other tricky hypothetical would be if Padilla had been captured with the equipment necessary to build a dirty bomb.  There must be some inherent authority of the executive branch to protect the United States from radioactive bombs blowing up.  It would justify some kind of original, temporary detention.


There are two big issues: the detention is of a unilateral and indefinite nature based on whatever evidence he thinks is appropriate without any judicial review.  On the other hand, you must wonder to what extent the Court would be comfortable saying that there is no military jurisdiction at all.  If the military had no role to play, then someone who was working for a military power in an effort to blow up buildings and kill people and who was caught is not subject to military authority.  What the Court may do is rest on the fact that we have neither membership nor any overt sign of belligerence.  Either one by itself would be enough, perhaps even in the “twilight zone” if that’s where we are.  If the government catches someone who is a member of a military organization that we are at war with, or if they’re caught red-handed engaged in a military operation pursuant to the orders of that organization, then either one of those facts might give the President sufficient authority.  Padilla wasn’t caught red handed.  He also isn’t alleged to be a member.  In the absence of either of those facts, the Court may say that he has to be prosecuted in civilian courts.


The Court may be nervous about accepting the government’s position in Padilla in terms of the unilateral authority the President is said to assert.  There are implications for this in terms of the idea of liberty in the Constitution.  The Court is going to go back into history to reach some judgments about what is the appropriate position it should take.  If the Court says no to the President in Padilla, that would be a historically significant act for the Court to take.  Foley says that Padilla feels like a really big case.


By 1984, the Warren Court seemed like ancient history.  But the distance between the Warren Court and 1984 is the same twenty years between the Burger Court and today.  In 1984, we had no Lawrence, no Lopez or Morrison, and no Printz.  Constitutional Law ebbs and flows in ways that are difficult to notice at any one moment.  In terms of Separation of Powers, these cases about being in war weren’t important.  When you get a case like Padilla that links back to the earlier periods like 1944, you find that there are some big themes that stay constant in Constitutional Law even though it ebbs and flows.  Some cases strike at the core of what the country is all about.  There were two big developments during World War II.  Korematsu is thought to be a terrible mistake.  Barnette was a First Amendment case that was a great victory for liberty.  It was a decision that said that schoolchildren can’t be kicked out of school for failing to salute the flag.  Initially, they were ordered to salute the flag, but the Court said that the concept of liberty in Constitutional Law is strong enough to allow that dissent.  Robert Jackson wrote the majority opinion in Barnette and wrote the dissent in Korematsu.  He seems to write opinions with extra power and insight.


The point of Jackson’s dissent in Korematsu was that the courts sometimes can’t stop armies from doing what they need to do.  In Barnette, Jackson told us that the role of the courts and the Constitution are to protect those things that are beyond voting.

[1] Important lesson: if you’re talking to another lawyer and you’re not sure if you’re both talking about the same thing or you’re not sure what words to use, you should take note.