Constitutional Law
Outline – WORK IN PROGRESS
Table of Contents
“Facial” versus “as-applied” challenges
The political question doctrine
Under-inclusiveness versus
over-inclusiveness
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
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!
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
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
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
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
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
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 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.
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
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
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
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
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.
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
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):
- 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).
- Congress cannot “commandeer” state officials as agents of the federal government.
- 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.
- Congress may prohibit the states from doing things, but not require them to do things.
- Congress cannot force states to undertake specific actions vis-ŕ-vis their own citizens that are inconsistent with a state’s status as a sovereign.
- 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.
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 |
|
Prohibitions |
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.
Does Congress have the power under Article I and the
Twenty-First Amendment to “encourage”
The Court says that
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.
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.
Appellant
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.”
Appellee
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
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:
- Is § 666 ever unconstitutional?
- 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”?
- Furthermore, what percentage of the statute’s coverage is constitutional versus unconstitutional?
- 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
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
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
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
(1) You gotta know the facts on the ground. (2) You
gotta look at constitutional purposes and objectives.
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
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
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
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.
(1) Are the
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
Thus
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
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
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
For example,
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
What behavior does the drug companies claim is being
regulated outside of the state? They
make an extraterritoriality
claim. They claim that
If the companies were right, they would win. But the Court unanimously rejects this
idea. They say that
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.
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
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
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
Let’s compare this to the West Lynn Creamery situation.
In Exxon v. Maryland,
if you don’t own a refinery in
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. –
Does the
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
The
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
Does it discriminate against
interstate commerce? No, because nobody, including
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
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”. “
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!
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
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.
- It would be politically embarrassing to have an Enron person advising energy policy.
- 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.
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?
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.
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
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
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).
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
Does Congress have the power to say that there may not be
any single-sex colleges in
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
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
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.
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
What about the policy of citizen soldiers?
Suppose there is a school district in
Here is the comparison to Beazer:
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Mentally retarded |
Recovering drug addicts |
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Housing |
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Jobs |
? |
Beazer |
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”.
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
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
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.
Grutter v. Bollinger – What is the
constitutional question in this case?
The plaintiffs claim that Grutter was denied
admission to the
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
Both
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
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
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
The Court seems to say that
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
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
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
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
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
Gratz v. Bollinger – The holding is pretty
clear: the undergraduate program at
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.
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
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
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
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.
The cases that we’ll talk about today will most define the
current thinking about constitutional law in the
Lochner v.
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
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
Lochner
deals with sweatshops! Some people think
that law firms are like sweatshops. What
if the state of
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
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
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
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.
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
But how does this affect
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
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?
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
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
Scalia or Bork would say that this might be a wonderful
right to protect, and we’re not
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
So why did the
The
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
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.
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.
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
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
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
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
So what about gay marriage?
Foley says that the majority in
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
This is a criminal law with criminal consequences
attached.
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
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.
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
Lofton v. Secretary of
the Department of Children and Family Services – We’ll keep
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
One additional fact about the claim is that with respect to
Lofton, the department of the
Is this decision consistent with the majority opinion in
The Eleventh Circuit is resistant to
Isn’t there a doctrine that says if Congress acquiesces in a
Supreme Court understanding of a statute, then that’s that? The
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
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
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
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
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,
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
The most recent case involving the state action doctrine was
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
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
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,